ISLAMABAD:
The Supreme Court has ruled that when a wife seeks dissolution of marriage on grounds of cruelty, khula should not normally be granted without her consent.
“We hold that khula should not ordinarily be given without the wife’s consent or clear choice where she has sued on grounds of cruelty and valuable economic rights are involved,” said a 12-page judgment authored by Justice Shahid Bilal. He was part of a three-judge bench headed by Chief Justice of Pakistan Yahya Afridi.
The case related to a dispute where the wife filed a suit in a family court alleging dissolution of marriage on the ground of cruelty, along with recovery of 30 tolas of gold as dowry or its market value, and maintenance from the date of neglect till the decision of the suit.
The judgment said where cruelty is not proven and marital life has clearly broken down, the court must allow the wife to choose whether to proceed with the rejection of her claim or accept the dissolution of the khula, rather than forcing the restoration of a relationship that has ceased to exist in substance.
It noted that cruelty is no longer limited to visible physical abuse alone; it extends to persistent humiliation, coercive control, emotional abuse, deprivation, indignity and behavior that makes cohabitation unsafe or intolerable.
Mental cruelty has similarly been legally recognized to include emotional torment, studied neglect, and conduct that causes deep distress to the spouse.
“We can further clarify that allegations of cruelty arising within a domestic relationship may take on a distinct legal character depending on the forum in which they are asserted.
“Where such allegations are raised in a family court under the Dissolution of Muslim Marriages Act, 1939 or related matrimonial jurisdiction, cruelty is investigated as a civil matrimonial wrong, the purpose being the determination of marital status and consequent civil rights,” it said.
In such cases, the court said, the case must be judged by the standard of preponderance of probabilities. Conversely, where the same or similar acts are prosecuted under criminal law, including statutes relating to domestic violence or other criminal acts, the charges are in the nature of criminal acts with criminal consequences.
“[Such acts] must therefore be established in accordance with the heightened standard of proof beyond a reasonable doubt,” it adds. The court emphasized that the two jurisdictions serve different purposes and that their thresholds of proof must not be confused.
Family courts must remain careful not to import criminal evidentiary standards into civil matrimonial cases, lest relief intended to protect the parties from oppressive domestic circumstances be defeated by unrealistic evidentiary requirements.
It further held that in such situations the correct legal course is neither to impose khula without consent nor to mechanically dismiss the case while ignoring marital breakdown.
Instead, the court should clearly state the legal position to the wife: if she continues with an unproven allegation of cruelty, the case may fail; if she no longer wishes to remain in the marriage, she may seek dissolution of the khula with the consequent consequences.
The judgment noted that in the instant case, the marriage between the parties was solemnized on 19 September 2016, while the dissolution proceedings were filed on 8 October 2016, which meant that the marital relationship only lasted for a short period of a few days before the trial commenced.
“We have no quarrel with the proposition that acts constituting cruelty, depending on their nature and gravity, may occur even within a short period of cohabitation, and no inflexible rule can be laid down that cruelty must necessarily precede a prolonged marriage. Each case must be based on its own facts and evidence,” it observed.
The court found that despite the allegations, petitioner failed to demonstrate cruelty through material sufficient to meet the applicable standard in matrimonial cases. The contemporaneous findings of the lower courts did not suffer from misreading or failure to read evidence warranting interference.
At the same time, the record clearly reflected that the marriage had broken down almost at the outset, with no meaningful cohabitation after the initiation of the proceedings, and that the petitioner was consistently unwilling to resume married life.
“We find no sufficient reason to disturb the contemporaneous findings of the courts below insofar as petitioner’s allegations of cruelty have remained unproved.
“Nevertheless, we are of the considered view that the khula decree should not have been granted without first giving the petitioner a conscious, informed and unequivocal choice, especially when valuable economic rights were directly involved,” it added.
The court set aside the contested judgments to the limited extent of the dissolution method and the resulting financial adjustments and remanded the case to the affected family court.
It directed the family court to secure the petitioner’s affidavit and determine whether she chooses to seek resolution through khula on legal terms or to proceed with her allegation of cruelty.
A new decree must be made strictly in accordance with the law based on her choice. The court further directed that the exercise be completed expeditiously, preferably within 30 days of receipt of the certified copy of the judgment.
