ISLAMABAD:
The Supreme Court has ruled that when a woman seeks dissolution of her marriage on the grounds of cruelty, khula should generally not be granted without her consent.
“We are of the view that khula should not ordinarily be granted without the consent of the wife or without a clear election where she has filed an action for cruelty and valuable financial rights are involved,” says a 12-page judgment written by Justice Shahid Bilal. He was part of a three-judge bench headed by Chief Justice of Pakistan Yahya Afridi.
The case involved a dispute in which the wife had initiated proceedings in a family court seeking dissolution of the marriage on the ground of cruelty, along with recovery of 30 tolas of gold as dowry or its market value, and alimony from the date of negligence till the decision of the suit.
The judgment says that where cruelty is not proven and marital life has clearly broken down, the court must give the wife an opportunity to choose whether to pursue rejection of her application or accept dissolution by khula, rather than requiring the restoration of a relationship which has ceased to exist in substance.
He noted that cruelty is no longer limited to visible physical attacks; this extends to sustained humiliation, coercive control, psychological violence, deprivation, indignity and conduct that makes cohabitation dangerous or intolerable.
Likewise, mental cruelty has been judicially recognized to include emotional torment, studied neglect, and behaviors causing deep anguish to the spouse.
“We can further clarify that allegations of cruelty arising from a domestic relationship may take on a distinct legal character depending on the forum in which they are made.
“When such allegations are raised in a family court under the Dissolution of Muslim Marriages Act, 1939 or a related matrimonial jurisdiction, the cruelty is examined as a civil matrimonial wrong, the object being the determination of marital status and civil rights arising therefrom,” it said.
In such proceedings, the court said, the case must be assessed on the standard of balance of probabilities. Conversely, when the same or similar acts are prosecuted under criminal law, including laws relating to domestic violence or other criminal offenses, the allegations take on the character of criminal acts carrying criminal consequences.
“[Such acts] “must therefore be established in accordance with the highest standard of proof beyond reasonable doubt,” it added. The court emphasized that the two jurisdictions serve different purposes and their thresholds of proof should not be mixed.
Family courts should remain cautious about importing criminal law standards of proof into civil matrimonial disputes, lest measures intended to protect parties from oppressive family circumstances be defeated by unrealistic evidentiary requirements.
She further held that in such situations, the appropriate judicial solution is neither to impose khula without consent nor to mechanically dismiss the case ignoring the breakdown of the marriage.
Instead, the court should clearly present the legal situation to the wife: if she persists with an unproven allegation of cruelty, the prosecution may fail; if she no longer wishes to remain in the marriage, she can request dissolution by khula with the ensuing consequences.
The judgment notes that in the instant case, the marriage between the parties was solemnized on September 19, 2016, while the dissolution action was filed on October 8, 2016, meaning that the matrimonial relationship only existed for a brief period of a few days before the litigation commenced.
“We have no objection to the view that acts constituting cruelty may, depending on their nature and seriousness, occur even during a short period of cohabitation, and no inflexible rule can be laid down that cruelty must necessarily be preceded by prolonged married life. Each case must depend on its own facts and evidence,” he observed.
The court found that despite the allegations, the applicant had failed to establish cruelty with sufficient evidence to meet the standards applicable in matrimonial proceedings. The lower courts’ concurring findings did not suffer from a misreading or failure to read the evidence justifying interference.
At the same time, the file clearly showed that the marriage had broken down almost from the start, with no meaningful cohabitation after the proceedings were initiated, and that the applicant was consistently reluctant to return to married life.
“We find no sufficient ground to question the concurring findings of the courts below as the petitioner’s allegations of cruelty have not been proven.
“We are, however, of the view that the khula decree should not have been granted without first providing the petitioner with a conscious, informed and unequivocal election, particularly when valuable financial rights were directly at stake,” it adds.
The court set aside the impugned judgments to the limited extent of the manner of dissolution and the consequent financial adjustment and remanded the matter to the concerned family court.
He directed the family court to obtain the statement of the petitioner and determine whether she chooses to seek dissolution by way of khula on legal terms or persist with her cruelty claim.
A new decree must be drawn up in strict accordance with the law, based on his election. The court further directed that the exercise be concluded expeditiously, preferably within 30 days of receipt of the certified copy of the judgment.
