The Court notes that the purpose of khula is to protect the dignity and well-being of women, not to punish husbands
The Supreme Court has ruled that a woman’s right to seek Khula – dissolution of marriage on grounds of incompatibility – is an “independent and inalienable right” which cannot be subordinated to her husband’s consent or judicial discretion beyond the scope prescribed by Sharia and law.
Authored by Justice Ayesha A Malik, the detailed judgment was delivered in a civil petition filed by a woman challenging the Peshawar High Court’s decisions that denied the dissolution of her marriage on the grounds that her husband had not given consent and reconciliation efforts had not been “exhausted”.
The Supreme Court overturned the findings of the Peshawar High Court, ruling that “Khula does not depend on the willingness of the husband to release his wife. Once a court is satisfied that the marital relationship is irretrievably broken down, the law mandates dissolution.”
Justice Malik observed that while the family court can encourage reconciliation, it cannot force a woman to stay in a marriage that has “lost its substance and harmony”. “Islamic jurisprudence and the Family Courts Act, 1964 recognize Khula as a legitimate mechanism for a woman to dissolve her marriage when cohabitation becomes impossible,” the judgment said. “The consent of the husband is not a prerequisite for the court to exercise jurisdiction.”
Khula as a voluntary right
The Supreme Court clarified that Khula is a voluntary process which requires the explicit consent of the wife and cannot be imposed through judicial means. The Court emphasized that Khula cannot replace the legal grounds for dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939 (DMMA). The Court reiterated that the family court must clearly record the consent of the wife before granting Khula.
The court emphasized that mental cruelty – including humiliation, intimidation, neglect and psychological abuse – is as serious as physical harm and is sufficient grounds for dissolution.
“Cruelty must not always manifest itself through physical violence,” the judgment states. “Psychological violence that lowers a woman’s self-esteem or subjects her to humiliation is just as corrosive to the marital relationship.”
The decision further states that once the court finds that the wife’s aversion to the marriage is real and irreconcilable, “it is the duty of the court to grant dissolution to avoid further injustice.”
Cruelty and its forms
The Court emphasized that emotional and psychological abuse, such as humiliation and neglect, are as harmful as physical violence and can constitute valid grounds for dissolution. The Court made it clear that psychological abuse, which impacts a wife’s self-esteem, is just as destructive to a marriage as any physical abuse.
The court held that a woman’s expression of Karahat (dislike) is a sufficient basis for invoking Khula, and that compelling her to continue marital ties in such a situation “violates both the letter and the spirit of Islam, which upholds dignity and compassion in the marital bond.”
“The essence of marriage in Islam lies in mutual love, respect and companionship,” Justice Malik wrote. “In the absence of these elements, imposing cohabitation serves neither the moral nor the legal objectives of Sharia law. »
The court also criticized lower courts for adopting “a patriarchal interpretation” that limited women’s free will. He noted that such reasoning “ignores the fundamental Islamic principle that marriage is a civil contract between equals and not a bond of servitude.”
Patriarchal bias and gender sensitivity
In its judgment, the Supreme Court sharply criticized the patriarchal language used by the family court, which wrongly referred to the woman as a “disobedient woman” or an “abandoned lady”. The Court noted that such language perpetuates gender bias and stigmatizes women, thereby reinforcing harmful societal stereotypes. The Court called for a move away from these assumptions and emphasized that women’s autonomy and dignity must be respected in legal proceedings.
In reaffirming women’s constitutional and religious rights, the judgment cites Article 14 (Dignity of Man), Article 25 (Equality before the Law) and Article 35 (Protection of the Family), stating that “the right to seek Khula embodies these rights by allowing women to opt out of harmful or unsustainable marriages without stigmatization.”
The apex court held that the family court had rightly granted Khula under Section 10(4) of the Family Courts Act, which allows for dissolution if reconciliation fails and the wife establishes valid grounds. The Lahore High Court’s earlier reversal of this decision, the bench ruled, was “contrary to Islamic principles and statutory mandate”.
The Court’s view on second marriages
The Court reiterated that taking an additional wife without the consent of the first wife and without seeking permission from the arbitration board constitutes a violation of Article 6 of the Muslim Family Law Ordinance (MFLO). The Court held that this alone is sufficient to dissolve the marriage under Section 2(ii-a) of the DMMA. The second marriage was contracted in violation of Islamic law and the MFLO and justified the wife’s request for dissolution.
The Supreme Court also took strong exception to the language used by the family court in its reasoning, observing that it reflected “a deeply patriarchal mentality.”
“The erroneous and repeated characterization of the applicant as a ‘disobedient wife’ and an ‘abandoned lady’, or the assumption that she ‘created such circumstances which forced the accused to enter into a second marriage’, shifts the debate from cruelty towards the woman and the exercise of her autonomy to her obedience and disobedience,” the judgment said.
The judgment emphasizes that the family court’s presumption that only an “obedient wife” is entitled to alimony must be replaced by the legally correct position. “Maintenance is a legal obligation of the husband for the duration of the marriage,” he says.
Likewise, the conclusion that the petitioner “wanted to travel to Ireland without the consent of the respondent” and was therefore “disobedient” was considered a serious misinterpretation. “The family court did not recognize that the applicant’s desire to pursue her career or studies abroad does not constitute disobedience and should not be equated with misconduct; rather, it is an exercise of his personal autonomy,” the court said.
The family court’s erroneous reasoning
The Supreme Court further rejected the finding that the husband’s second marriage could not be considered an act of cruelty because the petitioner had “created circumstances which compelled him to enter into a second marriage.” The judgment called this view “utterly absurd,” saying “such reasoning perpetuates a patriarchal norm that excuses male misconduct by attributing blame to the woman.”
The court observed that these expressions collectively revealed “concepts that confuse patriarchal thinking and legal reasoning.” He stressed that family courts “must consciously move away from this language”.
“Words like ‘disobedient’, ‘self-abandonment’, ‘mummified’, ‘served the accused’s family by heart’ and ‘forced into a second marriage’ should be replaced,” the judgment said, as they “reinforce a moral hierarchy that measures women by servitude and indulgence, with total disregard for her fundamental rights, including the right to live with dignity and exercise her right to choose.”
The Supreme Court therefore reinstated the decree of dissolution of the family court, confirming the woman’s right to be freed from an unviable marriage.
