No — a court cannot grant khula if a woman seeks dissolution of marriage on grounds like cruelty under the Dissolution of Muslim Marriages Act, 1939, as khula requires her explicit consent and waiver of dower.
Discover how a 2024 Supreme Court ruling clarified the distinction between khula and dissolution for cruelty, protecting a woman’s right to her dower.
In Abbottabad, a marital dispute escalated to Pakistan’s highest court, reshaping how courts handle divorce cases under Muslim family law.
The case began when a woman filed two suits in 2014 against her husband. The first sought jactitation of marriage or, alternatively, dissolution of marriage on grounds of cruelty, along with recovery of dowry articles and maintenance. The second sought maintenance, possession of a house as her dower, or its market value. The trial court, on November 26, 2015, granted dissolution via khula, requiring her to waive her dower (half a portion of a house), awarded Rs. 15,000 for dowry articles, and granted maintenance for her and her minor daughter. The husband’s suit for conjugal rights was dismissed. The appellate court, on December 21, 2016, upheld the khula decree but enhanced maintenance and dowry costs. The woman challenged these rulings in the Peshawar High Court, arguing she never sought khula but dissolution for cruelty, and her dower should not have been waived. The High Court, on November 28, 2022, set aside the khula decree, finding the husband had already pronounced talaq, entitling her to her dower. The husband appealed to the Supreme Court.
The core issue was whether a court could convert a woman’s plea for dissolution of marriage on grounds of cruelty under the DMMA into a khula decree without her consent. The stakes were significant: a khula decree requires waiving dower, potentially depriving the woman of her legal rights, while dissolution under the DMMA preserves them. The husband argued that since the woman expressed unwillingness to continue the marriage, the trial court correctly granted khula, and he denied pronouncing talaq, claiming she was not entitled to dower. The woman maintained she sought dissolution for cruelty, supported by evidence of abuse and a talaq pronounced at a jirga, and never consented to khula or dower waiver.
The Supreme Court, led by Justice Ayesha A. Malik, examined the legal framework. Under Principles of Mahomedan Law (Mulla, 21st ed.), khula is a divorce initiated by the wife with her consent, requiring her to offer compensation, typically waiving her dower, as a bargain for release from marriage. It operates as an irrevocable divorce (talak-i-bain) without needing proof of fault. Conversely, the DMMA (Section 2) allows dissolution for specific grounds like cruelty, requiring evidence, and Section 5 preserves the woman’s dower rights. The court cited precedents like Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97) and Muhammad Siddiq v. Ghufran Bibi (PLD 1971 SC 192), emphasizing that khula is a woman’s exclusive right, requiring her explicit request, and courts cannot impose it when she seeks dissolution under the DMMA.
The court found the trial and appellate courts erred by granting khula without the woman’s consent, as her suits clearly sought dissolution for cruelty, supported by her statements and evidence of abuse. Evidence also showed the husband admitted to talaq at a jirga, unrebutted by his testimony, confirming the High Court’s finding that talaq had occurred, entitling her to dower. The Supreme Court upheld the High Court’s decision to set aside the khula decree and restore her dower (half a portion of the house). The maintenance and dowry awards, being factual findings, were not disturbed, as per M. Hamad Hassan. The petitions were dismissed on February 15, 2024.
This ruling clarified that courts cannot substitute a woman’s plea for dissolution under the DMMA with khula, protecting her right to dower and ensuring her intent governs divorce proceedings. For the woman, it meant retaining her dower, while courts were reminded to respect distinct legal pathways in Muslim family law.
This story is based on a real judgment passed by the Supreme Court of Pakistan in 2024 (Civil Petitions No. 4657 to 4659 of 2022).
FAQs
Can a court grant khula if a woman seeks divorce for cruelty in Pakistan?
No, a court cannot grant khula unless the woman explicitly requests it, as khula requires her consent and typically involves waiving her dower, unlike dissolution under the Dissolution of Muslim Marriages Act, 1939 (DMMA), which preserves dower rights.
What is the difference between khula and dissolution under the DMMA?
Khula is a woman’s right to seek divorce without proving fault, often waiving her dower, while dissolution under the DMMA requires proving grounds like cruelty and preserves dower rights.
What happens if a court wrongly grants khula instead of dissolution for cruelty?
If a court imposes khula without the woman’s consent, higher courts can set it aside, as seen in this case, restoring her rights, such as dower, under the correct legal framework.
What laws govern khula and dissolution of marriage in Pakistan?
Khula is governed by Muslim personal law and Section 10 of the Family Courts Act, 1964, while dissolution for grounds like cruelty is governed by the DMMA, 1939, particularly Sections 2 and 5.
Does a woman lose her dower in a divorce under the DMMA?
No, under Section 5 of the DMMA, a woman’s right to dower is preserved upon dissolution of marriage, unlike khula, where she typically waives it.
Disclaimer
This blog is for public awareness only and does not constitute legal advice.
