The court notes that the purpose of the khula is to protect the dignity and well-being of women, not to punish husbands
The Supreme Court has held that the right of a woman to apply for Khula (dissolution of marriage on the grounds of incompatibility) is an “independent and inalienable right” which cannot be made conditional on the consent of her husband or judicial discretion beyond the scope prescribed in Shariah and statutory law.
Written by Justice Ayesha A Malik, the detailed ruling was issued in a civil petition filed by a woman challenging Peshawar High Court decisions denying her dissolution of marriage on the grounds that her husband had not given consent and that reconciliation efforts had not been “exhausted”.
The Supreme Court set aside the findings of the Peshawar High Court and ruled that “Khula does not depend on the will of the husband to release his wife. Once a court is satisfied that the marital relationship has irretrievably broken down, the law requires dissolution.”
Justice Malik observed that while the Family Court can encourage reconciliation, it cannot force a woman to remain in a marriage that has “lost its substance and harmony.” “Islamic jurisprudence and the Family Court Act 1964 recognize Khula as a legitimate mechanism for a woman to dissolve her marriage when cohabitation becomes impossible,” the judgment states. “The consent of the husband is not a precondition for the court to exercise its jurisdiction.”
Khula as a voluntary right
The Supreme Court clarified that Khula is a voluntary process that requires the explicit consent of the wife and cannot be imposed judicially. 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 emotional abuse) is as serious as physical harm and provides sufficient grounds for dissolution.
“Cruelty does not always have to manifest itself in physical violence,” the ruling clarified. “Psychological abuse that lowers a woman’s self-esteem or subjects her to humiliation is equally corrosive to the marital relationship.”
The ruling further clarified that once the court determines that the wife’s aversion to the marriage is genuine and irreconcilable, “it is the duty of the court to grant dissolution to prevent further injustice.”
Cruelty and its forms.
The Court emphasized that emotional and psychological abuse, such as humiliation and abandonment, are as harmful as physical violence and can serve as valid grounds for dissolution. The Court made it clear that psychological abuse, which affects a wife’s self-esteem, is as destructive to a marriage as any physical violence.
The court held that a woman’s expression of Karahat (aversion) is a sufficient basis for invoking Khula, and that forcing her to continue marital bonds in such a situation “violates both the letter and spirit of Islam, which upholds dignity and compassion within the marital bond.”
“The essence of marriage in Islam lies in mutual love, respect and companionship,” Justice Malik wrote. “When these do not exist, imposing cohabitation serves neither the moral nor the legal purposes of Sharia.”
The court also criticized lower courts for adopting “a patriarchal interpretation” that limited women’s agency. He noted that such reasoning “ignores the fundamental Islamic principle that marriage is a civil contract between equals, not a bond of servitude.”
Patriarchal bias and gender sensitivity
In its ruling, the Supreme Court sharply criticized the patriarchal language used by the Family Court, which wrongly characterized the woman as a “disobedient wife” or a “deserted lady.” The Court noted that this language perpetuates gender prejudices and stigmatizes women, reinforcing harmful social stereotypes. The Court called for a departure from these assumptions and emphasized that the autonomy and dignity of women must be respected in legal procedures.
In reaffirming women’s constitutional and religious rights, the judgment cited 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 withdraw from harmful or unviable marriages without stigma.”
The high court held that the Family Court had correctly granted Khula under section 10(4) of the Family Courts Act, which authorizes dissolution where reconciliation fails and the wife establishes valid grounds. The Lahore High Court’s earlier reversal of that decision, the court ruled, was “contrary to Islamic principles and legal mandate.”
Court opinion on second marriages
The Court reaffirmed that taking an additional wife without the consent of the first and without seeking permission from the Arbitration Council is a violation of Section 6 of the Muslim Family Laws 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 strongly objected to the language used by the Family Court in its reasoning, observing that it reflected “a deeply patriarchal mindset.”
“The repeated mischaracterization of the petitioner as a ‘disobedient wife’ and a ‘deserted lady’, or the assumption that she ‘created such circumstances as to compel the accused to enter into a second marriage’, shifts the discussion from cruelty towards women and the exercise of her autonomy to her obedience and disobedience,” the judgment said.
The judgment emphasized that the Family Court’s presumption that only an “obedient wife” was entitled to maintenance must be replaced by the legally correct position. “Maintenance is a legal obligation of the husband during the subsistence of the marriage,” he stated.
Similarly, the conclusion that the petitioner “wanted to go to Ireland without the consent of the accused” and was therefore “disobedient” was considered a serious misinterpretation. “The Family Court failed to recognize that the petitioner’s desire to pursue her career or education abroad is not disobedience and should not be equated with misconduct; rather, it is an exercise of her personal autonomy,” the court held.
The Family Court’s Misguided Reasoning
The Supreme Court further rejected the finding that the husband’s second marriage could not be considered cruelty because the petitioner had “created circumstances that compelled him to enter into a second marriage.” The ruling called this view “completely absurd” and stated that “such reasoning perpetuates a patriarchal standard that excuses male misconduct by attributing blame to the wife.”
The court observed that these expressions collectively revealed “concepts that combine patriarchal thought with legal reasoning.” He stressed that family courts “must consciously move away from that language.”
“Words like ‘disobedient,’ ‘desertion of self,’ ‘manifested,’ ‘served by memory to the accused’s family,’ and ‘forced to enter into a second marriage’ should be replaced,” the ruling said, as they “reinforce a moral hierarchy that measures women by their servitude and submission, with total disregard for their fundamental rights, especially to have a life with dignity and exercise their right to choose.”
Therefore, the Supreme Court reinstated the decree dissolving the Family Court, confirming a woman’s right to be free from an unviable marriage.
