ISLAMABAD:
The Supreme Court has ruled that when a wife seeks dissolution of marriage on the grounds of cruelty, khula should not ordinarily be granted without her consent.
“We hold that khula should not ordinarily be granted without the wife’s consent or without a clear choice when she has filed a claim for cruelty and valuable financial rights are involved,” said a 12-page judgment written by Justice Shahid Bilal. He sat on a three-judge bench headed by Chief Justice of Pakistan Yahya Afridi.
The case concerned a dispute in which the wife filed proceedings before a family court seeking dissolution of the marriage on the ground of cruelty, along with recovery of 30 tola gold as dowry or its market value, and alimony from the date of negligence until the decision of the suit.
The judgment said that where cruelty is not proven and marital life has manifestly collapsed, the court must provide the wife with the opportunity to choose whether she wishes to dismiss her claim or accept dissolution by khula, rather than forcing the restoration of a relationship that has essentially ceased to exist.
He noted that cruelty is no longer limited solely to visible physical aggression; It extends to sustained humiliation, coercive control, emotional abuse, deprivation, indignity and conduct that makes coexistence unsafe or intolerable.
Similarly, mental cruelty has been judicially recognized to include emotional torment, deliberate negligence, and conduct that causes deep distress to a spouse.
“We can further clarify that accusations of cruelty that arise within a domestic relationship may take on a different legal character depending on the forum in which they are asserted.
“When such allegations are raised in a family court under the Dissolution of Muslim Marriages Act, 1939 or a similar matrimonial jurisdiction, the cruelty is examined as a civil matrimonial wrong, the purpose of which is the determination of marital status and consequent civil rights,” he said.
In such proceedings, the court said, the matter must be evaluated under the preponderance of probabilities standard. On the contrary, when the same or similar acts are prosecuted under criminal law, including laws relating to domestic violence or other criminal offences, the accusations are in the nature of criminal irregularities that carry criminal consequences.
“[Such acts] “Therefore, it must be established according to the strictest standard of proof beyond a reasonable doubt,” he adds. The court emphasized that the two jurisdictions have different purposes and their evidentiary thresholds should not be mixed.
Family courts should be cautious about importing criminal law standards of proof into civil matrimonial litigation, lest relief intended to protect parties from oppressive domestic circumstances be defeated by unrealistic evidentiary demands.
He further held that in such situations, the proper judicial course is neither to impose khula without consent nor to mechanically dismiss the matter ignoring the marital breakdown.
Instead, the court should clearly present the legal position to the wife: if she persists with an unproven claim of cruelty, the claim may fail; If you no longer wish to remain in the marriage, you can request dissolution by the khula with subsequent consequences.
The ruling noted that in the present case the marriage between the parties was solemnized on September 19, 2016, while the petition for dissolution was filed on October 8, 2016, so the marital relationship subsisted only for a brief period of a few days before the litigation began.
“We have no qualms with the proposition that acts constituting cruelty may, depending on their nature and severity, occur even within a short period of cohabitation, and no inflexible rule can be laid down that cruelty must necessarily be preceded by a prolonged married life. Each case must depend on its own facts and evidence,” he observed.
The court concluded that, despite the allegations, petitioner did not prove cruelty by material sufficient to satisfy the standard applicable in matrimonial proceedings. The lower courts’ concurring findings did not suffer from misinterpretation or failure to read evidence justifying interference.
At the same time, the record clearly reflected that the marriage had broken down almost from the beginning, with no significant cohabitation after the initiation of the process, and the petitioner was consistently unwilling to resume marital life.
“We find no sufficient grounds to disturb the concurrent findings of the lower courts to the extent that petitioner’s allegations of cruelty have not been proven.
“However, we are of the view that the khula decree should not have been granted without first offering the petitioner a conscious, informed and unambiguous choice, particularly when valuable financial rights were directly involved,” it added.
The court set aside the impugned rulings to the limited extent of the mode of dissolution and the consequent financial adjustment and remanded the matter to the appropriate family court.
It directed the family court to obtain the plea of the petitioner and determine whether she chooses to seek dissolution through khula on legal terms or persist with her claim of cruelty.
A new decree will be drawn up strictly in accordance with the law based on your choice. The court further ordered that the exercise be concluded expeditiously, preferably within 30 days of receipt of the certified copy of the judgment.
