Court cannot grant khula without the woman’s consent, rules SC

IslamaBAD: The Supreme Court of Pakistan has issued a significant judgment concerning domestic violence and petitions for khula (dissolution of marriage initiated by the wife).

Justice Ayesha Malik authored the 17-page verdict, overturning the earlier decisions of the Peshawar High Court and the Family Court.

In its written judgment, the Supreme Court held that a court cannot grant khula without the woman’s consent. It further observed that psychological abuse within marriage is as serious as physical violence, and that contracting a second marriage without the first wife’s permission constitutes valid grounds for dissolution of marriage.

The judgment stated that courts must exercise caution in their language when addressing matters concerning women. Parliament, it noted, did not attempt to define “cruelty” in rigid terms but clarified its nature and scope through illustrative examples.

It was further noted that these examples are not exhaustive but serve as guidance, giving courts the discretion to identify different forms of cruelty and to ensure justice where such conduct is proven.

The ruling expanded the interpretation of cruelty, stating that it is not limited to physical harm but also includes behaviour that causes mental or emotional distress, rendering it impossible for a woman to live in her home with dignity and security.

Justice Ayesha Malik wrote that cruelty may consist of separate acts that, though seemingly unrelated, collectively cause harm and make continuation of marriage unbearable. She added that cruelty encompasses verbal abuse, false accusations, and psychological torment — physical injury is not a prerequisite. Any conduct that causes pain, despair, or loss of confidence falls within its ambit.

The judgment further held that if the effects of such conduct are severe enough to make marital life intolerable, it constitutes cruelty.

Referring to international standards, the Court noted that the International Covenant on Civil and Political Rights prohibits torture and cruel, inhuman, or degrading treatment — principles also applicable to cases of domestic abuse to ensure protection and justice.

Allowing the woman’s petition, the Supreme Court set aside the decisions and decrees of the Family and Appellate Courts, as well as the Peshawar High Court’s order regarding khula, mehr (dower), and maintenance.

The Court further ruled that since the marriage was dissolved on the ground of the husband’s second marriage, the wife is not required to return her mehr. The decision came in response to a petition challenging the Peshawar High Court’s May 2024 order, which had dismissed the woman’s writ petition.

The petitioner’s counsel argued that his client had sought dissolution of marriage, but the Family Court and the Additional Judge had ignored her statements and evidence.

The Supreme Court observed that the lower court had granted khula without the woman’s consent and deprived her of her mehr. It also criticised the Family Court’s handling of evidence, noting that the court had incorrectly concluded that the husband had never paid the mehr and had therefore treated it as waived in exchange for khula.