Supreme Court rules khula requires wife’s clear and voluntary consent

• Courts cannot convert a marriage dissolution petition into khula without the wife’s express consent.
• The court upheld the dissolution of two marriages on grounds of serious and irreconcilable marital discord.
• Directions requiring the women to return or waive haq mehr were set aside.

The Supreme Court has ruled that courts cannot grant khula without a wife’s clear and voluntary consent or impose its financial consequences by converting a petition filed under a different legal route.

In a written judgement, a five-member bench headed by Justice Shahid Waheed upheld the dissolution of two women’s marriages on the basis of Shiqaq, meaning serious and irreconcilable marital discord, rather than khula.

The bench distinguished khula from statutory dissolution of marriage, explaining that the two avenues have different legal and financial consequences, particularly concerning haq mehr, or dower.

It held that a petition seeking dissolution cannot be unilaterally treated as a request for khula when the wife has not expressly and freely chosen that option. A woman cannot lose her entitlement to haq mehr through an involuntary grant of khula, the judgement stated.

In both cases, the court set aside directions concerning the return or waiver of haq mehr that had been linked to khula. It explained that dissolution on the basis of Shiqaq does not depend on a woman surrendering her dower.

The existing decisions regarding maintenance and dowry items in the two cases were maintained.

The judgement recognised Shiqaq as a ground for dissolution under Muslim law, holding that a marriage may be dissolved on this basis under Section 2. However, it stressed that the threshold requires more than routine disagreements between spouses.

Minor disputes, differences in temperament or a temporary separation cannot, by themselves, establish Shiqaq. Courts must be satisfied that the discord is genuine, serious and persistent, particularly where attempts at reconciliation have failed.

The bench also cautioned courts against labelling a husband an oppressor without evidence establishing cruelty or abuse.

It said a court cannot independently choose khula merely because it considers a marriage unsuccessful, where cruelty, abuse or other legally relevant grounds have not been proved and the wife has not voluntarily sought khula.

The Supreme Court emphasised that family proceedings must safeguard the legal rights, honour and dignity of both spouses. Courts must determine the appropriate grounds for dissolution rather than impose financial obligations associated with a legal avenue the wife has not chosen.