The Supreme Court of Pakistan has ruled that if a wife failed to prove allegations of cruelty against her husband but remained unwilling to maintain marital relationship, a family court was obligated to obtain the woman’s clear, informed, and voluntary consent before issuing a decree of ‘Khula’ (divorce initiated by the wife).
This ruling is particularly significant in cases where financial rights, such as ‘haq-mehr’ (dower), are at stake. The court emphasized that family courts cannot automatically convert a case into khula nor use a failed claim of cruelty as the sole basis for a divorce decree without explicit consent.
According to the detailed written judgment, a three-member bench headed by Chief Justice Yahya Afridi, along with Justice Shahid Bilal Hassan and Justice Shakeel Ahmad, issued the verdict on an appeal filed by Seelab Akhtar. The court partially upheld the decisions of the lower courts, including the Peshawar High Court’s Mingora Bench (Dar-ul-Qaza), and remanded the case back to the relevant family court.
The Supreme Court clarified that khula and statutory dissolution of marriage were two distinct legal paths that cannot be interchanged based solely on judicial discretion, especially when it adversely affects a woman’s financial rights. Introducing the “conscious election principle,” the court stated that a woman must make a clear and informed choice regarding the legal basis upon which she sought separation.
The bench further noted that even when a marriage has effectively collapsed and there was no room for reconciliation, the court must ascertain whether the woman wished to continue pursuing her claims of cruelty or prefers to accept the dissolution of the marriage via khula.
Addressing the burden of proof in domestic disputes, the Supreme Court ruled that because of the nature of the marital environment, the standard of evidence cannot be as stringent as that of criminal cases.