SC rules against khula sans wife’s explicit consent

ISLAMABAD: The Supreme Court has ruled that family courts should not convert a wife’s suit for dissolution of marriage on grounds of cruelty into a decree of khula without her explicit and informed consent, particularly when valuable financial rights such as unpaid dower are involved.

Authored by Justice Shahid Bilal Hassan on behalf of a three-judge bench headed by Chief Justice of Pakistan Yahya Afridi, the observations came while hearing an appeal filed by Selab Akhtar against a decision of the Peshawar High Court that upheld concurrent findings of lower courts dissolving her marriage through khula and denying her full dower and past maintenance.

“We hold,” the judgement said, “that khula should not ordinarily be granted without the wife’s consent or clear election where she had sued on grounds of cruelty and valuable financial rights were implicated.”

However, where cruelty is not proved and marital life has manifestly collapsed, courts must give the wife an opportunity to choose whether to pursue dismissal of her claim or accept dissolution through khula upon lawful terms, rather than compelling restoration of a relationship that has effectively ceased to exist, Justice Hassan observed.

Cautions against setting unrealistic standards for proof of cruelty, especially when unpaid dower is involved

“The proper judicial course is neither to impose khula without consent nor to mechanically dismiss the matter while ignoring matrimonial breakdown,” the judgement emphasised.

The dispute arose from a matrimonial case between Selab Akhtar and Quwat Khan. The couple married on Sept 19, 2016, in Swat’s Matta tehsil, where 30 tolas of gold were fixed as haq mehr.

According to the petitioner, after marriage she was subjected by her husband and his family members to harsh treatment, coercion, humiliation, cruelty and mental torture, making continuation of matrimonial life impossible. She alleged she was expelled from the house without justification and denied maintenance.

Consequently, she filed a suit before Judge Family Court-II, Swat, seeking dissolution of marriage on grounds of cruelty, recovery of 30 tolas of gold as dower or its market value, and maintenance allowance from the date of neglect until disposal of the suit.

The principal question before the SC was whether a family court could dissolve a marriage through khula where the wife had sought dissolution on grounds of cruelty but failed to substantiate the allegations through legally admissible evidence, despite expressing unwillingness to continue the marriage.

The court also examined whether such relief could be granted when no specific prayer for khula had been made and no express consent had been recorded.

Justice Hassan observed that the controversy was not merely whether the marriage should stand dissolved, but the legal consequences flowing from a failed cruelty claim where the wife nevertheless refused to continue the marital bond.

The verdict explained that where cruelty or statutory fault on the part of the husband is established, the wife ordinarily can’t be compelled to forfeit her dower merely to secure freedom from an oppressive union.

In contrast, dissolution through khula ordinarily involves relinquishment or restitution of financial consideration, including dower to the extent recognised by law.

The SC observed when a wife approaches the court alleging cruelty, she is effectively seeking a declaration that the husband’s conduct disentitles him from retaining reciprocal marital rights, including unpaid dower.

“To convert such claim, without due regard to the nature of relief pursued, into one of khula may prejudice valuable financial rights,” it emphasised.

At the same time, the court observed that judges cannot ignore situations where a marriage has irretrievably broken down in fact. If cohabitation has ceased, bitterness has deepened and the wife unequivocally refuses to resume marital life, the law cannot compel parties to continue a “dead relationship” merely in name.

The judgement also criticised the approach adopted by subordinate courts in assessing allegations of cruelty. It noted that courts often insist on standards of proof ill-suited to the realities of matrimonial life, such as requiring independent eyewitnesses to domestic abuse, FIRs for confinement or medical certificates in every case of physical assault.

“Such an approach overlooks that marriage is essentially a private relationship conducted within the walls of a home,” the judgement said, adding that women may seldom be in a position to procure independent witnesses to acts of humiliation, coercion, emotional torment or mental agony occurring within the domestic sphere.

According to the verdict, matrimonial disputes should be decided on the civil standard of “preponderance of probabilities”, taking into account conduct of the parties, surrounding circumstances, consistency of versions and overall probabilities emerging from the record, rather than the strict proof required in criminal prosecutions.

Published in Dawn, May 26th, 2026