The Supreme Court of Pakistan (SCP) has ruled that a marriage can be dissolved on grounds of shiqaq (serious and continuous marital discord) under the residuary provision of the Dissolution of Muslim Marriages Act, 1939, even when the statutory ground of cruelty is not established.
A five-member bench headed by Justice Shahid Waheed and comprising Justices Naeem Akhter Afghan, Muhammad Hashim Khan Kakar, Ishtiaq Ibrahim and Miangul Hassan Aurangzeb issued the ruling while hearing two connected petitions filed by Zainab Bibi and Imran Naz Begum against separate orders of the Peshawar High Court (PHC).
The cases arose from family suits in which the two women had sought dissolution of their marriages on grounds of cruelty along with maintenance, dower and dowry articles.
The family courts found that cruelty had not been established in either case but dissolved both marriages through khula, the right of a woman to seek release from a marriage. The courts also directed the women to return their dower, while the appellate court and the PHC largely upheld the decisions.
Before the SC, the women challenged the conversion of their claims into khula, arguing that they had neither sought nor consented to it because their cases rested on allegations of cruelty. They also challenged the decisions concerning their financial claims.
In its 15-page judgement authored by Justice Waheed, the SC drew a distinction between khula and shiqaq.
The judgement said that khula proceeds from a wife’s voluntary choice to obtain release from marriage and ordinarily carries financial consequences. Shiqaq, however, arises when the evidence establishes a serious and continuing breakdown in the matrimonial relationship and does not depend on a wife surrendering her dower or another benefit as consideration for ending the marriage.
The SC held that the family courts had erred by converting the women’s claims for dissolution on grounds of cruelty into khula without obtaining their clear and voluntary consent or election.
The court did not set aside the dissolution of the marriages altogether. Instead, it held that the marriages could be dissolved on the legal ground of shiqaq under Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939.
“The matrimonial relationships have undergone a serious and continuing rupture; reconciliation has failed; the evidence does not establish the statutory ground of cruelty; and the record, taken as a whole, establishes a condition of ‘shiqaq’,” the judgement said.
The SC also stated that the dissolution could therefore continue, but on a legal basis different from the one adopted by the family courts.
It also set aside the directions requiring the women to return, surrender or waive their dower as a consequence of khula. Their entitlement to dower will instead be determined under the Dissolution of Muslim Marriages Act, 1939.
The court said that the Quranic emphasis on reconciliation in cases of shiqaq recognises that reconciliation can fail. “The law should neither rush towards separation nor prolong a matrimonial relationship which has ceased to serve its lawful purposes,” the judgement said.
The SC stated that courts must distinguish between an unhappy marriage and one that has reached the stage of shiqaq. Mere incompatibility, occasional disagreements, anger, short separation or matrimonial litigation alone will not meet that threshold.
It also stressed that neither spouse should face the consequences of a legal finding without the evidence required to support it. “A marriage may be dissolved by a court, but neither spouse should be judicially deprived of a lawful right, nor judicially burdened with a stigma, without the foundation of law and evidence,” the judgement opined.
The SC further observed that allegations of cruelty, ill-treatment, neglect and misconduct often arise during matrimonial disputes and courts should not turn such disputes into lasting damage to either spouse’s reputation and dignity.
“The law must determine rights; it need not aggravate human conflict.”
The court clarified that shiqaq does not arise from every quarrel, disagreement, incompatibility or temporary estrangement. It requires a genuine and continuing rupture in which the essential purposes of marriage cannot realistically be fulfilled and reasonable efforts at reconciliation have failed.
The judgement also said that a wife cannot be compelled to surrender her dower through an involuntary conversion of her statutory claim into khula, while a husband should not face a finding of cruelty or matrimonial misconduct without the evidentiary foundation required by law.
