The Supreme Court has determined that a woman's right to seek 'khula', the dissolution of marriage, is not contingent upon her husband's agreement. The court has also acknowledged psychological abuse as a legitimate basis for divorce, asserting that emotional distress and mental cruelty carry the same legal significance as physical abuse.

 

 

The opinion, written by Justice Ayesha A Malik, responded to a petition submitted by Dr. Seema Hanif Khan. She contested Peshawar High Court's dismissal of her request for dissolution of marriage, which had been denied because her husband's consent was deemed necessary and reconciliation attempts had not been fulfilled.

 

 

The court found that khula represents an autonomous right granted to women, which should not be dependent on the husband's consent or judicial discretion. It noted that when a marriage has irreparably deteriorated, a woman is entitled to request its dissolution, irrespective of her husband's position.

 

 

Dr. Seema initially went to the Family Court, seeking separation based on cruelty, non-payment of maintenance, and her husband's second marriage occurring without her agreement. She claimed her husband inflicted mental and emotional suffering on her, making it impossible to sustain the marriage.

 

 

Although the Family Court granted the khula, it did so without her direct request, prompting her to contest the ruling. The court also held that her dowry, which included gold and money, had been relinquished as part of the dissolution. On appeal, the Peshawar High Court upheld the decision, affirming that khula could only be granted with the husband's agreement and after attempts at reconciliation.

 

 

The Supreme Court reversed both lower court decisions, restoring the decree of dissolution and supporting Dr. Seema's right to keep her dowry. Justice Malik's ruling noted that cruelty “need not always be evident in physical violence,” emphasizing that psychological abuse that undermines a woman's self-esteem or subjects her to humiliation can also validate divorce.

 

 

The court instructed family courts to recognize various forms of psychological harm such as intimidation, neglect, and emotional abuse when evaluating marital disputes. It stressed that a woman's emotional health must be factored in when considering whether a marriage has become unworkable.

 

 

The judgment criticized the patriarchal rationale used by the lower courts, which labeled the petitioner as “disobedient” for seeking a career and educational opportunities abroad. It clarified that such choices align with a woman's personal autonomy and cannot be cited as reasons for denying maintenance or dissolution rights.

 

 

The court pointed out that the Family Court had incorrectly interpreted the law by assuming that maintenance could be withheld for disobedience. It ruled that maintenance is a legal responsibility of the husband according to the applicable family laws and cannot be revoked based on assumptions.

 

 

Referring to Articles 14, 25, and 35 of the Constitution, the Supreme Court reiterated women's rights to dignity, equal treatment under the law, and family protection. It highlighted that the right to pursue khula embodies these constitutional protections, enabling women to exit harmful or inequitable marriages.

 

 

The bench also addressed the issue of the husband's second marriage, which was conducted without the wife's approval, thereby violating the Muslim Family Laws Ordinance (MFLO). The court determined that this behavior is against the law and provides a valid ground for dissolution under Section 2(ii-a) of the Dissolution of Muslim Marriages Act, 1939.

 

 

Regarding the dower, the Supreme Court rejected the rationale of the lower court that suggested recovering gold ornaments necessitated filing a police report. It ruled that dower items including gold and money must be returned to the wife unless a legitimate reason for withholding them exists.

 

 

The court restored the Family Court’s decree of dissolution, recognized the petitioner’s right to seek divorce on the basis of psychological cruelty and second marriage, and upheld her entitlement to her dower and property.