Court cannot convert divorce plea into khula without woman's consent: SC

ISLAMABAD (Dunya News) - The Supreme Court has laid down a key legal principle, ruling that a court cannot convert a woman’s plea for divorce into khula without her clear and explicit consent.

Justice Musarrat Hilali authored the five-page verdict, with Chief Justice Yahya Afridi concurring. A two-member bench ruled that courts do not have the authority to unilaterally change a divorce petition into a khula case. The apex court set aside the decisions of the Family Court and the Peshawar High Court and directed the respondent to pay Rs1.2 million as dower (haq mehr) to the petitioner, Naila Javed.

According to the verdict, Naila Javed had filed a petition seeking dissolution of marriage on grounds of cruelty and other legal reasons. However, instead of deciding the case on allegations of cruelty, the Family Court dissolved the marriage on the basis of khula and ordered the woman to forgo her dower amount, despite the fact that she had not sought khula.

The Supreme Court ruled that without a woman’s explicit consent, a divorce claim cannot be converted into khula. The judgment also noted that during the pendency of the case, the husband contracted a second marriage in violation of Section 6 of the Muslim Family Laws Ordinance, admitting that he neither sought permission nor obtained approval from the Arbitration Council.

The court further observed that the husband failed to provide maintenance to his wife and that attempts were made to malign her character during cross-examination. These factors, the verdict stated, legally fall within the definition of cruelty. In such circumstances, the court held, a woman’s refusal to live with her husband cannot be termed disobedience.