The Supreme Court has ruled that a divorce claim cannot be converted into khula without the express consent of the woman, declaring earlier court assessments legally flawed.

The apex court set aside the legal assessment of the Family Court and the Peshawar High Court Abbottabad Bench, declaring their decision incorrect. The court ruled that converting a woman’s divorce petition into khula without her consent is null and void.

The Supreme Court dissolved a marriage through divorce, not khula, on the basis of cruelty. The husband was directed to pay the woman Rs1.2 million as the remaining dower amount.

Second marriage without permission

The court held that the husband’s second marriage without the wife’s permission or approval of the mediation council was a clear violation of Section 6 of the Muslim Family Laws Ordinance. The husband admitted to the remarriage during court proceedings.

The judgement declared such remarriage a valid legal ground for dissolution under the Dissolution of Muslim Marriages Act.

Non-payment of maintenance, character assassination

The court further noted that the husband failed to provide maintenance to the wife. It also observed that the woman was subjected to character assassination during cross-examination, which the court ruled legally falls under the category of cruelty.

In such circumstances, the judgement clarified, a woman’s refusal to live with her husband cannot be treated as disobedience.

According to the judgement, petitioner Naila Javed had filed a petition seeking dissolution of marriage on grounds of cruelty and other legal bases. Instead of addressing those allegations, the Family Court dissolved the marriage on the basis of khula and ordered the woman to forgo the remaining dower -- despite the fact that she had never requested khula.

The verdict was delivered by a bench comprising Chief Justice of Pakistan Yahya Afridi and Musarat Hilali. The judgement, authored by Justice Musarat Hilali, firmly established that a divorce claim cannot be converted into khula without explicit consent.