Severe marital discord can justify dissolution of marriage even without proof of cruelty: SC

ISLAMABAD, Oct 07 (APP): The Supreme Court has held that where a marital relationship has been marked by severe and persistent discord, all meaningful efforts at reconciliation have failed, and the fundamental objectives of marriage can no longer be fulfilled, shiqaq (serious marital discord) may constitute a valid ground for dissolution of marriage under Muslim law, even if cruelty or mistreatment by the husband is not proved.

A five-member bench headed by Justice Shahid Waheed and comprising Justice Naeem Akhtar Afghan, Justice Muhammad Hashim Khan Kakar, Justice Ishtiaq Ibrahim and Justice Mian Gul Hassan Aurangzeb issued a detailed judgment while deciding two separate cases filed by Zainab Bibi and Iram Naz Begum.

The court held that khula and dissolution of Muslim marriages under the Dissolution of Muslim Marriages Act, 1939, are two distinct legal avenues. Where a wife seeks dissolution of marriage on the ground of cruelty or other statutory grounds and does not opt for khula, the court cannot, on its own, convert her claim into khula without her clear and voluntary choice, particularly where such conversion affects her legal right to dower.

The Supreme Court observed that even where cruelty is not established, a wife has the right to pursue her legal claim for dissolution or voluntarily opt for khula. She cannot be forced into khula and thereby deprived of her entitlement to dower.

The court noted that in both cases, the Family Courts had dissolved the marriages on the basis of khula after finding that cruelty had not been proved and reconciliation efforts had failed, although the wives had neither sought nor opted for khula. Such orders could not legally be sustained.

The court further held that the position regarding dower was different in the two legal avenues. Dissolution through khula may have financial consequences concerning repayment or relinquishment of dower, whereas dissolution under the Dissolution of Muslim Marriages Act, 1939, preserves the wife’s right to dower.

Explaining shiqaq, the Supreme Court said it refers to a serious, deep-seated and continuing breakdown in the marital relationship in which the fundamental purposes of marriage can no longer be fulfilled and genuine efforts at reconciliation have failed.

The court cautioned that every quarrel, disagreement, temporary separation or incompatibility would not amount to shiqaq. A Family Court must be satisfied that the marital relationship has suffered a genuine, serious and continuing breakdown and that meaningful attempts at reconciliation have failed.

The judgment distinguished shiqaq from cruelty. Cruelty involves a specific legal wrong committed by one spouse, whereas shiqaq concerns the overall and continuing condition of the marital relationship. Thus, even where cruelty is not established on a particular legal ground, the relationship may nevertheless reach a stage of shiqaq warranting dissolution.

The Supreme Court clarified that recognizing shiqaq as a ground for dissolution did not amount to judicially creating a general doctrine of “irretrievable breakdown” of marriage. Family Courts cannot dissolve marriages by labelling every unhappy marital relationship as shiqaq.

The court also explained the limits of the High Court’s constitutional jurisdiction under Article 199, observing that it is supervisory rather than appellate. A High Court cannot reassess evidence merely to substitute its own view for that of a lower court, although interference is permissible where there is a violation of law, excess of jurisdiction, a finding unsupported by evidence or failure to consider material evidence.

The judgment emphasized that Article 4 of the Constitution guarantees treatment in accordance with law, Article 14 protects human dignity and Article 25 guarantees equality before law. The rights and dignity of both spouses must therefore be protected throughout matrimonial litigation.

The Supreme Court held that a wife cannot be deprived of her dower by being compelled to seek khula against her will, just as a husband cannot be held responsible for cruelty or marital misconduct without sufficient evidence.

The court observed that the purpose of law is to determine the rights of the parties, not to aggravate a human dispute. Where allegations of a specific matrimonial wrong fail to meet the required legal standard, courts should not treat them as proved. However, if the marital relationship has genuinely reached a state of severe and continuing shiqaq, the parties need not be kept in the marriage indefinitely merely because a particular matrimonial wrong has not been established.

Distinguishing khula from shiqaq, the Supreme Court held that khula is a form of marital release obtained through the wife’s voluntary choice, whereas shiqaq is an objectively established condition of serious and continuing breakdown of the marital relationship. In such a case, relinquishment of dower or any other financial benefit by the wife is not a necessary condition for dissolution.