SC allows dissolution of marriage on shiqaq grounds

ISLAMABAD  –  The Supreme Court on Wednesday ruled that a marriage could be dissolved on the ground of shiqaq (serious and continuing marital discord) under the residuary provision of the Dissolution of Muslim Marriages Act, 1939, even where cruelty had not been proved. A five-member Supreme Court Appellate Bench headed by Justice Shahid Waheed and comprising Justices Naeem Akhter Afghan, Muhammad Hashim Khan Kakar, Ishtiaq Ibrahim and Miangul Hassan Aurangzeb announced the judgment while deciding connected petitions filed by Zainab Bibi and Imran Naz Begum against separate orders of the Peshawar High Court.

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The cases arose from separate family suits in which the petitioners had sought dissolution of their marriages on the ground of cruelty while also claiming maintenance, dower and recovery of dowry articles.

The Family Courts, after following the procedure prescribed under the Family Courts Act, 1964, found that cruelty had not been established. However, after concluding that reconciliation had failed, they dissolved the marriages through khula and directed the wives to return or surrender their dower. The appellate courts and the PHC largely upheld the decrees. The Supreme Court held that khula and dissolution under the Dissolution of Muslim Marriages Act, 1939, were distinct legal avenues, although both could ultimately terminate a marriage. The bench ruled that the Family Courts had committed an error of law by converting the petitioners’ claims for dissolution on the ground of cruelty into decrees of khula without obtaining their clear and voluntary consent or election.

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The court held that such decrees, to the extent that they were based on khula, could not be sustained. However, it said the dissolution of the marriages could not be set aside altogether because the record established a condition of shiqaq and reconciliation had failed. “The matrimonial relationships have undergone a serious and continuing rupture; reconciliation has failed; the evidence does not establish the statutory ground of cruelty,” the judgment said, adding that the record as a whole established a condition of shiqaq contemplated by verse 35 of Surah An-Nisa and recognised under Muslim law.

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The court consequently held that the marriages were liable to dissolution on the ground of shiqaq under Section 2(ix) of the 1939 Act rather than on the basis of khula. The judgment further held that directions requiring the petitioners to return, surrender or waive their dower merely as a consequence of khula would stand set aside. Their entitlement to dower would instead be determined in accordance with the 1939 Act and the findings otherwise sustainable on the record.

The Supreme Court maintained the findings concerning maintenance and dowry articles, observing that no error of law, jurisdictional defect, material misreading or non-reading of evidence warranting interference had been established.

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The bench observed that a marriage could be dissolved by a court, but neither spouse should be judicially deprived of a lawful right or burdened with a stigma without a foundation in law and evidence.

It said family litigation should not be reduced to a contest in which one spouse had to emerge judicially dishonoured for the other to obtain relief. Islam provides a path of reconciliation but also recognises the necessity of separation when a matrimonial relationship becomes a source of persistent and irreconcilable discord, the judgment observed.

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The court said the Qur’anic emphasis on reconciliation in cases of shiqaq was meaningful because it contemplated the possibility that reconciliation might fail. The law should neither rush towards separation nor prolong a matrimonial relationship that had ceased to serve its lawful purposes. “Where reconciliation has failed, and the relationship has reached the condition of shiqaq, the judicial task is to bring the matter to a lawful conclusion without unnecessary attribution of blame or deprivation of rights,” the judgment concluded.

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