SC rules that a marriage could be dissolved on shiqaq grounds even without proven cruelty

ISLAMABAD: The Supreme Court ruled on Wednesday that a marriage could be dissolved on grounds of shiqaq (marital discord) under a residuary provision of the Dissolution of Muslim Marriages Act, 1939, even when cruelty was not proven.

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, on Wednesday announced the judgment. The bench decided the connected petitions, filed by Zainab Bibi and Imran Naz Begum, against separate orders of the Peshawar High Court (PHC).

Two cases arise out of two separate family suits and two separate judgments. In each case, the wife sought dissolution of marriage on the ground of cruelty and, in the same proceedings, claimed recovery of maintenance allowance, dower and dowry articles.

The Family Courts, after following the procedure prescribed by the Family Courts Act, 1964, concluded that cruelty had not been established. Nevertheless, having found that reconciliation had failed, they dissolved the marriages by khula and directed the wives to return or surrender the dower. The appellate court and the PHC largely upheld these decrees.

The judgment said, “A marriage may be dissolved by a court, but neither spouse should be judicially deprived of a lawful right, nor judicially burdened with a stigma, without the foundation of law and evidence.”

It noted that Khula and dissolution under the Dissolution of Muslim Marriages Act, 1939, are distinct legal avenues, although both may ultimately terminate the marital relationship. Section 2 of the Act of 1939 confers upon a Muslim woman a statutory right to seek dissolution upon proof of one or more prescribed grounds, including cruelty.

The SC Appellate Bench held that the Family Courts committed an error of law in converting the petitioners’ claims for dissolution on the ground of cruelty into decrees of khula without obtaining their clear and voluntary consent or election. Those decrees, to the extent that they rest upon khula, cannot be sustained. The record, however, does not warrant setting aside the dissolution altogether.

“The matrimonial relationships have undergone a serious and continuing rupture; reconciliation has failed; the evidence does not establish the statutory ground of cruelty; and the record, taken as a whole, establishes a condition of shiqaq of the kind contemplated by verse 35 of Surah An-Nisa of the Holy Quran and recognised under Muslim law, thereby bringing the cases within the residuary provision contained in section 2(ix) of the Act of 1939.”“The dissolution can therefore lawfully be sustained, but upon a juridical basis different from that adopted by the Family Courts,” it added.

The judgment also held that the marriages of the petitioners are liable to dissolution on the ground of shiqaq falling within section 2(ix) of the Dissolution of Muslim Marriages Act, 1939, and not on the basis of khula.

It said that the directions requiring the petitioners to return, surrender or waive their dower merely as a consequence of khula shall consequently stand set aside. Their entitlement to dower shall be determined in accordance with the Act of 1939 and the findings otherwise sustainable on the record.

The findings concerning maintenance and dowry articles, having been examined by the courts below and not having been shown to suffer from any error of law, jurisdictional defect, material misreading or non-reading of evidence warranting interference under Article 199 of the Constitution, shall remain undisturbed.

Family litigation should not be reduced to a contest in which one spouse must necessarily emerge judicially dishonoured for the other to obtain relief.

Copyright Business Recorder, 2026