Consent of wife essential for Khula, Supreme Court rules

ISLAMABAD: The Supreme Court (SC) of Pakistan has issued a significant and comprehensive ruling on khula and domestic disputes, holding that divorce through khula cannot be granted without the clear, informed and unambiguous consent of the wife.

A three-member bench headed by Chief Justice Yahya Afridi issued the detailed judgment, authored by Justice Shahid Bilal Hassan in a 12-page ruling.

The court observed that converting a case based on allegations of cruelty into a khula proceeding without the wife’s consent may adversely affect her financial rights. It directed that women must be given the option to decide whether to pursue allegations of cruelty or proceed with khula.

The judgment further stated that where cruelty is not established but the marriage has effectively broken down, the wife must be given the right to choose her legal remedy, adding that courts cannot compel continuation of a “dead marriage”.

The court expanded the definition of domestic violence to include not only physical abuse but also psychological harm, humiliation, coercion, neglect and emotional suffering.

It noted that mental cruelty encompasses emotional distress, sustained disregard and severe psychological harm.

The Supreme Court also clarified that the standard of proof in family cases should be based on “preponderance of probability”, in contrast to criminal cases which require proof beyond reasonable doubt. It emphasised that family courts should not demand unrealistic standards of evidence, such as eyewitness testimony or FIRs, in domestic matters.

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Family courts were instructed to avoid applying criminal evidentiary standards in civil family disputes and instead assess cases based on facts, conduct and surrounding circumstances.

The case in question involved a marriage contracted on 19 September 2016, with separation proceedings initiated on 8 October 2016. The court noted that even within a short duration, allegations of cruelty may arise, and each case must be decided on its own facts.

While the wife failed to substantiate allegations of cruelty, the court upheld earlier findings and noted that the marriage had effectively broken down, with the wife consistently seeking separation.

The Supreme Court partially set aside the earlier khula decision and remanded the case to the family court for reconsideration of procedure and determination of financial rights.

The family court has been directed to record the wife’s final statement to determine her choice. If she opts for khula, proceedings will continue in accordance with legal requirements; if she pursues allegations of cruelty, the case will be decided on that basis.

The Supreme Court further directed the family court to dispose of the matter within 30 days.