In a recent landmark judgement the Supreme Court of Pakistan held that, a prayer for dissolution of marriage on the ground of cruelty or any ground under the Dissolution of Muslim Marriage Act (DMMA) 1939, cannot be converted into a prayer for dissolution by way of khula by the Court itself.
In doing so, the 8-page judgement by Hon’ble Mrs Justice Ayesha A. Malik drew a clear distinction between ‘khula’ and dissolution of marriage under the Dissolution of Muslim Marriage Act (DMMA) 1939 and held that they are distinct and separate legal rights with separate consequences and two cannot be seen an interchangeable by the court of its own accord.
This is an important judgement because the practice of some courts of converting the prayer for dissolution of marriage under DMMA automatically into a prayer for khula where the woman had not even asked for khula was resulting in depriving her of her right to claim dower. This was a gross injustice to women but also jurisprudentially a practice that was at odds with the law therefore, it was important to set the course correct on this legal point.
As per Principles of Mahomedan Law, a divorce by khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give consideration to the husband for release from the marriage. It is a bargain or arrangement between the husband and wife whereby she may, as a consideration, release her dower and other rights for grant of khula.
In Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97), the Supreme Court had held that khula is provided to a woman as a right that she may seek from the court if she seeks release from the marriage for which she must be willing to offer compensation or release of dower.
Khula is an irrevocable divorce that the wife can seek in case of extreme incompatibility. It is the right of a woman for which she does not have to level any allegation; she simply has to say that she does not want to live with her husband. In other words, khula can be granted to a woman without any fault of a husband.
On the other hand, The right under the DMMA has been recognized in Mukhtar Ahmed v. Ansa Naheed (PLD 2002 SC 273) as being an independent right available to a woman. In order to seek a dissolution of marriage under the Act, the woman will have to establish one of the grounds laid down in the Act to which the husband will also have the right to respond.
That is why the Supreme Court in Muhammad Siddiq v. Ghufran Bibi (PLD 1971 SC 192) concluded that since she sought dissolution on the ground of cruelty and non-payment of maintenance, the appellant was entitled to submit his defense in the court by submitting evidence before he was made liable to pay any maintenance. The Court also granted the respondent her right to respond and defend the case given that it was titled under the DMMA.
These cases show that the Supreme Court recognizes clear substantive differences between ‘Khula’ and Dissolution of Marriage under the DMMA 1939. Justice Malik’s recent judgement also laid down several substantive and procedural distinctions between the two as follows:
1. First, that there must be some cause or ground (cruelty, assault, ill-treatment, etc.) as per the DMMA to get a decree of dissolution of marriage under the DMMA. However, khula can be granted to a woman without establishing any ground or proving the cause to the court.
2. Secondly, if the grounds under the DMMA are established by a woman, then Section 5 of DMMA 1939 protects a woman’s right of dower, whereas in khula, she has to waive or forgo her right of dower.
3. Lastly, in terms of procedure in the case of khula, once the pre-trial reconciliation fails under Section 10 of the Family Courts Act, 1964 (FCA), the court is bound to immediately pass a decree for the dissolution of marriage, whereas the decree for dissolution of marriage under the DMMA can only be passed after the recording of evidence under Section 11 of the FCA.
Therefore, termination of marriage under the DMMA and by way of khula exist in distinct and different legal domains with separate consequences and the court cannot convert a prayer for dissolution of marriage on the ground of cruelty to a prayer for seeking dissolution of marriage by way of khula, where the khula is not sought for by a woman on its own.
The implication of this decision is that the woman seeking dissolution of marriage under the DMMA would NOT lose her right to dower which she would in case of ‘Khula’. In fact, the DMMA itself contemplates in Section 5 that the right of the dower will not be affected by way of dissolution of marriage and the woman will be able to claim it if she is able to establish any of the grounds for dissolution of marriage under the DMMA 1939.
The full text of the judgement can be accessed here.