Supreme Court of Pakistan Holds that the Courts Cannot Pass a Decree of Khula Without a Woman’s Consent

by | Apr 22, 2024

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About Rida Tahir

Rida Tahir is a UK qualified Barrister-at-law and an Advocate of the High Courts of Pakistan. She is a lecturer for the University of London and University of Hertfordshire law programmes in Pakistan.  Rida specialises in human rights litigation with particular focus on the rights of women and children.  Recently, she was invited by the UN Women to a consultative meeting, which was presented to the office of the Honorable Prime Minister of Pakistan and resulted in the National Gender Policy Framework.

Khula is not a favourable method of divorce for women because they are compelled to return their dower. Under the Muslim Law, dower is the sum of money or property which the bride receives from the groom in consideration of marriage.

On 15 February 2024, the Supreme Court (SC) of Pakistan held in Ibrahim Khan v Saima Khan that the courts cannot pass the decree of khula without a woman’s consent. The court also differentiated between khula and the ‘dissolution of marriage’. The judgement is an important step towards empowering women who approach the court for dissolution of their abusive marriages and are not economically independent.

The brief facts of the case are that the Respondent No.1 (ex-wife of the petitioner) sought dissolution of marriage with explicit detail that her husband (Petitioner) was cruel to her. In 2015, the trial court, without considering the prayer of Respondent No.1, granted her khula in return for her dower. This was upheld by the appellate court. The judgement was then appealed to the High Court and then finally to the SC.

In coming to its judgement, the SC differentiated between khula and the dissolution of marriage. The SC referred to Paragraph No. 319(2) of Mahomedan Law while stating that a khula is the release from marriage that a woman can seek by agreeing to waive her dower. The SC was of the view that, when applying for a khula, a woman does not have to level any allegation against her husband — she simply has to say that she does not want to live with him. However, she must agree to waive her dower.

Conversely, the dissolution of marriage on the ground of cruelty is sought under Section 2 of the Dissolution of Muslim Marriages Act 1939 (DMMA) which states that: “A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her Marriage on the … ground (viii) that the husband treats her with cruelty’’.  Therefore, unlike when applying for a khula, a Muslim woman is required to establish the ground of cruelty for the dissolution of marriage under the DMMA. Furthermore, Section 5 of the DMMA provides that the right of the dower will not be affected in a dissolution of a marriage.

Therefore, termination of marriage under the DMMA exists in distinct and different legal domains with separate consequences from termination of marriage by way of khula.  Accordingly, the SC held that ‘’…a court cannot on its own pass the decree of khula if it has not been sought for by the woman…her consent is vital. In this case, Respondent No.1 did not seek khula, hence, granting her the same, without her consent, was wrong.’’ [para 12]

Pakistan is a patriarchal society. The role of women is reproductive and comprises of unpaid family work, or low-wage informal jobs. As a result, women rely on their husbands for financial support. Further, 90% of women in Pakistan face domestic violence in their lifetime. Therefore, if a woman has already spent her dower and plays the role of a traditional homemaker, she becomes trapped in an abusive marriage due to her lack of economic independence.

Moreover, women’s access to employment opportunities is restricted. In 2023, Pakistan ranked 142 out of 146 countries in the World Economic Forum’s Global Gender Gap Report. It ranked 143rd in the sub-indicator of economic participation and opportunities and 140th in terms of labour-force participation (LFP).

The SC’s judgement is being celebrated across the country. However, payment of dower to brides is a contentious issue in the country. While it may temporarily empower women economically, it can also lead to their suppression when she has already spent her dower. Additionally, matrimonial obligations (such as household chores) prevent women from participating in the labour force and achieving economic independence. Therefore, women rely on their husbands for financial support, reinforcing patriarchal norms.

To empower women economically, Pakistan should focus on increasing women’s LFP, through skill-development trainings, building women’s social networks, and providing accessible and quality childcare services. By achieving economic independence, women will rise from their subordinate status in the household—ultimately this will reduce gender inequality across Pakistan. Moreover, to implement the law, sub-national human rights institutions such as the Sindh Human Rights Commission should focus on continuous gender sensitisation and capacity-building training of the judiciary to enhance their understanding of family laws. Further, free legal aid should be provided in cases of divorce so that women who are not economically independent are able to access the courts to have their rights enforced.

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