khula vs dissolution of marriage case

Table of Contents:

1. Background
2. Key Legal Issues
   • Khula vs. Dissolution under DMMA
   • Dower Rights
3. Court’s Analysis
   • Procedural Distinctions
   • Evidence Evaluation
4. Conclusion
5. Result

---

Judgment Summary:

Court: Supreme Court of Pakistan
Judge: Ayesha A. Malik, J.
Date: 28.11.2022

---

1. Background:

Respondent No.1 filed two suits in 2014:

1. First Suit:
   • Composite suit for:
     • Jactitation of marriage
     • Alternative: Dissolution of marriage, recovery of dowry articles, and maintenance
2. Second Suit:
   • Recovery of maintenance
   • Possession of a house or its market value

Trial Court Decision:

• Decreed dissolution based on khula.
• Waived dower (half of the house).
• Granted maintenance and partial recovery of dowry articles.

Appellate Court Decision:

• Upheld the trial court’s judgment with enhancements in maintenance and dowry costs.

High Court Decision:

• Set aside lower courts’ judgments.
• Held that Respondent No.1 was divorced by talaq.
• Awarded her the dower (half of the house).

---

2. Key Legal Issues:

Khula vs. Dissolution under DMMA:

• Khula is the exclusive right of a woman, requiring explicit request and consent.
• Dissolution on cruelty grounds under the Dissolution of Muslim Marriages Act (DMMA) is independent of khula.
• Courts cannot convert a cruelty-based dissolution claim into khula without the wife’s clear request.

Dower Rights:

• Dissolution on grounds of cruelty preserves the wife’s dower rights.
• Khula involves waiving dower but requires the wife’s consent.
• Evidence showed the petitioner had divorced Respondent No.1.

---

3. Court’s Analysis:

Procedural Distinctions:

1. Dissolution under DMMA:
   • Requires evidence of cruelty.
   • Preserves the right to dower.
2. Khula:
   • Can be granted without proving grounds like cruelty.
   • Requires the wife to waive dower explicitly.

Evidence Evaluation:

• Respondent No.1 claimed divorce was pronounced in a jirga and at a police station.
• Supporting witnesses (PW-4 and PW-5) were not effectively challenged.
• The Petitioner denied divorce but admitted multiple jirgas occurred.
• The High Court correctly concluded that divorce was established.

---

4. Conclusion:

• The lower courts erred by granting khula without Respondent No.1’s explicit consent.
• She sought dissolution due to cruelty and did not waive her dower.
• The High Court’s decision to award dower was legally sound.

---

5. Result:

• Civil Petitions dismissed.
• Leave refused.