Achi news desk-
In a recent landmark judgment the Supreme Court of Pakistan ruled that a prayer for dissolution of marriage on the grounds of cruelty or any ground under the Dissolution of Muslim Marriages Act (DMMA) 1939 cannot be converted into a prayer of dissolution by means of khula by the Court itself.
In doing so, the 8-page judgment by Hon’ble Mrs Justice Ayesha A. Malik drew a clear distinction between ‘khula’ and dissolution of marriage under the Dissolution of Muslim Marriages Act (DMMA) 1939 and held that they are distinct and separate. legal rights with separate consequences and the two cannot be seen as interchangeable by the court itself.
This is an important ruling because the practice of some courts of automatically converting the prayer for dissolution of marriage under DMMA into a prayer for khula where the woman had not even asked for khula results in her being deprived of her right to claim dowry This was a gross injustice to women but also a legal practice that was against the law so it was important to set the course correctly on this legal point.
According to the Principles of Mahomedan Law, a divorce by khula is a divorce with consent, and at the instance of the wife, where she gives or agrees to give consideration to the husband to release him from the marriage. It is a deal or arrangement between the husband and the wife where, as a consideration, she can release her dowry and other rights to give khula.
In Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97), the Supreme Court had ruled that khula is provided to a woman as a right she can seek from the court if she seeks release from the marriage she must be satisfied for her. to offer compensation or release a dowry.
Khula is an irrevocable divorce which the wife can seek in case of extreme incompatibility. A woman has a right that she does not have to level any claim about; she simply has to say that she does not want to live with her husband. In other words, khula can be given 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 an independent right available to a woman. In order to seek to dissolve a marriage under the Act, the woman will have to establish one of the grounds set out 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 grounds of cruelty and non-payment of maintenance, the appellant was entitled to present his defense in court by presenting evidence before he was made liable to pay any support. The Court also granted the respondent the right to respond and defend the case given that it bears title under the DMMA.
These cases show that the Supreme Court recognized clear substantive differences between ‘Khula’ and Dissolution of Marriage under DMMA 1939. Justice Malik’s recent judgment also identified a number of substantive and procedural differences between the two as follows:
1. First, that there must be some cause or basis (cruelty, assault, abuse, etc.) in accordance with the DMMA to obtain a decree of dissolution of marriage under the DMMA. However, a woman can be given khula without establishing any basis or proving the case to the court.
2. Secondly, if the basis under the DMMA is established by a woman, then Section 5 of the DMMA 1939 protects a woman’s right to dowry, while in khula, she has to surrender or waive her dowry right .
3. Finally, as regards the procedure in the khula case, once the pre-trial conciliation fails under Section 10 of the Family Courts Act, 1964 (FCA), the court is bound to pass a decree for the dissolution of marriage on once, but the decree for dissolution of marriage under the DMMA can only be passed after recording evidence under Section 11 of the FCA.
Therefore, dissolution of marriage under the DMMA and by khula exist in separate and distinct legal domains with separate consequences and the court cannot convert a prayer for dissolution of marriage on the ground of cruelty into a prayer for seeking dissolution of marriage by means of khula, where it is not is a woman alone seeking the khula.
The implication of this decision is that the woman seeking to dissolve a marriage under the DMMA would NOT lose her right to dowry, and would lose it in case of ‘Khula’. In fact, the DMMA itself considers in Section 5 that the right to dower will not be affected by the dissolution of marriage and the woman will be able to claim it if she is able to establish any of the grounds for the dissolution of marriage from under the DMMA 1939.
The full text of the judgment can be seen here.
