• Distinguishes voluntary Khula from Shiqaq arising from matrimonial discord
• Rules wives cannot be made to surrender dower merely because of marriage dissolution
• Stresses need to distinguish unhappy marriages from relationships marked by serious rupture

ISLAMABAD: The Supreme Court on Wednesday held that a marriage could be dissolved on grounds of Shiqaq (irreconcilable discord) under the residuary provision of the Dissolution of Muslim Marriages Act, 1939 even when cruelty was not proven.

“A marriage may be dissolved by a court, but neither spouse should be judicially deprived of a lawful right, nor judicially burdened with a stigma, without the foundation of law and evidence,” the court observed in its judgement.

Headed by Justice Shahid Waheed, a five-judge SC bench comprising Justices Naeem Akhter Afghan, Muhammad Hashim Khan Kakar, Ishtiaq Ibrahim and Miangul Hassan Aurangzeb took up two connected petitions filed by Zainab Bibi and Iram Naz Begum against two Peshawar High Court orders.

Both cases arose from family suits in which the wives sought dissolution of marriage on the ground of cruelty and claimed maintenance, dower and dowry articles. However, the family courts found cruelty unproved but dissolved the marriages through Khula, directing the wives to return the dower. The appellate court and the PHC largely upheld these decrees.

Before the SC, the wives raised two principal grievances: first, that their marriages could not lawfully be dissolved through Khula because they neither sought nor consented to it, as their cases were founded on cruelty; and second, that their financial claims should have been allowed in full.

Authored by Justice Waheed, the 15-page judgement drew a distinction between Khula and Shiqaq. It explained that Khula proceeded from a wife’s voluntary election to obtain release from the marriage and ordinarily carried financial consequences.

Shiqaq, by contrast, arose from an objectively established condition of serious matrimonial breach and did not depend on the wife’s surrender of dower or any benefit as consideration for her release.

The judgement held that the family courts had erred in converting the petitioners’ claims for dissolution on the ground of cruelty into decrees of Khula without obtaining their clear and voluntary consent or election.

“Those decrees, to the extent that they rest upon Khula, cannot be sustained,” the judgement ruled, although it did not set aside the dissolution altogether.

“The matrimonial relationships have undergone a serious and continuing rupture; reconciliation has failed; the evidence does not establish the statutory ground of cruelty; and the record, taken as a whole, establishes a condition of Shiqaq of the kind contemplated by verse 35 of Surah An-Nisa of the Holy Quran and recognised under Muslim law, thereby bringing the cases within the residuary provision contained in section 2(ix) of the Act of 1939,” the SC explained.

The dissolution could therefore lawfully be sustained, but on a juridical basis different from that adopted by the family courts, the SC judgement noted, adding that the petitioners’ marriages were liable to dissolution on the ground of Shiqaq falling within section 2(ix) of the Dissolution of Muslim Marriages Act, 1939, and not on the basis of Khula.

However, the directions requiring the petitioners to return, surrender or waive their dower merely as a consequence of Khula should consequently be set aside, the SC ruled. Their entitlement to dower would be determined in accordance with the Act of 1939, it declared.

The SC observed that the Quranic emphasis on reconciliation in cases of Shiqaq was meaningful precisely because it contemplated the possibility that reconciliation might fail. “The law should neither rush towards separation nor prolong a matrimonial relationship which has ceased to serve its lawful purposes,” the judgement held.

Lawful conclusion

Where reconciliation had failed and the relationship had reached the condition of Shiqaq, the judicial task was to bring the matter to a lawful conclusion without unnecessary attribution of blame or deprivation of rights, the judgement explained.

The SC emphasised that courts must distinguish between an unhappy marriage and one in a state of Shiqaq.

“Mere incompatibility, occasional disagreement, anger, short separation or the existence of matrimonial litigation cannot, by themselves, satisfy the test. The court must be satisfied that the breach is genuine, serious and continuing; that the matrimonial relationship has ceased to function in accordance with its essential purposes; and that reconciliation has failed despite meaningful judicial effort,” the judgement emphasised.

“It [Shiqaq] requires a genuine and continuing rupture of such character that the essential purposes of marriage cannot realistically be fulfilled, coupled with failure of reasonable efforts at reconciliation.”

Published in Dawn, October 8th, 2026