Supreme Court: a statutory dissolution claim cannot be turned into khula without the wife’s consent (shiqaq)

Facts

From the judgment

The two petitions arose from two separate family suits. In each, the wife sought dissolution of marriage on the ground of cruelty and, in the same proceedings, claimed maintenance allowance, dower and dowry articles. The Family Courts found cruelty not established but, reconciliation having failed, dissolved the marriages by khula and directed the wives to return or surrender the dower; the remaining claims were partly allowed. (para 2)

In Mst. Zainab Bibi's case the appellate court modified the decree as to return of dower, holding that the husband had already taken the dower back, but the Peshawar High Court, Abbottabad Bench restored the Family Court's decree. In Mst. Iram Naz Begum's case the appellate court maintained the decree and the High Court declined to interfere with the concurrent findings. (para 2; title page)

Before the Supreme Court the wives argued that their marriages could not lawfully be dissolved by khula because they had neither sought nor consented to it, and that their claims for maintenance, dower and dowry articles should have been allowed in full. (para 3)

Procedural history

From the judgment

1. Date not statedSuits for dissolution on the ground of cruelty, with maintenance, dower and dowry claims, Family CourtsCruelty not proved; marriages dissolved by khula; wives directed to return or surrender dower; other claims partly allowed (para 2)
2. Date not statedFamily appeals, Appellate courtsZainab Bibi: dower direction modified; Iram Naz Begum: decree maintained (para 2)
3. 7 November 2024W.P. No. 853-A of 2024 (Zainab Bibi), Peshawar High Court, Abbottabad BenchFamily Court decree restored (p. 1; 2)
4. 14 January 2025W.P. No. 707-M of 2020 (Iram Naz Begum), Peshawar High Court, Abbottabad BenchDeclined to interfere (p. 1; 2)
5. Heard 17 August 2026; listed 7 October 2026C.P.L.A. Nos. 57 and 1350 of 2025, Supreme Court of Pakistan (five judges)Converted into appeals and partly allowed: dissolution on shiqaq substituted for khula; khula-based dower directions set aside (para 23)

Questions of law

1. Could the marriages lawfully be dissolved by khula when the wives had sued on the ground of cruelty and had neither sought nor consented to khula? Framed by the court

   The court's answer: No. Khula is the wife's own election; converting a statutory claim into khula without her clear and voluntary consent is an error of law of a jurisdictional character, and failure to prove cruelty does not change that. (para 3, 5-7)

2. Should the High Court, in its constitutional jurisdiction, have revisited the findings on maintenance, dower and dowry articles? Framed by the court

   The court's answer: Not on maintenance and dowry articles, which turn on the evidence: Article 199 is supervision, not a second appeal. Dower stands on a different footing because its loss flowed from the unlawful khula decree. (para 4)

3. Once khula fails, must the case be remanded, or may the Court decide on the existing record whether another lawful ground for dissolution exists? Framed by the court

   The court's answer: The Court decided on the record: the allegations had been fully litigated, evidence recorded and reconciliation attempted, so no new factual controversy arose. (para 8, 18)

4. Is shiqaq a ground for dissolution within section 2(ix) of the Dissolution of Muslim Marriages Act 1939? Framed by the court

   The court's answer: Yes, where its factual requirements are established and the safeguards of fair procedure are satisfied. (para 9, 12)

Arguments

From the judgment

Petitioner or appellant

The wives argued that their marriages could not lawfully have been dissolved through khula because they had neither sought nor consented to it; their cases rested on cruelty and the marriages should have been dissolved on that ground. They also argued that their claims for maintenance, dower and dowry articles should have been allowed in their entirety (para 3).

Court's reasoning

From the judgment

Article 199 is supervision, not a second appeal

The claims for maintenance and dowry articles turned on the evidence, which the Family Courts and appellate courts had examined. The High Court could correct an error of law, a want or excess of jurisdiction, a decision on no evidence or a material misreading of evidence, but could not re-weigh the facts. Those findings were therefore rightly left alone. Dower was different, because the direction affecting it rested on the khula characterisation. (para 4)

Khula and statutory dissolution are distinct remedies

Section 2 of the 1939 Act gives a wife a statutory right to dissolution on proof of a prescribed ground such as cruelty; khula is a separate right of the wife to seek release where the marriage has become intolerable. Following Khurshid Bibi (PLD 1967 SC 97), Saima Khan (PLD 2024 SC 645) and Faryal Maqsood (PLD 2025 SC 262), a suit for dissolution is not by itself a suit for khula, and a court cannot convert one into the other without her clear and voluntary election. (para 5)

Why the difference matters: dower

Section 5 of the 1939 Act preserves the wife's right to dower where the marriage is dissolved under that Act, while khula ordinarily carries the financial consequences of her release. The wife's consent is therefore not a formality: it is the election by which she accepts khula and its consequences. The Family Courts' conversion was an error of law of a jurisdictional character, and the failure of the cruelty ground did not authorise it. (para 6-7)

Deciding on the existing record

Family proceedings follow an inquisitorial procedure rather than the Code of Civil Procedure's general framework. Here the wives had sought dissolution, the husbands knew the allegations, evidence was recorded, the parties were heard and reconciliation failed, so the Court could ask whether the established facts disclosed another lawful ground instead of remanding. (para 8, 18)

Shiqaq under section 2(ix)

None of the grounds in section 2(i) to (viii) was proved, but section 2(ix) preserves any other ground recognised by Muslim law. The Court sought the opinion of the Council of Islamic Ideology, while holding that the decision remains the Court's, traced shiqaq to verse 4:35 of the Holy Qur'an, preferred Balqis Fatima (PLD 1959 (W.P.) Lahore 566) to Umar Bibi (AIR 1945 Lahore 51), and held that shiqaq can be a ground within section 2(ix). (para 9-12)

Limits of shiqaq

This is not a general doctrine of irretrievable breakdown, and not every unhappy marriage qualifies. The court must be satisfied that the breach is genuine, serious and continuing, that the relationship has ceased to function according to its essential purposes, and that reconciliation has failed despite meaningful judicial effort. Mere incompatibility, occasional disagreement, anger, short separation or the existence of litigation are not enough. (para 11, 13)

Dignity of both spouses, and the dower consequence

Relying on Articles 4, 14 and 25 of the Constitution, the Court held that a wife should not lose dower through an involuntary conversion into khula, and a husband should not be declared cruel without proof. Shiqaq rests on the objectively established condition of the marriage, not on the wife's surrender of dower, so the khula-based dower directions could not survive; only consequences flowing solely from the khula characterisation were affected. (para 14-16, 19)

Applied to the two cases

In Iram Naz Begum's case the husband had not disclosed an existing wife and children and she said she would not resume married life even with maintenance and a separate home; in Zainab Bibi's case there were persistent arguments, a physical altercation involving the wife's brother and criminal proceedings. Taken cumulatively and without blaming either spouse, the evidence established a serious and continuing rupture amounting to shiqaq in both cases. (para 17)

Result

The petitions were converted into appeals and partly allowed. Dissolution on the ground of shiqaq under section 2(ix) was substituted for khula, the directions to return, surrender or waive dower founded solely on khula were set aside, and dower is to be determined under the 1939 Act and the findings otherwise sustainable. The findings on maintenance and dowry articles remain. No order as to costs. (para 20-21, 23)

Judicial observations

From the judgment

The court's exact words.

Practical implications

Our analysis

For lawyers

• Plead the route deliberately: a statutory ground under section 2 of the 1939 Act, khula, or both in the alternative. A court cannot substitute khula for a pleaded statutory ground without the wife's clear and voluntary election.
• If the wife does choose khula, record her informed election and the financial consequence she accepts; without it a khula decree affecting dower is open to challenge.
• Where shiqaq under section 2(ix) is relied on, prove a genuine, serious and continuing breach, that the marriage no longer serves its purposes, and that reconciliation failed despite real effort; ensure the other side has had a fair opportunity to contest it.
• Findings on maintenance and dowry articles that rest on the evidence are rarely disturbed under Article 199; frame any challenge as an error of law or a material misreading of evidence.

For everyone else

• A wife who asks the court to end her marriage on a ground such as cruelty cannot be given khula unless she clearly chooses it. This matters because khula can mean giving up her dower.
• If cruelty is not proved but the marriage has broken down for good and reconciliation has failed, the court may still end it for shiqaq, a serious and lasting breach, without blaming either spouse.
• Shiqaq does not mean any unhappy marriage can be ended: ordinary quarrels, a short separation or a pending case are not enough.

General points drawn from this judgment, not advice on your own case.

Limits of this judgment

Our analysis

• Decided on the records of two cases from the Peshawar High Court, Abbottabad Bench, where the allegations had been fully litigated and reconciliation had failed.
• The Court expressly did not create a general ground of irretrievable breakdown of marriage (para 13).
• It did not fix the dower payable: that is left to be decided under the 1939 Act and the findings otherwise sustainable on the record (para 21).
• The maintenance and dowry findings were left as the lower courts decided them; the judgment does not re-examine those amounts.

Related

Our guide

• Khula in Pakistan: Complete Procedure, Cost, Timeline & Legal Rights

Discussed in our brief

• Supreme Court Shiqaq Judgment 2026 | SC shiqaq judgment clarifies khula consent and dower.