SC rules family courts must obtain informed consent before granting Khula

ISLAMABAD, (APP - UrduPoint / Pakistan Point News - 21st May, 2026) The Supreme Court of Pakistan has ruled that if a wife failed to prove allegations of cruelty against her

husband but remained unwilling to maintain marital relationship, a family court was obligated to obtain the

woman’s clear, informed, and voluntary consent before issuing a decree of 'Khula' (divorce initiated by

the wife).

This ruling is particularly significant in cases where financial rights, such as 'haq-mehr' (dower), are at

stake. The court emphasized that family courts cannot automatically convert a case into khula nor use

a failed claim of cruelty as the sole basis for a divorce decree without explicit consent.

According to the detailed written judgment, a three-member bench headed by Chief Justice Yahya Afridi,

along with Justice Shahid Bilal Hassan and Justice Shakeel Ahmad, issued the verdict on an appeal filed

by Seelab Akhtar. The court partially upheld the decisions of the lower courts, including the Peshawar

High Court’s Mingora Bench (Dar-ul-Qaza), and remanded the case back to the relevant family court.

The Supreme Court clarified that khula and statutory dissolution of marriage were two distinct legal paths

that cannot be interchanged based solely on judicial discretion, especially when it adversely affects a

woman’s financial rights. Introducing the "conscious election principle," the court stated that a woman

must make a clear and informed choice regarding the legal basis upon which she sought separation.

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The bench further noted that even when a marriage has effectively collapsed and there was no room for

reconciliation, the court must ascertain whether the woman wished to continue pursuing her claims of

cruelty or prefers to accept the dissolution of the marriage via khula.

Addressing the burden of proof in domestic disputes, the Supreme Court ruled that because of the nature

of the marital environment, the standard of evidence cannot be as stringent as that of criminal cases.

Instead, such matters should be evaluated under the principle of "preponderance of probabilities."

The court also expanded the definition of cruelty, noting that it is not limited to physical violence but

includes mental torture, humiliation, coercion, emotional pressure, and any behavior that renders

marital life unbearable.

In the case of the petitioner, the court observed that while she failed to prove specific allegations

of cruelty, the record indicated that the marital relationship had effectively ended shortly after the

wedding, with the woman consistently refusing to live with her husband.

The court concluded that in such instances, family courts must record the woman’s statement to

determine whether she specifically seeks khula or wishes to maintain her original claims, after

which a final decision should be issued in accordance with the law.