Woman can seek divorce on grounds of shiqaq without proving cruelty, rules SC

ISLAMABAD: The Supreme Court ruled that a marriage can be dissolved on the ground of 'shiqaq' (serious and continuing marital discord) under the residuary provision of the Dissolution of Muslim Marriages Act, 1939, even when cruelty is not proven.

A five-member bench headed by Justice Shahid Waheed heard two connected petitions challenging Peshawar High Court orders.

In both cases, the wives had sought dissolution on grounds of cruelty, but family courts found the allegations unproven and dissolved the marriages through khula, directing the women to return their dower.

The Supreme Court held that the family courts had erred by converting the women’s claims into khula without obtaining their clear and voluntary consent.

The court clarified that khula is based on a wife’s voluntary choice and ordinarily carries financial consequences, while shiqaq arises when a marriage has reached a serious and continuing rupture and reconciliation has failed.

The SC, however, upheld the dissolution of both marriages on the legal ground of shiqaq under Section 2(ix) of the 1939 Act.

It also set aside directions requiring the women to surrender or return their dower merely because the marriages had been treated as khula, saying their entitlement would be determined under the law.

The court stressed that shiqaq cannot be established by ordinary disagreements, incompatibility or temporary separation.

There must be a genuine and continuing breakdown of the marital relationship, with meaningful efforts at reconciliation having failed. The court also cautioned against labelling either spouse as cruel or guilty of misconduct without sufficient evidence.