Mental torture must be taken into account in Khula cases, rules SC

The Supreme Court has held that in a case of the dissolution of a marriage on the grounds of cruelty, the intensity and ruthlessness of the acts must be taken into account.

It added a court must examine whether the conduct complained was not merely a trivial issue, which might happen in a day-to-day married life, but of a nature, which no reasonable person could endure.

The SC also noted that while claiming conjugal rights by a husband in response to the suit for the dissolution of marriage i.e. dowry and maintenance, it was also a responsibility of the court to see whether or not he was sincerely fulfilling his obligations towards his wife.

"The cruelty alleged may be mental or physical, premeditated or unpremeditated, but lack of intent does not make any distinction,” read a 12-page judgment authored by Justice Muhammad Ali Mazhar while setting aside a Peshwar High Court’s judgment.

The PHC verdict maintained the appellate court's order wherein the dissolution of the marriage on the account of cruelty was converted into a Khula (a form of divorce initiated by the wife, which is effected by the return of her husband's wedding gift) with directions to the petitioner Tayyeba Ambareen to refund the dowry to her ex-spouse, respondent No 1.

After eight years, a three-judge bench of the apex court, led by Justice Sardar Tariq Masood, has maintained the family court's order in the petitioner’s favour.

Read more: Where Pakistan's domestic violence law fails

“Obviously, if it is a physical act then it would be a question of fact, and in the event of mental cruelty, an inquiry is required to be made as to the nature of the cruel treatment to find out the impact or repercussions thereof on the mind of the spouse,” the SC verdict read.

“Mental cruelty can be largely delineated as a course of conduct which perpetrates mental pain with such a severity and harshness which would render it impossible for that party to continue the matrimonial tie or to live together,” it added.

The SC noted that a matrimonial relationship was based on a mutual trust between a wife and husband with emotions and it obliged reciprocal respect, love and affection for evenhanded adjustments with the spouse without causing a sense of anguish and disappointment.

Justice Muhammad Ali Mazhar also wrote that the matrimonial bond between a man and woman was a pious relationship, which played an important part and also nurtured between the husband and wife happiness and compassion.

He added that the lineage and family heredity also depended on it.

"Connubial affairs are based on gentle, human and emotional affiliation which requires mutual trust, regard, respect, love and affection with adjustments with the spouse, and the relationship should also be in accordance with social norms,” the judge noted in his verdict.

"According to the injunctions of Islam, the husband is obligated and responsible to provide food, clothing, accommodation and all the other necessities of life to the best of his capability and capacity,” he added.

The court noted that a man was expected to treat his wife nicely, with love and affection.

The judgment further observed that the appellate court had seriously erred in reversing the judgment of the family court, which was founded on the careful exploration and analysis of the concept in connection with mental cruelty, which had resulted in an irretrievable marriage breakdown.

“[The marriage] could not be preserved due to various instances of cruel behaviour of the respondent No 1 [husband] that developed severe hatred and aversion in the mind of petitioner No 1 [wife] and she totally refused to continue this reluctant relationship any more,” the SC verdict read.

The SC also observed that the judgment of the trial court also reflected that the husband had filed a claim for the restitution of conjugal rights, hence the family court settled various issues in order to resolve the controversy.

However, it noted that issue No 7 -- related to the claim of dissolution of marriage on the ground of cruelty -- and issue No 8 -- the claim of restitution of conjugal rights – were rejected.

The judgment read that while claiming conjugal rights by a husband in response to the suit for the dissolution of marriage, dower, dowry and maintenance, it was also an “onerous” responsibility of the court to see whether or not he was sincerely fulfilling his obligations towards his wife, rather than gratifying the urges of “male chauvinism”.

"The lodging of this claim should not be used as [a] weapon to defend or obstruct the claim of dower or maintenance allowance, but must be lodged in good faith and with a bona fide intention to reconcile and rectify the issues between the spouses in order to save the matrimonial tie with magnanimity, kindness and through the fulfillment of the husband’s obligations and not as a tool to fight out or frustrate the claim of maintenance allowance or dower amount,” the verdict read.

"It is quite a strange situation that the petitioner No 1 (wife) approached the family court for [the] dissolution of marriage on the ground of cruelty but the respondent No 1 (husband), quite the reverse, claimed conjugal rights despite all his ruthless, tyrannical and oppressive conduct or behaviour, which claim on the face of it seems to be motivated with the sole intention to avoid paying the maintenance allowance and the dower amount and he ultimately succeeded in his effort in the appellate court whereby the dissolution of the marriage on account of cruelty was converted into a dissolution of the marriage by way of Khula with directions to the petitioner No 1 to refund the dower amount to the respondent No 1,” it added.

The court also noted that the judgment of the family court depicted various acts which according to the wife caused mental anguish and torture i.e. that around one week of the marriage, the behaviour of the husband started to change and he was pressuring the petitioner to arrange money to acquire a house on rent.

“When the petitioner No 1 [wife] was in a family way, the respondent No 1 [husband] and his family members started spreading a false accusation that the petitioner No 2 was not the child of the respondent No 1 which further worsened the situation and the petitioner No.1 suffered severe mental agony,” the verdict stated.

“The respondent No 1 [husband] instead of supporting the petitioner No 1 [wife], left her deserted in the house at a crucial time when she was in a family way; he neither turned towards her, nor paid any maintenance allowance, nor the delivery expenses which were also borne by the petitioner No 1; the respondent No 1 and his family members also imposed a harsh condition that the petitioner No 1 should deposit her salary into a joint account with the respondent No 1, and if she wants money for personal use, she should ask for the permission of her husband and his family members; despite filing the family suit, the respondent No 1’s behaviour did not change and he started causing more mental anguish and started leveling false accusations against the petitioner No 1 amongst relatives and one more unreasonable condition was imposed that the amount for the house purchased by the petitioner No 1 should be reimbursed to her by her father and the money should be paid to the respondent No 1,” the SC noted.

"What we have noted is that the learned appellate court, instead of considering the evidence led by the petitioner No 1, reached a conclusion without any rhyme or reason that no solid piece of evidence was brought which could show either physical torture or mental agony and on its own motion, while disregarding the evidence, held that the allegation of the petitioner No 1 seems to be based on exaggeration and even at one point, while quoting some piece of evidence in which the petitioner No 1 alleged that even prior to marriage, she was earning a salary six times greater than the respondent No 1’s, the appellate court dubbed the petitioner No 1 as arrogant and, while considering the acts of cruelty, the appellate court observed that they are common in nature and are found in every family in day to day affairs and with these erroneous findings, the appellate court converted the decree of dissolution of marriage into a decree for dissolution of marriage by way of Khula with further directions to petitioner No 1 to return 5 tolas (58.5 grams) of gold or its market value,” the judgment read.

"In the same breath, the learned high court, without considering the evidence led in the family court, maintained the judgment of the appellate court without correctly analysing the concept of mental cruelty,” it added.