The top court has noted that Islam confers the right of khula—dissolution of marriage—to woman and a Muslim woman can get herself released from the bond of marriage if she feels, due to any reason, that she could not live with her husband within the limits prescribed by Allah Almighty.
“The legislature while introducing amendment in the Family Court Act, 1964 has derived wisdom from Quran and Sunnah,” the Supreme Court said in a ruling authored by Justice Syed Hasan Azhar Rizvi.
The judge was part of a three-member bench which maintained an order of a family court with regard to dissolution of a marriage at the request of the wife, a dual national.
The court noted that the right and mode of khula has been described in verse 229 of Surah Baqarah.
“Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation,” it said.
The court noted that proviso to Section 10 of the Family Court Act, 1964 empowers the family courts to pass a preliminary decree for the dissolution of marriage forthwith upon the failure of reconciliation and further provides that the wife shall be ordered to return the mehr—dowers—received by her.
“Section 10(3) imposes a legal obligation on the family courts to make a genuine attempt for reconciliation between the parties. [A] trial court shall remain instrumental and make genuine efforts in resolving the dispute between the parties.
“In case if, despite genuine efforts, reconciliation fails, the trial court under proviso of section 10(4), without recording evidence is empowered to pass a decree of dissolution of marriage forthwith.
“At this juncture if the court observes that the wife without any reason is not willing to live with her husband, then under proviso (ibid) the court is left with no option, but to dissolve the marriage,” it said.
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