SC upholds right to khula for women

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January 18, 2024

By Xari Jalil

LAHORE


A three-member bench of the Supreme Court has upheld that Islam gives e woman a right to ‘khula’. Although this is already known, a case in the Sindh High Court Sohail Ahmed vs Sameena Rasheeed Memon was referred to by the bench. According to that case, Sameena Rasheed, a dual citizen of Pakistan and the United States of America (USA), contracted a marriage, duly registered at New York, USA, with the petitioner Sohail Ahmed against a dower amount of US $5000.

After differences developed between them, through her Attorney, she filed a Family suit in the court of Family Judge Karachi, for dissolving her marriage through khula, and maintenance.

Sohail Ahmed contested the suit by filing an Application dated for the dismissal of the suit on the ground that courts in Pakistan have no jurisdiction to entertain the case because the marriage was solemnized in the US and the cause of action also accrued there.

However, the three-member bench of the Supreme Court stressed that Islam has allowed a woman the right to ‘khula’, and if a woman with Pakistani roots wanted to seek khula from the courts here, she could, regardless of where she had been living while married, or where the marriage had been contracted.

In Pakistan, under Islamic law a woman cannot go to court to “file for divorce”. Instead, she has the right for the dissolution of marriage, or ‘khula’, without the consent of her husband. It is done inside a family court.

In the present case, the preliminary decree passed by the Family Court for the dissolution of marriage by way of Khula was in due compliance with Section 10(4) of the Act. Furthermore, vide order dated 10.04.2021 direction was given to frame issues for remaining controversies

JUDGEMENT

The question raised before the bench was whether Family Courts in Pakistan have the jurisdiction to entertain the case when the plaintiff/wife is a dual citizen of Pakistan and the US and is residing in the US at the time of the institution of the suit.

At the same time, the husband is a national and permanent resident of Pakistan.

In this regard Rule 6 of the West Pakistan Family Courts Rules, 1965 is relevant. The Rule is reproduced below:

“6. The Court which shall have jurisdiction to try a suit will be that within the local limits of which: – (a) the cause of action wholly or in part has arisen, or (b) where the parties reside or last resided together. Provided that in suits for dissolution of marriage or dower, the court within the local limits of which the wife ordinarily resides shall also have jurisdiction.”

(The word “ordinarily” is used which has a different meaning than that of ‘permanent residence’. In the present case, although the respondent is living in the USA at the time of the institution of the suit through her duly constituted attorney. However, the respondent usually comes to Pakistan; have acquired her education in Karachi and visits her family in Karachi from time to time.)

In the present case, the preliminary decree passed by the Family Court for the dissolution of marriage by way of Khula has been in due compliance with section 10(4) of the Act, said the bench. The bench also said that the marriage between the two parties stands dissolved, and they are of the view that the petitioner is unnecessarily dragging the respondent into litigation.

DOMESTIC VIOLENCE APPEARS AS BIGGEST REASON

One of the biggest reasons for seeking khula in Pakistan is rooted in domestic violence.

The Asma Jahangir Legal Aid Cell (AGHS) records for example from between December 2021 to June 2022 show that the organization had received around 67 cases in total where women had applied for khula or dissolution of marriage.

AGHS lawyer Noreen Nazir who handles many of the cases specifies that there is hardly any case where domestic violence does not exist.

“Among all our cases for khula, 100 percent of them have reasons pertaining to domestic violence and physical abuse at the hands of the spouse or in-laws,” she reveals. “One of the khula cases that we are battling for in court, involves a woman who was beaten up by some men sent by her husband only because she had asked for a divorce.”

She says that for women suffering from domestic violence, the general reaction is not to file a case against their spouses concerning this but to file directly for a khula.

In 2014 for instance, HRCP detailed domestic violence across Pakistan in various categories including acid attacks, amputation, beating, injuries, murder bids, torture cases, setting on fire, and the shaving of hair. Among all the provinces, Sindh was leading with 41 per cent while Punjab was a close second with 39 per cent. Fifty-two per cent of the cases were registered with FIRs.

HRCPs study revealed that the reasons for domestic violence usually included arguments over household chores, infertility, not giving birth to a son, or leaving the house without permission from the spouse, and financial issues which lead to frustration such as low income, lack of dowry and property disputes.

Meanwhile in Sindh, in 2019 and 2020, around 5,891 cases of khula was filed by women and were pending trial before the family courts, according to official court statistics.

The figures suggested an increase of up to 722pc in the cases filed by the female litigants seeking khula from their husbands over domestic issues during 2020 against the preceding year 2019. The figures suggested that 632 family suits for khula were instituted across Sindh in 2019.

However, around 5,198 women approached the courts to seek dissolution of their marriage during 2020.

 

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