If the husband won't divorce her, is she stuck for life?

Key points

• Khula is the wife's right to seek dissolution of the marriage, and a court can grant it even if the husband is not agreeable.
• The leading case is Mst. Khurshid Bibi v. Baboo Muhammad Amin, PLD 1967 SC 97, decided by five judges of the Supreme Court on 12 October 1966.
• The condition: the court must be satisfied that it is no longer possible for the husband and wife to live together in harmony and in conformity with their obligations.
• As a general rule the wife returns the benefits she received in consideration of the marriage, and the court fixes the amount. In this case the matter was sent back to the trial court to decide that.

The rule in one line

A wife does not need her husband's permission to end the marriage through the court. If the court is satisfied that the two can no longer live together as the law requires, it can dissolve the marriage by khula, usually on the wife returning what she received for the marriage.

What happened in this case

The wife lived with her husband for about three years. He then married a second wife, their relations deteriorated, and she left his house.

Her first suit for dissolution was dismissed and the husband obtained a decree for restitution of conjugal rights. She filed a second suit, asking for dissolution by divorce or, in the alternative, by khula.

The trial court found the parties had reached such an impasse that there was no likelihood of a harmonious relationship, and decreed the suit.

"Stubbornness"

The District Judge reversed the decree. He said she had not come to court with clean hands, and that there was substance in the husband's claim that this was a matter of zid (obstinacy) on her part because of his second marriage.

A Single Judge of the High Court of West Pakistan dismissed her second appeal in limine, saying her refusal to live with him because he had remarried was not a ground for khula.

What the Supreme Court said

A bench of five judges, Justice S. A. Rahman, Justice Fazle-Akbar, Justice Hamoodur Rahman, Justice Muhammad Yaqub Ali and Justice S. A. Mahmood, decided her appeal on 12 October 1966.

Justice S. A. Rahman, in the leading judgment, held that the person in authority, including the Qazi, can order separation by khula even if the husband is not agreeable, provided it is no longer possible for the husband and wife to live together in harmony and in conformity with their obligations.

On the facts, there was no possibility left of the parties living together in amity: there had been litigation, she had been brought away from his house on a warrant, and she had consistently declined to live with him since his second marriage.

The appeal was accepted, and the case was sent back to the trial court so the parties could lead evidence on what benefits, if any, the husband had conferred on her in consideration of the marriage, which she would restore as the condition of khula. The parties bore their own costs.

Still the law

In Muhammad Rafiq v. Kaneez Fatima, 2000 SCMR 1563, the Supreme Court again held that separation by khula can be ordered even if the husband is not agreeable.

The case at a glance

Facts

The wife lived with her husband about three years; he married a second wife and she left. Her first suit failed and he obtained restitution of conjugal rights. Her second suit sought divorce or, in the alternative, khula. The trial court decreed it; the District Judge reversed it as a matter of zid; the High Court dismissed her second appeal in limine.

The question

Whether a wife is entitled to khula when the husband is unwilling to release her, if she satisfies the court that they cannot live together consistently with their marital obligations.

What the Court held

Yes. A court can order separation by khula even if the husband is not agreeable, where it is no longer possible for them to live together in harmony. Appeal accepted and the case remanded to fix what she must restore.

Why

The Qur'an places husband and wife on an equal footing in respect of their rights; just as the husband may divorce, the wife may seek separation by khula, subject to the Qur'anic condition about the limits of God. The court decides the compensation.

Limits

Khula is not automatic: the court must be satisfied that the marriage cannot continue within the limits of God, and the wife generally restores what she received in consideration of the marriage. The amount is fixed case by case.

In the Court’s words

“The lack of authority in the Hakama cannot affect the authority in the Qazi (and the Court,) to dissolve marriage by a khula which is conferred by a Qur'anic verse.”

PLD 1967 SC 97, para 42, S. A. Mahmood, J

“In the present case, on the facts, it has been found that there is no possibility left, of the parties residing together in amity and goodwill.”

PLD 1967 SC 97, para S. A. Rahman, J

The law it relies on

What this does not mean

• It does not mean the court ends the marriage on a bare request. The court must be satisfied that the spouses cannot live together within the limits of God.
• It does not mean the wife keeps everything. As a general rule she restores the benefits she received in consideration of the marriage, and the court fixes the amount.
• It does not set the exact amount to be returned in any case. How much a wife must give up today depends on the facts and the law that applies where she lives, so ask a lawyer.

Questions people ask

Sources

• Mst. Khurshid Bibi v. Baboo Muhammad Amin, PLD 1967 SC 97 (Supreme Court of Pakistan, 12 October 1966)
  A court can order separation by khula even if the husband is not agreeable, where the spouses cannot live together in harmony; appeal accepted and remanded to fix the benefits to be restored. verified against full text
• Muhammad Rafiq v. Kaneez Fatima, 2000 SCMR 1563 (Supreme Court of Pakistan)
  Separation by khula can be ordered even if the husband is not agreeable, following PLD 1967 SC 97. checked for the reel; not re-read for this article

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