The compatibility of laws with ground realities is one of the principal features of legal interpretation and it occupies a central position in the development of jurisprudence through court verdicts.
Litigation relating to family disputes has risen rapidly in recent years. Without going into the reasons for this alarming increase, it is an established fact that trial courts and first appellate courts have been, and continue to be, confronted with emerging legal propositions and complications in the application of family laws. One of these is the lawful separation of spouses.
The author came across a brief, in which a wife had filed a suit for dissolution of marriage under Section 2 of the Dissolution of Muslim Marriages Act, 1939. At the pre-trial stage, in terms of the first proviso to Section 10(4), upon failure of reconciliation, the trial court passed a decree for dissolution of marriage forthwith and restored the dower in favour of the husband. This was done in spite of the fact that the wife had never asked for khula; she had sought dissolution of marriage on the ground of cruelty. Dissatisfied with the High Court’s judgment, the wife invoked the appellate jurisdiction of Supreme Court.
When the matter came up before the Larger Bench of the Apex Court, the honourable judges were confronted with a situation where cruelty had not been established in its entirety, while the record and evidence showed that hatred was at its hilt in the hearts of spouses. In particular, it was improbable that the wife could continue the marriage remaining within the limits of Islam.
In such a situation, it would have been convenient for the Bench to observe that, since the wife had failed to prove cruelty, no ground existed for dissolution of marriage, and let the marriage be dissolved on the basis of khula, surrendering her dower. Instead, the Apex Court adopted a very dynamic and purposive approach. It invoked clause (ix) of Section 2 of the Dissolution of Muslim Marriages Act, 1939, which provides that a wife may seek dissolution on any other ground recognised as valid for the dissolution of marriage under Muslim Law. After consulting the Council of Islamic Ideology, the Court held that shiqaq is a workable option for spouses to part ways peacefully, with dignity and honour. The judgment is titled Mst Zanib Bibi v Muhammad Waseem, handed down by Mr Justice Shahid Waheed J.
