Undoubtedly, dissolution of marriage is an unfortunate tragedy that continues to haunt isolated partners for years to come. However, the partner most susceptible to suspicion, most vulnerable to compromise, and most likely to bear the brunt of such dissolution is invariably the female. Indeed, such dissolution carries not only unbearable consequences for her life, emotional stress, psychological trauma, and social stigma lasting a lifetime but also strips her, often mercilessly, of the monetary entitlements envisioned for her under the relevant laws.
Yet this monetary disentitlement arises not from a want of adequate provisions in the law, but from the failure of family courts to fully comply with the mandatory provisions of family law.
Before proceeding, then, it is important to understand the fine but crucial distinction between Khula and Dissolution of Marriage. Khula is a wife's voluntary decision to renounce the marriage and pay compensation for release from the marital bond, whereas dissolution of marriage can be sought on grounds including cruelty, as stipulated in the Dissolution of Muslim Marriage Act (DMMA), 1939. Notably, a woman's right to retain her dower remains intact when she seeks dissolution of marriage, whereas seeking Khula requires her to relinquish it.
Despite this distinction, the practice of family courts converting, on their own accord, a suit for dissolution of marriage on grounds of cruelty into a Khula is a recurring one and it undermines recently developed jurisprudence. The justification typically cited is the want of sufficient evidence to substantiate the wife's allegations of cruelty.
This raises two pressing questions: Can a family court convert a suit for dissolution of marriage on the basis of cruelty into a Khula? And what standard of evidence should apply in such family disputes?
On the first question, the Supreme Court, in a recent judgment, held categorically that a family court has no power to convert, on its own motion, a suit for dissolution of marriage on grounds of cruelty into a Khula. Clear and unambiguous consent from the woman is a sine qua non for such conversion; absent that consent, any such judgment is unsustainable in law.
Often cruelty makes the union unsustainable. It entails various forms, like physical, mental, emotional, and environmental cruelty. Therefore, in adjudicating a suit for dissolution on grounds of cruelty, family courts must examine whether the husband's conduct was so unbearable that the wife can no longer be expected to sustain the marital bond. In other words, cruelty must be assessed in all its forms and in light of its impact on her.
Indeed, such dissolution carries not only unbearable consequences for her life; emotional stress, psychological trauma, and social stigma lasting a lifetime but also strips her, often mercilessly, of the monetary entitlements envisioned for her under the relevant laws.
This brings us to the second question, the standard of evidence. Marriage is a civil contract, and the evidence adduced by the parties must be assessed against the civil standard of proof — the balance of probabilities. On this basis, a family court must give due weight to the woman's own testimony and to the impact of the husband's conduct on her ability to continue the marriage.
This evidentiary standard matters all the more because abuses within the marital bond are often committed in private. A woman should not always be required to substantiate her allegations through documentary evidence. No FIR. No medical proof. No written complaints. No private witness. A female is not required to report each slap or incident of hitting and to provide documentation thereof.
Even so, family courts continue to treat spousal abuse as a private matter, a practice at odds with settled jurisprudence, particularly since the Supreme Court has recently characterized spousal abuse as domestic violence. Family courts are, therefore, duty-bound to treat spousal abuse as cruelty and to recognize it as valid grounds for dissolution of marriage.
Similarly, family Courts, sometime, use misogynistic and derogatory terms such as “disobedient wife” and “self-deserted lady”, when dealing with women seeking relief. Such terminology not only undermines the woman’s legitimate grievance but also risks shifting the judicial focus from the conduct complained of to the character of the victim. Thus, the duty of a family court should not only be to determine whether a marriage should continue, but also to ensure that the law is applied fairly and with justice.