MUSLIM PERSONAL LAW – DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939 – S. 2(iv), 2(viii)(a) – CRUELTY – FAILURE OF MARITAL OBLIGATIONS – MENTAL CRUELTY – WIFE ENTITLED TO DECREE OF DISSOLUTION

A. MUSLIM PERSONAL LAW – DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939 – S. 2(iv), 2(viii)(a) – CRUELTY – FAILURE OF MARITAL OBLIGATIONS – MENTAL CRUELTY – WIFE ENTITLED TO DECREE OF DISSOLUTION

Held: Under S. 2(iv) and S. 2(viii)(a), cruelty includes mental or emotional cruelty, need not be physical.
Court held that:

• Continuous discord, strained relationship for several years,
• Allegations of demands relating to wife’s property,
• Absence or disputed conjugal relationship,
• Husband’s own admissions, including medical tests undertaken on allegations concerning fitness for cohabitation,
• Execution of Memorandum of Understanding (Ex.P10 / Ex.R18),
• Return of all gifts/articles exchanged at marriage,
• Long separation, independent living, and breakdown of marital society,

constitute sufficient mental cruelty and “sufferance” to the wife justifying dissolution (paras 17–28).

Family Court’s approach that cruelty was not proved was held unsustainable (paras 24–28).

B. MUSLIM LAW – WOMAN SEEKING DIVORCE – BURDEN OF PROOF – CIVIL STANDARD – PREPONDERANCE OF PROBABILITIES

Held: In civil matrimonial matters, preponderance of probabilities is sufficient (para 27).
Wife’s consistent stand that she is unable to continue marital life, her complaints, the existence of MOU, return of belongings, and undisputed long separation satisfy the required standard.

C. MOU (MEMORANDUM OF UNDERSTANDING) – EX.P10/R18 – EFFECT – INDICATES BREAKDOWN OF MARRIAGE – PARTIES AGREED TO SEEK DIVORCE THROUGH KHULA

Ex.P10 / Ex.R18 signed by both parties and their relatives provided:

• Mutual agreement not to execute the RCR decree,
• Withdrawal of maintenance case,
• Withdrawal of criminal case under S. 498-A IPC,
• Withdrawal of application to set aside ex parte RCR decree,
• Return of articles,
• Agreement to seek divorce through Khula before Kazi.

Held:

• Wife substantially complied with her obligations, including abandoning maintenance and criminal proceedings.
• Respondent’s contention that divorce cannot be granted as it would validate allegations is untenable.
• MOU strongly indicates irretrievable breakdown and parties’ intention not to resume marital life (paras 15–23, 26–27).

D. CRUELTY – CONJUGAL RELATIONS – ABSENCE OR NEGATIVE SEXUAL MARITAL LIFE – RELEVANCE

Wife alleged absence of conjugal relations for years; Family Court treated this as an “introduced theory.”
High Court noted:

• Cross-examination of both sides showed disputes touching carnal relations, procreation, fitness for cohabitation, etc.
• Respondent himself admitted medical testing undertaken to refute claims.
• These circumstances “testify the irreparable gap” and contribute to mental cruelty (paras 18–23, 27).

E. RESTITUTION OF CONJUGAL RIGHTS – EX PARTE DECREE – UNDERLYING BREAKDOWN – NOT A BAR TO DIVORCE

Respondent obtained RCR decree ex parte (FCOP 1176/2019).
Held:

• Wife filed a petition to set it aside; withdrew application pursuant to MOU.
• RCR decree does not negate evidence of deep marital discord; husband never executed the decree (para 22).
• Ex parte RCR decree cannot defeat wife’s right to dissolve marriage under the 1939 Act.

F. FAMILY COURT – ERRORS – IMPUGNED ORDER SET ASIDE

Family Court erred in:

• Ignoring Ex.P10 / Ex.R18,
• Relying on assumptions that wife deserted husband without cause,
• Treating cruelty allegations as unproved despite clear material.

Held: Findings of Family Court on burden of proof, cruelty, and analysis of evidence unsustainable; decree is liable to be set aside (paras 27–29).

G. RESULT

1. Appeal allowed.

2. Impugned judgment dated 09-11-2023 in FCOP No.745/2020 set aside.

3. Marriage dated 12-02-2012 dissolved by decree of divorce.

4. Parties left to live separately; no order as to costs.

5. Pending miscellaneous petitions closed (para 30).