Mst. AYESHA HANIF Versus ADDITIONAL DISTRICT JUDGE, RAWALPINDI
JAWAD HASSAN, J.--- The Petitioner through this writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") has impugned the judgments and decrees dated 20.09.2023 and 06.04.2023, passed by the learned Courts below.
2. The brief facts giving rise to this writ petition are that the Petitioners (wife and daughter) filed a suit before the learned Judge Family Court, Rawalpindi, seeking dissolution of marriage under Section 2(II) A(IX) of the Dissolution of Marriages Act, 1939 (the "Act 1939"), recovery of maintenance allowance, gold ornaments, dowry articles and delivery/medical expenses against Respondent No.3/husband/father. The learned trial court partially decreed the suit vide judgment and decree dated 06.04.2023. Being aggrieved thereof, the Petitioners filed an appeal, which was partially allowed by the learned ADJ, Rawalpindi, vide judgment and decree dated 20.09.2023. Hence this Petition.
3. Learned counsel for the Petitioners submitted that the both the Courts below wrongly granted the decree for dissolution of marriage on the basis of Khula instead of Cruelty under Section 2(II) A(IX) of the Act 1939 and directed Petitioner No.1 to surrender her entire dower. Further submitted that the appellate court also ignored this material illegality committed by the trial Court. He added that the Petitioner No.1 had produced oral and documentary evidence, including receipts, proving her entitlement to recovery of delivery and medical expenses, which was disregarded by the learned courts below. He next submitted that the appellate court committed illegality by valuing dowry articles at Rs.887,100/- while the complete list comprised three pages amounting to Rs.1,074,500/-, and that there was misreading and non-reading of evidence in both judgments. He added that, in view of these material irregularities and legal errors, the impugned judgments and decrees are not sustainable and are liable to be set aside. Learned counsel in support of his arguments placed reliance on the judgments cited as "Ibrahim Khan v. Saima Khan and others" (PLD 2024 SC 645), "Mst. Tayyeba Ambreen and another v. Shafqat Ali Kiyani and others" (2023 SCMR 246) and "Adnan Zar v. Mst. Khadeeja Khanum and 2 others" (2020 MLD 1147) .
4. Conversely, despite publication in the newspaper no one entered appearance on behalf of the Respondent No.3/Muhammad Naveed, therefore, he was proceeded against ex-parte vide order dated 12.05.2025.
5. Arguments heard. Record perused.
6. Admittedly, the Petitioners filed suit for dissolution of marriage under Section 2(II) A(IX) of the Act 1939; recovery of maintenance allowance, gold ornaments, dowry articles and delivery expenses against the Respondent No.3/Muhammad Naveed under Section 7 of the West Pakistan Family Courts Act, 1964 [amended through Family Courts (Amendment) Act, 2015] (the "Act"). After fulfillment of the requirements contained in Sections 8 and 9 of the Act, the Family Court proceeded to frame issues and recorded evidence in terms of Section 11 of the Act and then passed the final judgment and decree dated 06.04.2023. For ready reference the operative part of the judgment is reproduced as under:
Upshot of the above discussion is that suit of the plaintiffs is hereby partially decreed by holding that:
Claim of the plaintiff for dissolution of marriage on the basis of cruelty is converted into dissolution of marriage on the basis of Khula and suit of the plaintiff for dissolution of marriage is decreed and marriage of the parties is hereby dissolved on the basis of Khula subject to surrender of entire dower in the light of judgment dated 17.02.2022 of Hon'ble Federal Shariat Court, Pakistan, passed in Shariat Petitions Nos. 4/1 of 2016, 7/1 of 2017, 4/1 of 2019 and 3/1 of 2020.
Plaintiff No.1 is held entitled to recover Rs.30,000/- as maintenance for entire period of iddat, whereas minor plaintiff No.2 is held entitled to recover Rs.10,000/- as her monthly maintenance from 29.01.2022 till her legal entitlement or change of custody by operation of law alongwith 10 percent annual increment.
Plaintiff is entitled to recover Rs.25000/- as medical expenses from the defendant.
Plaintiff is held entitled to recover dowry articles from defendant as per Ex.P5 except gold ornaments mentioned at serial No.1, subject to 30% of depreciated value of each given item. If defendant fails to return any given item, then plaintiff would be entitled to recover 70% value of each missing item as per Ex.P5. Rest of the claims are declined. Interim maintenance allowance already paid by the defendant shall be adjusted....
The Appellate Court while passing the impugned judgment 20.09.2023 has discussed in detail the facts and evidence of parties and slightly modified the judgment and decree of the trial court dated 06.04.2023; in the following manner:
"The upshot of above discussion is that this appeal is partially allowed. The impugned decree is modified to the following effects: i. The appellant No.1 is held entitled to receive maintenance allowance at the rate of Rs.10,000/- per month w.e.f. 02.08.2021 till expiration of her iddat period from the respondent. ii. The appellant No.1 is held entitled to recover her dowry articles as per her list Exh.P5 except gold mentioned at Sr.No.1 in the list or in the alternative their price to the tune of Rs. 4,37,100/-.
No other change is made in the impugned decree. Decree sheet be prepared accordingly.
7. Firstly, the question that arises for determination in the present case is whether a court can grant Khula when a woman seeks dissolution of marriage on grounds of cruelty under the Act 1939, but fails to prove such cruelty through admissible evidence. This issue touches upon the delicate balance between a woman's right to seek release from an intolerable marriage and the requirement of establishing statutory grounds for dissolution, while also implicating the distinct legal consequences flowing from different modes of marital dissolution under Islamic family law as administered in Pakistan.
8. This precise issue was authoritatively addressed by the Hon'ble Supreme Court of Pakistan in the judgment reported as Muhammad Arif v. Saima Noreen (2015 SCMR 804) and held that since the Family Court had reached the conclusion that indeed no cruelty could be proved by the wife, in such circumstances the Family Court could hardly grant a decree for dissolution of marriage on the basis of cruelty under the Act 1939; the only way out and the logical conclusion was that the marriage should have been dissolved on the basis of Khula , in which event the wife would have to forego the dower amount. The ratio decidendi emerging from this judgment is clear and unambiguous: where a wife seeks dissolution of marriage on the ground of cruelty but fails to establish such cruelty, yet the evidence demonstrates that marital relations have irretrievably broken down with no possibility of reconciliation, the court may grant dissolution by way of khula rather than under the Dissolution of Muslim Marriages Act, 1939.
9. The conceptual and jurisprudential foundations of Khula in Pakistani law were comprehensively examined by a distinguished Five-Member Bench of the Hon'ble Supreme Court in the seminal case of Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97) . This landmark judgment represents the locus classicus on the subject of Khula and remains binding authority on all Courts in Pakistan. In this case, the appellant wife had sought dissolution of her marriage, claiming that the rift between the parties was so serious that there was no chance of reconciliation and that harmonious relations between the spouses had become an impossibility. After undertaking an exhaustive examination of the Holy Qur'an, particularly Verse 2:229, the authentic Ahadith including the classical instance of Jamila (wife of Sabit-bin-Qais), the opinions of eminent Islamic jurists across different schools of thought and co-imparative Islamic jurisprudence from various Muslim countries, the Supreme Court established several fundamental principles that Khula is an independent right granted to a wife under Islamic law, which enables her to seek dissolution of marriage even when the husband is unwilling to pronounce talaq. Crucially, the Supreme Court established that the Qur'anic condition for granting Khula is that it must no longer be possible for the husband and wife to live together in harmony and in conformity with their marital obligations in other words, that they cannot observe " the limits of Allah " which refers to the performance of conjugal duties while living together. The Court emphasized that incurable aversion to the husband on the part of the wife would constitute sufficient justification for Khula . Significantly, the Court held that Khula can be granted without the wife having to prove any fault, cruelty or misconduct on the part of the husband. The mere fact of intense dislike or aversion, making harmonious marital life impossible, suffices. If there is fixed aversion on the part of the wife or the husband, life becomes a torture for both. The Court further held that a woman cannot be compelled, if she has fixed aversion to her husband, to live with him. This principle was supported by reference to the hadith concerning Barairah (R.A), who declined to return to her husband despite the Prophet's recommendation, demonstrating that forced continuation of marriage against the wife's will is not countenanced in Islamic law. The Supreme Court in Khurshid Bibi's case thus established that when the wife has developed such intense aversion to her husband that it has become impossible for the spouses to live together and perform their marital obligations, and when reconciliation efforts have failed, the court may grant dissolution of marriage by way of Khula .
10. While the law permits dissolution by Khula when a wife fails to prove cruelty but demonstrates fixed aversion and marital breakdown, a critical limitation on this principle was established by the Supreme Court in the judgment relied by learned counsel for the Petitioner as (PLD 2024 SC 645) . In this recent judgment, the Court addressed the vital question of whether a court can, of its own motion, convert a prayer for dissolution of marriage on grounds of cruelty into a decree for khula when khula has not been explicitly sought by the woman. The Supreme Court, held that the trial court and appellate court had committed serious error in granting khula without the express consent of the wife. The Court held in unequivocal terms: " The right to seek khula is the exclusive and absolute right of the woman. She must in unambiguous and unequivocal terms express her intention to exercise such right before the court, that is to say, she must put her offer before the court that she seeks release from the marriage by waiving her dower and only then the court can grant her khula ." Hence, a court cannot on its own pass the decree of khula if it has not been sought for by the woman. Therefore, her consent is vital." This principle establishes that while a court may have the power to grant khula when cruelty is not proven but marital breakdown is evident, it cannot exercise this power without the wife's explicit, informed, and voluntary consent.
11. Applying the principles laid down in the aforesaid jurisprudence to the facts of the present case, the Petitioner/wife has not succeeded in proving cruelty to the required standard of proof because she averred in her plaint that she has developed severe hatred in the heart and mind and cannot live with the Respondent/husband as his wedded wife within the limits as prescribed by Almighty Allah and prayed for dissolution of marriage on the base of cruelty.
I have carefully examined the totality of circumstances and evidence on record to determine whether the case warrants dissolution of marriage by way of khula . The evidence establishes the following material facts that relations between the parties have deteriorated to such an extent that there is no realistic possibility of their resuming harmonious marital life. The petitioner has demonstrated fixed aversion toward the Respondent. Reconciliation efforts through jirgas, family intervention, court proceedings have failed. In these circumstances, forcing the parties to remain bound in matrimony would serve no legitimate purpose and would likely result in transgression of the limits prescribed by Allah Almighty, as neither party would be able to fulfill their marital obligations in conformity with Islamic teachings. I found that this was an appropriate case for the grant of khula , provided the petitioner implied consents to seek such relief. Therefore, it is observed that the learned trial Court has rightly passed the impugned judgment and decree for dissolution of Petitioner No.1's marriage on the basis of Khula in accordance with law and the same has rightly been upheld by the Appellate Court.
12. So far as the remaining issues are concerned, perusal of record makes it crystal clear that the trial Court has passed the final judgment by carefully perusing the evidence and considering almost every aspect of the matter. Thereafter, the Appellate Court also rightly passed a well-reasoned judgment with slight modification after making complete scrutiny of the entire record. Needless to mention here that the scope of interference by this Court with findings of the Courts below is well settled. The findings of fact can only be interfered with if those findings are vitiated by any error in point of law, or if there has been any misapplication of principle relating to appreciation of evidence or finality, if the finding could be demonstrated to be physically impossible. Moreover, this Court can only interfere in concurrent findings of the Courts below if the decisions passed by them are found patently illegal and against the law.
13. The Supreme Court of Pakistan in the case of Arif Fareed v. Bibi Sara and others (2023 SCMR 413) has discussed traumatic impact of family litigation on lives of the parties by holding that family litigation directly or indirectly causes long term effects on emotional health of the parties. In the said case, the Supreme Court of Pakistan has also given strict view regarding assumption of jurisdiction by the High Courts in family matters. In this regard, relevant paragraph-7 of this judgment is reproduced hereunder for ease of the matter:
"Before parting with this judgment, we may reiterate that the right of appeal is the creation of the statute. It is so settled that it hardly needs any authority. The Family Courts Act, 1964 does not provide the right of second appeal to any party to the proceedings. The legislature intended to place a full stop on the family litigation after it was decided by the appellate court. However, we regretfully observe that the High Courts routinely exercise their extraordinary jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 as a substitute of appeal or revision and more often the purpose of the statute i.e., expeditious disposal of the cases is compromised and defied. No doubt, there may be certain cases where the intervention could be justified but a great number falls outside this exception. Therefore, it would be high time that the High Courts priorities the disposal of family cases by constituting special family benches for this purpose. Accordingly, leave to appeal is refused and petition stands dismissed."
The aforesaid view has been further strengthened by the Supreme Court of Pakistan in the case of M. Hamad Hassan v. Mst. Isma Bukhari and 2 others (2023 SCMR 1434) by declaring that once a matter has been adjudicated upon on facts by the Trial Court and the Appellate Court, Constitutional Courts should not exceed their powers by reevaluating the facts or substituting the Appellate Court's opinion with their own. In this case, it has been further observed that the acceptance of finality of the Appellate Court's findings is essential for achieving closure in legal proceedings conclusively resolving disputes, preventing unnecessary litigation, and upholding the legislature's intent to provide a definitive resolution through existing appeal mechanisms. In a subsequent case cited as Fozia Mazhar v. Additional District Judge, Jhang and others (PLD 2024 SC 771) , the Supreme Court of Pakistan has again given the following view regarding assumption of jurisdiction by a High Court:
"It is important to underscore that the High Court, in exercise of its constitutional writ jurisdiction, is not supposed to interfere in the findings on controversial questions of fact based on evidence. The scope of judicial review by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") in such cases is limited to the extent of misreading or non-reading of justice. It is not proper for the High Court to disturb the finding of fact through a reappraisal of evidence in constitutional writ jurisdiction or to exercise this jurisdiction as a substitute for revision or appeal. We, therefore, observe that the findings of facts rendered by the District Court on appeal under the Act must as a rule be treated final and any interference in the same by the High Court in its constitutional writ jurisdiction should only be resorted to as an exception in cases where the findings are based on no evidence or the findings are the result of gross misreading or non-reading of material evidence, making the findings without lawful authority and of no legal effect in terms of Article 199(1)(a)(ii) of the Constitution."
14. In view of the above, I find no illegality or perversity in the impugned judgments. This writ petition fails and is accordingly, dismissed .
UN/A-19/L Petition dismissed.