Mst. NAILA JAVED Versus NASIR KHAN
MUSARRAT HILALI, J.--- This Civil Petition for Leave to Appeal is directed against the judgment dated 30.06.2025 passed by the Peshawar High Court, Abbottabad Bench in Writ Petition No.1527-A/2019 whereby the concurrent judgments of the Family Court and the Appellate Court were maintained, dismissing the petitioners' claim to the remaining unpaid dower and upholding dissolution of marriage on the basis of khula . Through these judgments, the petitioner's suit for dissolution of marriage on the basis of cruelty was decreed on the basis of khula and she was directed to forego her remaining dower as a condition of khula .
2. The petitioner contends that she never sought khula , her case was rather based on the grounds pleaded under the Dissolution of Muslim Marriages Act, 1939 ("DMMA"), and, more importantly, that the respondent contracted a second marriage without complying with the mandatory procedure under section 6 of the Muslim Family Laws Ordinance, 1961 ("MFLO"), thus entitling her to dissolution of marriage under section 2(iia) of the DMMA with full retention of her dower.
3. Arguments heard. Record of the case perused.
4. The marital union was solemnised between the parties on 16th December, 2013. Subsequent to the solemnization of their marriage, irreconcilable differences arouse between the parties. As a result, and upon the irretrievable breakdown of the marriage the petitioner instituted a suit before the Family Court seeking a decree of dissolution of marriage on the grounds of cruelty, non-payment of the remaining dower, non-payment of maintenance and the respondent had contracted a second marriage during pendency of the case without permission of the petitioner. The Family Court, however, did not rule on the merits of these pleaded grounds, instead it concluded that the petitioner had failed to substantiate the allegations of cruelty and had expressed an unequivocal unwillingness to live with the respondent. On these basis, the Family Court granted a decree of dissolution of marriage by way of khula and as a condition of khula , it directed the petitioner to relinquish her claim of outstanding dower.
5. Upon perusal of the record of this case, we have formulated the following questions for our consideration:- i. Whether the petitioner has discharged the burden of proof to establish her claim of cruelty? ii. Can the Court exercise suo motu powers to convert the plaintiffs claim for divorce to khula? iii. Whether a wife's averment of irreconcilable aversion towards husband constitutes a legally sufficient ground to initiate khula proceedings and relinquish dower?
6. The petitioner in her suit had sought dissolution of marriage on the grounds of cruelty, however, the Family Court did not adjudicate upon the grounds of cruelty as pleaded by the petitioner and instead concluded that the petitioner had failed to discharge the burden of proof in establishing cruelty. The Family Court held that the petitioner had demonstrated an unequivocal irrevocable unwillingness to cohabit with the respondent. Based exclusively on the aversion demonstrated by the petitioner, the Court dissolved the marriage by way of khula and as a condition of khula , it directed to relinquish her claim regarding remaining dower and other claims. The Appellate Court as well as the High Court affirmed the finding of the Family Court. This finding necessitates a detailed analysis of the evidence adduced on this specific issue. The petitioner recorded her statement before the Family Court as PW-4 which was consistent with her pleading.
7. The goal of cross-examination is to dig out the truth by testing the witness's evidence, highlighting contradiction within witness's testimony or between their testimony and prior statement. However, the cross-examination conducted by learned counsel for the respondent rather than testing the veracity or credibility of petitioner's statement-in-chief, improperly sought to impeach the petitioner's character by asking irrelevant - highly prejudicial questions solely to embarrass her. On the basis of which the petitioner expressed an aversion towards the respondent and refused to cohabit with him. It is significant to note that the respondent's own statement contained no criticism of the petitioner's character and included what appears to have been a perfunctory invitation for her to resume cohabitation. The record further reveals that while responding questions posed by learned counsel for the petitioner, the respondent admitted that he had not provided maintenance to the petitioner. While responding to another question the respondent admitted that he contracted second marriage during pendency of family case in the year 2016. He also admitted that he had no knowledge whether the petitioner was aware of his second marriage or not. This answer makes it abundantly clear that the respondent had not fulfilled the requirements of section 6 of the MFLO. The Family Court failed to accord due weight to the categorical admission made by the respondent during cross-examination. His admission of wilful neglect in providing maintenance, contracting second marriage without permission of petitioner much less consent and the allegation levelled against the petitioner during cross-examination squarely bring the case of the petitioner within the ambit of legal cruelty and inequitable treatment. In a situation where the respondent deprived the petitioner of maintenance, defamed her in cross-examination and contracted second marriage without her permission, the petitioner's refusal to cohabit with the respondent in the same house does not fall under the category of recalcitrance on her part.
8. In the instant case, the petitioner did not plead for dissolution of marriage in her original suit. However, during the pendency of the suit when the respondent contracted second marriage without her permission, she sought decree of dissolution of marriage, which as mentioned in the preceding para, was converted into khula on the ground that the petitioner has expressed irreconcilable aversion towards the respondent.
9. We have noted that where a wife expresses aversion, the Family Court dissolves marriage on the grounds of khula and the wife is deprived of her dower. It is to be seen that if the aversion is the outcome of some reasons, then dissolution should be based on those particular reasons. The Courts should not, on its own motion and without the statement of a wife, convert the demand of divorce into khula . The principle is now well settled through recent judgments of this Court, including Ibrahim Khan v. Mst. Saima Khan (PLD 2024 SC 645) and Dr. Faryal Maqsood v. Khurram Shehzad Durrani (PLD 2025 SC 262) , wherein it was held that khula is a distinct remedy grounded in the wife's express and voluntary consent. A Court cannot, on its own motion, convert a suit under the DMMA into one for khula in the absence of a clear and unequivocal statement by the wife. The concurrent judgments of the Courts below granting khula without the petitioner's seeking it, are thus legally unsustainable.
10. Furthermore, as to the second marriage, section 2(iia) of the DMMA expressly provides that a woman shall be entitled to the dissolution of marriage if the husband has contracted second marriage in contravention of MFLO. The insertion of clause 2(iia) of the DMMA remains fully operative notwithstanding the repeal of the amending provision in the MFLO, as explained in Faryal Maqsood ( supra ). Under section 6 of the MFLO, contracting a second marriage without written permission of the Arbitration Council constitutes a contravention attracting both penal consequences and civil consequences, including dissolution under the DMMA. In the present case, the respondent neither obtained the permission of existing wife nor sought a declaration from the Arbitration Council. There is thus no dispute that the second marriage was contracted without obtaining the written permission of the Arbitration Council. This conclusively establishes violation of the statutory ground under section 2(iia) of the DMMA. The Family Court and the Appellate Court failed to adjudicate this ground despite its clear availability on the record.
11. In view of the above, the findings of the Courts below are founded on an incorrect assessment of the evidence and law applicable, therefore, the petitioner is entitled to a decree for dissolution of marriage on the ground of cruelty. The petition is converted into an appeal and allowed. The marriage between the parties is dissolved on the ground of talaq. Consequently, the petitioner is entitled to the remaining dower of Rs. 12,00,000/- (Twelve Lakh Rupees) which shall be paid to her in accordance with law through the Executing/Family Court.
UN/N-2/SC Appeal allowed.