Mst. SELAB AKHTAR Versus QUWAT KHAN

SHAHID BILAL HASSAN, J.--- The present petition arises out of a matrimonial dispute between Mst. Selab Akhtar daughter of Akbar Khan (petitioner) and Quwat Khan son of Umar Sadiq (respondent No.1). The parties were married on 19.09.2016 at Tehsil Matta, District Swat, according to Sharia Muhammadi, whereunder 30 tolas of gold were fixed as Haq Mehr.

After marriage, the petitioner went to reside at the matrimonial home of respondent No.1. According to the petitioner, soon after the marriage she was subjected by respondent No.1 and his family members to harsh treatment, coercion, humiliation, cruelty and mental torture, rendering continuation of matrimonial life impossible. It was further alleged that she was expelled from the house without justification and was neglected and not maintained.

Consequently, the petitioner instituted a suit before the learned Judge Family Court-II, Swat, seeking dissolution of marriage on the ground of cruelty, recovery of 30 tolas of gold as dower or its market value, and recovery of maintenance allowance from the date of neglect till decision of the suit.

Upon service, respondent No.1 appeared before the Family Court, contested the claim, filed written statement denying the allegations, and the matter proceeded to trial. After framing issues, both sides produced oral as well as documentary evidence in support of their respective stances.

Vide judgment and decree dated 29.06.2019, the learned Family Court partly decreed the suit. While disbelieving the petitioner s plea of cruelty, the Court nevertheless dissolved the marriage on the basis of khula. It was further held that out of the total 30 tolas of gold fixed as Haq Mehr, 10 tolas had already been received by the petitioner, while the remaining 20 tolas stood surrendered under the doctrine of khula. Maintenance was awarded only for the period of iddat at Rs.5,000/- per month, whereas the claim of past maintenance prior to iddat was declined.

Being aggrieved, the petitioner preferred an appeal challenging the rejection of her claim based on cruelty, denial of full dower, and refusal of retrospective maintenance. Respondent No.1 also challenged the decree of dissolution and maintenance. The learned appellate Court dismissed both appeals and maintained the judgment of the Family Court.

Thereafter, constitutional petitions were filed before the Peshawar High Court, Mingora Bench, Swat, which too were dismissed through consolidated judgment dated 22.09.2025, affirming the concurrent findings of the Courts below. Hence, the present petition before this Court.

2.Learned counsel for the petitioner submits that the Courts below gravely erred in law in declining to adjudicate the petitioner s pleaded case of cruelty on its true merits and in mechanically converting the matter into one of khula. It is argued that the petitioner had specifically alleged physical and mental torture, coercion, expulsion from the matrimonial home and persistent neglect, which, if properly appreciated, squarely attracted the grounds for dissolution under the Dissolution of Muslim Marriages Act, 1939. By wrongly treating the matter as khula, the Courts below unlawfully deprived the petitioner of her vested right to recover the entire unpaid dower of 20 tolas of gold and also denied her lawful claim of past maintenance. Learned counsel further contends that once the husband was found neglectful and the matrimonial breakdown was attributable to his conduct, no forfeiture of dower could legally follow. It is lastly submitted that the High Court failed to exercise jurisdiction vested in it under Article 199 of the Constitution by refusing to correct manifest legal misdirection and miscarriage of justice committed by the subordinate Courts.

3.Heard. Record perused.

4.The principal question requiring determination in the present matter is, whether where a wife seeks dissolution of marriage primarily on the ground of cruelty, but fails to substantiate such allegation through legally admissible evidence, while at the same time unequivocally expressing her unwillingness to continue the marital relationship, the Family Court is competent in law to dissolve the marriage on the basis of khula, notwithstanding that no specific prayer for khula was made in the plaint and no express consent to such course was separately recorded? The ancillary issue is whether the Court, in exercise of its statutory and equitable jurisdiction in matrimonial matters, may grant appropriate relief of khula, consistent with the proved facts and the parties manifest intention so as to avoid compelling continuance of a dead matrimonial bond?

5.The instant controversy is not merely whether marriage should stand dissolved, but the legal consequence that follows where a wife institutes proceedings seeking dissolution on the ground of cruelty, fails to prove such allegations, yet remains unwilling to continue the marital bond. The distinction is of significance because where cruelty or other statutory fault on the part of the husband is established, the wife ordinarily cannot be compelled to forfeit her dower merely to secure freedom from an oppressive union; whereas in a decree founded upon khula, restitution or relinquishment of financial consideration, including dower to the extent recognized by law, ordinarily follows. It is for this reason that the issue is neither mechanical nor one of mere nomenclature.

6.We are of the considered view that where a wife approaches the Court asserting cruelty, she is, in substance, seeking adjudication that the husband s conduct disentitles him from claiming the reciprocal incidents of marriage, including retention of unpaid dower. To convert such claim, without due regard to the nature of relief pursued, into one of khula may prejudice valuable financial rights. Recent pronouncements of this Court in Ibrahim Khan v. Mst. Saima Khan (PLD 2024 SC 645) and Dr. Faryal Maqsood v. Khurram Shehzad Durrani (PLD 2025 SC 262), followed in Mst. Naila Javed and another v. Nasir Khan and others (CPLA No.3767 of 2025) decided by this Court on 12.01.2026, have reaffirmed that khula is a distinct remedy founded upon the wife s clear and voluntary election, and a suit brought on statutory grounds ought not ordinarily be converted into one for khula without such conscious choice. While a Court is not powerless to grant dissolution where aversion to continuation of marriage is clearly established, yet where khula has not been expressly claimed, the Court ought ordinarily to ascertain the wife s conscious, informed and unequivocal election that she prefers release from marriage upon such terms rather than insistence upon a cruelty-based decree.

7.We may observe that recent pronouncements of this Court, rendered in differing factual settings, have approached the present question from distinct yet reconcilable perspectives. In Mst. Wajiha Rasheed v. Adeel Akhter and others (C.P.L.As. Nos. 2555 and 2556 of 2022) , emphasis was placed upon the practical consequence that where cruelty remains unproved but aversion to continuation of marriage stands manifest, dissolution by way of khula may follow with its attendant legal consequences. Conversely, in Mst. Naila Javed and another v. Nasir Khan and others (CPLA No.3767 of 2025) , stress was laid upon the principle that a Court ought not convert a claim founded on statutory grounds into one of khula without the wife s conscious and voluntary election. The present case affords occasion to harmonize these approaches by clarifying that, where valuable financial rights are materially affected, the proper course ordinarily is to ascertain the wife s informed choice before moulding the relief.

8.Yet the matter cannot end there. The hands of the Court are equally not free to ignore the realities disclosed by the record. If cruelty is not proved to the standard required by law, but the marriage has irretrievably broken down in fact, cohabitation has ceased, bitterness has deepened, and the wife unequivocally refuses to resume marital life, the Court cannot meaningfully restore conjugal harmony by a formal decree, nor can the law be reduced to compelling parties to inhabit a dead relationship in name alone, by directing restitution of conjugal rights in such circumstances. Reference may be made to Khurshid Bibi v. Muhammad Amin (PLD 1967 SC 97) , wherein this Court recognized that where the marital relationship has become unworkable and the wife demonstrates settled aversion to continuation of marriage, the Court is not powerless to grant dissolution in accordance with Islamic injunctions.

9.Equally, dismissal of the suit simpliciter, thereby leaving the parties legally fastened to a union that survives only in form but has ceased to exist in substance, may itself result in grave hardship and manifest injustice. Such an outcome keeps the parties trapped in a state of prolonged uncertainty, depriving them of emotional closure, social stability, and the lawful opportunity to reorder their lives. It may subject the wife to continued vulnerability, pressure or indignity, while simultaneously burdening the husband with obligations arising from a relationship that has become wholly unviable. Family jurisdiction is not meant to preserve hollow legal ties after the matrimonial bond has irretrievably broken down, nor to render sterile declarations divorced from practical realities. Its true purpose is to resolve domestic disputes in a manner that is just, humane and realistic, with due regard to dignity, fairness and the lived realities of the parties. Courts elsewhere have likewise cautioned against preserving marriages that survive only in form but have perished in substance, for law serves no useful purpose by maintaining a merely nominal union [see Naveen Kohli v. Neelu Kohli, (AIR 2006 SC 1675) ].

10.The true area of discord, in many such cases, is not whether the marriage has collapsed, but the financial consequence attached to the route of dissolution, particularly dower. A wife may thus stand before a difficult choice, either continue pressing allegations of cruelty in order to preserve her proprietary entitlement, or elect khula, foregoing dower to the extent required by law, in order to obtain immediate release from an unbearable situation. Courts must remain conscious of this tension and ensure that such election is real, voluntary and informed.

11.We are also constrained to observe that subordinate Courts, while examining pleas of cruelty, often insist upon standards of proof ill-suited to the realities of matrimonial life, such as demanding independent eye-witnesses of domestic abuse, registration of FIRs for confinement, or medical certificates in every case of alleged physical assault. Such an approach overlooks that marriage is essentially a private relationship conducted within the walls of a home. A woman residing in the matrimonial household may seldom be in a position to procure independent witnesses to acts of humiliation, coercion, immoral demands, emotional torment or mental agony, all of which ordinarily occur in the private sphere between spouses or within the husband s family setting.

12.At the same time, an allegation of cruelty carries social and moral stigma for the husband as well and cannot be accepted casually or upon bare assertion alone. The proper course, therefore, is neither insistence on impossible standards of proof nor mechanical acceptance of allegations. Matrimonial disputes are to be examined on the civil standard of preponderance of probabilities, keeping in view the conduct of parties, surrounding circumstances, consistency of versions, contemporaneous behaviour and the overall probabilities emerging from the record, rather than the strict proof demanded in criminal prosecutions.

13.We may also observe that the concept of cruelty in matrimonial law has, through recent pronouncements of this Court [see for example: Dr. Seema Hanif Khan v. Waqas Khan and others (PLD 2026 SC 91) and Mst. Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another (2023 SCMR 246)] and contemporary legislative developments including domestic violence enactments, received an expansive and humane interpretation. Cruelty is no longer confined to visible physical assault alone, it extends to sustained humiliation, coercive control, emotional abuse, deprivation, indignity and conduct rendering cohabitation unsafe or intolerable. Mental cruelty has similarly been judicially recognized to include emotional torment, studied neglect and conduct causing deep anguish to the spouse [Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511)] . Therefore, where even within this broadened and progressive legal framework cruelty still remains unproved on the available evidence, the litigant must realistically weigh the consequences of continued litigation.

14.We may further clarify that allegations of cruelty arising within a domestic relationship may assume distinct legal character depending upon the forum in which they are asserted. Where such allegations are raised before a Family Court under the Dissolution of Muslim Marriages Act, 1939 or cognate matrimonial jurisdiction, cruelty is examined as a civil matrimonial wrong, the object being determination of marital status and consequential civil rights. In such proceedings, the matter is to be assessed on the standard of preponderance of probabilities. Conversely, where the same or similar acts are prosecuted under penal law, including statutes relating to domestic violence or other criminal offences, the allegations partake the character of criminal wrongdoing carrying penal consequences, and must therefore be established in accordance with the stricter standard of proof beyond reasonable doubt. The two jurisdictions serve different purposes and their evidentiary thresholds are not to be immixed. Family Courts must therefore remain cautious not to import criminal-law standards of proof into civil matrimonial litigation, lest relief meant to protect parties from oppressive domestic circumstances be defeated by unrealistic evidentiary demands.

15.In such a situation, the proper judicial course is neither to impose khula without consent nor to mechanically dismiss the matter while ignoring matrimonial breakdown. The Court should place the legal position plainly before the wife, if she persists with the unproved claim founded on cruelty, the suit may fail, if she no longer wishes to remain in marriage, she may seek dissolution by khula with its attending consequences. Upon such election, the Court may pass an appropriate decree in accordance with law.

16.Accordingly, we hold that khula should not ordinarily be granted without the wife s consent or clear election where she had sued on cruelty and valuable financial rights are implicated. However, where cruelty is not proved and marital life has manifestly collapsed, the Court must afford the wife an opportunity to elect whether to pursue dismissal of her claim or accept dissolution by khula upon lawful terms, rather than compelling restoration of a relationship that has ceased to exist in substance.

17.In the instant case, the marriage between the parties was solemnized on 19.09.2016, whereas the suit for dissolution was instituted on 08.10.2016. Thus, the matrimonial relationship subsisted for only a brief period of a few days before litigation commenced. We have no cavil with the proposition that acts constituting cruelty may, depending upon their nature and gravity, occur even within a short span of cohabitation, and no inflexible rule can be laid down that cruelty must necessarily be preceded by prolonged matrimonial life. Each case must turn upon its own facts and evidence.

18.However, in the present matter, despite the allegations levelled in the plaint, the petitioner has failed to establish cruelty through material sufficient to satisfy the standard applicable to matrimonial proceedings. The concurrent findings of the Courts below on that score do not suffer from such misreading or non-reading of evidence as would warrant interference by this Court. At the same time, the record unmistakably reflects that the marriage had broken down almost at inception. No meaningful cohabitation continued after institution of proceedings, and throughout the long course of litigation the petitioner remained categorical in her unwillingness to resume matrimonial life.

19.In view of the foregoing, while we find no sufficient ground to disturb the concurrent findings of the Courts below insofar as the petitioner s allegations of cruelty have remained unproved, we are nevertheless of the considered opinion that the decree of khula ought not to have been granted without first affording the petitioner a conscious, informed and unequivocal election, particularly when valuable financial rights were directly involved. The record leaves no manner of doubt that the petitioner has consistently manifested unwillingness to continue the marital bond and that the possibility of reconciliation now stands wholly exhausted. However, in order to align the relief granted with due process and the principles enunciated hereinabove, the impugned judgments, to the limited extent of the mode of dissolution and consequential financial adjustment, are hereby set aside. The matter is remanded to the learned Family Court concerned, which shall secure the statement of the petitioner and ascertain whether she elects to seek dissolution by way of khula upon lawful terms, or to insist her claim founded upon cruelty, following the consequences as have concurrently been recorded and upheld by this Court without disturbing the same. Upon such election, a fresh decree shall be drawn strictly in accordance with law. The learned Family Court shall conclude the said exercise expeditiously, preferably within thirty (30) days from receipt of certified copy of this judgment. In view of the foregoing, this petition is converted into an appeal and allowed in the above terms. No order as to costs.

UN/S-11/SC Appeal allowed.