SOHAIL KHAN
ISLAMABAD JAN 24-The Supreme Court has stressed that the courts should not, on its own motion and without the statement of a wife, convert the demand of divorce into khula. A two member bench of the apex court comprising Chief Justice Yahya Afridi and Justice Musarrat Hilali on Saturday released judgment in a matter related to remaining unpaid dower in a case titled Mst. Naila Javed & another Versus Nasir Khan & others.<\/p>\n\n\n\n
Petitioner Mst. Naila Javed had filed an appeal 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 her 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. The Supreme had heard the instant appeal of the petitioner on November 3, 2025 and on Saturday January 24, the court while issuing its judgment dissolved the marriage between the parties on the ground of talaq.<\/p>\n\n\n\n
Consequently, the court declared that the petitioner Mst Naila Javed 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. \u201cWe 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\u201d, says a five-page judgment, authored by Justice Musarat Hilali.<\/p>\n\n\n\n
The court held that 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 court held that the courts should not, on its own motion and without the statement of a wife, convert the demand of divorce into khula. \u201cIn 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\u201d, says the judgment<\/p>\n\n\n\n
The court noted that the petitioner contended that she never sought khula, her case was rather based on the grounds pleaded under the Dissolution of Muslim Marriages Act, 1939 (\u201cDMMA”), 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 (\u201cMFLO\u201d), thus entitling her to dissolution of marriage under section 2(iia) of the DMMA with full retention of her dower. The court significantly noted 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.<\/p>\n\n\n\n
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\u201d, says the judgment
According to the judgment, the respondent while responding to another question, admitted that he contracted second marriage during pendency of family case in the year 2016 and also admitted that he had no knowledge whether the petitioner was aware of his second marriage or not.<\/p>\n\n\n\n
\u201cThis answer makes it abundantly clear that the respondent had not fulfilled the requirements of section 6 of the MFLO\u201d, says the judgment adding that the Family Court failed to accord due weight to the categorical admission made by the respondent during cross examination. \u201cHis admission of willful 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\u201d, says the judgment. The court held that 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.<\/p>\n\n\n\n
The court further held that 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). In the present case, the respondent neither obtained the permission of existing wife nor sought a declaration from the Arbitration Council\u2019 says the judgment adding that there is thus no dispute that the second marriage was contracted without obtaining the written permission of the Arbitration Council. \u201cThis conclusively establishes violation of the statutory ground under section 2(iia) of the DMMA\u201d, the court ruled adding that the Family Court and the Appellate Court failed to adjudicate this ground despite its clear availability on the record.<\/p>\n\n\n\n
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\u201d, the court concluded. The court declared that 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.<\/p>\n\n\n\n
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