30/07/2026
PLD 2026 SC 302
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.
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. 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.
C.P.L.A.3767/2025
Mst. Naila Javed and another v. Nasir Khan and others.
