04/03/2026
P L D 2026 Supreme Court 91
1). Family courts cannot convert a suit for dissolution under the Dissolution of Muslim Marriages Act, 1939 (DMMA) into one for khula without the wife’s clear and informed consent.
2). Family proceedings are civil in nature and must be decided on the balance of probabilities.
3). Family courts must base their judgements on reasoning which rests on evidence rather than patriarchal presumptions and notions.
4). Language shapes perception and family courts should avoid using terms such as “disobedient wife” or “self-deserting lady” which reinforce stereotypes that judge women by a moral compass rather than recognising their dignity and autonomy.
Wife seeking dissolution of marriage---Family Court granting khula to wife without her asking for it---Legality---Cruelty as a ground, proving of---Standard of proof to be adopted by courts in family cases highlighted---Husband contracting second marriage without wife’s permission constituting cruelty and such ground alone sufficing for seeking dissolution of marriage---Scope---Brief facts were that the petitioner/wife filed a suit against respondent/husband seeking dissolution of marriage, during which the family court granted khula and ordered her to return her dower comprising a plot, gold, and money---Petitioner’s (wife's) appeal and constitutional petition were dismissed---During the marriage, the respondent/husband contracted a second marriage without the petitioner’s (wife) consent or permission from the arbitration council---The legal issue for determination before the Supreme Court was “whether the family court could lawfully convert a suit for dissolution into khula without the wife’s consent, and whether the correct legal standard was applied in assessing the statutory grounds for dissolution, particularly cruelty, non-payment of maintenance, and contracting a second marriage in violation of law”?---Held: Family Court dismissed the petitioner’s (wife's) evidence because it was unsupported by documents establishing cruelty---Family court failed to consider the evidence as a whole on the balance of probabilities, to determine whether the petitioner (wife)was entitled to dissolve the marriage---It was the duty of the family court and the appellate court to give weightage to the petitioner’s story on the balance of probabilities rather than treat the absence of documentary proof as conclusive to the fact that cruelty was not established---Both the family court and the appellate court readily accepted the respondent’s (husband) evidence even though he did not produce a single witness to corroborate his stance of good behavior or to corroborate his stance that he did not cause her any form of mental or emotional trauma---In doing so, the family court and the appellate court fell into grave error by not conforming to the standard of proof and by ignoring the principle of balance of probabilities---Hence, it failed to assess the evidence as per the required standard of proof to establish whether the petitioner (wife) was entitled to dissolution on the ground of cruelty---As to the High Court and the impugned judgement, it ignored the issues in totality---The second marriage was contracted by respondent (husband) in clear violation of Section 6 of the Muslim Family Laws Ordinance, 1961 (MFLO), thereby attracting clause (ii-a) of Section 2 of the Dissolution of Muslim Marriages Act, 1939 (DMMA), which alone was sufficient for the family court to dissolve the marriage---The family court, instead of dissolving the marriage granted a khula to the petitioner without her asking for it---The question was whether the family court could of its own accord grant khula---Khula was a distinct cause of action grounded in the wife’s consent and autonomy, and it could not be judicially imposed to replace a failed statutory ground under the DMMA---The practice of converting a suit for dissolution of marriage into one of khula without the consent of the wife was totally in contravention to the law, as khula being an alternate mode of dissolution required the wife’s voluntary decision to end the marriage and pay compensation in exchange for release from the marital bond---In consequence of the family court granting a decree for khula instead of the dissolution as prayed for, the petitioner (wife) was wrongly disentitled from her maintenance and dower despite these being legal obligations of the respondent (wife)---Judgments and decrees of the family court and the appellate court as well as the order of the High Court were set aside to the extent of khula, dower, and maintenance---The marriage was dissolved on the ground that the respondent (husband) contracted a second marriage in violation of the law---Consequently, the petitioner (wife) was not required to return her dower and was to keep the gold, money, and plot given to her---She was also entitled to maintenance of Rs.10,000/- per month for the period during which the marriage subsisted, to be calculated and paid according to law--
Family court granting khula to wife without her asking for it---Legality---Filing of a suit for dissolution does not in itself amount to seeking khula---The practice of converting a suit for dissolution of marriage into one of khula without the consent of the wife is totally in contravention to the law, as khula being an alternate mode of dissolution requires the wife’s voluntary decision to end the marriage and pay compensation in exchange for release from the marital bond.
Statutory grounds empowering women to seek dissolution of marriage---Scope---Legal framework---Dissolution of marriage means that the marriage can be brought to an end at the instance of the woman if she is able to successfully establish one or more of the statutory grounds provided within the Dissolution of Muslim Marriages Act, 1939 (the DMMA)---Section 2 of the DMMA lists the grounds, which include the husband’s disappearance, failure to provide maintenance, imprisonment, impotence, insanity, cruelty and, by virtue of clause(ii-a) of the DMMA inserted through the Muslim Family Laws Ordinance, 1961 (MFLO), the taking of an additional wife---Each of these grounds reflects a recognition that the marital bond may become so impaired by the husband’s conduct or circumstances that its continuation would cause injustice to the wife---Among the grounds outlined in the DMMA, Section 2 (ii) lists out the ground for failure to provide maintenance, Section 2 (ii-a) lists out the ground for taking an additional wife and Section 2 (viii) presents the ground of cruelty.
Wife seeking dissolution of marriage---Grounds for decree---‘Cruelty’ explained---Factors assessing/determining ‘cruelty’---Where the impact of behavior renders marital life unsafe or intolerable then it is termed as cruelty---Cruelty can range from physical assault, to mental or emotional abuse, to interference with property or religion, to inequitable treatment in the context of a second marriage---Cruelty is related to the conduct of the husband such that his behavior or treatment towards the wife involves physical abuse in the form of assault as well as emotional and mental abuse such that his conduct is so reprehensive for her that she is miserable and unable to live with him---This means that cruelty can be physical, mental as well as emotional---The examples listed in Section 2 (viii) of the Dissolution of Muslim Marriages Act, 1939 (the DMMA) are not exhaustive but illustrative, ensuring that courts remain flexible in recognizing cruelty in its many different forms---Accordingly, cruelty is not limited to physical harm rather it includes any conduct, which results in mental and emotional harm, that makes it impossible for the wife to live with dignity and security within the marital home and relationship---Courts in Pakistan have defined cruelty as being behavior which is not limited to physical abuse but involves behavior which can result in mental and emotional abuse---Therefore, cruelty encompasses physical harm; such as slaps, beatings or assault, as well as mental cruelty, such as humiliation, verbal abuse, or unfounded allegations of unfaithfulness in a marriage; emotional cruelty, such as neglect or indifference; and, at times, the broader environment of the marriage, such as hostility in the home or oppressive behavior by in-laws tolerated or encouraged by the husband---Cruelty can involve a series of acts, disconnected but collectively causing harm which renders it intolerable for the wife to remain in the marriage bond---Courts have also expanded on what constitutes cruelty by holding that cruelty includes the intentional or malicious infliction of mental suffering, abusive treatment, or false accusations---This means that physical injury is not a prerequisite and cruelty may consist entirely of conduct that causes anguish, loss of confidence, or injury to self-respect and may even encompass violent or non-violent acts, gestures, words, and even silence or neglect---Cruelty may be physical or mental, intentional or unintentional, pre-meditated or not---Essentially, it is behavior, the impact of which is so painful, so severe, and so harsh that it would be impossible to live in the marriage---The relevant and decisive factor is the impact of the husband’s conduct on the woman such that she no longer deems it possible to live with him---Accordingly, for a court examining whether a case of cruelty is made out to dissolve the marriage, cruelty must be assessed in all its forms in the context of its impact whether physical, mental, emotional, and even environmental---Cruelty is a subjective test, to be assessed in light of the effect of the behavior on the aggrieved woman, rather than by reference to strict categories or technical rules of proof.
Wife seeking dissolution of marriage---Cruelty---Proof--- Correct standard of proof while assessing evidence---Dispute under the Dissolution of Muslim Marriages Act, 1939 (the DMMA) being governed by family law is essentially a civil dispute pertaining to the dissolution of the marriage and same is to be assessed on civil standards of evidence---Woman can obtain a decree for dissolution of marriage provided she can establish one or more of the grounds stipulated in section 2 of DMMA on the balance of probabilities---Where a woman invokes the ground of cruelty, it becomes a factual matter to be determined on the basis of evidence to be assessed according to the civil standard of proof being the balance of probabilities meaning that there must be sufficient evidence to show that a fact is more likely to be true than not---Therefore, the family court is required to look at the woman’s testimony narrated in her own words and supported by surrounding circumstances---The standard of proof applied under the DMMA being the balance of probabilities means that the Court must decide whose side of the story is more likely to be true, that is more probable than the other, while examining the evidence and testimony of the woman, the circumstances she describes, and the impact of the conduct on her ability to continue marital life in the context of the defense he sets out by way of evidence---The law does not condition woman’s entitlement on being able to demonstrate injuries or police reports or bring medical reports to support every slap or instance of emotional or mental trauma---In considering the evidence, the court must remember that there is no single definition of cruelty---What may be cruelty in one marriage may not be cruelty in another---The concept of cruelty differs from person to person depending upon the upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system---The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances on the balance of probabilities---The essential factor being the impact of the behavior termed as cruelty on the life of the woman.
----S. 6---Husband contracting second marriage during subsistence of first marriage---Process and pre-requisites---A husband may contract another marriage during the subsistence of the first marriage only after seeking the consent of his existing wife---If such consent is refused, he must then apply to the Chairman of the Union Council, stating his reasons for the proposed marriage---The Chairman is then required to constitute an arbitration council which may grant permission only if it is satisfied that the proposed marriage is “necessary and just”---Non-compliance with this process attracts penal consequences under Section 6(5) of the MFLO, including the immediate payment of the entire dower to the first wife and criminal liability punishable with imprisonment or fine.
----S. 6---Family court justifying the second marriage of husband on the presumption that wife was disobedient and self-deserting---Legality and permissibility---No one can be compelled to contract a second marriage and similarly a husband cannot be forced to contract a second marriage by blaming the woman for her behavior.
Admitted facts---Facts admitted require no further proof.
Wife’s right to pursue her career or education---Scope---Husband alleging disobedience against wife on that account---Legality---Wife’s desire to pursue her career or education abroad is not disobedience and is not to be equated to misconduct rather it is an exercise of her personal autonomy.
Patriarchal/male-centric language used by family courts---Correcting gendered mischaracterizations that undermine women’s dignity, autonomy, and fundamental rights---Language used by the family courts reflecting patriarchal mindset would require courts attention---Mischaracterization of a woman as a “disobedient wife” and a “self-deserted lady”, or the assumption that she “created such circumstances which compelled the husband to contract a second marriage,” shifts the discussion from, cruelty of husband, towards the woman and the exercise of her autonomy to her obedience and disobedience---This reasoning shields the cruel behavior and unlawful acts of a husband while portraying him as a dutiful and “good husband”---These are social judgments disguised as findings of law---Family court’s presumption that only an “obedient wife” is entitled to maintenance must be replaced with the legally correct position as maintenance is a husband’s statutory obligation during the subsistence of the marriage---It is therefore necessary to address and correct such language as a matter of substantive justice---Family courts must consciously move away from such words like “disobedient,” “self-deserting,” “mummed,” “served the husband’s family by heart” and “compelled the husband to contract second marriage” as they reinforce a moral hierarchy that measures women by servitude and compliance in total disregard of her fundamental rights especially to have life with dignity and to exercise her right to choice.
C.P.L.A.3268/2024
Mst.Doctor Seema Hanif Khan v. Waqas Khan and others
