Mst. NAILA JAVED vs NASIR KHAN — 2026 PLD 302 SUPREME-COURT

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Mst. NAILA JAVED VS NASIR KHAN. S. 2(ii-a)---Muslim Family Laws Ordinance (VIII of 1961), S. 6---Suit for dissolution of marriage---Cruelty as a ground---Court converting suit for dissolution of marriage into one for khula---Effect---Wife directed to forgo dower---Legality---Husband contracting second marriage without wife's permission---Consequences---Statutory ground for dissolution---Brief facts of the matter were that the relations between petitioner (wife) and respondent (husband) broke down, whereafter the petitioner/wife filed a family suit for dissolution on pleaded grounds of cruelty, non-payment of remaining dower and maintenance, and the husband's second marriage; the Family Court dissolved the marriage by khula (instead of deciding on the pleaded grounds) and made it conditional upon the wife to forgo the remaining dower, which decision was concurrently upheld by the Appellate Court and the High Court---Pivotal questions requiring determination in the present matter were as to (i) "Whether petitioner/wife had successfully discharged the burden of proof to establish her claim of cruelty?"; (ii) Could the Court exercise suo motu powers to convert the plaintiff's claim for divorce to khula?"; and (iii) Whether the wife's averment of irreconcilable aversion towards husband constituted a legally sufficient ground to initiate khula proceedings and relinquish dower?"---Held: Respondent/husband's own statement contained no criticism of the petitioner's character and included what appeared to be a perfunctory invitation for her to resume cohabitation---He also admitted that he had contracted a second marriage during the pendency of the family case proceedings---He also admitted that he had no knowledge whether the petitioner/wife was aware of his second marriage or not---This answer made it abundantly clear that the respondent/husband had not fulfilled the requirements of Section 6 of the Muslim Family Laws Ordinance, 1961---Khula was a distinct remedy grounded in the wife's express and voluntary consent---A Court could not, on its own motion, convert a suit under the Dissolution of Muslim Marriages Act, 1939 into one for khula in the absence of a clear and unequivocal statement by the wife---Therefore, in the present case, concurrent judgments of courts below granting khula without petitioner/wife's consent were legally unsustainable---Respondent/husband contracted a second marriage without wife's permission or declaration from Arbitration Council which was a violation of statutory ground under Section 2(ii-a) of the Act, 1939---Moreover, petitioner's refusal to cohabit with the respondent in the same house did not fall under the category of recalcitrance on her part---Petitioner/wife was entitled to a decree for dissolution of marriage on the ground of cruelty---Petitioner was entitled to remaining dower---Petition was converted into appeal and allowed.

Mst. NAILA JAVED vs NASIR KHAN — 2026 PLD 302 SUPREME-COURT

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