Discover how a 2024 Supreme Court ruling clarified the grounds for dissolving a marriage and protected a woman’s right to dower.
In Peshawar, a marital dispute led to a landmark decision that reshaped how courts handle divorce and dower rights under Muslim family law.
The case began when a woman filed a suit on July 28, 2012, seeking recovery of her dower (Rs. 500,000, 50 tola gold, and a share in a house) and dowry articles, claiming her marriage had been dissolved by her husband’s oral divorce. The husband denied pronouncing divorce and sought restitution of conjugal rights. The trial court, on May 29, 2014, partially decreed her suit, granting Rs. 500,000, the house share (or its market value), and partial dowry articles (including 51 tola gold), but dismissed the 50 tola gold claim, assuming it was paid. It also granted maintenance for their minor son and visitation rights, alongside restitution of conjugal rights, conditional on paying the prompt dower. While appeals were pending, the husband took a second wife without permission from the Arbitration Council, violating the Muslim Family Laws Ordinance, 1961. The appellate court, on February 29, 2016, dissolved the marriage on khula grounds, despite the woman not requesting it, and denied her dower, adjusting it against the dowry gold. The woman challenged this in the Peshawar High Court, which, on March 4, 2019, set aside the khula decree, dissolved the marriage for cruelty, and restored her dower. Both parties appealed to the Supreme Court.
The core issue was whether the appellate court erred in granting khula without the woman’s consent and whether dissolution was justified under clause (iia) of Section 2 of the DMMA, which allows dissolution if a husband takes an additional wife without complying with the 1961 Ordinance. The stakes were significant: an erroneous khula decree could unjustly deprive the woman of her dower, while proper application of the DMMA could protect her rights. The husband argued that khula was appropriate since the marriage was strained, and the woman’s failure to prove oral divorce justified restitution of conjugal rights. The woman contended that she never sought khula, the husband’s second marriage violated legal requirements, and her dower rights should be upheld.
The Supreme Court, led by Justice Athar Minallah, examined the legal framework. Under Principles of Mahomedan Law and Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97), khula is a wife’s exclusive right, requiring her explicit or implied consent, and typically involves waiving dower. The appellate court erred by imposing khula without her request, as confirmed by Muhammad Arif v. Saima Noreen (2015 SCMR 804) being inconsistent with Khurshid Bibi. The DMMA’s Section 2(iia), inserted via the 1961 Ordinance, allows dissolution if a husband takes an additional wife without Arbitration Council permission under Section 6. The court clarified that the repeal of Section 13 of the 1961 Ordinance did not affect Section 2(iia), which remains valid, citing Abdul Majid v. Shahzada Asif Jan (PLD 1982 SC 82) and Section 6-A of the General Clauses Act, 1897. The husband’s admitted non-compliance with Section 6 justified dissolution under Section 2(iia), making remand unnecessary. The High Court’s cruelty-based dissolution was also erroneous due to insufficient evidence and lack of recorded reasons, as per Mst. Tayyeba Ambareen v. Shafqat Ali Kiyani (2023 SCMR 246).
The court converted the petitions into appeals, set aside the khula and cruelty-based dissolutions, and declared the marriage dissolved under Section 2(iia) of the DMMA. The trial court’s decrees for dower, dowry articles, maintenance, and visitation were upheld, while the restitution of conjugal rights was deemed unsustainable. The petitions were allowed on October 23, 2024.
This ruling clarified that courts cannot impose khula without a woman’s consent and affirmed Section 2(iia) as a valid ground for dissolution, protecting dower rights when a husband takes an additional wife unlawfully. For the woman, it ensured her dower and fair dissolution, reinforcing legal protections for women in Muslim family law.
This story is based on a real judgment passed by the Supreme Court of Pakistan in 2024 (Civil Petitions No. 308-P and 1388 of 2019).
FAQs
Can a court grant khula without a woman’s consent in Pakistan?
No, khula requires the wife’s explicit or implied consent, as it is her exclusive right under Muslim family law, and courts cannot impose it when she seeks dissolution on other grounds.
Can a woman seek divorce if her husband takes a second wife without permission?
Yes, under Section 2(iia) of the Dissolution of Muslim Marriages Act, 1939, a woman can seek dissolution if her husband takes an additional wife without Arbitration Council permission, as required by Section 6 of the Muslim Family Laws Ordinance, 1961.
Does dissolution under the DMMA affect a woman’s dower rights?
No, Section 5 of the DMMA preserves a woman’s right to dower upon dissolution, unlike khula, which typically involves waiving dower.
What happens if a court wrongly grants khula instead of dissolution under the DMMA?
Higher courts can set aside the khula decree, as seen in this case, and grant dissolution on the correct legal ground, ensuring the woman’s rights, like dower, are protected.
What laws govern dissolution of marriage in Pakistan?
The Dissolution of Muslim Marriages Act, 1939, governs dissolution on grounds like cruelty or taking an additional wife, while khula is governed by Muslim personal law and the Family Courts Act, 1964.
Disclaimer
This blog is for public awareness only and does not constitute legal advice.
