1. Introduction & Significance of the Case

This judgment is a landmark decision in Pakistan’s family law jurisprudence because it clarifies the boundaries between dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939 (DMMA) and Khula under Islamic law. The Supreme Court held that a court cannot impose Khula on a woman unless she voluntarily seeks it and expressly consents to returning her dower.

The Court also addressed three major systemic problems in family litigation:

• Judicial overreach, where courts convert dissolution suits into Khula.
• Incorrect standards of proof, where family courts demand criminal-law levels of evidence.
• Patriarchal and gender-biased language in judicial reasoning, which violates women’s dignity and equality.

This case is now considered a defining precedent for women’s autonomy and proper judicial conduct in family courts.

2. Background Facts

Dr. Seema Hanif Khan married Waqas Khan on 31 May 2015. Her dower (haq mehr), as written in the nikahnama, included a 200-square-yard plot, 30 tola gold, and Rs 500,000 cash. She was also entitled to monthly maintenance of Rs 10,000.

The rukhsati took place in April 2016, but marital relations soon deteriorated. Dr. Khan alleged physical cruelty, psychological abuse, non-payment of maintenance, and the husband’s secret second marriage, which was conducted without permission of the Arbitration Council as required under Section 6 of the Muslim Family Laws Ordinance (MFLO), 1961.

On 4 July 2017, she filed a suit for dissolution of marriage under the DMMA, relying on statutory grounds, not Khula.

Despite this, the Family Court granted Khula on its own, even though she never asked for it. This deprived her of her dower rights. The Appellate Court and Peshawar High Court upheld this erroneous approach.

She approached the Supreme Court to correct the miscarriage of justice.

3. Legal Issues Before the Supreme Court

1. A. Whether a Family Court can convert a suit for dissolution of marriage into Khula without the wife’s consent.
2. B. What is the correct standard of proof in cases under the DMMA—civil or criminal?
3. C. Whether psychological, emotional, and private-sphere abuse can constitute “cruelty.”
4. D. Whether a husband’s second marriage without permission is a valid and independent ground for dissolution.
5. E. Whether judges may use patriarchal labels like “disobedient wife” in judicial reasoning.

The Supreme Court addressed each issue in detail and corrected the lower courts’ flawed reasoning.

4. Khula vs. Dissolution Under DMMA — Clear Conceptual Distinction

The Supreme Court explained the essential difference between Khula and statutory dissolution:

Khula

Khula is a separate cause of action based entirely on:

• the wife’s voluntary decision to end the marriage, and
• her willingness to return dower or compensation.

Because Khula involves surrender of financial rights, it is valid only when the wife explicitly asks for it, and the court formally records her consent.

Dissolution under DMMA (1939)

This is a statutory remedy where the wife proves grounds such as:

• cruelty,
• non-maintenance,
• husband’s second marriage without permission,
• desertion,
• impotence, etc.

In a DMMA case:

• The wife does not lose her dower.
• Her consent to Khula is irrelevant.

Supreme Court’s Holding

The Family Court committed a serious legal error by granting Khula instead of deciding the DMMA grounds. According to the Court, such conversion results in:

• depriving the woman of her lawful dower,
• mischaracterising her intentions,
• violating her autonomy.

Filing a dissolution suit does not automatically mean she is seeking Khula. It is illegal for judges to assume this.

5. Standard of Proof — “Balance of Probabilities,” Not Criminal Standard

The Supreme Court criticized the lower courts for treating a family case as if it required criminal-level evidence such as FIRs, medical reports, or third-party eyewitnesses.

Concept: Balance of Probabilities

This is the civil law standard, meaning the court must determine what is more likely to be true.

The Court explained that domestic abuse is often a “bedroom crime”, taking place within the private sphere where there are no witnesses, and FIRs are rarely filed due to cultural barriers. Therefore:

• A woman’s credible testimony is sufficient.
• Corroboration is not mandatory.
• Photographs, circumstantial evidence, and consistent witness statements satisfy the DMMA requirements.

Dr. Khan’s evidence of cruelty—including slapping, emotional violence, non-maintenance, and unsafe living conditions—was wrongly ignored by the Family Court.

6. Second Marriage Without Permission — Automatic Ground for Dissolution

The judgment clarified the legal consequences of second marriage under MFLO:

Concept: Section 6 MFLO

A husband must obtain:

• Permission from the first wife, AND
• Permission from the Arbitration Council before contracting a second marriage.

Failure to do so makes him liable under Section 6(5) and also triggers Section 2(ii-a) of the DMMA, which provides dissolution on this ground alone.

Since Dr. Khan’s husband:

• admitted his second marriage,
• never obtained permission, and
• was even convicted by the Judicial Magistrate,

the Supreme Court held that the dissolution should have been granted on this ground without further inquiry.

7. Treatment of Patriarchal Language in Judicial Reasoning

One of the most important parts of the judgment is its condemnation of sexist and patriarchal judicial language.

The Family Court repeatedly described Dr. Khan as:

• a “disobedient wife,”
• “self-deserting,”
• someone who “forced her husband to marry again,”
• someone not entitled to maintenance because she was “disobedient.”

The Supreme Court declared such language unconstitutional because it:

• reinforces harmful stereotypes,
• shifts blame on the woman,
• shields male violence,
• contradicts Articles 14 (dignity), 25 (equality), and 35 (family protection) of the Constitution.

The Court clarified that:

• A woman’s right to work or study abroad is not disobedience.
• Maintenance is a mandatory legal duty, not a reward for obedience.
• Courts must avoid moralistic judgments disguised as legal findings.

This segment of the judgment is now considered a milestone in gender-sensitive jurisprudence.

8. Final Judgment of the Supreme Court

The Supreme Court:

• Set aside the judgments of the Family Court, Appellate Court, and Peshawar High Court.
• Dissolved the marriage on the basis of the husband’s unlawful second marriage.
• Restored Dr. Khan’s full dower, including the:
  • 200-yard plot,
  • 30 tola gold,
  • Rs 500,000 cash.
• Declared she was entitled to maintenance of Rs 10,000 per month for the entire period of the marriage.
• Reaffirmed that Khula cannot be imposed on a woman without her explicit consent.

9. Importance of the Judgment

This case is now a guiding precedent for all family judges because it:

• protects women from involuntary Khula,
• ensures they retain dower rights in DMMA cases,
• recognizes emotional and psychological abuse,
• condemns gender-biased judicial attitudes,
• restores the rule of law and constitutional rights in family litigation.

It reinforces that women’s consent, autonomy, dignity, and equality must be central in adjudicating matrimonial disputes.