October 28, 2025
By Rehan Piracha
LAHORE
In an important judgment that reinforces women’s autonomy in matrimonial disputes, the Supreme Court has categorically directed lower and appellate family courts to refrain from granting khula without the express consent of the plaintiff in cases where women seek dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939 (DMMA).
The two-member bench comprising Justice Ayesha A. Malik and Justice Naeem Akhtar Afghan delivered the judgment on a civil petition filed by Dr Seema Hanif Khan against an order dated May 27, 2024, passed by the Peshawar High Court. The judgment, announced after hearing arguments on September 19, 2025, not only addresses critical procedural issues but also takes strong exception to the patriarchal language and gender-biased reasoning employed by lower courts in family matters.
Background of the case
Dr Seema Hanif Khan married respondent Waqas Khan on May 31, 2015. According to the nikahnama, she was entitled to a dower (haq mehr) consisting of Plot No. 38 measuring 200 square yards in Federal Employees Society Jinnah Garden Phase-I (Islamabad), 30 tola gold ornaments, and Rs500,000 in cash. The nikahnama also stipulated maintenance of Rs10,000 per month during the subsistence of the marriage.
The rukhsati (departure to marital home) took place on April 9, 2016. However, Dr Khan filed a suit for dissolution of marriage on July 4, 2017, citing multiple grounds including cruelty, non-payment of maintenance, and her husband’s second marriage contracted without her consent and in violation of the Muslim Family Laws Ordinance, 1961 (MFLO).
Despite seeking dissolution on specific statutory grounds under the DMMA, the Family Court Judge-IV, Peshawar granted her khula on July 22, 2019, without her consent or request. This decision was upheld by the Additional District Judge-XI, Peshawar, and subsequently by the Peshawar High Court, effectively depriving Dr Khan of her dower rights and maintenance claims.
Supreme Court’s rebuke on judicial overreach
Addressing the first critical issue, the Supreme Court unequivocally held that family courts cannot unilaterally convert a dissolution suit into khula proceedings.
“The Family Court, instead of dissolving the marriage granted a khula to the Petitioner without her asking for it,” the judgment stated. “The question is whether the Family Court could of its own accord grant khula, and this Court in Mst. Saima Khan held that khula is a distinct cause of action grounded in the wife’s consent and autonomy, and it cannot be judicially imposed to replace a failed statutory ground under the DMMA.”
The Court emphasized that such judicial conversion amounts to a serious violation of a woman’s legal rights. “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. Consequently, it is critical that the court records the consent of the wife on the record and ensures that she fully understands its legal consequences before forfeiting her dower to get khula.”
The judgment clarified that filing a suit for dissolution does not automatically constitute seeking khula. “To infer consent merely from a woman’s unwillingness to reside in the marital home without considering the surrounding circumstances is to ignore her right to make her own decision and wrongly presume her consent,” the Court observed.
Hifza Ali, associate lawyer at AGHS Legal Aid Cell, told Voicepk that the Supreme Court judgment reflected the reality of proceedings in family courts where many judges opt to grant Khula in cases of dissolution of marriage.
“Last year, one of my clients was granted khula by a family court in Lahore in spite of the fact that she had moved the court on the grounds of non-maintenance and second marriage of her husband,” she said. Ali said they appealed the lower court decree in appellate court of the district sessions judge. The appellate court accepted the appeal and decreed the suit for dissolution of marriage on the grounds of non-maintenance and second marriage.
Standard of proof and evidentiary assessment
The Supreme Court took strong exception to how lower courts handled the standard of proof required under the DMMA. Justice Ayesha Malik, writing the judgment, noted that “an integral part of the issues raised before us is the manner in which the Family Court proceeded with the case for dissolution of marriage, especially the appraisement of evidence, and the language used in the judgement which the Petitioner states has stigmatized her reputation and dignity.”
The Court held that the correct standard of proof in dissolution cases is “balance of probabilities” – the civil standard – not the criminal standard of proof beyond reasonable doubt. “The Family Court and Appellate Court failed to apply the correct standard of proof by totally ignoring the Petitioner’s evidence, by requiring documentary corroboration of physical abuse, and more significantly by equating her education and desire to work with disobedience without putting her testimony into context,” the judgment stated.
Dr Khan had presented evidence through four witnesses, including herself, describing physical, mental, and emotional abuse. She testified about being slapped, subjected to an unsafe environment with male servants freely entering her quarters, her husband’s frequent late-night absences, being denied maintenance, and ultimately being replaced by a second wife. Her witnesses confirmed visible bruising and corroborated her accounts during cross-examination.
However, the Family Court dismissed this evidence because Dr Khan had not filed FIRs or produced medical certificates. The Supreme Court found this reasoning fundamentally flawed.
Ali said the Supreme Judgment was significant in the respect of defining emotional and mental abuse in cases of dissolution to marriage. She said it was hard to prove emotional abuse because it happens often in homes or bedrooms. The apex court pointed out that the statement of the woman undergoing the emotional abuse was important as evidence, Ali added.
“It is important to note that abuse within the marital home is often a bedroom crime which is committed in private and for which there are no witnesses. This crime remains largely unreported due to socio-cultural barriers, economic dependency and the lack of information on the issue,” Justice Ayesha wrote in her judgment.
Establishing second marriage as ground for dissolution
On the issue of the respondent’s second marriage, the Supreme Court found clear violations of both the MFLO and DMMA. The respondent had admitted to contracting a second marriage during the subsistence of his first marriage without seeking Dr Khan’s consent or obtaining permission from an Arbitration Council as required under Section 6 of the MFLO.
“It is a settled principle of law that facts admitted require no further proof and the burden of proof thus shifted to the Respondent to establish that he had obtained permission either from the Petitioner or from the Arbitration Council. Admittedly, no such permission was ever sought, hence the fact of the second marriage stood established,” the judgment stated.
The Court noted that the respondent had been convicted by the Judicial Magistrate-II, Peshawar on January 26, 2023, for violating Section 6(5) of the MFLO – a conviction that remained unchallenged. “Accordingly, the second marriage was contracted in clear violation of Section 6 of the MFLO, thereby attracting clause (ii-a) of Section 2 of the DMMA, which alone was sufficient for the Family Court to dissolve the marriage,” the Court held.
Patriarchal language and gender-biased reasoning
Perhaps most significantly, Justice Ayesha Malik addressed the deeply problematic language and reasoning employed by the lower courts. “In this context, the language used by the Family Court in its reasoning also requires our attention as it reflects a deeply patriarchal mindset. The repeated mischaracterization of the Petitioner as a ‘disobedient wife’ and a ‘self-deserted lady’, or the assumption that she ‘created such circumstances which compelled the defendant to contract a second marriage,’ shifts the discussion from cruelty towards the woman and the exercise of her autonomy to her obedience and disobedience.”
The judgment continued: “This reasoning shields the cruel behavior and unlawful acts of her husband while portraying him as a dutiful and ‘good husband.’ These are social judgments disguised as findings of law. It is therefore necessary to address and correct such language as a matter of substantive justice.”
The Court specifically criticized the Family Court’s presumption that only an “obedient wife” is entitled to maintenance, clarifying that maintenance is a husband’s statutory obligation during the subsistence of marriage. Similarly, the judgment rejected the characterization of Dr. Khan’s desire to pursue her career or education abroad as “disobedience,” stating: “The Family Court failed to recognize that the Petitioner’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.”
Justice Malik emphasized that such language perpetuates inequality. “Words like ‘disobedient,’ ‘self-deserting,’ ‘mummed,’ ‘served the defendant’s family by heart’ and ‘compelled to contract second marriage’ should be replaced 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.”
Ali said the patriarchal mindset was prevalent in courts and judges often used words like ‘disobedient wife’ in judgments relating to cases of dissolution of marriage. “These words tarnished the reputation of the woman plaintiff,” she added.
Setting aside the judgments of the Family Court, Appellate Court, and Peshawar High Court, the Supreme Court dissolved the marriage on the ground that the respondent contracted a second marriage in violation of law. Consequently, Dr. Khan was not required to return her dower and retained the gold ornaments, money, and plot given to her. She was also entitled to maintenance of Rs. 10,000 per month for the entire period during which the marriage subsisted.
The judgment serves as a crucial reminder to family courts that their reasoning must be grounded in evidence and law, not patriarchal assumptions. “Courts must ensure that their reasoning and their language uphold these fundamental guarantees,” Justice Malik concluded, referring to the constitutional values of dignity, equality, and non-discrimination guaranteed by Articles 14, 25, and 35 of the Constitution.
This landmark judgment reinforces the principle that women’s autonomy, consent, and statutory rights in matrimonial matters must be respected, and that judicial reasoning must be free from gender bias and patriarchal notions that have historically disadvantaged women seeking justice in family courts.