January 27, 2026
By Ahmed Saeed
ISLAMABAD
The Supreme Court has ruled that family courts cannot, on their own motion, convert a wife’s claim for dissolution of marriage into khula proceedings, holding that such conversion is legally unsustainable and deprives women of their lawful right to dower.
Allowing an appeal filed by petitioner Naila Javed, the apex court set aside concurrent judgments of the family court and the Peshawar High Court, and dissolved the marriage on statutory grounds instead of khula. The court also directed payment of the petitioner’s full unpaid dower amounting to Rs1.2 million through the executing family court.
A two-member bench headed by Chief Justice of Pakistan Yahya Afridi delivered the verdict, with Justice Musarrat Hilali writing the five-page judgment.
“We have noted that where a wife expresses aversion, the family court dissolves the marriage on the grounds of khula and the woman is deprived of her dower,” the order read.
The bench made it clear that such an approach is impermissible in law, stressing that “the courts should not, on their own motion and without the statement of the wife, convert the demand for divorce into khula.” It further held that “the concurrent judgments of the courts below granting khula without the petitioner seeking it are legally unsustainable.”
The appeal arose from a June 30, 2025 judgment of the Peshawar High Court’s Abbottabad Bench, which had upheld the family court’s decision dissolving the petitioner’s marriage by way of khula and directing her to relinquish her remaining dower as a condition.
Before the Supreme Court, the petitioner contended that she had never sought khula and that her suit was instituted under the Dissolution of Muslim Marriages Act, 1939 (DMMA). She argued that her husband had contracted a second marriage without complying with Section 6 of the Muslim Family Laws Ordinance, 1961 (MFLO), thereby entitling her to dissolution of marriage under Section 2(iia) of the DMMA with full retention of her dower.
According to the judgment, the marriage between the parties was solemnised on December 16, 2013. Due to disputes, the petitioner filed a suit seeking dissolution on the grounds of cruelty, non-payment of maintenance, non-payment of outstanding dower, and the respondent’s second marriage during the pendency of the proceedings.
However, the family court did not adjudicate these pleaded grounds on merit. Instead, it held that the petitioner had failed to prove cruelty and had expressed unwillingness to live with the respondent. On that basis alone, the court dissolved the marriage through khula and ordered forfeiture of dower.
Addressing the legal questions involved, the Supreme Court held that “if the aversion was the outcome of some reasons, then dissolution should be based on those particular reasons.” It further clarified that “a lower court cannot convert a suit under the Dissolution of Muslim Marriages Act into one for khula in the absence of a clear and unequivocal statement by the wife.”
On the issue of second marriage, the court noted that “Section 2(iiia) of the Dissolution of Muslim Marriages Act expressly provides that a woman is entitled to dissolution of marriage if the husband has contracted a second marriage in contravention of the Muslim Family Laws Ordinance.”
“Under section 6 of the MFLO, contracting a second marriage without written permission of the Arbitration Council constitutes a contravention attracting both penal consequences and civil consequences, including dissolution under the DMMA. In the present case, the respondent neither obtained the permission of existing wife nor sought a declaration from the Arbitration Council. There is thus no dispute that the second marriage was contracted without obtaining the written permission of the Arbitration Council. This conclusively establishes violation of the statutory ground under section 2(iia) of the DMMA. The Family Court and the Appellate Court failed to adjudicate this ground despite its clear availability on the record”, the judgement said.
Allowing the appeal, the court dissolved the marriage on statutory grounds and ordered payment of the petitioner’s full unpaid dower.