Supreme Court: cruelty need not be physical, and a cruelty case cannot be turned into khula

Facts

From the judgment

The parties married on 31 May 2015. The Nikahnama gave the wife, as dower, a plot in Islamabad, 30 tolas of gold ornaments and Rs. 500,000, and provided for Rs. 10,000 a month as maintenance. The rukhsati took place on 9 April 2016 and on 4 July 2017 she sued for dissolution of marriage on several grounds, including cruelty, non-payment of maintenance and the husband's second marriage. (paras 2, 4)

The Family Court granted khula on 22 July 2019, awarded Rs. 30,000 as iddat maintenance and directed her to return the gold and the plot; it treated the unpaid Rs. 500,000 as dower surrendered for khula. Her appeal was dismissed on 12 October 2020 and the Peshawar High Court dismissed her writ petition on 27 May 2024. (paras 1, 4)

The husband admitted in his written statement and evidence that he married again, on 29 April 2017, without her consent or Arbitration Council permission. On her complaint under section 6(5) of the Muslim Family Laws Ordinance, a Judicial Magistrate convicted him on 26 January 2023; the conviction was not challenged. (paras 12, 16)

Procedural history

From the judgment

1. 22 July 2019Suit for dissolution of marriage (cruelty, non-maintenance, second marriage), with dower and maintenance, Judge Family Court-IV, PeshawarKhula granted; gold and plot to be returned; unpaid money treated as surrendered; iddat maintenance Rs. 30,000 (para 2, 4)
2. 12 October 2020Family appeal, Additional District Judge-XI, PeshawarDismissed (para 2, 4)
3. 26 January 2023Complaint under s.6(5) MFLO (second marriage), Judicial Magistrate-II, PeshawarHusband convicted; conviction not challenged (para 12, 16)
4. 27 May 2024W.P. No. 5015-P of 2020, Peshawar High Court, PeshawarDismissed (para 1, 4)
5. Heard 19 September 2025; listed 23 October 2025C.P.L.A. No. 3268 of 2024, Supreme Court of PakistanConverted into an appeal and allowed: marriage dissolved on the second-marriage ground; dower kept; maintenance of Rs. 10,000 a month for the marriage (para 19)

Questions of law

1. Can the Family Court of its own accord, without explicitly seeking the wife's consent, grant khula to a plaintiff seeking dissolution on a ground under the 1939 Act? Framed by the court

   The court's answer: No. Khula is a distinct remedy grounded in the wife's consent and autonomy; it cannot be imposed to replace a failed statutory ground, consent cannot be inferred from her unwillingness to live with him, and filing a suit for dissolution is not seeking khula. (para 3, 13)

2. What is the standard of proof for cruelty, an additional wife and non-payment of maintenance under the 1939 Act? Framed by the court

   The court's answer: The civil standard, the balance of probabilities: the court weighs the wife's own testimony and the surrounding circumstances against the husband's evidence, without insisting on documentary or medical proof. (para 3, 10)

3. Was the husband's admitted second marriage without consent or permission by itself a ground for dissolution? Our framing

   The court's answer: Yes. It attracted section 2(ii-a) of the 1939 Act and alone was sufficient to dissolve the marriage, as his unchallenged conviction under section 6(5) of the Ordinance confirmed. (para 12)

Arguments

From the judgment

Petitioner or appellant

The Family Court and the appellate court disregarded the wife's prayer, contentions and evidence and granted khula without her consent, depriving her of her dower (a plot, 30 tolas of gold and Rs. 500,000); the finding also stigmatised her reputation and dignity (para 2).

Respondent

Her suit was in substance one for khula, since she repeatedly said she did not wish to live with him; cruelty was not proved; by leaving his home to pursue her career she was disobedient; he had been generous and tried to save the marriage (para 2). Relying on Hamad Hassan (2023 SCMR 1434), the High Court could not re-appraise the concurrent findings of fact (para 10); the Rs. 5,000 penalty under the conviction had been paid (para 12).

Court's reasoning

From the judgment

What cruelty means under the 1939 Act

Section 2(viii) gives illustrations, not a closed list. Cruelty includes physical harm, mental and emotional abuse such as humiliation, verbal abuse, neglect or false accusations, and a hostile home environment tolerated by the husband; it may be a pattern of acts rather than one incident. The decisive factor is its impact on the wife, so that she can no longer reasonably be expected to continue the marriage (Tayyeba Ambareen, 2023 SCMR 246). (para 6-9)

The standard of proof is the balance of probabilities

A dispute under the 1939 Act is civil, so each ground is proved on the balance of probabilities, not beyond reasonable doubt. The court decides whose account is more probable, weighing the wife's testimony and the surrounding circumstances against the husband's evidence; her entitlement does not depend on producing injuries, police reports or medical reports. Applying the correct standard is a question of law, so Hamad Hassan did not bar the Court from examining it. (para 9-10)

The courts below applied the wrong standard

The Family Court and the appellate court ignored the wife's evidence and four witnesses, demanded documentary or medical corroboration, discarded her witnesses because she was not beaten in front of them, and treated her education and wish to work as disobedience, while accepting the husband's account although he produced no witness to his good conduct. Abuse in the marital home is often committed in private, without witnesses. (para 11)

The second marriage alone was a ground

Under section 6 of the Muslim Family Laws Ordinance a husband needs his wife's consent or the Arbitration Council's permission to marry again. He admitted the second marriage and no permission was sought, so section 2(ii-a) of the 1939 Act was attracted and was alone sufficient to dissolve the marriage; his unchallenged conviction under section 6(5) confirmed it. Section 2(ii-a) remains operative (Faryal Maqsood, PLD 2025 SC 262). (para 12, 16)

Khula cannot be imposed

Following Saima Khan (PLD 2024 SC 645), khula is a distinct cause of action grounded in the wife's consent and autonomy. Converting a suit for dissolution into khula without her consent is contrary to law; the court must record her consent and ensure she understands that she forfeits dower. By treating the case as khula the courts wrongly took away her maintenance and dower. (para 13, 15)

Maintenance cannot be refused for 'disobedience'

Non-payment of maintenance is a ground under section 2(ii), so a clear finding on payment was needed. Her evidence that nothing was paid was not rebutted, and the husband did not claim to have paid the Rs. 10,000 a month fixed in the Nikahnama. Alleged disobedience is not a legal ground to deny maintenance, which is the husband's obligation during the marriage (Haseen Ullah, PLD 2022 SC 686). (para 14, 18)

Language and a gender-sensitive reading of evidence

The evidence of three jirgas after which she returned home, and of her leaving only in December 2016, rebutted the label of a 'self-deserting' wife. The Court held that words such as 'disobedient', 'self-deserting' and 'compelled to contract second marriage' reflect patriarchal assumptions, not findings of law, and offend the guarantees of dignity, equality and non-discrimination in Articles 14, 25 and 35 of the Constitution. (para 16-18)

Result

The petition was converted into an appeal and allowed. The judgments of the Family Court and appellate court and the High Court's order were set aside as to khula, dower and maintenance; the marriage was dissolved on the ground that the husband married again in violation of the law; she keeps the gold, money and plot, and is entitled to Rs. 10,000 a month as maintenance for the period of the marriage, calculated and paid according to law. (para 19)

Judicial observations

From the judgment

The court's exact words.

Practical implications

Our analysis

For lawyers

• Plead each statutory ground separately (cruelty, section 2(ii) maintenance, section 2(ii-a) second marriage) and ask for a finding on each; one proved ground is enough.
• For cruelty, lead the wife's own detailed account and supporting witnesses on the impact of the conduct; argue the balance of probabilities and resist demands for FIRs or medical reports.
• Where the husband married again, prove the marriage (his admission is enough) and the absence of consent or Arbitration Council permission; a conviction under section 6(5) is strong supporting evidence.
• If khula is proposed, insist that the court record the wife's informed consent and the dower consequence; without it a khula decree is open to challenge.

For everyone else

• If you ask the court to end your marriage for cruelty, non-payment of maintenance or your husband's second marriage, the court cannot give you khula instead unless you clearly agree to it. Khula can cost you your dower.
• Cruelty can be mental and emotional, not only physical, and you do not always need a police or medical report to prove it.
• A husband who marries again without his wife's consent or the Arbitration Council's permission gives her a ground to end the marriage, and he cannot refuse maintenance by calling her disobedient.

General points drawn from this judgment, not advice on your own case.

Limits of this judgment

Our analysis

• A judgment of a two-judge bench of the Supreme Court on the record of one case from Peshawar, approved for reporting.
• The marriage was dissolved on the second-marriage ground alone; the Court held that the lower courts applied the wrong standard to cruelty but did not itself decide that cruelty was proved.
• Maintenance for the marriage is to be calculated and paid according to law; the judgment does not state the final amount.

Related

Our guide

• Khula in Pakistan: Complete Procedure, Cost, Timeline & Legal Rights

Discussed in our brief

• PLD 2026 SC 91: Khula, Cruelty & Dower Rights