THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Bench:
Justice Syed Mansoor Ali Shah
Justice Jamal Khan Mandokhail
Justice Athar Minallah

Civil Petition No.308-P and 1388 of 2019

(Against judgment dated 03.4.2019 of the Peshawar
High Court, Peshawar passed in Writ Petition No.
1341-P of 2016)

CP 308-P/2019
Dr.Faryal Maqsood and another … Petitioner
Versus
Khurram Shehzad Durrani and others … Respondents

For the petitioners: Mr. Waseem ud Din Khattak, ASC

(Through Video link Peshawar)

For respondent No.1: Barrister Umer Aslam, ASC

Ch.Akhtar Ali, AOR.

CP 1388/2019
Khurram Shehzad Durrani … Petitioner
Versus
Dr.Faryal Maqsood and others … Respondents

For the petitioners: Barrister Umer Aslam, ASC

Ch.Akhtar Ali, AOR.

For respondent No.1: Mr. Waseem ud Din Khattak, ASC

(Through Video link Peshawar)

Date of hearing: 03.5.2024

ORDER

Athar Minallah.- Dr.Faryal Maqsood (‘plaintiff’) and

Khurram Shahzad (‘defendant’) have filed separate petitions and

they have sought leave against the judgment dated 04.3.2019 of

the High Court.

2. The plaintiff and defendant had tied the knot on 10.9.2007

and later they were blessed with a son, Asadullah Durrani

('minor') on 18.12.2008. The marital disputes had strained their

relationship which ultimately led to their separation in 2012. The

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plaintiff filed a suit on 28.7.2012 seeking a decree for recovery of

the dower expressly recorded in the Nikah Nama, Ex.PW-1/1 and

the dowry articles. It was asserted in the plaint that the marriage

was dissolved pursuant to a pronounced oral divorce by the

defendant. The latter contested the plaint by filing a written

statement. He had denied having divorced the plaintiff. However,

the dower agreed upon and mentioned in the Nikah Nama was

not denied. He had taken the stance that the dower to the extent

of Rs.500,000/- and fifty (50) Tola gold, had been paid at the time

of execution of the Nikah Nama. The share in the house was also

not denied. The defendant had sought restitution of conjugal

rights since he had taken the stance that the marriage was not

dissolved as had been asserted in the plaint. The trial court had

framed nine issues out of the divergent pleadings. The issues as

to whether the marriage had been dissolved and whether the

defendant was entitled to a decree of restitution of conjugal rights

had been specifically framed. The suit was partially decreed by

the trial court vide judgment and decree dated 29.5.2014. The

decree granted in favour of the plaintiff was regarding the

recovery of Rs.500,000/- and possession of the share in the

house or, alternatively, its market price which were settled as

dower in the Nikah Nama. However, the claim of dower to the

extent of fifty Tola gold was dismissed. The claim regarding dowry

articles was also partially decreed, which included fifty one (51)

Tola gold. A decree was also granted regarding payment of

maintenance in favour of the minor. Moreover, a decree for

restitution of conjugal rights was granted which was made

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subject to payment of the prompt dower. Both the parties had

challenged the judgment and the decree handed down by the trial

court by preferring separate appeals before the Additional District

& Sessions Judge-V, Peshawar and they were decided vide

judgment and decree dated 29.2.2016. While the appeals were

pending, the defendant took a second wife and, therefore, an

application was filed for raising an additional ground in the

context of dissolution of marriage. It was her stance that taking

a second wife in contravention of the provisions of the Muslim

Family Laws Ordinance, 1961 (‘Ordinance of 1961’) was one of

the grounds for dissolution of marriage under section 2 of the

Dissolution of Muslims Marriages Act 1939 ("Act of 1939"). This

additional ground was considered by the appellate court because

it is obvious from its judgment. However, the appellate court

ordered the dissolution of the marriage on the basis of Khula. As

a consequence, it was declared that the plaintiff was not entitled

to claim dower. The return of fifty (50) Tola gold received as dower

was ordered to be adjusted against the fifty one (51) Tola gold

decreed as dowry. It is noted that the plaintiff had not asked,

expressly or impliedly, for dissolution of the marriage on the basis

of Khula in lieu of foregoing the recovery of dower. The judgment

and decree dated 29.5.2014 handed down by the trial court was

modified to this extent. The defendant did not challenge the

judgment and decree passed by the appellate court while it was

assailed by the plaintiff before the High Court by invoking its

extra ordinary constitutional jurisdiction under Article 199 of the

Constitution of the Islamic Republic of Pakistan, 1973 (‘the

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Constitution’). The High Court allowed the petition vide

impugned judgment dated 04.3.2019. The order of the appellate

court regarding dissolution of the marriage on the basis of Khula

was set-aside. However, the High Court ordered the dissolution

of the marriage on the ground of cruelty. The decree of the trial

court regarding recovery of dower and dowry articles was thus

restored.

3. We have heard the learned counsels for the parties at great

length and they have also filed their respective written

submissions.

4. The questions that have emerged for our consideration are:

whether the trial court had rightly decreed the suit and had

granted the relief prayed therein regarding recovery of dower,

dowry articles and maintenance; whether the issue framed

regarding restitution of conjugal rights and the decree granted to

this extent involved adjudication of the question of validity and

subsistence of the marriage; whether the appellate court fell in

error by failing to decide the additional ground specifically raised

regarding the taking of an additional wife and, instead, ordering

the dissolution of marriage on the basis of Khula and, that too,

in the absence of an express or implied demand, prayer or request

having been made by the plaintiff; whether the High Court had

rightly ordered the dissolution of the marriage on the ground of

cruelty; whether clause (iia) of section 2 of the Act of 1939

subsists as a valid and enforced ground for dissolution of

marriage; whether, in the facts and circumstances of the case

before us, the courts were competent to order the dissolution of

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marriage on the ground of section 2(iia) of the Act of 1939;

whether the decree of the suit by the trial court was sustainable

without granting a decree for dissolution of marriage.

5. The case before us has two distinct features; firstly, the

decree regarding the recovery of dower, dowry articles and

maintenance, as was specifically prayed in the plaint filed by the

plaintiff and the decree regarding restitution of conjugal rights or

dissolution of the marriage contract. We will, therefore, discuss

the former feature first. It is not disputed that the suit was filed

with specific prayers regarding dower, dowry articles and

maintenance. The plaintiff had taken the stance that the

marriage was dissolved pursuant to pronouncement of oral

divorce by the defendant. The latter denied this assertion and

sought restitution of conjugal rights. The trial court had framed

nine issues which, inter alia, included whether the marriage was

dissolved and whether the defendant was entitled to a decree for

restitution of conjugal rights. The parties had produced their

respective evidences but the plaintiff could not succeed in

discharging the onus of proving the dissolution of marriage on

the basis of an oral pronouncement of divorce by the defendant.

The trial court granted the prayers sought in the plaint to the

extent of dower, except fifty (50) Tola gold because, on the balance

of probabilities, it stood proved that its possession was given to

the plaintiff and that it remained with her. The claim regarding

the recovery of dowry articles was partially decreed which

included fifty one (51) Tola gold. The maintenance in favour of the

plaintiff and the minor was also decreed besides setting out a
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visitation schedule. These findings were not disturbed either by

the appellate court nor the High Court. The findings regarding

entitlement of dower, dowry articles, maintenance and the

visitation schedule were concurrently upheld by three competent

courts. However, since the appellate court had ordered the

dissolution of the marriage on the basis of Khula, therefore, the

entitlement of the plaintiff to recover dower on this basis alone

was denied. As will be discussed later, the court could not have

ordered dissolution of marriage on the basis of Khula when no

such intention was shown by the plaintiff either expressly or

impliedly. But, in this case, notwithstanding the question of

dissolution of marriage, the decree regarding dower, dowry

articles, maintenance of the minor and the visitation schedule

was distinct and sustainable on its own.

6. The terms of a contract of marriage between a man and a

woman are contained in the Nikah Nama. The terms and

conditions are meant to secure the rights and intentions of both

the wife and the husband. The Nikah is a social contract between

parties who are competent to enter into a valid marriage contract.

It is settled law that a presumption of truth is attached to the

Nikah Nama and it enjoys the status of a public document. A

strong presumption of truth exists regarding entries recorded in

the Nikah Nama. The titles of columns 13 to 16 relate to 'dower'.

Column 17 of the prescribed form is titled as 'special conditions

if any'. The prescribed form nor the headings of the entries are

conclusive for the purpose of ascertaining the intentions of the

two parties to the marriage contract. This Court has held in the
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Haseen Ullah’s case1 that the Nikah Nama is the deed of marriage

contract entered into between the parties and its

clauses/columns/contents are to be construed and interpreted

in the light of the intention of the parties. The headings are not

sufficient to determine the intention of the parties. It is also a

settled principle of interpreting a contract that a court cannot

imply something that is inconsistent with the express terms and

a stipulation not expressed in the written contract can also not

be applied merely because it appears to be reasonable to the

court.2 We will now examine what the parties had intended

regarding the dower which was settled between them and duly

recorded in the relevant entries of the Nikah Nama. It is noted

that 'dower' is obligatory because it is an essential requirement

of a valid marriage contract. The validity of marriage remains

effective even if the dower has not been expressly mentioned in

the marriage contract because, in such a case, a reasonable

dower, 'Mehr-ul-Misal' is presumed. Dower may be prompt or

deferred. In case the parties have not specified the nature of the

payment of dower then in such an eventuality it is presumed to

be prompt as has been provided under section 10 of the

Ordinance of 1961. It can be in the form of cash or property or

both. In the case before us, the parties had settled an amount of

Rs.500,000/- to be paid as cash 'on demand' and this was

recorded in column 13 of the Nikah Nama. In column 14 the

nature of dower i.e whether prompt or deferred was not specified

1
Haseen Ullah v. Mst. Naheed Begum and others (PLD 2022 SC 686)
2
Housing Building Finance Corporation v. Shahinshah Humayun Cooperative House Building Society
and others (1992 SCMR 19)
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since it was left blank. In column 15 it was clearly stated that

jewellery weighing fifty (50) Tola gold was present i.e at the time

of execution of the contract of marriage. In column 16 it was

unambiguously recorded that the share of the defendant in the

house had been registered in the name of the plaintiff. The

columns read together clearly shows that in case of the latter two

distinct categories of dower settled between the parties, the

nature of dower was prompt. The payment of the cash amount

was, however, on demand. The defendant, in his written

statement, has not denied the settlement of the aforementioned

three categories of dower. There is also no dispute regarding the

description of the property in which the share was given to the

plaintiff as dower because it stood admitted by the defendant in

his written statement. These findings have been concurrently

decreed and upheld by three competent courts and we are

satisfied that no error has been pointed out requiring interference

therewith.

7. The next question is regarding the status of the marriage

contract. The plaintiff, in her plaint, had taken the plea that the

defendant had pronounced oral divorce and, therefore, the

marriage had been dissolved and this factum was denied by the

latter. The defendant had instead sought restitution of conjugal

rights and a specific issue was framed in this regard by the trial

court. The plaintiff could not prove the assertion of

pronouncement of oral divorce and the trial court granted a

decree for restitution of conjugal rights. The appellate court

modified the decree of the trial court and ordered dissolution of

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marriage on the basis of Khula but did not adjudicate upon the

fresh ground of taking an additional wife in contravention of the

provisions of the Ordinance of 1961. The High Court concluded

that the dissolution of the marriage was justified on the ground

of cruelty. The dissolution of marriage and its adjudication was a

question directly involved in the trial of the suit and implicit in

the issue regarding restitution of conjugal rights. The defendant

had accepted the dissolution of the marriage on the basis of

Khula as had been ordered by the appellate court. In the

circumstances, there is no force in the argument of the counsel

for the defendant that this question could not have been

adjudicated because no such prayer had been sought by the

plaintiff in her plaint. This question also had consequences for

the decree granted in favour of the plaintiff for recovery of dower

as was obvious from the decree granted by the appellate court by

ordering dissolution of the marriage on the basis of Khula. We,

therefore, have to consider whether the appellate court was

competent to grant a decree for dissolution of the marriage on the

basis of Khula and whether the High Court had rightly modified

it by ordering dissolution of the marriage on the ground of

cruelty. Moreover, did the appellate court fall in error by

entertaining the additional ground regarding dissolution of

marriage on the ground of taking an additional wife but failing to

adjudicate upon it.

8. There are various modes for lawfully dissolving the contract

of marriage between a husband and wife. The primary mode is

pronouncement of divorce by the husband or in case the right

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has been delegated to the wife then exercise of such right by her.

The Act of 1939 was enacted to consolidate and clarify the

provisions of Muslim law relating to suits for dissolution of

marriage by women who are married under the Muslim law.

Section 2 sets out the grounds for a decree for the dissolution of

a marriage. The statute was amended and a new ground was

inserted i.e. clause (iia) in the Act of 1939 through Muslim Family

Laws Ordinance of 1961 (‘Ordinance VIII’). These amendments

were made to give effect to the recommendations of the

Commission on Marriages and Family Laws. Later section 13 of

the Ordinance VIII was omitted through section 3 read with item

no.18 of the second schedule of the Federal Laws (Revision and

Declaration) Ordinance, 1981 (‘Ordinance of 1981’). It is noted

that the insertion of clause (iia) in section 2 of the Act of 1939

had taken effect and was enforced. It is an admitted position that

the Act of 1939 was not amended nor was clause (iia) of section

2 omitted or repealed there from. The effect of omission of section

13 of Ordinance VIII through the Ordinance of 1981 did not affect

the insertion of clause (iia) in section 2 of the Act of 1939.

Moreover, it is obvious from the language of section 13 of

Ordinance VIII that the insertion made in the Act of 1939 was not

intended to be of transitory nature nor that it shall take effect for

a limited period. There is nothing in the language to construe that

it was intended that the insertion would lapse on a specific date

or on the happening of some contingency. The ground of

dissolution of marriage inserted in section 2 of the Act of 1939 as

clause (iia), i.e taking an additional wife in contravention of the

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provisions of the Ordinance of 1961, hence continued to be

validly enforced and subsisting. This Court in the case of Abdul

Majid3 has observed that the purpose of such omission or repeal

was to strike out unnecessary enactments and cannot be

construed as having brought any change in the relevant statute

which was amended or in which provisions were inserted. The

aim of the repeal or omission of those sections through which

some other statute was amended was termed by this Court as

'legislative spring cleaning'. Section 7 of the Ordinance of 1981

expressly saved the effect of the repealed laws. It expressly

provides that the repeal shall not affect the continuance of any

such amendment unless a different intent was expressly stated

in the law by which the amendment was made. Section 6-A of the

General Clauses Act 1897 (‘Act of 1897’) provides that where any

Central Act or Regulation repeals any enactment by which the

text of any Central Act or Regulation was amended by the express

omission, insertion or substitution of any matter, then, unless a

different intention appears, the repeal shall not affect the

continuance of any such amendment made by the enactment so

repealed and in operation at the time of such repeal. As already

noted, it is obvious from the clear language used in section 13 of

Ordinance VIII that a different intention cannot be construed.

The learned counsel for the defendant has drawn our attention

to the judgment of the Peshawar High Court in the case of Rashid

Ali4 in support of his contention that clause (iia) inserted in

3
Abdul Majid etc. v. Shahzada Asif Jan etc. (PLD 1982 SC 82)
4
Syed Rashid Ali Shah v. Mst. Haleema Bibi and others (PLD 2014 Peshawar 226)
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section 2 of the Act of 1939 stood repealed. With great respect,

the view taken by the High Court appears to have been formed

without taking into consideration the above factors, particularly

section 7 of the Ordinance of 1981. The opinion of the High Court

is per incuriam.

9. We, therefore, hold that the repeal of section 13 of

Ordinance VIII through the Ordinance of 1981 did not affect the

validity and enforcement of the insertion made in the Act of 1939

and, therefore, clause (iia) of section 2 of the Act of 1939

continues to be one of the valid, effective and subsisting grounds

for dissolution of marriage. Clause (iia) of section 2 of the Act of

1939 enables a woman married under the Muslim Law to obtain

a decree for dissolution of marriage if the husband has taken an

additional wife in contravention of the provisions of the

Ordinance 1961. Section 6 of the Ordinance of 1961 sets out the

requirements and procedure which are to be complied with by a

husband who intends to take an additional wife. It provides that

a husband, during the subsistence of an existing marriage, shall

not contract another marriage except with the previous

permission in writing of the Arbitration Council. In conformity

with these provisions a husband is required to file an application

for permission under sub-section 1 of Section 6 of the Ordinance

of 1961 to the Chairman of the Arbitration Council, stating

therein the reasons for the proposed marriage and whether the

consent of the existing wife or wives has been obtained thereto.

On receiving the application, the Chairman asks the applicant

and his existing wife or wives to nominate their respective

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representative. After the Arbitration Council is satisfied that the

marriage was necessary and just, it may grant permission subject

to such conditions, if any, as it may deem fit to impose. In

deciding the application the Arbitration Council is required to

record its reasons for the decision. Any party may prefer the

remedy of revision before the Collector concerned. The

consequences for taking an additional wife in contravention of

the aforementioned provisions have been expressly described

under sub-section 5 of section 6 ibid. In case of contravention the

husband becomes immediately liable to pay the entire amount of

dower, whether prompt or deferred, due to the existing wife or

wives and, secondly, on conviction may be sentenced to simple

imprisonment which may extend to one year, or a fine or both. In

order to invoke the ground under clause (iia) of section 2 of the

Act of 1939 all that the wife is required to show is that the

husband had taken the additional wife in contravention of the

Ordinance of 1961 as set out in section 6 ibid. In the case before

us, the defendant had taken an additional wife while the appeals

against the decrees passed by the trial court were pending. An

additional ground was taken by the plaintiff and it is obvious from

the judgment of the appellate court that such a ground was

entertained. It is also apparent from the judgment that the

defendant had submitted a reply. It stood established that the

provisions of the Ordinance of 1961 had been contravened since

neither any application was filed nor the permission of the

Arbitration Council was sought in accordance with the

requirements set out under section 6 ibid. However, instead of

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adjudicating this ground, the appellate court had ordered the

dissolution of the marriage on the basis of Khula. This form of

dissolution was accepted by the defendant as it was not

challenged by him before the High Court. The learned counsel for

the defendant has argued that the matter should be remanded to

the appellate court because it would require recording of

evidence. He has also advanced arguments in support of the

dissolution of marriage by the appellate court on the basis of

Khula. Before we examine the argument regarding remanding the

case to the appellate court, it would be appropriate to advert to

the question of whether the appellate court was justified in

ordering dissolution of the marriage on the basis of Khula.

10. Khula is one of the modes for dissolving a marriage. It can

either be on the basis of mutual settlement/arrangement

between the spouses or it can be ordered by a court if the

requisite conditions are met. This court in the case of Khurshid

Bibi5 has held that Khula is a right and privilege of the wife to

seek dissolution of marriage. It is a right which is exclusively

conferred on the wife. Khula through judicial order is thus

dissolution of marriage by the court/Qazi on the demand of the

wife. It authorises the court to dissolve the marriage in an

appropriate case against the will or consent of the husband.

However, a court on its own cannot order dissolution of the

marriage on the basis of Khula when it has not been sought by

the wife either expressly or impliedly. It has further been observed

5
Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 SC 97)
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that the question of Khula was a subject matter of a specific issue

between the parties in the case before this Court. It has been

noted in the judgment that the wife in her plaint had consented

to the dissolution of marriage on the basis of Khula. The learned

counsel for the defendant has placed reliance on Muhammad

Arif’s case6 in support of his contention that a court is competent

to order dissolution of marriage on the basis of Khula even though

it may not have been sought by or consented to by the wife. We

have carefully perused the judgement rendered by a Bench

consisting of two hon’ble judges of this Court but, with respect,

we have noted that the Bench had not considered the law

enunciated by this Court in Khurshid Bibi's case (supra) which

was rendered by a larger bench consisting of five hon’ble judges.

The appellate court, therefore, fell in error by granting a decree

for the dissolution of marriage on the basis of Khula when it was

not sought by the plaintiff nor had she given express or implied

consent thereto as was the case in Khurshid Bibi's case supra.

The next question is whether the High Court had validly modified

the decrees by ordering the dissolution of the marriage on the

ground of cruelty.

11. The Act of 1939 has set out the grounds which entitles a

wife married under the Muslim Law to obtain a decree for

dissolution of marriage. Clause (a) provides that a marriage could

be dissolved if the husband treats the wife with cruelty i.e.

habitually assaults her or makes her life miserable even if such

6
Muhammad Arif v. Saima Noreen and another (2015 SCMR 804)
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conduct does not amount to physical ill-treatment. Cruelty may

be mental or physical. This court, in the case of Mst. Tayyeba

Ambareen,7 has dealt with various forms of conduct or behaviour

that would entitle a wife to seek a decree for dissolution of

marriage on the ground of cruelty. In this case the trial court had

framed a specific issue whether the plaintiff was mentally or

physically tortured by the defendant. The former could not

discharge the onus placed upon her and, therefore, it was decided

in the negative. The High Court, while exercising its jurisdiction

vested under Article 199 of the Constitution, could not have

decided questions involving determination of facts requiring

recording of evidence. No further evidence was recorded after the

trial was concluded by the trial court. The High Court has also

not recorded any reasons in support of its conclusion to order

dissolution of marriage on the ground of cruelty. The High Court,

therefore, fell in error by ordering dissolution of marriage on the

ground of cruelty.

12. The defendant had taken an additional wife while the

appeals were pending. Admittedly, the provisions of the

Ordinance of 1961 and the requirements set out there in were

not complied with. It is, therefore, not disputed that the

additional wife was taken in contravention of the provisions of the

Ordinance of 1961. The dissolution of the marriage was one of

the issues involved and adjudicated upon by the courts. As

already noted, the appellate court fell in error by ordering the

dissolution of marriage on the basis of Khula. The ground for

7
Mst. TayyebaAmbareen v. Shafqat Ali Kiyani (2023 SCMR 246)
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dissolution of marriage in terms of clause (iia) of section 2 of the

Act of 1939 was taken before the appellate court and it was also

entertained as is obvious from its judgment. However, it was not

adjudicated upon. The defendant had filed his reply and the latter

had not denied the contravention of the provisions of the

Ordinance of 1961 relating to taking an additional wife. The

learned counsel for the defendant, in response of our query and

after seeking instructions, had conceded that the additional wife

was taken without the permission of the Arbitration Council in

the manner contemplated under section 6 of the Ordinance of

1961. However, he has argued that the matter was required to be

remanded to the appellate court for recording of evidence. This

argument is misconceived because the contravention of section 6

of the Ordinance of 1961 stands admitted. Clause (iia) of section

2 of the Ordinance of 1961 provides that taking an additional wife

by the husband in contravention of the provisions of the

Ordinance of 1961 was one of the grounds for dissolution of

marriage. In the case before us it will be a futile exercise to

remand the matter to a lower court. Admittedly, neither the

defendant had applied to nor the Arbitration Council had granted

permission as contemplated under section 6 of the Ordinance of

1961. In the circumstances, we hold and declare the dissolution

of the marriage between the plaintiff and the defendant on the

basis of the ground described under clause (iia) of section 2 of the

Act of 1939. We further hold that the appellate court and the High

Court fell in error by ordering the dissolution of the marriage

between the plaintiff and the defendant on the ground of Khula

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and cruelty respectively. The decree of the trial court to the extent

of restitution of conjugal rights is thus not sustainable. The

judgments and decrees to the extent of restitution of conjugal

rights and dissolution of the marriage on the ground of Khula or

cruelty are declared to be illegal and accordingly set aside. The

decrees granted by the trial court regarding dower, dowry articles,

maintenance and visitation schedule shall, therefore, sustain and

accordingly upheld.

13. We, therefore, convert the petitions filed by the plaintiff and

defendant into appeals and they are allowed in the above terms.

The decree granted by the trial court shall, therefore, stand

modified accordingly.

Judge

Judge

Judge

Announced in open Court on 23rd October 2024

Judge

APPROVED FOR REPORTING

Aamir Sh./RemeenMoin, LC