Dr. Seema Hanif Khan v Waqas Khan and others

Title and Citation of the Case:

Dr. Seema Hanif Khan v Waqas Khan and others

2025 SCP 392

Court:
Supreme Court of Pakistan

Judges on the Bench:

Mrs. Justice Ayesha A. Malik

Mr. Justice Naeem Akhter Afghan

Parties:
Petitioner: Dr. Seema Hanif Khan

Respondent: Waqas Khan and others

Facts of the Case:

The brief facts of the case are that the petitioner and the respondent were married on 31.05.2015. And ruksati took place on 09.04.2016. In the terms of nikanama the respondent gave a plot in Islamabad, 30 tolas of gold and Rs. 500,000 as dower and Rs. 10,000 per month as maintenance. After that the dispute arose between the petitioner and the respondent and on 04.07.2017 the Petitioner filed the suit for dissolution of marriage under DMMA[1]on the grounds of cruelty, second marriage of respondent and non-payment of maintenance by him. The Family Court on 22.07.2019 on the basis of not relying on evidence provide by the plaintiff grant khula rather to dissolve the marriage on the grounds given by petitioner and awarded maintenance for the period of her iddat in the amount of Rs.30, 000/- in addition gives the direction to return the Gold and the Plot in lieu of the khula. The appeal and petition filed by the petitioner was dismissed. The petitioner  appealed to the Supreme Court.

Issues/Questions of Law:

• Whether the Family Court Can convert a suit for dissolution of marriage under DMMA into khula without the wife’s consent and it is the contravention of law?
• Whether the Family Court applied the correct level of proof, treated the evidence fairly, and used respectful, unbiased language?
• Whether the ground of taking an additional wife was established for the purposes of dissolving the marriage?
• Whether the Language use by the family court against the Petitioner are the violation of Article 14, 25 and 37 of the constitution of Pakistan

Arguments Summary:

Petitioner (Dr. Seema Hanif Khan)

The arguments of petitioner that was presented before the court was the erroneous grant of khula without her consent as she never sought for khula rather she files for dissolution of marriage. The Family Court and the Additional judge court Peshawar without relying on evidence grant her khula. The petitioner grants dissolution of marriage on the grounds of cruelty, non-payment of maintenance by respondant and taking an additional wife but both the courts without petitioner’s consent grant her khula which includes Plot No.38 street No.136 measuring 200 square yards situated in Federal Employees Society Jinnah Garden Phase-I, Islamabad (Plot), 30 tola Gold ornaments and Rs.500, 000/- (Money) (collectively referred to as Dower). Further the court demanded documentary proof or medical evidence to prove the grounds of cruelty but it is an improper way as such standard doesn’t require under civil matter. Petitioner further argued that without any justification the courts violated the fundamental rights of her which includes Article 14, 25 and 35 of the constitution[2]

Respondent: (Waqas Khan and others)

Respondent argued that the petitioner never file a suit to grant dissolution of marriage she wants khula. The courts was correct in granting khula as petitioner did not want to live with respondent. Respondent also stated that he was very bountiful with the petitioner and try to save the marriage but petitioner did not want to live with him rather wants to pursue her career. Furthermore, there is no evidence of cruelty established before the courtThe Supreme Court highlighted the grounds that are mentioned under section 2 of DMMA 1939[3]. The Court highlight the case [4][5](Jurisdiction under Article 199 of the constitution) as the court has to apply the correct standard of proof to determine an evidence, family court and appellate court failed to apply the correct standard of proof to assess evidence. The petitioner testimony and circumstance should have been given weight-age and uncorroborated evidence by respondent should not have been accepted.

The other issues that raised by the petitioner before the court of law is the non-payment of maintenance and taking an additional wife by respondent. As far as the non-payment of maintenance is concerned the family court also erred in dismissing the claim of it. The Supreme Court focus on that the Petitioner’s alleged disobedience was misplaced, as it’s not a valid ground to deny maintenance. The nikahnama stipulates Rs.10, 000/- per month maintenance, and the Respondent’s failure to pay that constitutes a ground for dissolution under DMMA. The issue of taking an additional wife without petitioner’s consent or arbitration council violated section 06 of MFLO[6] Also the respondent admitted the second marriage which supports the petitioner claim.

As the court grant khula to petitioner rather dissolution of marriage contradict the principle under[7] that requires the wife’s voluntary decision to grant khula so it is an erred in granting khula to petitioner without her consent. The court should have to consider the dissolution of marriage and doesn’t imposed khula. It ignored the petitioner’s statutory protection.

The supreme court also stated that the family court language was biased by using the term disobedient wife” and “self-deserting” to justify the Respondent’s cruelty and second marriage. The use of such language undermines impartiality and offends constitutional values of dignity, equality, and non-discrimination.

Ultimately the Supreme Court allowed the petition and convert it into appeal and allowed. The judgment and decrees of Family Courts and the Appellate Court and High Court set aside. The marriage is dissolved. The petitioner keeps dower (money, gold and plot) and entitled to Rs.10,000/- monthly maintenance for the marriage period, to be calculated and paid according to law

Ratio Decidendi:

The Supreme Court emphasized that the family court cannot impose khula without the wife’s consent and the language use in judgment should not conserve patriarchal stereotype. The family must assess the DMMA dissolution claims on balance of probabilities and maintenance is a husband statutory obligation during the marriage.

Implications:
This landmark Judgment affirms the importance of protecting women rights and dignity in marriage. This decision also highlights the needs for the courts to adopt the importance of women’s autonomy and recognize the social realities of domestic abuse. By prioritizing the women’s rights and dignity this case have a positive impact on society and promote a just treatment of women in marriage and divorce proceedings. The case set a precedent for future family law cases in Pakistan and caution against perpetuating patriarchal stereotypes and biases in dissolution of marriage cases.

Conclusion:

On the grounds of cruelty ,respondents failure to provide maintenance and the unauthorized second marriage the supreme court that the wife’s right to seek dissolution under dissolution of marriage act 1939 cannot be enforce into khula without her consent. By maintaining the petitioner’s dower and awarding statutory maintenance, the Court set a precedent that protects women’s autonomy and curtails judicial language that perpetuates gender bias in matrimonial disputes.

Bibliography:

[1] Section 2 of Dissolution of Muslim Marriages act 1939

[2] Constitution of Islamic republic of Pakistan 1973

[3] Grounds for decree for dissolution of marriage. A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years; (ii-a) that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961; (viii) that the husband treats her with cruelty, that is to say, (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment, or (b) associate with women of evil repute or lead an infamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.”

[4] Muhammad Shariful Islam v. Suraya Begum (PLD 1963 Dacca 947), Shahana Bibi v. Nadeem Shah (2015 MLD 1623) and Rabia Rasheed v. Faisal Mir (2013 CLC 1203).

[5] Hamad Hassan v. Mst. Isma Bukhari and others (2023 SCMR 1434)

[6] Muslim family law ordinance 1961

[7] Ibrahim Khan v. Mst. Saima Khan (PLD 2024 SC 645).