ISLAMABAD : While declaring a woman entitled to receive Rs1.2 million as the remaining dower in a family case, the Supreme Court set aside a subordinate court’s decision that had forced her to forego the amount. The top court also ruled that a husband’s second marriage without the wife’s legal permission constitutes statutory cruelty.
A two-member bench of the Supreme Court, comprising Chief Justice of Pakistan Justice Yahya Afridi and Justice Musarrat Hilali converted the case from a “Khula” (divorce by woman’s request) to a standard dissolution of marriage, ensuring the petitioner receives her full remaining dower of Rs. 1,200,000.
Justice Musarrat Hilali is the author judge noted in a five-page verdict that primary legal question was whether a wife is entitled to a decree for dissolution of marriage on the grounds of cruelty if her husband enters into a second marriage without the mandatory written permission required under family law.
A secondary issue was whether the lower courts were correct in treating the divorce as “Khula” – which requires the wife to return or waive her dower – despite the husband’s violation of statutory marriage laws. Issuing verdict in the matter the court relied upon statutory provisions including Section 6 of the Muslim Family Laws Ordinance (MFLO), 1961 which prohibits a man from contracting a second marriage without the prior written permission of the Arbitration Council, Section 2(iia) of the Dissolution of Muslim Marriages Act (DMMA), 1939 which specifically establishes that contracting a second marriage in contravention of the MFLO is a valid ground for a woman to seek the dissolution of her marriage.
The court established legal precedent about dower rights in the matter that if a marriage is dissolved due to the husband’s fault (such as cruelty or statutory violations), the wife is entitled to her full dower, unlike in cases of Khula. In the case of this Mst. Naila Javed who had made Nasir Khan as respondent, (her ex-husband), who had admitted to marrying a second time without obtaining permission from the Arbitration Council or his first wife. The Supreme Court found that the Peshawar High Court and lower family courts had incorrectly assessed the evidence.
While the lower courts granted a divorce, they did so on the basis of “Khula,” forcing the wife to give up her financial rights. Justice Hilali noted that because the husband violated Section 6 of the MFLO, the wife had a “clear availability on the record” for a decree based on cruelty. Therefore, the fault lay with the husband, and the wife should not have been penalized financially for his breach of law.
The Supreme Court allowed the appeal, declaring the marriage dissolved on the grounds of cruelty (Talaq) rather than Khula. Consequently, the Court ordered the respondent to pay the petitioner the remaining dower of Rs. 1,200,000 (Twelve Lakh Rupees) through the Family Court, affirming that statutory violations by a husband protect a wife’s right to her dower upon divorce.
