Dr. Zahid Khan Vs Mst. Mehreen etc

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

W.P No. 8397-P/2026

Dr. Zahid Khan .............................. Petitioner Vs.

Mst. Mehreen and another.............. Respondents Present: Ms. Ayesha Malik, advocate for the petitioner.

M/S. Faiz Bakhsh and Aimal Khan Barkandi, advocates for the respondents.

Date of hearing: 27.07.2026

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Through this petition, petitioner has challenged the order and judgment of the learned Family Court, Peshawar dated 11.06.2026, whereby, while deciding seven (07) miscellaneous applications, the marriage of the parties was also dissolved by pressing the provision of section 10 of The Family Court Act, 1964, hence, the instant petition.

2.Arguments of both the learned counsels for the parties were heard in considerable detail and record perused with their able assistance.

3.The very contents of the plaint would show that the respondent-wife has filed the instant suit for

dissolution of her marriage on the basis of cruelty or in alternate for dissolution of her marriage on the basis of Khula, if the plaintiff failed to prove cruelty, recovery of maintenance allowance @ Rs.

10,000/- per month for respondent/plaintiff since July, 2023 and onwards with 25% annual increase and recovery of Gold ornaments as dower i.e. 10 tolas or its market value, recovery of Rs. 5,00,000/- as dower, recovery of 1/4 share in house No. 67, Sector K-2, Hayatabad, Peshawar as per Nikah Nama, dowry articles and maintenance @ Rs.

25,000/- per month for the minor with 25% increase annually till the age of majority, in which the present petitioner was summoned, who submitted his written statement and thereafter, pre-trial reconciliation proceedings were conducted, however, despite the fact that the present petitioner did not participate in the said proceedings but the learned Judge Family Court has passed the impugned order, whereby the marriage between the parties has been dissolved on the basis of Khula by pressing the provisions of section 10 of The Family Court Act, 1964 vide impugned order dated

4.The statement of the respondent-wife as was recorded during the pre-trial reconciliation proceedings is available on file, the said statement being relevant is reproduced below:

The aforesaid statement of respondent-wife would show that she has never requested for dissolution of her marriage on the basis of Khula rather she has asserted the cruelty and inhuman behavior of the present petitioner, non-payment of the maintenance

amount as well as non-payment of her dower. The aforesaid statement would further show that the respondent-wife has shown her unwillingness to continue with the marriage tie due to alleged cruel behavior of the petitioner, therefore, in the given facts and circumstances as well as statement of the respondent-wife, it is prima facie spelling out that she is seeking dissolution of her marriage on the basis of cruelty and thus, in such eventuality, the Judge, Family Court should not have been granted a decree for dissolution of marriage on the basis of Khula and that too when the respondent-wife has not specifically and clearly requested for the same.

In this regard the Apex Court in a case1, has recently held that where the wife has not asked for dissolution of marriage on the basis of Khula then it shall not grant such decree and the Court has to proceed to decide that as to whether the wife is entitled for the dissolution of marriage on the basis of cruelty or not. Para No. 11 of the judgment being relevant is reproduced below:

“Where a woman files suit for dissolution of marriage under the grounds of DMMA or through khula, there are procedural

“Ibrahim Khan Vs. Mst. Sima Khan and others” reported as PLD 2024 Supreme Court 645.

distinctions. Firstly, under Section 2 of the DMMA, various grounds (cruelty, assault, ill-treatment, etc.) are provided for judicial pronouncement of dissolving the marital relationship, which is also called fuskh. Hence, there must be some cause as per the DMMA to get a decree of dissolution of marriage under the DMMA.

However, khula can be granted to a woman without establishing any ground or proving the cause to the court. Secondly, if the grounds under the DMMA are established by a woman, then Section 5 of the said law protects her right of dower as the same shall not be affected. Whereas in khula, she has to waive or forgo her right of dower. Lastly, in terms of procedure in the case of khula, once the pre-trial reconciliation fails under Section 10 of the Family Courts Act, 1964 (FCA), the court is bound to immediately pass a decree for the dissolution of marriage.18 Whereas the decree for dissolution of marriage under the DMMA can only be passed after the recording of evidence under Section 11 of the FCA. Therefore, termination of marriage under the DMMA or by way of khula exists in distinct and different legal domains with separate consequences.”

Similarly, in another case2, the Supreme Court of Pakistan has observed in para No.10 of the judgement that Khula is one of the modes for dissolving a marriage. It can either be on the basis “Dr. Faryal Maqsood and another Vs. Khurram Shehzad Durrani and others” reported as PLD 2025 Supreme Court 262

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 Bibi 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 authorizes 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 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 judgement 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 case 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 pursued 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 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. Likewise, in another case3, the Apex Court has held that we have noted that where a wife expresses aversion, the Family Court dissolves marriage on the grounds of khula and the wife is deprived of her dower. It is to be seen that if the aversion is the outcome of some reasons, then dissolution should be based on those particular reasons. The Courts should not, on its own motion and without the statement of a wife, convert the demand of divorce into Khula.

5.In view of the above discussion and exposition of law on the subject, this writ petition is “Mst. Naila Javed and another Vs. Nasir Khan and others” reported as PLD 2026 Supreme Court 302.

allowed, the impugned order of the Judge Family Court dated 11.06.2026 is set-aside to the extent of dissolution of marriage of the parties on the basis of Khula, and consequently, the learned Trial Court is directed to proceed with lis in accordance with law and decide the same on its own merits after providing an opportunity to both the parties to adduce their respective evidence in support of their pleas. As we have already ordered in the connected writ petition that the Trial Court shall conclude the proceedings in the custody petition of the minor within four months and as the instant suit has already been consolidated with the same, therefore, in this case too, the Judge Family Court shall conclude the trial within four months, positively.

Announced 27.07.2026 Sd/-

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan (Sher Hassan)