06/11/2024
Dissolution of Marriage Based on Polygamy: An Important Supreme Court Judgment on Second Marriage Without First Wife's Consent. This judgment has sparked controversy and has become the focus of objections by the Ullema in Pakistan
Dr. Faryal Maqsood Versus Khurram Shehzad Durrani
CP 308-P/2019 & CP 1388/2019
Case Facts:
The plaintiff filed a suit for recovery of the dower expressly recorded in the Nikah Nama, 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 Defendant by filling written statement denied having divorced the plaintiff. However, the dower mentioned in the Nikah Nama and share in the house was not denied but claimed that the dower to the extent of Rs.500,000/- and fifty (50) Tola gold, had been paid at the time of ex*****on of the Nikah Nama. The defendant had sought restitution of conjugal rights. The suit was partially decreed & plaintiff was entitled for recovery of Rs.500,000/-, possession of the share in the house, fifty one (51) Tola gold dowery articles and decree for the maintenance of minor. Moreover, suit for restitution of conjugal rights was also decreed subject to payment of the prompt dower.
Both the parties had preferred appeals against the judgment of trial court before the AD&SJ. During the pendency of appeals, the defendant got 2nd wife without the prior consent of 1st wife/plaintiff. Therefore, an application for raising an additional ground of 2nd marriage for dissolution of marriage was filed. This additional ground was considered by the appellate court but appellate court ordered the dissolution of the marriage on the basis of Khula despite the fact that Khulla was not sought/prayed by the Plaintiff. Therefore, plaintiff lost right to claim dower. The court ordered to adjust the 50 tola mahr into the 51 tola awarded as part of dowry articles. The judgment and decree dated 29.5.2014 handed down by the trial court was modified to this extent by the appellate court. Plaintiff assailed this judgment of ADJ before High Court and the order of the appellate court regarding dissolution of the marriage on the basis of Khula was set-aside and dissolved the marriage on the ground of cruelty. The decree of the trial court regarding recovery of dower and dowry articles was thus restored.
Supreme Court's Analysis:
The Supreme Court began its analysis by considering two aspects of the case:
i. Dower, Dowry, and Maintenance: The Court first addressed the issue of mahr, dowry, and maintenance, concluding that the family court’s decision on these matters would remain unchanged.
ii. Restoration of Marital Rights and dissolution of Marriage**: The Court then shifted its focus to the second aspect—whether the husband’s second marriage without the first wife’s consent could be a valid ground for annulment of marriage.
The Court examined the Dissolution of Muslim Marriages Act, 1939, particularly Section 2, which enumerates the grounds for dissolution. It noted that Section 2A was inserted in 1961 through an amendment, stating that a second marriage without the first wife’s consent, in violation of the Muslim Family Laws Ordinance, is a valid ground for annulment. The Court referred to a landmark case, Rashid Ali Shah (PLD 2014 Peshawar 226), in which the Peshawar High Court had held that such a ground no longer existed. The Supreme Court, however, disagreed with this interpretation, declaring the Peshawar High Court’s judgment as "illegal" and reaffirming the continued validity of this ground.
Furthermore, the Court clarified that a husband who marries again without obtaining written permission from the Arbitration Council, as required under Ordinance, would be subject to not only the full payment of the dower to the first wife but also possible imprisonment and fines. This, the Court emphasized, could also serve as a basis for the wife to seek annulment of the marriage.
The Supreme Court concluded that since it was established that Khurram Shehzad had not sought or received permission from the Arbitration Council before marrying again, he had violated the Muslim Family Laws Ordinance. Therefore, the Court ruled that Dr. Faryal Maqsood was entitled to seek dissolution of the marriage U/S 2A of the Act, 1939.
The Court also criticized the ADJ’s decision to dissolve the marriage on the basis of khula, as Petitioner had never explicitly or implicitly sought khula, and thus, the judgment was found to be illegal. Moreover, the High Court’s decision to dissolve the marriage on the grounds of "coercion and oppression" was also unlawful being contrary to the facts.
The Honorable Supreme Court upheld the family court's decision regarding dower, dowry, and maintenance but ordered the dissolution of the marriage U/S 2A of the Act, 1939, based on the unlawful second marriage without the first wife’s consent.
