2026 PLP 126 (CLC)

FARAH JAMSHED, J.

This petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 stem from the order issued by the learned Civil Judge-I, Paharpur, D.I.Khan, on 30.10.2024, whereby, a decree for dissolution of marriage on the basis of khula was granted in favour of the respondent No.1 with certain conditions imposed upon the petitioner to pronounce Talaq through a written deed.

2. The facts outlined in the case are that the respondent/plaintiff filed a suit against the petitioner/defendant for dissolution of marriage on the basis of khula, details whereof are given in the headnote of the plaint. After being summoned, the petitioner did not put appearance, however, his mother appeared before the Court. Learned trial court, after recording statement of respondent No.1, dissolved the marriage between the parties on the basis of khula, however, learned trial court held that:

16. In light of the proceedings held by this Court and while relying upon the statement of the plaintiff recorded as PW-1 it is ordered that the plaintiff has validly presented her claim for khula, as she has forgone her claim of dower and other dues as against the defendant, and this Court while accepting the plea of the plaintiff directs the defendant to divorce the plaintiff immediately. The defendant is directed to divorce plaintiff forthwith and all the most within 10 days from the date of this judgement and decree. Decree of khula is hereby passed in the above terms.

17. The defendant is hereby granted a period of 10 days to pronounce the Talaq through a written deed to the plaintiff. Should the plaintiff be compelled to pursue further litigation, including filing of the execution of the talaq by the defendant, he may incur additional costs and damages.

18. The defendant is hereby reminded that for each day the plaintiff remains in this forced union, he may be subjected to civil imprisonment and compensation, starting at Rs. 5000/- per day which can be enhanced and may go up to any amount this Court deems appropriate for the redress of the psychological damage caused by the defendant to the pf. Furthermore, if the defendant fails in giving a written talaq within 10 days, then when the court will compel and make the defendant pronounce the talaq thereafter the court will hold the defendant responsible for the maintenance amount during the Iddat period, which shall be fixed by the court as per the circumstances. The order and decree ibid passed by the learned trial court is now being challenged in the present case.

3. We have considered submissions of the learned counsel for the parties, gone through the record of the case and perused the relevant law on the subject as well.

4. Before delving into the propriety of the impugned order, the fundamental issue that arises for consideration is: whether, once a decree for dissolution of marriage on the basis of khula has been granted by the Court, is it within the jurisdictional competence of the Family Court to compel the husband to pronounce talaq through a written deed? In the present case, the respondent No. 1 instituted a suit for dissolution of marriage which culminated in the grant of a decree by the learned Family Court solely on the basis of her statement-a practice well-established in matters of khula under section 10(4) of the Family Courts Act, 1964. However, the learned trial court went further and imposed certain conditions on the petitioner, inter alia, directing him to issue a written talaq within ten days, failing which he was to be subjected to civil imprisonment, daily monetary penalties of Rs.5,000/-, and a warning regarding further litigation costs and damages. This action of the learned Family Court prima facie reflects a jurisdictional overreach.

5. Through this constitutional petition, the petitioner has challenged the impugned order on the following principal grounds: I. The Trial Court failed to apply the correct legal standard by treating khula as conditional upon a subsequent talaq by the husband. II. The punitive measures directed against the petitioner, in the absence of legal justification, are ultra vires and arbitrary. III. The order was passed in the absence of the petitioner, without affording him an opportunity of being heard, thereby vitiating the proceedings. Before addressing the contentions of petitioner, it is advantageous to reproduce the relevant provisions i.e section 10(4) of the West Pakistan Family Courts Act, 1964 which read as under: Section10(4): "In a suit for dissolution of marriage, if reconciliation fails and the wife does not withdraw her claim for dissolution of marriage, the Family Court shall pass a decree for dissolution of marriage forthwith." From the bare reading of the section ibid, the following powers of the Family Court under section 10(4) are: a. If reconciliation efforts fail and the wife persists in her claim for khula, the court must pass a decree for dissolution - it is not discretionary. b. The section does not require the consent or appearance of the husband. The wife's statement of aversion is sufficient once reconciliation fails. c. The court is directed to pass the decree "forthwith," emphasizing an expedited process to protect the rights of the woman. d. Once the khula is decreed by the court, there is no legal obligation on the husband to pronounce or write a talaq. The judicial decree itself dissolves the marriage. In short, under Section 10(4) of the Family Courts Act, 1964, the Family Court has clear statutory authority to dissolve a marriage on the basis of khula when reconciliation fails and the wife persists. The court has no authority to compel the husband to issue a written talaq, nor to impose penalties for not doing so.

6. It is settled law that once a decree for khula is passed by the competent court, the marriage stands dissolved and there remains no legal necessity to compel the husband to pronounce talaq, whether orally or in writing. The imposition of penal consequences i.e civil imprisonment and financial penalties are also beyond the statutory mandate conferred upon Family Courts under the relevant laws, unless explicitly sanctioned by legislative provisions or through binding judicial precedents.

7. Be that as it may, apart from passing a decree for dissolution of marriage on the basis of khula, as mentioned earlier, the conditions imposed upon the petitioner by the learned trial court is a judicial overreach which cannot sustain in the eye of law. A judge is duty-bound to decide cases strictly within the ambit of authority conferred by law. Any exercise of power beyond the statutory framework amounts to judicial overreach, which is antithetical to the rule of law and undermines the integrity of the judicial process. When a court steps outside its jurisdiction or renders a decision in contradiction to established legal principles, such a decision is void ab initio-a nullity in the eyes of law. The judicial role is not one of personal discretion or subjective interpretation; rather, it entails interpreting and applying the law objectively, in line with binding precedent and statutory mandates. A judgment must reflect a logical and lawful reasoning process, not personal beliefs or considerations. Findings that fall outside the legal framework not only compromise the validity of the judgment but also erode public confidence in the justice system. The essence of a sound judicial decision lies in its adherence to legal reasoning, statutory interpretation, and fidelity to precedent, not in speculative or unfounded observations. In this backdrop, it is evident that no powers are vested in the Family Court to impose such unwarranted and extraneous conditions upon the petitioner. These conditions are not only beyond the statutory mandate but same are also imposed in an arbitrary manner, hence, devoid of legal backing. As the impugned order and decree of the trial court is arbitrary, perverse and in violation of law, hence, calls for interreference of this Court in exercise of constitutional jurisdiction.

8. This Court, after having considered the record and the reasons advanced, finds merit in the grievance of the petitioner. Accordingly, this petition is partially allowed to the extent of upholding the decree for dissolution of marriage on the basis of khula. However, the remaining portion of the impugned order, whereby unwarranted conditions were imposed upon the petitioner by the learned Civil Judge-I, Paharpur, D.I.Khan-including directives for pronouncement of written talaq, civil imprisonment, and imposition of daily compensation-is hereby declared to be erroneous, illegal, and without any lawful authority or statutory backing, hence, set aside. Consequently, this petition stands partly allowed in the above terms. UN/187/P Order accordingly.