By Sibghatullah Mughal
The Supreme Court of Pakistan’s detailed judgment in the Naila Javed case arrives at a moment when confusion, inconsistency and, at times, casual disregard for settled law have begun to cloud the country’s family courts. Far from breaking new legal ground, the ruling performs a more necessary and perhaps more difficult task: it restores clarity. By reaffirming long-established principles around second marriage, khula and women’s financial rights, the Court has drawn a firm line under practices that had drifted away from both statute and precedent. At the center of the judgment lies Section 6 of the Muslim Family Laws Ordinance, 1961, a provision that has been part of Pakistan’s legal framework for more than six decades, yet continues to be treated by some as optional or symbolic.
The Supreme Court has once again made it clear that Section 6 is neither advisory nor decorative. It is mandatory. A man may not contract a second marriage without the prior written consent of his existing wife or wives and the approval of the Arbitration Council. This position was settled as far back as Allah Rakha v. Fatima Bibi in 1982, but the persistence of litigation on this point suggests a troubling reluctance to accept the law as it stands. In the Naila Javed judgment, the Court did not merely repeat earlier rulings; it underscored their consequences. Non-compliance with Section 6 is not a technical lapse to be brushed aside. It exposes the husband to criminal liability and civil penalties, including financial obligations.
The judgment rejects the convenient fiction that religious permissibility can somehow shield a second marriage from statutory scrutiny. This, too, is not a new idea. In Abdul Ghafoor v. Shahida Parveen, the Supreme Court had already clarified that while Islam may permit polygamy under certain conditions, Pakistani law regulates it. Faith and statute are not in conflict here; the law simply gives enforceable shape to the ethical constraints religion itself imposes. Perhaps the most far-reaching aspect of the judgment, however, concerns khula. Over the years, family courts have developed a troubling habit of treating khula as a judicial shortcut, imposed even when a woman has not asked for it. The Supreme Court has now closed that door. Khula, the Court reaffirmed, is the right of the woman alone.
It is not a discretionary power of the judge, nor a convenient exit when a court finds itself impatient with contested proceedings. This principle was authoritatively settled in Khurram Abbas v. Nadia Khurram in 2016, yet its misapplication has continued to haunt family litigation. In Naila Javed, the petitioner had approached the court seeking dissolution of marriage on the ground of cruelty. Instead of deciding that claim on its merits, the Family Court unilaterally converted the case into one of khula. The Supreme Court rightly described this as a jurisdictional error. It is a reminder that courts exist to adjudicate claims placed before them, not to recast them according to their own preferences. When khula is imposed without the woman’s clear, voluntary and unequivocal consent, it ceases to be a right and becomes an injustice.
The judgment is equally firm in its treatment of cruelty, a concept that has often been narrowly interpreted to mean physical violence alone. Pakistani jurisprudence has long rejected such a crude understanding, and the Supreme Court has now reiterated that position with force. Cruelty can take many forms: persistent neglect, failure to maintain, mental torture and humiliation. In earlier cases, the Court recognized that a husband’s refusal to provide financial support can be as damaging as physical abuse, and that sustained mental anguish can shatter a marriage just as surely as blows. Against this backdrop, the Court’s finding that a second marriage contracted without consent, combined with character assassination during litigation and financial neglect, amounted to cruelty was neither surprising nor controversial.
(The writer is a social influencer, and activist, can be reached at editorial@metro-morning.com)
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