اثرالخلع القضائي في باكستان: دراسة تحليلية في ضوء الشريعة والتشريعات القانونية

The Impact of Judicial Khulʿ in Pakistan: An Analytical Study in Light of Sharīʿah and Legal Regulations

Abstract

This study explores the concept and practice of judicial khulʿ (wife-initiated divorce) in Pakistan through an analytical framework that combines classical Islamic jurisprudence, statutory law, and judicial practice. The research highlights that khulʿ, grounded in the Qur’an and Sunnah, was historically constrained in Hanafi jurisprudence by requiring the husband’s consent, thereby limiting women’s autonomy in marital dissolution. In contrast, other schools, particularly the Maliki, allowed the judge to grant khulʿ in cases of proven harm, even without the husband’s approval. Tracing the legislative evolution in Pakistan, the study examines the Dissolution of Muslim Marriages Act 1939—which provided women new avenues for judicial relief—followed by the Muslim Family Laws Ordinance 1961, which institutionalized family law reforms, and the 1973 Constitution that mandated conformity of laws with the Qur’an and Sunnah. These legal frameworks empowered courts to expand women’s access to khulʿ and harmonize legal norms with Shariah principles. The judicial analysis covers landmark rulings, including Balkis Fatima v. Najib Ahmad (1959), Khurshid Bibi v. Baboo Muhammad Amin (1967), which established that khulʿ does not require the husband’s consent, Saida Khatoon v. Muhammad Rafiq (2001) ensuring child maintenance post-divorce, and a 2025 Lahore High Court decision upholding women’s rights to retain deferred mahr in cases of spousal abuse. These judgments illustrate the judiciary’s reliance on the principle “the ruler’s ruling resolves disputes” and its engagement with the objectives of Shariah (maqāṣid), such as justice, removal of harm, protection of human dignity, and preservation of family welfare. The study concludes that judicial khulʿ in Pakistan represents a dynamic interaction between jurisprudence, legislation, and judicial activism. By prioritizing maqāṣid al-sharīʿah, Pakistani courts have developed a more equitable framework for women while ensuring conformity with Islamic law.