The Federal Shariat Court of Pakistan answered a crucial point in a historic ruling: Can a court grant Khula—a type of Islamic divorce initiated by a wife—without the husband’s permission? Haji Saif-ur-Rahman contested a Khula decree in this case, Shariat Petition No. 16/1 of 2022, sparking discussion on women’s rights in Islamic law. The court’s decision confirmed the legal position of Khula within the Islamic framework and helped clarify women’s absolute rights.
Background Case Information
In the bustling Pakistani town of Jhang, a marriage broke down in a manner worthy of headlines. Living in Mohalla Tahlianwala, Haji Saif-ur-Rahman found himself at the center of a legal storm when his wife, Nighat Yasmeen, tried to dissolve their marriage via Khula. In 2022, with a heart heavy with resolution, Nighat approached the Family Court in Jhang. Rooted in Islamic tradition but poised to trigger a bitter judicial battle, she stated she could no longer live with Saif-ur-Rahman within the bounds set by Allah.
Unlike talaq, which is divorce initiated by the husband, khula allows a woman to seek divorce by offering compensation to the husband or returning her dower. The Family Court accepted this and ruled that Nighat return 25% of her immediate dower. Saif-ur-Rahman, however, was not prepared to let go. Relying on Section 10(5) of the West Pakistan Family Courts Act, 1964 (Amended 2015), he argued the court’s ruling was faulty. He was devastated when the court decided against him on May 18, 2022, granting Khula to Nighat without his consent.
The case didn’t stop there. Filing a writ petition to reverse the Family Court’s decision, Saif-ur-Rahman took his fight to the Lahore High Court. But the High Court dismissed his plea in limine—that is, without a complete hearing—on September 20, 2022, leaving the Federal Shariat Court as his last hope. His appeal raised a crucial question: Can a court issue Khula without the husband’s permission, especially after the provision it relied upon was declared un-Islamic?
Jhang, a city rich in history and tradition, became the scene of this courtroom drama. Known for its vibrant culture and religious legacy, the region often wrestles with balancing modern legal systems and Islamic values. Saif-ur-Rahman’s case was more than a domestic dispute—it was part of a larger struggle over women’s rights in Pakistan’s judicial system, where interpretations of Islamic law shape everyday lives.
Legal Procedures
The legal journey began at the Family Court in Jhang, where Nighat Yasmeen filed for Khula. Her case was simple yet powerful: she could not live with her husband as his wife within the parameters of Islamic law. Working under Section 10(5) of the Family Courts Act, the court attempted pre-trial reconciliation, as required by law. When reconciliation failed, the judge proceeded without delay. On May 18, 2022, the court dissolved the marriage and ordered Nighat to reimburse 25% of her dower to Saif-ur-Rahman.
Representing himself, Saif-ur-Rahman was shocked. He argued the court’s reliance on Section 10(5) was invalid, citing the Federal Shariat Court’s earlier ruling in Imran Anwar Khan v. Government of Punjab (PLD 2022 FSC 25). In that case, Section 10(5) was declared un-Islamic and nullified as of May 1, 2022—weeks before the Jhang court’s ruling. He insisted that the Family Court’s decision was legally defective and that Khula required his consent—a belief influenced by social expectations.
Undeterred, Saif-ur-Rahman brought the matter to the Lahore High Court. His writ petition challenged the legal foundation for granting Khula without his consent and the Family Court’s reliance on a repealed law. But on September 20, 2022, the High Court dismissed his petition without considering the merits. This oversight ignored the earlier Shariat Court ruling on Section 10(5), a mistake he hoped the Federal Shariat Court would correct.
Personally appearing at the Federal Shariat Court, Saif-ur-Rahman passionately pleaded his case. He cited Ahadith and Quranic verses to argue that Khula could not be granted based solely on a wife’s request. He relied heavily on the Imran Anwar Khan judgment, claiming that the Family Court’s ruling was void due to reliance on a repealed law. The Federal Shariat Court, led by Chief Justice Iqbal Hameedur Rahman and Justices Khadim Hussain M. Shaikh and Dr. Syed Muhammad Anwer, heard the case attentively. They issued a short order dismissing the petition on September 19, 2023, with a detailed judgment to follow on October 6, 2023.
Court Opinion and Argument
The Federal Shariat Court’s decision was a turning point in Pakistan’s legal history. It addressed the core issue: Can a court grant Khula without the husband’s permission? Dismissing Saif-ur-Rahman’s petition as non-maintainable for seeking in personam relief (a personal remedy outside its jurisdiction), the court still took the opportunity to clarify the Islamic principles behind Khula, dispelling misconceptions and reaffirming women’s rights.
The court’s key findings were:
• Islamic Basis of Khula: The court reaffirmed that Khula is a fundamental right of women, rooted in Surah Al-Baqarah (Verse 229) and multiple Ahadith. A woman can seek divorce without proving abuse, simply by declaring she cannot live with her husband within the limits set by Allah.
• No Need for Husband’s Consent: Referring to the Hadith of Thabit bin Qais’s wife, the court held that a husband’s consent is not a prerequisite. If the wife returns the dower (or a portion), and declares her unwillingness to continue the marriage, the court should grant Khula.
• Flexibility in Dower Return: The court noted that the full dower need not always be returned. Classical jurists like Imam Abu Hanifa and Imam al-Kasani allow reduction or waiver if the husband’s conduct contributed to the breakdown.
• Legal Status of Section 10(5): Reiterating its Imran Anwar Khan ruling, the court emphasized that Section 10(5) was declared un-Islamic effective May 1, 2022. Although the Family Court erred in relying on this section, the Khula decree remained valid under Islamic law.
• Binding Precedent: Under Article 203GG of the Constitution, Shariat Court rulings are binding on High Courts and lower courts. The Lahore High Court’s failure to consider the Imran Anwar Khan decision was a procedural error, though it did not affect the outcome.
Drawing on the Quran, Ahadith, and interpretations of the Sahabah (Companions of the Prophet), the court’s judgment was deeply rooted in Islamic jurisprudence. It firmly rejected Saif-ur-Rahman’s argument that Khula requires mutual consent. The decision upheld the Khula decree not under Section 10(5), but in alignment with Islamic teachings.
Lessons and Final Thoughts
Can a court grant Khula without the husband’s consent? The answer echoes far beyond Jhang. This landmark judgment sends a strong message to Pakistan’s legal system, society, and women at large. Key takeaways include:
• Khula as an Absolute Right: The ruling empowers women to exit unhappy marriages without fear of rejection. It places Islamic law above patriarchal norms demanding a husband’s approval.
• Judicial Responsibility: Courts must stay updated on legal precedents. The Lahore High Court’s oversight underlines the importance of Article 203GG and adherence to Shariat Court decisions.
• Dispelling Misconceptions: The court clarified that women do not need to prove fault or endure abuse to seek Khula. Returning the dower—or a reasonable amount—is sufficient.
• Justice with Compassion: The court allowed flexibility in dower return. Where the husband is at fault, judges may adjust compensation, protecting women from undue financial burdens.
For the average reader, this case offers hope. It shows how Pakistan’s judiciary—guided by Islamic principles—can uphold justice for women. It calls on judges, police, and lawyers to handle Khula cases with empathy, ensuring women are heard. It also reminds women that, thanks to the Quran and Sunnah, they have legal agency and dignity within the judicial system.
The significance of this case lies in its broader impact. It emboldens women to seek Khula without stigma and reaffirms the legal system’s commitment to gender justice. It also highlights the need for improved legal education to prevent mistakes like reliance on invalid laws. Ultimately, the answer to whether Khula requires the husband’s consent is clear: Yes, a court can grant it without his consent—it is a right no court can deny.
This is not merely a legal victory but a story of resilience. Nighat Yasmeen’s courage to stand for her rights against societal pressure reflects the silent struggles of many women. The Federal Shariat Court’s decision ensures those stories end not in silence, but in justice.
Note: Disclaimer
This blog may contain inadvertent errors and is intended as a simplified summary of a court ruling. For formal legal reference, please consult the original judgment.
