Introduction
Beyond legislative changes, Pakistan’s superior courts have been playing a transformative role in redefining marriage and strengthening women’s rights. In a series of landmark judgments, the courts have moved away from a traditional model of marriage as a relationship of ownership, where the husband holds superior power, towards a partnership model based on equality and mutual rights. This article examines this judicial revolution, focusing on recent judgments that have reshaped family law in Pakistan.
The Ownership vs. Partnership Model
In her work, Professor Kecia Ali has examined how classical Muslim jurists drew upon concepts of sale and slavery in their legal discourses on marriage. Under this ownership model, the husband retains control, as seen in his absolute right to divorce (talaq) and his consent being required for a wife to initiate khula. In contrast, the partnership model treats husband and wife as equals with rights and responsibilities within the institution of marriage. The superior courts in Pakistan have increasingly embraced this partnership model, using their judicial power to protect women’s rights.
Strengthening Khula and Maintenance Rights
The Federal Shariat Court, in Saleem Ahmed v Government of Pakistan (PLD 2014 FSC 43), confirmed a wife’s right to khula (divorce initiated by the wife) without the consent of her husband, affirming that Islamic injunctions are based on “equality without any discrimination whatsoever”. Subsequent Supreme Court judgments have further strengthened women’s rights.
In Ambreen Akram v Asad Ullah Khan (2025), Justice Syed Mansoor Ali Shah held that a wife’s right to maintenance arises from the moment of marriage, not from the consummation or rukhsati. In Muhammad Aslam Chattha v Shehnaz Akhtar Zahoor Ahmed (2025), Justice Shahid Waheed held that a wife’s claim to maintenance is not subject to any limitation period. And in Ibrahim Khan v Mst Saima Khan and Others (2024), Justice Ayesha Malik held that a wife remains entitled to her dower (mahar) even when her husband’s conduct forced her to seek khula.
The Landmark Matrimonial Property Judgment
Perhaps the most transformative decision is the Islamabad High Court’s judgment in Mst. Amara Waqas v Muhammad Waqas Rasheed and others (decided on 2 March 2026). In this case, Justice Kayani ruled that a wife is entitled to a share in matrimonial property accumulated during the marriage. The court recognized that a wife’s domestic labour, childcare, and household management constitute indirect but essential contributions to wealth accumulation.
The judgment drew on the classical Islamic legal doctrine of partnership (shariqah), Quranic verses from Surah Al-Baqrah and Surah Al-Ahzab, and the English law doctrine of constructive trusts as elaborated by Lord Denning. It recommended that Parliament enact legislation expressly recognizing a homemaker wife’s equitable share in matrimonial assets and that a new column be introduced in the standard Nikah Nama to allow wives to stipulate equitable division of property.
The Unfinished Agenda: Restitution of Conjugal Rights
Despite these landmark judgments, the transformation remains incomplete. One key area that requires urgent reform is the remedy of restitution of conjugal rights. This colonial-era remedy, rooted in Christian canon law rather than Islamic teaching, allows a husband to obtain a court decree compelling his wife to return to the matrimonial home. It is often used as a tactical weapon by husbands to pressure wives who are seeking maintenance, dower, or divorce. Despite its incompatibility with the equal partnership model now embraced by the courts, restitution remains on the statute books, representing an overdue reform in Pakistani family law.