Saleem Ahmed v Government of Pakistan is a landmark case decided by the Federal Shariat Court (‘FSC’) that settled the controversy surrounding the requirement of a husband’s consent for the dissolution of marriage initiated by a wife (khula). In this case, the Court made a departure from the strict principles of Hanafi jurisprudence, and extended to wives the right of khula without the consent of their
husbands by making a direct recourse to the Qur’an and Sunnah.The discussion in this note begins by briefly introducing the facts of the case, which is followed by the ratio of the decision. The note then moves on to discuss prior law in order to highlight the importance of this decision as a judicial precedent, followed by a brief analysis of the judgment.
Finally, the discussion is summed up by contextualizing the judgment within the broader legal framework of social justice within the context of marital rights under Islamic law.
Facts and Ruling
The petitioners filed applications under Art. 203-D of the Constitution of Islamic Republic of Pakistan 1973, challenging a recent amendment to Section 10(4) of the Family Courts Act 1964 on the ground that it is repugnant to the Injunctions of Islam as laid down in the
Holy Qur’an and Sunnah of the Holy Prophet (SAW).They contended that the amended form of the provision allowed women to obtain a divorce without the recording of evidence, which meant that women no longer needed to prove hardship in their marriage through the fault of the husband, as was previously required under the Dissolution of Muslim Marriages Act 1939.This amounted to granting women a unilateral right of divorce; a very serious aberration from traditional Islamic law of divorce.
