From Faskh to Khula: Transformation of Muslim Women’s Right to Divorce in Pakistan (1947-2017)

in The Asian Yearbook of Human Rights and Humanitarian Law
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Based on the analysis of reported judgments spreading over 70 years (1947-2017), I argue that the judges of the superior courts of Pakistan have gradually transformed women’s right to divorce from a fault-based divorce (faskh) to no-fault based divorce (khula). By creatively interpreting the primary sources of Islamic law (the Qur’an and Sunnah), the judges removed the requirement of the consent of a husband for a no-fault based judicial divorce (khula), initiated by a wife. As a result, khula (no-fault based judicial divorce) has replaced faskh (fault-based judicial divorce) as the primary mode for the dissolution of marriage. The judges have also developed new legal principles to protect the financial rights of divorced women. This is done by taking into account the reciprocal benefits gained by husbands during the marriage while determining the amount of dower that wives are required to return in consideration for khula. This development is likely to lead to the acknowledgement of the right of divorced women to matrimonial property.

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