Women’s right to unilateral no-fault based divorce in Pakistan and India

Abstract

Pakistani judges dispensed with the requirement of the consent of the husband for a wife’s right to unilaterally dissolve a marriage without assigning any of the reasons enumerated in the Dissolution of Muslim Marriages Act 1939. The Lahore HC laid down this rule for the first time in its decision in the Balqis Fatima case in 1959. Eight years later, the Supreme Court of Pakistan endorsed this rule in the Khurshid Bibi case. In 2014, the Federal Shariat Court of Pakistan declared this rule to be in conformity with the injunctions of Islam in the Saleem Ahmed case. In India, however, similar developments did not take place. Rather than extending women’s right to divorce, Indian judges preferred to restrict the husband’s right to divorce under Muslim Personal Law. The main argument in this article is that this divergent attitude of Pakistani and Indian judges toward Islamic divorce law is dictated by factors outside the law. While Pakistani judges felt obliged to reform Islamic family law in the absence of political consensus, Indian judges tried to harmonize Muslim Personal Law with other religious personal laws.