In Islamic jurisprudence, khula is a mechanism through which a woman can initiate the dissolution of her marriage by offering to return her dower (mahr) to the husband. This practice finds its origin in the Quran, specifically Surah Al-Baqarah (2:229), which states:
“It is not lawful for you [husbands] to take back anything you have given them unless both fear that they will not be able to keep within the limits of Allah.”
This verse lays the foundational principle that while the husband cannot reclaim what he has given his wife, an exception exists if both parties fear they cannot uphold the boundaries set by Allah— paving the way for the concept of khula. It emphasizes mutual consent, fairness, and personal accountability.
Traditionally, khula has been understood and applied in situations where the wife, absent any wrongdoing on the husband’s part, wishes to end the marriage. In such cases, it was customary for the woman to return the dower, effectively compensating the husband for the financial commitment he made at the time of marriage. However, Islamic scholars and jurists have long debated the practical implications of this requirement, especially when the marriage deteriorates due to the husband’s misconduct, abuse, or neglect.
The dower, or mahr, is a crucial institution in Islamic marriage. It represents not only a financial obligation but also a symbol of the husband’s respect, responsibility, and commitment to the union. Upon marriage, it becomes the wife’s exclusive property, and she is under no obligation to spend it on household expenses or share it with her spouse. It offers women a measure of financial security and autonomy— an essential right recognized in Islamic family law.
In classical jurisprudence, the expectation was straightforward: if the wife initiated khula without any fault on the part of the husband, she would return the dower. However, a growing body of juristic opinion and contemporary judicial interpretation now asserts that if the husband’s behaviour— such as cruelty, neglect, or infidelity— was the reason for the wife seeking separation, then it would be unjust to expect her to forfeit the dower. This development reflects a broader understanding of Islamic principles of justice (adl) and compassion (rahmah), where each case must be evaluated on its own facts.
In my review of Elisi Giunchi’s book Adjudicating Family Law in Muslim Courts, back in 2016, I observed:
“In order to protect the interests of women in Pakistan, local courts have liberally interpreted MPL along with the provisions of the Dissolution of Muslim Marriages Act 1939 (“DMMA”) and MFLO. Courts have extended the definition of cruelty under DMMA to include mental torture as well, and also made evidence produced by the relatives of the wife admissible. Besides, courts have usually refused the return of dower in cases of khula where the dissolution was sought due to some fault of the husband. In recent cases, courts have also held that wife’s life spent with her husband has economic value and the duration of marriage should also be taken into account while deciding the issue of the return of dower in cases of khula. For example, the Peshawar High Court has given various judgments in favor of the wives in cases involving the return of dower. In 2013 YLR 2616 (Peshawar Abdul Rashid v Shahid Parveen), the Court held that the life spent by a wife with her husband could be deemed consideration for khula. In 2012 MLD 1576 (Peshawar) Nasir v Rubina, it was held that the period of wedlock, the birth of the children and the second marriage of the husband could preclude the return of dower in case of khula. The developing trend in the case law shows that in the future, courts will be more inclined towards equating the services rendered by a wife for her husband in economic terms. This will further help in reducing the financial burden of dissolution of marriage on wives.”
The recent judgments by the Lahore and Peshawar High Courts reflect a commendable shift towards protecting women’s rights in marital dissolutions. By affirming that women should not be penalized financially for leaving abusive relationships, the courts are promoting the values of equity and justice that are deeply embedded in Islamic teachings. These developments serve not only as judicial milestones but also as beacons of progress for gender justice in Muslim societies.
In 2020 C L C 1874 Farhat Imam v. Sajid Nafeez, the Peshawar High Court reaffirmed this evolving view, ruling that a woman’s right to retain her dower would remain unaffected if she could prove other grounds like cruelty. This progressive stance was supported by precedent from Habib-ur-Rehman v. Additional District Judge, Lahore (1984 SCMR 1430), where cruelty and emotional detachment were accepted as valid reasons for khula, protecting the woman’s financial rights.
The Supreme Court of Pakistan further expanded on this interpretation in Tayyeba Ambareen v. Shafqat Ali Kiyani (2022). The Court held that mental torture is a legitimate ground for khula and emphasized that the severity of the husband’s actions must be evaluated carefully. This acknowledgment of psychological suffering marks an important development in understanding the lived experiences of women in unhappy or abusive marriages.
The Lahore High Court, too, has adopted a rights-based lens in recent jurisprudence. In Aun Akhter & Another v. Additional District Judge (2023), Justice Raheel Kamran held that if a woman seeks khula due to the husband’s misconduct, she is entitled to her full deferred dower. This reinforces the principle that financial justice must accompany emotional and legal justice.
However, these progressive strides are not without resistance. The Federal Shariat Court (FSC) presented a diverging view in Haji Saif-ur-Rehman v. Government of Pakistan (2022). Here, the FSC held that women must forfeit their entire dower if they seek khula, thereby invalidating legislative efforts—such as amendments by the Punjab Assembly—that allowed women to retain part of the unpaid dower. This ruling reignited debates around the rigidity of traditional interpretations and the space for reform within Islamic jurisprudence.
These judicial developments collectively highlight an evolving legal landscape in Pakistan. There is a clear movement towards a more equitable and humane application of Islamic principles— where women’s lived realities, emotional trauma, and economic vulnerabilities are being factored into judicial reasoning. By recognizing cruelty and mental distress as legitimate justifications for khula without penalty, the judiciary is upholding the broader ethical spirit of Islam.
Yet, the inconsistencies between courts— particularly the divergence between the High Courts and the FSC— underscore the pressing need for a harmonized legal framework. Such uniformity would ensure that women’s rights are not contingent on geography or the judicial forum in which their case is heard.
As legal practitioners, scholars, and policymakers, there is a responsibility to advocate for reforms that reflect the ethical core of Islamic law— justice, fairness, and compassion. Codifying progressive judicial precedents and addressing conflicting interpretations could be a vital step in ensuring that women are not forced to choose between their dignity and financial security when seeking freedom from oppressive marriages.
The recent judgments by the Lahore and Peshawar High Courts reflect a commendable shift towards protecting women’s rights in marital dissolutions. By affirming that women should not be penalized financially for leaving abusive relationships, the courts are promoting the values of equity and justice that are deeply embedded in Islamic teachings. These developments serve not only as judicial milestones but also as beacons of progress for gender justice in Muslim societies.
