Women's Rights in Divorce, Khula, and Child Custody in Pakistan

👉Explore the evolving legal landscape of women's rights in Pakistan regarding divorce, khula (judicial separation), and child custody. Understand the latest judgments, religious context, and key reforms empowering women within the family law system.

Introduction

In Pakistan, family law plays a central role in shaping the lives of women, particularly in matters of marriage, divorce, judicial separation (khula), and child custody. While rooted in Islamic jurisprudence, the legal system also draws upon statutory frameworks like the Muslim Family Laws Ordinance (MFLO) of 1961, the Family Courts Act of 1964, and the Guardians and Wards Act of 1890. In recent years, courts have adopted a more progressive stance, enhancing protections for women navigating marital dissolution and child custody battles. This article explores the current legal landscape, challenges, and significant reforms that define women's rights in divorce, khula, and custody cases in Pakistan.

Women's Rights in Divorce, Khula & Child Custody in Pakistan

1. Legal Framework

👩Women’s rights in marriage and family matters in Pakistan are governed by:

↪↪Muslim Family Laws Ordinance (MFLO), 1961

↪↪Family Courts Act, 1964

↪↪Guardians and Wards Act, 1890

↪↪Sharia law (Hanafi fiqh, mainly)

↪↪Judicial interpretations by Sharia Courts, High Courts, and the Supreme Court

2. Divorce (Talaq) – Rights and Process

👨For Men:

💧💧A man can pronounce Talaq (divorce) unilaterally.

💧💧Must submit written notice to the Union Council (Section 7, MFLO).

💧💧Divorce becomes effective after 90 days unless reconciliation occurs.

💧💧Failure to notify the Union Council = punishable offense.

👩For Women:

💦Cannot pronounce Talaq directly unless delegated right of divorce (Talaq-e-Tafweez) is written in the Nikahnama.

Women can dissolve marriage through:

3. Khula (Judicial Divorce by Woman)

Definition:

Khula is a woman’s right to seek a divorce through the court system without the husband’s consent. It is based on the Quranic principle that spouses should not be forced to remain in a marriage against their will.

Khula is the right of a Muslim woman to seek divorce through the court by returning dower (mahr) or compensation.

Legal Provisions:

⏩Governed by Section 8 of the Family Courts Act, 1964.

A woman must file a suit in the Family Court, stating her inability to live with her husband "within the limits prescribed by Allah."

Courts usually require the woman to return the dower (mahr) or waive financial rights as part of the khula decree.

Key Judgment:

👍In Khawar Mumtaz vs. Federation of Pakistan (2003 SCMR 1410), the Supreme Court upheld a woman’s right to khula even if the husband disagrees, stating that forcing her to remain in marriage violates Islamic principles.

Recent Trends:

Courts now expedite khula cases and prioritize women's autonomy over procedural hurdles. The requirement of proving "reasons" for khula has become less stringent, making the process more accessible.

Key Features:

Filed in Family Court under Section 8 of the Family Courts Act, 1964.

Woman must prove incompatibility, cruelty, or inability to live with the husband "within limits prescribed by Allah" (Quranic basis).

No husband's consent required.

👉Court grants decree and notifies Union Council.

👉Effective after 90 days.

👉Landmark Case:Khawar Mumtaz vs. Federal Government (2003 SCMR 1410): Strengthened women's right to khula without male permission.

4. Child Custody (Hizanat)

Custody laws in Pakistan are based on a combination of Islamic principles and statutory law. The child's welfare is the paramount consideration in all custody matters.

💨Governing Laws:

᥌Guardian and Wards Act, 1890

᥈Family Courts Act, 1964

᥈Islamic principles (custody vs guardianship)

᥈Custody Rights (Hizanat):

🤶Mother has preferential custody of minor children (especially daughters) until:

💚Age 7 for boys

💚Age of puberty/marriage for girls

👨Father is natural guardian (legal authority over property/education)

Factors Courts Consider:

Welfare of the child is paramount.

Emotional bond, financial stability, remarriage, abuse, and environment assessed.

Custody can be extended beyond age limits if in child's interest.


However, this default rule can be overridden if the court deems that remaining with the mother is in the child’s best interest.

👶Child Welfare Principle:

Modern courts in Pakistan increasingly focus on the emotional, psychological, and educational welfare of the child over traditional presumptions. Factors like domestic violence, neglect, or instability on the father's part can result in custody being awarded to the mother even beyond the default age limits.
Key Judgments and Recent Developments

👉Supreme Court Judgment (June 2025): Asjad Ullah v. Asia Bano & others

Reaffirmed that custody must be awarded based on the child’s welfare.

Declared that a mother’s remarriage is not an automatic disqualification for custody.

Emphasized the role of emotional bonding and the father’s participation in the child's life.

👉Supreme Court Directive (May 2025):

Ordered that courts must listen to the child’s voice during custody hearings.

Reinforced compliance with the UN Convention on the Rights of the Child (CRC).

👉Lahore High Court (April 2025):

Stated that remarriage of a woman is irrelevant if she provides a stable environment.

Recognized the delay in the father's custody claim as a factor against granting him guardianship.

💲5. Maintenance (Nafaqa)

Woman is entitled to maintenance during:

Marriage:

Iddat period after divorce

For children under her custody

Can claim past and future maintenance through Family Courts.

Family courts can order both past and future maintenance. Non-compliance by the husband can lead to legal action, including imprisonment.
Social and Legal Challenges

Despite legal reforms, women in Pakistan continue to face significant challenges:

Social stigma around divorce and khula remains strong.

Lack of awareness about legal rights, particularly in rural areas.

Delay in court proceedings and enforcement of judgments.

Jirgas and informal justice systems that contradict formal law.
Reform Efforts and Recommendations

Several legal reforms and initiatives are underway to improve women's access to justice:

Digitization of family courts to reduce case backlog.

Awareness campaigns by NGOs and women's rights organizations.

Legal aid services provided by provincial governments and bar councils.

Training for judges and lawyers to apply gender-sensitive interpretation.

👍6. Recent Reforms and Judicial Trends

Nikah Nama reforms: 

Courts stress that women must be made aware of their rights to delegated talaq and inheritance.

Family courts are increasingly favoring best interests of the child in custody disputes.

Khula cases are now granted with fewer procedural delays.

Digitization and mediation cells introduced in major cities to speed up family law cases.

 Challenges and Issue

Social stigma attached to divorce.

Women often unaware of their legal rights (especially in rural areas).

Legal delays and pressure from jirgas/panchayats.

Issues in enforcing maintenance orders.

 Suggested Legal References:

MFLO 1961, Section 7 (Talaq)

Family Courts Act, 1964, Section 8 (Khula)

Guardians and Wards Act, 1890

Supreme Court judgments (2003 SCMR 1410, PLD 1994 SC 412)

Here are the most recent landmark judgments in Pakistan on women's rights in divorce, Khula, and child custody:

👉1. Asjad Ullah v. Asia Bano & others (Supreme Court, Civil Petition No. 3920 of 2024) – June 30, 2025

The Supreme Court emphasized that custody isn't automatic just because of biological parentage—the child’s best interests are paramount, even over the father's status as natural guardian.

💨Key highlights:

Mother’s remarriage does not disqualify her from custody.

A father’s lack of involvement (e.g., living abroad, absence from child’s life) weighs heavily against granting him custody.

Courts must consider emotional bonds, stability, education, and mental well-being—consistent with Islamic law and the UN Convention on the Rights of the Child

👉2. Supreme Court Directs Hearing the Child’s Voice – May 28, 2025

In a high-profile review, the Supreme Court mandated that family courts must listen to children's views in custody disputes, an obligation under Articles 3 and 12 of the CRC

Judge Shah’s 12-page judgment stressed:

Interaction should be child-friendly and non-intimidating, encouraging children to speak freely.

Mothers remain custodial parents by default unless there's a material change; visitation schedules should be respected.

Emphasized mediation as a priority to reduce trauma for children

👉3. Lahore High Court: Mother’s Remarriage ≠ Loss of Custody – April 21, 2025

LHC’s decision in Nazia Bibi’s case clarified that remarriage alone is not a valid reason to strip custody from a mother

The court prioritized child welfare over outdated assumptions, noting the father delayed filing for custody, which affected his claim

💭Summary of Current Legal Position

Principle

Legal Position

Custody Based on Welfare

The child's emotional and psychological needs take precedence—biological ties do not guarantee custody.

Mother’s Remarriage

No longer an automatic disqualification—courts evaluate how remarriage affects the child's well-being.

Father’s Involvement

Courts scrutinize active participation, emotional availability, and stability when fathers seek custody.

Child’s Voice

Judges are now required to hear the child's perspective in a supportive, age-appropriate setting.

💑Conclusion💑

Women’s rights in divorce, khula, and child custody have evolved significantly in Pakistan. While cultural and systemic barriers remain, legal reforms and progressive judicial interpretations have empowered women to assert their rights. The trend toward recognizing the emotional and psychological needs of women and children marks a pivotal shift in family law. Ongoing efforts by courts, lawmakers, and civil society are essential to ensure these rights are not only recognized but also effectively enforced across all regions of the country.