Since its inception, Pakistan has been a battleground for clashes between religious and secular ideologies, particularly when it comes to the rights of women and minorities.

The reflection of this simmering tension can be seen in two key laws: the Muslim Family Law Ordinance of 1961 (MFLO) — a set of codes regulating marriages, divorce and dowry matters — and the Shariat Act of 1962, a law that consolidates and amends the provisions for the application of Muslim Personal Law.

The recent high-profile iddat case involving former prime minister Imran Khan and his wife, Bushra Bibi, is an example of how men can use religious laws for personal and political vendettas.

The couple was convicted in the case on February 3 — days before the general elections — on a complaint filed by Bushra Bibi’s ex-husband, Khawar Maneka, who alleged that they contracted marriage during the former’s iddat period. Imran and his wife were later acquitted in June after the couple’s appeals were accepted.

Claiming the turf

The ongoing conflict is noted between two legal approaches: the reformist and feminist tone of the MFLO, and the traditionalist views in the broader legal system leaning toward Islamic principles. Supporters of the MFLO argue that classical Islamic legal rules are often misrepresented as Sharia, whereas critics argue that fiqh — Islamic jurisprudence — is a human interpretation that can evolve, unlike the divine and immutable Sharia law.

Scholars, the likes of Shaheen Sardar Ali and Dr Khalid Masud, emphasise that Sharia law, as a corpus, is meant to be flexible and open to interpretation but codifying it, especially through frameworks established during colonial times, has stifled potential legal reforms.

The MFLO has 13 sections covering marriage, divorce, polygamy, maintenance, dower, and inheritance. It requires marriage registration and sets penalties for violations, defining terms like Arbitration Council and Union Council.

Islamists have consistently challenged the MFLO, petitioning the Federal Shariat Court (FSC) to find its pro-women and pro-minority clauses as ‘un-Islamic’. The most controversial clauses have been over husbands’ consent for women’s divorce and those from Section 6 dealing with polygamy and the process to get permission for a second marriage as well as Section 7 requiring husbands to declare and register divorce.

Initially, under Article 203-D of the Constitution — which empowers the court to examine and decide the question of whether or not any law or provision of law is repugnant to the injunctions of Islam — the MFLO was exempt from FSC scrutiny. However, in 1994, the Shariat Appellate Bench at the Supreme Court ruled that while personal laws of specific Muslim sects might be exempt, general laws for all Muslims were not. Later in 2000, the FSC claimed the authority to review the MFLO against Islamic standards and to adjudicate on personal laws, including inheritance rights for orphaned children.

The FSC’s activism has led to numerous challenges to the MFLO’s provisions. While some argue this is out of gendered benevolence, it reinforces the view of women as legal minors and maintains the broader sociopolitical discourse in Pakistan that sustains such infantilisation. The FSC has declared certain sections of the MFLO and other rights-based laws as contrary to Islamic principles, leading to inconsistent judgments that worsen gender inequality.

Judgements that are Sharia-reliant often reference three points, causing tension between the MFLO 1961 and Sharia law:

• Talaq is activated upon pronouncement, not registration with theArbitration Council or the 90-day period.
• The iddat period is 39 days, not 90 days, as per the Allah Dad vsMukhtar,1992 SCMR 1273 judgement by the Shariat Appellate Bench.
• The guilt of Zina was initially considered a default offence if the marriage was irregular but it has changed since 2006.

Dissolution and its discontents

Types of marriages

A valid marriage meets all the key requirements: offer and acceptance, consent of both parties or a wali/guardian (if applicable), two witnesses, and dower (haq mehr). This ensures the marriage is legally recognised. On the other hand, an invalid marriage (batil) fails to meet one or more of these key requirements, making it void and unlawful.

Meanwhile, an irregular marriage (fasid) satisfies most of the key requirements but has temporary irregularities, for example, a marriage without witnesses, a marriage during a woman’s iddat period, or a man marrying a fifth wife. In such cases, if the marriage is consummated, the wife is entitled to dower and must observe iddat upon termination, though mutual inheritance rights are not granted.

Types of dissolutions

In matters of marital dissolution, talaq or divorce represents the husband’s right to repudiate the marriage and can be executed in three distinct ways: talaqul ahsan, which involves a single pronouncement; talaqul hasan, where three separate pronouncements are made; and talaq-i-biddat or triple talaq, which occurs on a single occasion. The latter requires abstinence from intercourse and is typically executed during non-menstrual periods.

The validity of triple talaq remains unsettled, with inconsistent court rulings affecting the iddat (90-day waiting period). Despite this, talaq rights remain largely protected, and Section 7 of the MFLO’s notice requirements do not clearly invalidate a husband’s talaq.

In contrast, khula allows the wife to initiate divorce by offering compensation to the husband, traditionally by returning dower and maintenance during iddat. Judges consider financial conditions and spousal behaviour, but the woman’s inability to pay dower does not invalidate dissolution. Importantly, custody rights cannot serve as valid consideration for khula, as upheld by the Supreme Court.

Other forms of dissolution include talaq-i-tafweez, where the husband delegates the right of divorce to the wife; faskh-i-nikah, which is a judicial dissolution granted on specific grounds; and mubarat, the mutual consent-based dissolution of marriage.

The bane of benevolence

The concept of the wali and wilaya-qiwama (male guardianship) extends patriarchal control, as noted by scholar Shaheen, who argues that Islamic family law assumes male supremacy in matters like polygamy, divorce, and inheritance. Pakistani case law reflects separate gendered roles and conditionality where a wife’s obedience often determines her right to maintenance.

Cases such as Haseen Ullah vs Naheed Begum and Safina Noor vs Muhammad Ayub are recent examples of how the conditionality of a wife’s maintenance rights is based on her marital conduct. Earlier, in the Tariq Mehmood vs Farah Shaheen case, the Lahore High Court held that if a wife is declared disobedient (nashiza) for her failure to perform conjugal rights, she is not entitled to the right of maintenance and if she voluntarily leaves her husband’s house, she loses her maintenance unless agreed otherwise.

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Some courts have found that women have the right to maintenance as long as they are married, while others have found that the wife is entitled to maintenance during the pendency of a divorce suit and period of iddat. The law does not mandate maintenance beyond the post-divorce 90-day iddat period. However, higher courts have advised family courts in some cases to reconsider verdicts that deny women with minor children this security.

Dr Khalid Masud, religious scholar and former chair of the Council of Islamic Ideology, defines the role of the wilaya as a social preference and not a legal requirement unless another person/ ward lacks the required capacity. Although the wali is defined in gender-neutral terms, in both language and examples, the wali is always male. The gender adjacent to the masculine qiwama is the concept of feminine tamkin (submission/ obedience) which empowers a Muslim husband to refuse maintenance by claiming wifely disobedience.

The struggle for women’s legal equality in Pakistan reveals the ongoing tensions between liberal reforms and conservative Islamic legal interpretations. Despite historic efforts to secure legal rights, the persistent influence of patriarchal and religious norms continues to challenge women’s status and rights in the country.

Activism and legal anomalies

In 1997, the Pakistani government established the Commission of Inquiry for Women (CIW), which then issued a report with radical recommendations from prominent activists such as Asma Jahangir and Shahla Zia. The report identified key areas of discrimination against women in laws, customs, practices, and criminal procedures, and made three radical and controversial recommendations: legalising abortion, abolishing the Federal Shariat Court, and repealing Hudood laws due to their ineffectiveness.

The CIW report also challenged the influence of the wali (guardian) on policies and citizenship rules, which affected parliamentary discussions on compensating for women’s murders under the Qisas (equal retaliation) and Diyat (compensation) laws. It further objected to these laws for privatising criminal offences.

In 1997, Asma Jahangir won the right for Saima Waheed to marry without a wali’s consent, highlighting tense societal debates on women’s legal capacity and Islamic duty.

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After decades of advocacy, the women’s movement in Pakistan succeeded in pressurising for the reform of the Zina laws, which ultimately led to the Protection of Women Act 2006 (PWA). However, the reform faced stiff opposition from conservatives and the clergy. In 2010, the Federal Shariat Court (FSC) challenged the law, asserting its exclusive jurisdiction over Hudood offences and deeming parts of the Act unconstitutional.

The Shariat petition challenging the Protection of Women Act (2006) opines that: “In view of our discussion on the question of enforcement of Hudood, I would go to the extent of holding in absolutely unambiguous terms that even if the Parliament were to repeal Order No IV of 1979, Ordinance VI, of 1979, Ordinance, VII of 1979 and Ordinance, VIII of 1979, even then the Federal Shariat Court will continue having exclusive jurisdiction, under Article 203 DD, to call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood.”

The FSC holds that it alone — and no other court — has the authority to grant or refuse bail before or during trials of Hudood-related offences. It finds sections 11, 28 and 29 of Act VI of the Protection of Women Act of 2006 as violative of Pakistan’s Constitution. Section 25 of this Act was also found “repugnant because it makes lian (where the husband accuses his wife of Zina and the wife does not accept the accusation as true) a ground for divorce and causes additional hardship of the ‘wife’ as contrary to the principle of ease in Islam”.

The legal anomalies defining marriage and divorce laws in Pakistan illustrate the pressures and tensions preventing liberal reform in legislation. The Shariat Court’s competitive insistence on a role in cleansing “the existing law of any dirt or possible trash”, enables collusion between male relatives, community leaders, clerical authorities, and those in law enforcement or the judiciary.

The piety paradox

Many provisions of Muslim family laws are based on biological differences between genders.

The iddat requirement is “a waiting period, a period of abstinence, or a specified period during which, after the dissolution of her marriage through divorce or death, or after any other form of separation from her husband under certain conditions, the woman remains unmarried”. The primary purposes are to enable a cooling-off period for potential reconciliation and to determine paternity in case of pregnancy.

This waiting period only applies to Muslim women, not men.

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The MFLO does not specify iddat duration but Section 7(4) of the law states that “the talaq shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman” and this time factor has been open to the broader Islamic legal context within which the MFLO operates.

There have been several judgements that found marriages irregular if the iddat period was not observed. These were especially vulnerable to charges of Zina or wilful fornication before the amendment of the law in 2006. The Muhammad Sher vs Additional Sessions Judge included a plea to penalise a remarried wife under Zina due to irregular marriage but due to the reform of the Zina law (Protection of Women Act 2006) it was dismissed.

The court ruled that Zina qualifies as willful sexual intercourse without marriage. Several other judgements have found iddat-violating marriages irregular but not void.

Imran-Bushra — saved by feminism

Bushra Bibi’s ex-husband, Khawar Maneka, filed the iddat case six years after her remarriage to Imran Khan, alleging that her Nikkah/ marriage was contracted before the completion of the mandatory 90-day waiting period. Maneka claimed that this supposedly sabotaged his reconciliation efforts.

In February 2024, Justice Qudratullah convicted Imran and Bushra under Section 496 of the Pakistan Penal Code (PPC) for a “marriage ceremony fraudulently gone through without lawful marriage”, and sentenced them to seven years in prison along with fines.

However, the Islamabad High Court threw out additional charges of fornication (496-B), citing amendments to the Zina law under the Protection of Women Act — which Imran had categorically opposed and abstained from reforming in 2006. The case was later dismissed after a sessions court heard the appeal and acquitted the couple in June.

When charged, Imran had inaccurately claimed this was the first instance in history where a case related to iddat had been initiated — the acquittal judgement itself lists a litany of convictions for Zina for marriages allegedly contracted during iddat or due to irregular marriages. It is a sorry chargesheet of injustices that countless women suffered before the amendment of laws in 2006.

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The PTI chief’s lawyer celebrated the acquittal as a ‘victory for all women’, crediting the “great Shariat Appellate Bench decision of 1992 that has laid down a firm barrier against probing into a woman’s body”. It must be noted that on the bench was Mufti Taqi Usmani who had insisted that khula rights are dependent on a husband’s consent.

The 1992 Allah Dad vs Mukhtar judgment claimed guidance from Hanafi jurists and the Fatawa Alamagiri and opined that the iddat period could be as short as 39, not 90 days. This is a curious biological claim to maintain in current times and in any case, intermittent menstruation/bleeding could indicate pregnancy or miscarriage, undermining the iddat’s very purpose of establishing paternity before re-marriage.

There are other potential complications of shortening the iddat period, other than less time for reconciliation. Women have the right to maintenance during iddat, and even stand to inherit from the husband should he pass away. The 1992 judgement has also reinforced the stipulation that Islamic Injunctions take precedence over existing Muslim family laws — a debate that currently hangs in appeal of the Allah Rakha 2000 judgement, in which the Federal Shariat Court challenged the constitutional immunity that prevents it from scrutinising the Muslim Family Laws of 1961.

Disagreeing with trial courts, the 1992 judgement also held that both, irregular (fasid) and void (batil) marriages fall in the category of ‘invalid marriage’. Fortunately, in Imran and Bushra’s case, the judge disregarded this wisdom of the shariat appellate bench and ruled that any irregular marriage becomes valid upon completing the iddat period. He also found no evidence of a fraudulent marriage despite the lack of proof of verbal talaq by Bushra’s ex-husband in April 2017.

Despite some liberal rulings, judicial forces collude with patriarchs to undermine women’s rights, using interpretive license. Maneka initially portrayed Bushra Bibi as pious and later labelled her as disobedient. This tactic supports provisions in Sharia interpretations to control women’s choices, leveraging piety to impose severe moral standards. Since piety is exclusively about virtue, the risk of worldly or material compromises is high but moral lapses — even illogical ones like the incompletion of the iddat period for a woman in her 50s — elicit a very high price.

Piety politics, like all politics, is of course performative, and competitive and not some inward, discreet self-defining underground journey, as romanticised in recent scholarship. The pious are deeply invested in social norms such as purdah, observing sexual modesty and iddat rituals.

Political leaders use religious references for public benefit but when religious laws are applied punitively, they decry these as ‘private’ matters. The same men outraged by the iddat verdict against Bushra would despair over the claim of the Aurat March slogan of ‘mera jism, meri marzi’ and deny women the right to bodily autonomy and choice. The right to consent or refuse in private matters, free from the interference of state laws or male guardians, is not just one woman’s prerogative.

Imran’s iddat case underscores the need for legal reforms that protect women’s rights unconditionally. The current legal fusion of lay and religious laws creates repeat tensions. The fight for true equality and autonomy cannot be selective, according to political or class affiliation, and neither can it rely on outdated legacies from colonial and clerical sources.

For the sake of expediency, relying on an outlying liberal interpretation of judgements of the Sharia courts or cherry-picking from conservative judgements is simply strategic opportunism but the larger legislative attempts to improve women’s rights seem to be acceptable collateral. For every rights-based progress, there seems to be an equal oppositional judicial force that is ready to undermine and safeguard patriarchal rights under the pretext or interpretation of Islamic legal tradition.

From reform to rights

In an empirical study conducted in 2018, authors Htun and Weldon observe:

“In countries where political and ecclesiastical powers are tightly linked, family law tends to discriminate against women. In the context of a separation of secular and religious institutions, family law tends to be more egalitarian. When religion is institutionalised, patriarchal interpretations — and interpreters — of family law gain greater authority and more immunity to contestation, and are increasingly insulated from external influences. What is more, these patriarchal versions of religious tradition get more closely linked to the public status of religion. Challenges to particular versions of family law are seen as challenges to the entire church-state relationship.”

Some Pakistani scholars and commentators insist that advocacy of Islamic laws and politics is simply opportunism by men who misuse religion as a tool. However, to regulate women’s sexualities, this would mean that these tools would have to be available resources in the first place. To brush aside the Islamic prescriptions on women’s personal laws that restrict their consent, equal rights in marriage, divorce, child custody, marital assets and reproductive and sexual choices is to deny the patriarchal tradition, inclination and resources within theological reasoning, and critically, the role of the wali and wilaya-qiwama, regardless of the spirit behind the letter (which is still related to codifying women’s sexuality).

Even after the contentious amendment of Zina laws in Pakistan, a new wave of women activists continues to debate against the historic ‘liberal feminist’ preoccupation with legal reform but when confronted with the backlash of conservatism and Islamic legal activism, there follows a lack of alternative strategy or theoretical framing on how to respond and break the patriarchal pacts that define and determine women’s legal rights in the country.

Realigning and reforming the family laws is an urgent need, particularly as the FSC is determined to gain jurisdiction over the Muslim Family Laws and to Islamise all legislation and judgements. After six decades of legislative and constitutional fortitude fought by an earlier generation of women’s rights activists, such a lapse would risk the few fundamental legal rights that Pakistani women are tenaciously clinging to.

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