Judicial Feminism or Judicial Overreach?

A Critical Analysis of Dr. Seema Hanif Khan v. Waqas Khan (CPLA No. 3268/2024)

Barrister Mian Zafar Iqbal Kalanauri

Advocate Supreme Court of Pakistan, FCIArb (UK), Accredited Mediator (CEDR, IMI, CMC-USA), Master Trainer in Mediation, and Professor of Law.

Abstract

This critical note analyses the landmark judgment in Dr. Seema Hanif Khan v. Waqas Khan (CPLA No. 3268 of 2024), delivered by Justice Ayesha A. Malik, which redefines gender-sensitive adjudication within Pakistan’s family law framework. The judgment dismantles patriarchal reasoning, condemns stereotypical judicial language, and reinforces the distinction between dissolution of marriage and khula. While the decision advances women’s autonomy and constitutional dignity, it simultaneously raises concerns about judicial overreach, doctrinal rigidity, and the tension between human rights and Islamic jurisprudence. This article evaluates the judgment’s contribution to Pakistani family law through the lenses of judicial feminism, evidentiary standards, and constitutional principles, assessing whether it strikes the right balance between reformist zeal and judicial restraint.

1. Introduction

The Supreme Court of Pakistan’s decision in Dr. Seema Hanif Khan v. Waqas Khan (CPLA No. 3268 of 2024) marks a watershed moment in the evolution of gender jurisprudence in Pakistan. Authored by Justice Ayesha A. Malik, the judgment sets a transformative precedent by recognizing the multidimensional nature of cruelty under the Dissolution of Muslim Marriages Act, 1939 (DMMA), affirming that a court cannot grant khula without the wife’s explicit consent, and denouncing patriarchal stereotypes that historically shaped family court reasoning. While hailed as a progressive stride towards equality, this judgment simultaneously invites critique for its judicial activism, selective engagement with Islamic jurisprudence, and implications for separation of powers.

2. Context and Background

The petitioner, a medical doctor, sought dissolution of marriage on grounds of cruelty, non-maintenance, and the husband’s second marriage. The Family Court instead granted khula without her consent, requiring her to return her dower. The appellate and high courts upheld this finding. Justice Malik’s judgment reversed these decisions, dissolving the marriage on the ground of the respondent’s unlawful second marriage and restoring the petitioner’s right to retain her full dower and claim maintenance. The judgment drew heavily on both domestic jurisprudence and international human rights standards, including CEDAW and the ICCPR, while insisting that family courts must adopt a gender-sensitive lens in adjudicating domestic abuse claims.

3. Judicial Expansion and Statutory Interpretation

The Court’s interpretive approach exemplifies what may be termed ‘judicial feminism’, an assertive application of constitutional and human rights principles to correct gendered injustices within statutory frameworks. However, its reliance on instruments such as CEDAW and the UN Declaration on the Elimination of Violence Against Women, without explicit legislative incorporation, risks transforming judicial empathy into judicial legislation. The DMMA, being a statute enacted to align with Islamic principles, arguably required a stronger theological grounding rather than reliance on international norms. This methodological choice, while normatively progressive, raises concerns of legitimacy and separation of powers, as the judiciary assumes a quasi-legislative role in defining cruelty and marital autonomy.

4. Standard of Proof and Evidentiary Rethink

The judgment rightly recalibrates the evidentiary threshold under the DMMA to the civil standard of ‘balance of probabilities’ rather than ‘beyond reasonable doubt’. This doctrinal correction protects women from the unrealistic burden of proving domestic abuse through medical or police documentation, recognizing that such violence is often ‘a bedroom crime’. However, the Supreme Court’s detailed reappraisal of factual evidence, examining witness credibility and context, blurs the conventional boundary between appellate review and factual re-determination. While the intention was to correct the misapplication of legal standards, the Court’s factual deep-dive may inadvertently weaken the finality of Family Court determinations and encourage excessive appeals on evidentiary grounds.

5. Khula and Faskh: Autonomy versus Judicial Paternalism

The Court’s categorical distinction between khula (a consensual release) and faskh (judicial dissolution) is jurisprudentially accurate but excessively rigid. By mandating explicit consent to khula, the Court limited judicial flexibility that historically allowed conversion of dissolution petitions into khula decrees when reconciliation failed. This formalistic insistence, though grounded in the principle of consent, may paradoxically trap women in abusive relationships if they fail to use precise terminology in their pleadings. A more pragmatic approach would have balanced procedural form with substantive justice, recognising implied consent in circumstances of proven cruelty.

6. The Second Marriage Ground: Between Religion and Reform

The judgment’s reliance on Section 6 of the Muslim Family Laws Ordinance, 1961, to dissolve the marriage for contracting a second union without permission aligns with recent precedents such as Faryal Maqsood v. Khurram Shehzad Durrani (PLD 2025 SC 262). Yet, by treating such violation as an automatic ground for dissolution, the Court risks inflaming theological controversy. The Council of Islamic Ideology has already objected to this stance as un-Islamic. The Court’s failure to engage with classical fiqh perspectives, which permit plural marriages subject to equity, exposes the judgment to criticism of secular overreach. The balance between women’s rights and religious permissibility could have been better maintained through interpretive harmony rather than categorical invalidation.

7. Linguistic Reform and Judicial Ethics

Perhaps the most striking aspect of the judgment is its condemnation of patriarchal language, terms such as ‘disobedient wife’ and ‘self-deserted lady’, which the Court declared incompatible with constitutional guarantees of dignity and equality. Justice Malik’s call for linguistic reform in judicial reasoning marks a progressive step toward deconstructing gender bias within the justice system. However, her pronouncement that courts ‘must’ avoid certain expressions arguably exceeds adjudicatory functions and veers into normative rule-making. Without corresponding judicial training and institutional reform, this linguistic revolution may remain symbolic rather than transformative.

8. Structural and Enforcement Challenges

The judgment’s moral resonance is undermined by its silence on enforcement. Maintenance orders often remain unimplemented due to procedural hurdles, and the absence of clear computation guidelines, such as indexation for inflation, renders relief illusory. The Court’s rhetorical commitment to dignity must be complemented by institutional reform: expedited execution mechanisms, enhanced judicial training, and greater integration between family courts and social protection systems. Without these measures, the promise of gender justice risks dissipating into moral symbolism.

9. Conclusion

Justice Ayesha Malik’s judgment stands as a milestone in the ongoing evolution of Pakistan’s family law jurisprudence. It redefines cruelty, reinforces autonomy, and champions women’s constitutional dignity. Yet, its expansive approach to statutory interpretation and factual re-evaluation underscores the perils of judicial overreach. The true test of this decision lies not in its moral rhetoric but in its capacity to inspire structural reform. For gender justice to mature from empathy to enforceability, Pakistan’s legal system must institutionalise-not merely idealise-the principles articulated in this case.

References:

1. Dissolution of Muslim Marriages Act, 1939.
2. Muslim Family Laws Ordinance, 1961.
3. Faryal Maqsood v Khurram Shehzad Durrani [2025] PLD SC 262.
4. Ibrahim Khan v Saima Khan [2024] PLD SC 645.
5. Tayyeba Ambareen v Shafqat Ali Kiyani [2023] SCMR 246.
6. Haseen Ullah v Naheed Begum [2022] PLD SC 686.
7. CEDAW, General Recommendation No. 35 (2017).
8. UN Declaration on the Elimination of Violence against Women, 1993.