Recently, the Supreme Court of Pakistan handed down a judgment, titled Dr. Seema Hanif Khan v.Waqas Khan and others, that may prove more significant than its immediate legal consequences suggest. Justice Ayesha Malik dissolved the marriage of a woman, overturning the decisions of the lower courts that had erroneously granted her khula (divorce granted on the request of a woman) instead of the dissolution (separation on the basis of certain grounds) she had sought. She held that the petitioner had successfully established three statutory grounds under the Dissolution of Muslim Marriages Act 1939: cruelty (including psychological abuse), non-payment of maintenance, and the husband’s second marriage. On this basis, she was entitled to a decree of dissolution of marriage rather than khula.

The tension between talaq, khula, and dissolution of marriage (faskh) has long been a central part of Muslim jurisprudence. The reasoning adopted in this judgment, however, strikes closer to the core of the problem than most prior judicial attempts, suggesting the beginnings of what might be called a decolonial jurisprudence in the field. I will unpack the doctrinal background of these forms, albeit briefly, below.

The distinctions among talaq, faskh, and khula are subtle and often lost upon those not acquainted with Islamic legal tradition. Classical Islamic law granted men a unilateral right to divorce (talaq) exercisable extra-judicially. For women, a right to divorce existed, but it could only be realised with the husband’s consent in the same extra-judicial space (extra-judicial khula). If consent was refused, a woman’s only recourse was to the court, which could grant dissolution either through khula (judicial khula) or through grounds of faskh.

The two forms, judicial khula and faskh, differ in their structure of exchange and proof. A woman seeking dissolution (faskh) is required to establish one or more recognised grounds such as cruelty or failure to maintain. If successful, she retains her dower (mahr) or may claim it if unpaid. In contrast, khula requires no proof of fault: a woman’s mere request suffices, but she must typically forgo or return her dower in return for release from the marriage.

Pakistan’s courts have long struggled to maintain a coherent relationship between faskh, the statutory path to dissolution, and khula, the judicially developed mechanism for unilateral exit. In Khurshid Bibi v Muhammad Amin PLD 1967 SC 97 and its progeny, the judiciary introduced khula as a progressive solution to liberate women from intolerable marriages. Yet this innovation did not address the central problem, which was the evidentiary burden that made faskh practically unattainable for most women under colonial evidentiary standards. Instead of reforming the rules that rendered dissolution rights largely illusory, the courts constructed a parallel escape route through khula, providing relief in some cases while leaving the original evidentiary structure intact. The result was a jurisprudence that appeared reformist on the surface but remained doctrinally uneasy, with khula and faskh sitting side by side in unresolved tension.

It is in this context that Justice Malik’s judgment in Dr. Seema Hanif Khan assumes significance. Her reasoning signals an incipient decolonial turn, for she identifies the true source of injustice: the evidentiary and epistemic standards that have historically silenced women. She observes that in cases of dissolution of marriage, courts should apply not the criminal standard of proof beyond reasonable doubt but the civil standard of balance of probabilities – requiring only that the evidence make a fact more likely than not. On this basis, she faulted the lower courts for ignoring testimony relating to cruelty and for insisting upon documentary corroboration, such as First Information Reports. Equally striking is her rejection of the patriarchal vocabulary that pervades family litigation, such as the use of expressions like ‘disobedient wife’, declaring them inconsistent with constitutional guarantees of dignity.

Verily, the judgment could have gone further in clarifying the doctrinal independence of khula and faskh. Yet what it achieves is no small feat. It reopens interpretive space within Islamic jurisprudence by dislodging colonial habits of proof and patriarchal presumptions of guilt. In doing so, it gestures towards a decolonial jurisprudence – one that recognises both khula and dissolution as distinct and coexisting rights available to women, grounded not in imported liberalism but in the integrity of women under Islamic law.