The National Commission on the Status of Women (NCSW) on Thursday welcomed a marriage dissolution judgment authored by Supreme Court Justice Ayesha A. Malik, terming it a “progressive step“ to an “equitable and gender-sensitive” interpretation of family law, the Associated Press of Pakistan (APP) reported.

On October 25, in a 17-page ruling, Justice Malik set aside a Peshawar High Court (PHC) ruling over a divorce case, terming psychological abuse as cruelty, based on which a marriage can legally be dissolved, along with highlighting the “deeply patriarchal” approach of the court in such cases.

NCSW chairperson, Ume Laila Azhar, in a statement, called the verdict “a progressive step towards a more equitable and gender-sensitive interpretation of family law.“

According to APP, she noted that the “court’s acknowledgement of emotional and psychological cruelty as equally serious as physical abuse marks a significant milestone in safeguarding women’s dignity and well-being within marital relationships.”

“This ruling upholds the constitutional and Islamic principles of justice, equality, and human dignity by reaffirming that Khula is an independent and inalienable right of a woman — not contingent upon the husband’s consent,” Azhar was quoted as saying.

“It strengthens the jurisprudence of women’s right to self-determination and ensures that their mental and emotional health receives due consideration in family courts,“ she added.

The commission, in its statement, also commended the “SC emphasis on adopting gender-sensitive language and eliminating patriarchal reasoning from judicial discourse,” as per the report.

The Judgement

The judgment — a copy of which is available with Dawn.com — pertains to a case involving a woman seeking the dissolution of her marriage on the following grounds: “cruelty, non-payment of maintenance during the subsistence of marriage, and on (her spouse) taking an additional wife.”

Justice Malik’s judgment came in response to a 2024 PHC ruling, which had dismissed the petitioner’s application for dissolution of her marriage and granted her a Khula instead, without her consent.

In the judgment, Justice Malik noted, citing the Dissolution of Muslim Marriages Act, 1939 (DMMA), that dissolution of a marriage means that the “marriage can be brought to an end at the instance of the woman if she is able to successfully establish one or more of the statutory grounds provided within the DMMA.”

These include: husband’s disappearance, failure to provide maintenance, imprisonment, impotence, insanity, cruelty and the taking of an additional wife.

On the matter of cruelty, Justice Malik ruled that, as per the DMMA, “cruelty can range from physical assault, to mental or emotional abuse, to interference with property or religion, to inequitable treatment in the context of a second marriage.”

She went on to say: “As per our jurisprudence, courts have defined cruelty as being behaviour which is not limited to physical abuse but involves behaviour which can result in mental and emotional abuse.”

In a marriage, cruelty can also be any act that makes “it impossible for the wife to live with dignity and security within the marital home and relationship,” she said.

Referring to the case, Justice Malik highlighted that the family court “failed toexamine the mental and emotional abuse and the impact of the cruelty on the petitioner,” and rather “fell into error by insisting upon documentary ormedical proof.”

Further, on the matter of the petitioner enduring physical abuse at the hands of her husband, Justice Malik noted that, “The Family Court also proceeded on an incorrect premise by discarding the statements of the witnesses of the petitioner on the ground that she was never beaten in front of them.”

She continued: “It is important to note that abuse within the marital home is often a bedroom crime, which is committed in private and for which there are no witnesses.

This crime remains largely unreported due to socio-cultural barriers, economic dependency and the lack of information on the issue.“

“As a consequence, victims remain silent and endure for the sake of the family or the children,” she added.

Regarding the family court’s decision to grant the petitioner Khula without her consent, Justice Ayesha remarked that the reasoning “such reasoning conflates two separate legal remedies” and “undermines the purpose of the DMMA.”

On that note, she also highlighted that “the law demands that women’s choices, words, and rights be respected as a matter of principle, not presumption.”

Justice Malik called for “a gender lens” in deciding such matters, stating that “it helps the court understand the social realities in which womenexperience cruelty.”

“Seeing the case through a gender lens also means understanding the different ways women experience harm,” she added.

Addressing the language used for the petitioner in the court’s ruling, such as “disobedient wife” and “self-deserted lady”, she said, “using language loosely or without thought stigmatises women, trivialises abuse, and reinforces the same patriarchal thinking that the law seeks to overcome.”

“When judgments rely on stereotypes or excuse unlawful conduct, they perpetuate inequality and shape social attitudes in ways that deny women dignity, fairness, and justice,” she stressed, adding that the language used “represented a deeply patriarchal mindset.”

She continued: “It shifts the discussion from cruelty towards the woman and the exercise of her autonomy to her obedience and disobedience.

“These are social judgments disguised as findings of law,” she said, adding that “it is therefore necessary to address and correct such language as a matter of substantive justice.”