Maintenance Is a Wife’s Absolute Right from Solemnization of Marriage.
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| 2026 scmr 1 |
رخصتی یا ازدواجی تعلق کے بغیر بھی بیوی نان و نفقہ کی حقدار — سپریم کورٹ کا تاریخی فیصلہ (2026 SCMR 1)
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سپریم کورٹ کا فیصلہ اور قانونی اصول
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Must read judgement.
2026 SCMR1
[Supreme Court of Pakistan]
Present: Syed Mansoor Ali Shah and Aqeel Ahmed Abbasi, JJ
AMBREEN AKRAM ---Petitioner
Versus
ASAD ULLAH KHAN and others ---Respondents
Civil Petition No. 1107-L of 2015 and Civil Appeal No. 247-L. of 2017, decided on 11th September, 2025. (Against the judgment dated 28.04.2015 passed by the Lahore High Court, Lahore in W.P. No. 29864 of 2014).
(a) Family Courts Act (XXXV of 1964)
-Ss.5, Sched. & 17-A--Muslim Family Laws Ordinance (VIII of 1961), Ss.5 & 9-Constitution of Pakistan, Arts.14, 25, 35 & 185(3)---Wife's entitlement to maintenance in a non-consummated marriage-Scope-Maintenance allowance to wife, denial of-Marriage not consummated, consu ground of Legality-Wife's right to maintenance flows unconditionally from solemnization of a valid marriage-Obligation of husband to pay maintenance Exception stated--Husband to prove that wife repudiated the marital relationship-Brief facts were that the petitioner/wife and the respondent/husband contracted marriage on 02.11.2012 through a valid nikahnama, with rukhsati mutually scheduled for February 2013, however, the respondent/husband delayed rukhsati for more than a year--Petitioner/wife filed a suit for maintenance before the family court, whereby, Rs.3,000 per month was decreed in her favour from the date of marriage---On appeal, the district court enhanced the amount to Rs.5,000 per month--During the proceedings, the respondent/husband divorced the petitioner/wife on 02.05.2014- 2014---High Court, however, set aside the decrees of the lower courts, holding that since the marriage had not been consummated, the petitioner/wife was not entitled to maintenance--The petitioner/wife thereafter approached the Supreme Court seeking restoration of her right to maintenance---Pivotal questions for determination before the Supreme Court were as to (i)"When does a Muslim woman become entitled to maintenance within a marriage? and, (ii)"under what circumstances, if any, may a husband be excused from his marital obligation to pay maintenance to his wife"?--Held: Islamic principles, Constitutional and statutory protections, and judicial precedents affirmed that the wife's right to maintenance flew unconditionally from the solemnization of a valid marriage and constituted a binding legal duty-A husband could only be excused from paying maintenance where he could prove through clear, cogent, and compelling evidence that the wife had wholly and unjustifiably withdrawn from the marital relationship including its emotional, residential, and relational aspects---The burden of proof lay squarely on the husband-This exception in favour of the husband was to be narrowly construed to support structural gender inequalities which demanded a cautious and rights-oriented approach to interpreting such exceptions, ensuring that maintenance remained a shield against economic vulnerability, not a tool of coercion--In the present case, there was no dispute that the parties entered into a valid marriage, nor was there any allegation, much less evidence, that the petitioner/wife refused consummation or cohabitation without reasonable cause-On the contrary, the record revealed that the respondent/husband failed to provide a marital abode, made no arrangements for rukhsati, and did not take steps to fulfill his basic obligations under the marital contract---There was similarly no factual or legal basis in the record to invoke the narrow exception to the respondent's/husband's obligation of maintenance-No credible evidence had been led to suggest that the petitioner/wife willfully withdrew from the marital relationship or refused cohabitation without valid cause-The wife's inability to cohabit due to the husband's own failure to facilitate rukhsati did not defeat her claim to maintenance-Petitioner/wife could not he penalized for non-consummation that resulted from the respondent's/husband's own inaction--Petitioner's/wife's right to maintenance accrued upon the solemnization of marriage and continued throughout the subsistence of the marital bond-Considering that the divorce took place during the pendency of the said litigation, the maintenance period was to continue till the period of iddat---The denial of maintenance in the present case, in light of the respondent's/husband's default and the absence of any fault on part of the petitioner/wife, was contrary to law and was accordingly set aside--Impugned judgment was set aside The he petitioner's petitioner's/ wife's entitlement to maintenance from the date of valid marriage was affirmed in the sum for Rs. 5000/- per month adjudicated upon by the district court and also included maintenance for the period of iddat-The petition was accepted, converted into an appeal, and allowed. de-The
(b) Muslim Family Laws Ordinance (VIII of 1961)-
ning-Essentials 5.5-Marriage--Essence and meaning-Essentials of a valid marriage stated-Marriage under Islamic law is regarded both as an act of devotion (ibadat) and a social transaction (muamalat)-Marriage, like other contracts requires declaration and acceptance for its constitution and both must be expressed in such a manner as to demonstrate the intention, without any sort of ambiguity-The essential requirements of a valid marriage include offer (ijab) and acceptance (qabul), exchanged either directly or through representatives or guardians, along with free and informed consent-These elements align with the statutory requirements for a valid civil contract and marriage is now established under our jurisprudence to be a solemn civil contract (aqd)---In Pakistan, every marriage solemnized under Muslim law must he registered under the Muslim Family Laws Ordinance, 1961 and the Nikahnama. serves as the principal documentary proof.
Muhammad Yousaf v. Huma Saeed 2024 SCMR 1078; Shayara Bano v. Union of India AIR 2017 SC 4609 and Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 rel
Mohammed Salim v. Shamsudeen (2019) 4 SCC 130 and Saleem Ahmed v. Government of Pakistan PLD 2014 FSC 43 ref.
(c) Family Courts Act (XXXV of 1964)---
-8.5, Sched-Muslim Family Laws Ordinance (VIII of 1961), S.5-Marriage not consummated-Wife's right to seek maintenance-Scope-Essence and foundation of marriage emphasized-While marriage under Islamic law is indeed a civil contract, it is far more than a mere legal arrangement, it is the foundation of a deeply personal and moral relationship rooted in mutual respect, compassion, and shared responsibility---The Qur'an describes the marital relationship as one of love (mawaddah) and mercy (rahmah)and enjoins equitable treatment, protection, and financial support as essential obligations within this frame framework underscoring the spiritu and emotional dimensions that animate the marital union-Upon entering marriage, the wife commits not simply to a legal contract but to a marital relationship, a bond of care, dignity, and cohabitation-This relational commitment, rather than any notion of physical submission or patriarchal obedience, is what gives rise to the right of maintenance-Maintenance flows not from dominance, but from the mutual obligations and moral fabric that underpin the marital bond--Any interpretation that reduces this right to the wife's rdination negates the ethical core of the relationship as envisioned by both the Qur'an and constitutional values such as dignity, quality, and non-discrimination-The mation-The entitlement maintenance, thus, must be understood as a recognition of the wife's nurturing the marital relationship, not relationship. subordination reward for submission, but as a legal and moral consequence of her commitment to that
(d) Family Courts Act (XXXV of 1964)-
-5.5, Sched.-Muslim Family Laws Ordinance (VIII of 1961), 5.5-Wife's right 1961), 5.5-Wife's right to maintenance in non-consummated marriage--The "maintenance-obedience" concept-Conditioning a wife's right to maintenance upon physical obedience incompatible with the Quranic vision of marriage--Notion of "surrender" lies at the heart of what jurists have historically termed the "maintenance-obedience complex"--This is the idea that a wife's entitlement to maintenance is conditional upon her obedience, most often defined in terms of physical availability for conjugal relations-In classical jurisprudence, particularly within the Hanafi and Hanbali schools, this was expressed through the doctrine of intibas, which refers to the wife's seclusion or retention in the marital home for the husband's access--However, this reductive formulation, which treats marriage as a transactional exchange of physical obedience for material support, is incompatible with the Qur'anic vision of marriage as a solemn covenant based on affection and compassion--The institution of marriage is not premised on the wife's "surrender" but on mutual commitment, emotional and physical companionship, cooperation, and shared responsibility-A commitment that actualizes dignity, justice and social well-being-It aims to establish a moral and familial order rooted in justice and compassion and entails mutual moral control, and not one-sided authority-Accordingly, maintenance should not be viewed as a quid pro quo for physical obedience, but as an inherent legal and ethical obligation arising from the marital contract-It is intended to protect the wife's dignity, autonomy, and financial security-Interpretations that condition this entitlement on physical submission not only distort Islamic legal principles but also enable coercive control-A just and contemporary approach guided by Maqasid al-Sharťah, constitutional norms, and feminist jurisprudence must displace obedience-based reasoning in favor of frameworks that center equality, welfare, and mutual respect.
Mehvish Kazmi v. Parvaiz Hussain PLD 2022 SC (AJ&K) 1 ref.
(e) Family Courts Act (XXXV of 1964)--
--Ss.5, Sched. & 17A---Muslim Family Laws Ordinance (VIII of 1961), S.9-Wife's right to seek maintenance despite marriage not being consummated-Scope-A wife's entitlement to maintenance accrues immediately upon the solemnization of a valid marriage. Maintenance as an obligation arising directly from the marital contract has also been affirmed by the statutory framework of Pakistan, which treats maintenance as an absolute and enforceable right, rather than a conditional or discretionary entitlement---Section 9 of the Muslim Family Laws Ordinance, 1961 empowers a wife to initiate proceedings before the Family Court for the recovery of maintenance upon the husband's failure or neglect to provide for her, without requiring proof of consummation. cohabitation, or obedi or obedience-Similarly, Section 17A of the Family Courts Act. Family Courts Act, 1964 enhances the enforceability of such claims by introducing an expeditious, summary procedure for the recovery of arrears of maintenance--Together, these statutes form a beneficial and pro-women legal framework that affirms maintenance as a substantive, unqualified right flowing from the existence of
כPLD 2016 SC 613; Saif-ur-Rehman v. ADJ Toba Tek Singh 2018 SCMR 1885 and Muhammad Nawaz v. Khurshid Begum PLD 1972 SC 302 rel.
v . Nasima Bibi PLD 1966 Lahore 703 ref.
Zeeshan Iftikhar Butt v. Maria Asif 2019 CLC 777; Rashid Ahmad Khan v. Nasim Ara PLD 1968 Lahore 93 and Sardar Muhammad
(f) Family Courts Act (XXXV of 1964)---
-5.5, Sched.-Muslim Family Laws Ordinance (VIII of 1961), 54.5 & 9-Wife's right to seek maintenance despite marriage not being consummated-Formal inception/commencement of the marital relationship as a determining factor--Solemnization of marriage as a legal genesis of marital relationship---Scope Rukhsati-Meaning, concept ng, concept and effect---The term rukhsati literally means "to depart" or "to take leave" and it holds no independent legal status under Islamic or statutory law-While the solemnization of marriage marks the formal commencement of the marital relationship, the expression of acceptance at the time of marriage is the ultimate evidence of a woman's willingness to enter into the marital relationship and to discharge her matrimonial obligations-A wife's right to maintenance becomes absolute when she demonstrates such willingness, which is reinforced from her waiting for rukhsati to be effected-To condition a wife's entitlement to maintenance on rukhsati or consummation undermines legal certainty and enables husbands to evade their financial responsibilities by invoking social customs or delaying performance-Su -Such an approach imposes an unconstitutional burden on women and reinforces patriarchal norms that make a woman's financial rights contingent upon her physical availability or subservience-This is incompatible with the dignity and equality promised under the Constitution.
Muhammad Sharif v. ADJ 2007 SCMR 49 and Haseen Ullah v. Mst. Naheed Begum PL.D 2022 SC 686 rel.
Najam-ur-Rehman v. Masooma Hassan 2023 CLC 991 and Shamim Akhtar v. ADJ, Sialkot 1991 CLC 1142 ref.
(g) Family Courts Act (XXXV of 1964)---
5.5, Sched-Muslim Family Laws Ordinance (VIII of 1961), Ss.5 & 9-Constitution of Pakistan, Arts.14, 25 & 35-Accrual of a wife's right to maintenance immediately upon solemnization of a valid marriage regardless of its consummation-Husband's obligation to pay maintenance-Exception stated---Husband to prove that wife repudiated the marital relationship-The husband may be excused from paying maintenance only in very limited circumstances where he can prove, through clear and cogent evidence, that the wife has wholly and unjustifiably repudiated the marital relationship, including emotional, residential, and relational aspects---The burden of proof lies squarely on the husband-Absent such proof, the obligation to provide maintenance persists-A refusal to cohabit arising from abuse, neglect, coercive control, behaviour or absence of appropriate living arrangements does not amount to nushüz or unjustifiable repudiation of the marital relationship by the wife-Where the husband fails to effect rukhsati, does not provide a residence, withholds the agreed dower, or fails to facilitate travel documentation (e.g., a visa), the wife's non-cohabitation cannot be construed as voluntary withdrawal from marital relationship--In such cases, wife's entitlement to maintenance remains intact---Conditioning a wife's entitlement to maintenance on proof of consummation creates an untenable and constitutionally suspect standard-It forces women to disclose intimate and deeply private aspects of their married life in public judicial proceedings, contrary to their constitutional right to dignity and privacy under Article 14 of the Constitution-Denying maintenance under these circumstance weaponizes patriarchal customs and undermines the ethical foundations of Islamic law-This exception, therefore, must be narrowly construed and reformulated through the lens of Maqasid al-Sharfah, constitutional guarantees of equality, dignity, and social justice under Articles 14, 25 and 35 of the C e Constitution, and progressive jurisprudence-The above lens provides that unreasonable and unjustified denial or withdrawal of the wife from a marital relationship is the only exception to grant of maintenance-A wife's right to maintenance is neither contingent upon consummation or rukhsati, nor subject to the discretion of the husband.
Haseen Ullah v. Mst. Naheed Begum PL.D 2022 SC 686 and Muhammad Sharif v. ADJ 2007 SCMR 49 rel.
Tariq Mehmood v. Farah Shaheen 2010 YLR 349; Najam-ur-Rehman v. Masooma Hassan 2023 CLC 991 and Abdul Fahim v. Mst. Shahnaz Begum 2003 CLC 1450 ref.
(h) Administration of justice...
Amicus curiae-Significance, concept and purpose-The institution of the amicus is essential to ensuring that adjudication remains informed, inclusive, and principled-It is It is imperative that Constitutional courts of the country continue to institutionalize this practice, especially in matters of significant public consequence or global relevance---The amicus curiae serve as a vital bridge between law and justice, local realities and global perspectives, the bench and the academy--Embracing this inclusive model of judicial deliberation enhances not only the legitimacy and quality of judgments, but also affirms the judiciary's commitment to learning, openness, and Constitutional dialogue.
(1) Family Courts Act (XXXV of 1964)---
-5.5, Sched.-Family cases-Judicial language and reasoning-Scope and significance---The language employed by courts in family law cases does more than resolve individual disputes; it actively shapes public understanding of rights and obligations within marriage and the broader family structure--Judicial language carries normative force-It influences how justice is perceived, internalized, and practiced-Terms such as "surrender," or "submit" are rooted in patriarchal frameworks and reinforce outdated notions of gender hierarchy and female subordination--These expressions cast women as passive recipients in marriage rather than equal partners, undermining their legal and constitutional status-It is therefore imperative that judicial reasoning and expression he firmly anchored in the constitutional values of dignity, equality, and non-discrimination, while also reflecting the lived realities of litigants and the prevailing social context---Judges, particularly in family law matters, are not merely arbiters of individual disputes; they are reformers and thought leaders capable of guiding society toward progressive and inclusive thinking-They bear a Constitutional and ethical duty to adopt gender-sensitive, rights-based language that affirms the equal legal status of women as full and autonomous persons-Judicial decisions must avoid stereotypes, promote tolerance, and embody the principles of substantive justice-In fulfilling this transformative role under the Constitution, the judiciary does more than interpret law; it reshapes societal attitudes and advances equality through every word it speaks---Language is never neutral-It either reinforces the status quo or propels society toward a more just and equal future.
Rana Rashid Akram Khan, Advocate Supreme Court for Petitioner.
Umer Ijaz Gilani. Advocate Supreme Court along with Respondent No. 1 in person.
Professor Khaled Abou El Fadl, Distinguished Professor of Law, UCLA School of Law, Dr. Muhammad Zubair Abbasi, Lecturer in Law, School of Law and Social Sciences, University of London and Ms. Fatima Yasmin Bokhari, CEO Musawi, Advocate High Court, assisted by Barrister Khadija Yasmin Bokhari, Advoca ocate High Court, Amici Curiae.
Assisted by Umer A. Ranjha, Judicial Law Clerk and Ms. Uzma Zahoor, Civil Judge/Research Officer, Supreme Court of Pakistan.