In her influential book Marriage and Slavery in Early Islam (Harvard University Press, 2010), Professor Kecia Ali examines how classical Muslim jurists, in their legal discourses on marriage, drew upon the concepts of sale and slavery. Professor Ali argues that while Islamic marriage is not the same as slavery, the two share important structural similarities. Other scholars have responded to this feminist critique of marriage by arguing that Islamic marriage is better understood as a religious duty, a way of fulfilling God’s command and channelling human desire in a lawful direction.
These two very different ways of thinking about marriage, one seeing it as a relationship of ownership, the other as a religious and moral calling, shape how marriage is understood in law. Under the ownership model, the husband effectively retains control over the marriage as seen in his absolute right to divorce (talaq) and the traditional requirement of his consent for wife-initiated dissolution of marriage (khula). Under the partnership model, husband and wife have equal rights within the institution of marriage.
Superior courts in Pakistan have moved away from the ownership model and towards the partnership model. This shift, driven by changing attitudes in Pakistani society, has strengthened women’s rights, particularly their ability to seek divorce based on khula, claim financial support, and secure custody of their children. In the landmark judgment of the Federal Shariat Court, Saleem Ahmed v Government of Pakistan PLD 2014 FSC 43 at [17], confirming a wife’s right to khula without the consent of the husband, Justice Fida Muhammad held that the injunctions of Islam regarding men and women are based on “equality without any discrimination whatsoever”.
This article looks at the recent landmark judgment of the Islamabad High Court, Mst. Amara Waqas v Muhammad Waqas Rasheed and others (decided on 2 March 2026), in which the Court ruled that wives have a legal right to property accumulated during marriage under Islamic family law. While the immediate facts concern a relatively modest matrimonial dispute, such as dowry articles, household goods, and a Suzuki Cultus, Justice Kayani laid down the groundwork for women’s right to matrimonial property, drawing on a range of legal principles from across Islamic jurisprudence, English law doctrines of constructive trust and unjust enrichment, and international human rights law.
The petitioner, Mst. Amara Waqas had served as an officer in the Pakistan Air Force before her marriage in 2015. The marriage broke down, and she was turned out of the matrimonial home in January 2021. She brought proceedings before the Family Court seeking maintenance, dissolution of marriage by khula, and recovery of dowry articles, along with various other claims, including a share in a Suzuki Cultus purchased during the marriage in the husband’s name. The trial court granted maintenance and awarded her 30% of the value of the dowry articles but dismissed her remaining claims. On appeal, even the 30% award was set aside on the ground that she had produced insufficient independent evidence. Therefore, she filed a writ petition before the High Court.
The core legal issue before the Court was whether a wife is entitled to proprietary rights in the assets in the husband’s name but acquired, in whole or in part, through her financial or non-financial contributions during the marriage. Justice Kayani acknowledged the settled position under Pakistani law: upon divorce, a wife has no automatic legal entitlement to share in her husband’s assets by virtue of the marital relationship alone. Her statutory financial rights are confined to the enforcement of dower (mahar), maintenance during marriage and the iddat period, and recovery of dowry or bridal gifts. Any proprietary claim to assets in the husband’s name must be grounded in evidence of gift, contribution, partnership, or trust.
Drawing on both Islamic and common law jurisprudence, Justice Kayani held that the principles of fairness require that a wife must share in the matrimonial property in addition to her other financial rights. Justice Kayani invoked the classical Islamic legal doctrine of partnership (shariqah), noting that where both spouses contribute to the acquisition of property, shared ownership may be recognised. He also referenced the view of contemporary Islamic scholars that a wife’s domestic and managerial labour constitutes indirect participation in wealth accumulation, potentially supporting a partnership-based claim. The Court drew on Quranic verses from Surah Al-Baqrah (2:236 and 2:241) and Surah Al-Ahzab (33:49) to establish the principle that Islamic law would not countenance a husband exploiting the silence of explicit injunctions on matrimonial property division to enrich himself at his wife’s expense.
In addition, Justice Kayani invoked the English law doctrine of constructive trusts as elaborated by the famous English judge and jurist Lord Denning in Gissing v Gissing [1971] AC 886, holding that where spouses share a mutual intention that both will have a beneficial interest in an asset acquired during marriage, it is a breach of faith for the spouse in whose name legal title is vested to deny that intention. Critically, this intention may be inferred from conduct — including financial contribution, domestic labour, and childcare — rather than requiring an express agreement. Justice Kayani observed that a wife’s contribution to a matrimonial asset may consist precisely in maintaining the home and raising children, thereby enabling the husband to earn and acquire property.
The judgment concludes with recommendations. Justice Kayani recommends that every wife who has cohabited during marriage be deemed to have contributed through domestic labour, childcare, and household management, and that all assets acquired during marriage, regardless of title, be liable to equitable distribution. He further recommends that Parliament enact legislation expressly recognising a homemaker wife’s equitable share in matrimonial assets and that a new column be introduced in the standard Nikah Nama under the Muslim Family Laws Ordinance 1961, allowing a wife to stipulate at the time of marriage that property acquired by the husband shall be equally divided upon dissolution or death.
The judgment is significant on several levels. It is the first time a superior court in Pakistan has recognised a wife’s right to matrimonial property. A constructive trust is a legal tool that recognises a person’s fair share of property even when it is not registered in their name. The Court justified this approach by drawing on both Islamic legal tradition and international human rights law. The judgment also makes two landmark declarations. First, that Islamic family law treats marriage as a partnership in which the unpaid work a wife performs at home, such as raising children, managing the household, and supporting family life, has genuine economic value that the law must recognise. In doing so, the judgment has contributed a significant step forward in protecting the financial rights of wives in Pakistan, as argued in scholarly literature.
The judgment contributes to a growing body of Supreme Court jurisprudence that has progressively strengthened women’s rights within marriage. In Ambreen Akram v Asad Ullah Khan (2025), Justice Syed Mansoor Ali Shah held that a wife’s right to maintenance arises from the moment of marriage itself, and not from rukhsati or the consummation of the marriage. In Muhammad Aslam Chattha v Shehnaz Akhtar Zahoor Ahmed (2025), Justice Shahid Waheed held that a wife’s claim to maintenance is not subject to any limitation period, since it is a recurring right; he further held that a husband’s duty to provide maintenance is akin to that of a debtor, not merely a moral obligation. In Ibrahim Khan v Mst Saima Khan and Others (2024), Justice Ayesha Malik held that a wife remains entitled to her dower even where her husband’s conduct compelled her to seek khula — a divorce initiated by the wife.
Taken together, these judgments mark a clear judicial direction: marriage in Pakistan is increasingly understood in law as a partnership between equals, not a relationship in which the husband has a superior position.
Yet the transformation is incomplete. One key area of family law that urgently needs reform is the remedy of restitution of conjugal rights, which allows a husband to obtain a court decree compelling his wife to return to the matrimonial home. Rooted in Christian canon law and transplanted into Muslim personal law through British colonial court decisions rather than having any foundation in Islamic teaching, restitution sits uneasily with the contractual and consensual nature of Islamic marriage. In practice, husbands file restitution petitions as a tactical weapon to pressure wives who are seeking maintenance, dower, or divorce. Yet despite the incompatibility of restitution with the injunctions of Islam and its violation of the constitutional rights to dignity, equality, and non-discrimination, Pakistani courts have so far declined to strike it down. This is a striking omission that represents one of the most overdue reforms in Pakistani family law.
The recent judgments of superior courts reflect a decisive shift towards treating marriage as a partnership of equals. The restitution of conjugal rights belongs to the older, discredited model of marriage as ownership and control. It is a colonial relic that has no place in a legal order that now affirms the equal dignity and financial rights of wives. The case for abolishing the restitution remedy is as strong in Islamic law as it is in constitutional law, and the time for that judgment is long overdue.
