فسخِ نکاح: اسلامی فقہ میں اصول، فقہاءِ اربعہ کے مواقف اور پاکستانی عدالتی نظام میں تطبیق –تحقیقی و تقابلی مطالعہ

Dissolution of Marriage (Faskh-e-Nikah): Principles in Islamic Jurisprudence, Positions of the Four Imams and Application in the Pakistani Judicial System – A Research and Comparative Study

Abstract

This article presents a comprehensive research and comparative study of judicial dissolution of marriage (fasakh-e-nikah) in Islamic Shariah. The central question of the study is: when a marital relationship loses its essential objectives—tranquility (sukoon), love (mawaddah), and mercy (rahmah)—what are the principles, limits, and procedures of judicial intervention under Islamic law? The paper first explains the Shar‘i status of marriage in light of Qur’anic texts and major classical exegetes, including Imam Ibn Kathir, Imam al-Qurtubi, and Imam al-Tabari. It then discusses the lexical, technical, and juristic definitions of fasakh-e-nikah and its fundamental difference from divorce (talaq). Qur’anic principles (good companionship, removal of harm, and marital discord) along with Prophetic traditions—particularly the hadith of khula and the hadith “la darar wa la dirar” (there should be neither harm nor reciprocating harm)—are used as juristic evidence. A comparative analysis of the positions of the four major Sunni schools of law shows that differences regarding judicial dissolution mainly arise from varying legal priorities, such as marital stability, removal of harm, adherence to textual evidence, and easing hardship. The final section analyzes the Pakistani legal system, particularly the Dissolution of Muslim Marriages Act 1939 and important judicial precedents (Khurshid Bibi, Shamim Ara, Saima Bibi). The findings indicate that Pakistani family law has evolved into a hybrid legal system, where Maliki principles of harm prevention (raf‘ al-darar) have gained practical dominance, while khula has effectively taken the form of judicial dissolution.