زوجین کی طلب کے بغیر عائلی معاملات میں ریاستی مداخلت : ایک شرعی جائزہ

State Intervention in Family Matters Without Spousal Request: A Sharīʿah-Based Analysis

Abstract

In Islamic civilization, the family constitutes the first and most fundamental social unit responsible for nurturing faith, character, emotional stability, and moral development. Sharīʿah provides a comprehensive framework of rights, duties, and ethical principles to preserve justice and harmony within this institution. At the broader societal level, the state is entrusted with enforcing justice, safeguarding public welfare, and ensuring the implementation of laws rooted in Sharīʿah. The maqāṣid al-sharīʿah—protection of religion, life, intellect, lineage, and property—form the foundation of this responsibility. Sharīʿah does not grant absolute precedence to either the family or the state; rather, it advocates a balanced relationship in which both institutions complement each other. While marriage is a civil contract that requires consent of both spouses, coercion in marriage or dissolution is impermissible. Divorce rests primarily with the husband, and ordinarily no external entity may compel him to issue it. However, in cases of severe discord, oppression, or violation of rights, limited and principled state intervention becomes permissible. Classical and contemporary jurists differ regarding the authority of a judge (qāḍī) in annulling marriage through khulʿ when the husband refuses consent. Some scholars interpret the Qur’ānic concept of ḥakamayn as representatives appointed by the spouses and thus deny coercive authority. Others argue that ḥakamayn function under judicial mandate and may issue a binding decision to protect the oppressed spouse. This paper concludes that the matter is juristic (ijtihādī), but the view granting the judge authority to dissolve the marriage in cases of proven harm is stronger, more consistent with maqāṣid, and better suited to safeguarding justice in contemporary legal systems.