Marital status no bar on women's rights: SC

Express Tribune

29-03-2025

The Supreme Court has ruled that a married woman remains an equal child of her deceased parent as their other children, and to deny her entitlement on the basis of her marriage is tantamount to denying her constitutional identity as an equal citizen.
Supreme Court Justice Syed Mansoor Ali Shah said that any presumption that a married woman becomes financially dependent on her husband is not only legally untenable but also religiously unfounded, and contrary to the egalitarian spirit of the Islamic law.
A division bench of the apex court, led by Justice Shah, ruled on the petition of a female schoolteacher, Zahida Parveen. Justice Shah authored a nine-page judgment, which directed the respondent-department to restore her appointment with all back benefits.
Petitioner Zahida Parveen was appointed as a primary schoolteacher under the deceased son/daughter quota on March 17, 2023. However, the district education officer (Female), Karak withdrew the appointment order without issuing a show-cause notice.
The petitioner's service was terminated because of on a "clarification" which stipulated that the benefit of appointment under the deceased son/daughter quota was not available to a female, who had contracted marriage.
"The exclusion of married daughters from compassionate appointment [ ] is declared to be discriminatory, ultra vires, issued without lawful authority, and incompatible with Pakistan's constitutional guarantees and international legal obligations," the court ruled.
"The respondent-department is directed to restore the petitioner's appointment with all back-benefits," it said. "As constitutional subjects, women are entitled to equality not only in result but also in the form, tone, and respect with which the law addresses them."
The bench noted that all judicial and administrative authorities bore a constitutional responsibility to adopt gender-sensitive and gender-neutral language. "The judiciary must lead by example, ensuring that the words used to interpret and apply the law do not themselves become instruments of exclusion."
The judgment declared: "This is not a mere formality, but reflects a substantive commitment to the values of dignity, equality, and autonomy guaranteed to all citizens under Articles 14, 25, and 27 of the Constitution."
It said that women were autonomous and rights-bearing citizens in their own right and not by virtue of their relationship to a man, be it father, husband, or son. It added that financial independence was not a privilege but a necessary precondition for the full realisation of citizenship, autonomy, and personhood.
"A married daughter remains equally a child of her deceased parent, and to deny her this entitlement on the basis of marriage is to deny her constitutional identity as an equal citizen. It bears mentioning that the principle of a woman's financial independence is not only grounded in the constitutional text but is also firmly embedded in the Islamic legal tradition," said the judgment.
"Under Islamic jurisprudence, a woman retains full ownership and control over her property, earnings, and financial affairs, irrespective of her marital status. Therefore, any presumption that a married woman becomes financially dependent on her husband is not only legally untenable but also religiously unfounded, and contrary to the egalitarian spirit of Islamic law," the judgment continued.
"This arbitrary classification is thus not only unreasonable but plainly unconstitutional, offending the guarantees of equality (Article 25), non-discrimination in public service (Article 27), and the right to dignity (Article 14). It also undermines the expectations of deceased civil servants whose families were assured of lawful security under the compassionate appointment framework."
Consequently, the judgment stated, the impugned clarification and the letter dated April 28, 2023 was liable to be struck down for being ultra vires, discriminatory, and constitutionally repugnant, adding that when the basic order was without lawful authority, the entire superstructure raised thereon fell to the ground automatically.
The court declared that the exclusion of married daughters from the ambit of the Rule 10(4) of the Khyber-Pakhtunkhwa Civil Servants (Appointment, Promotion, and Transfer) Rules, 1989, was not merely a procedural irregularity, rather it revealed a deeper structural flaw grounded in patriarchal assumptions about a woman's identity and her role within the legal and economic order.
According to the judgment it was presumed that a woman, upon marriage, relinquished her independent legal identity and became economically dependent on her husband, thereby forfeiting entitlements available to similarly situated male counterparts.
"At its core, this exclusion constitutes a denial of a woman's right to financial and economic independence—rights that are not ancillary but essential to the exercise of constitutional personhood. The Constitution guarantees rights to individuals, not to marital units or prescribed social roles," it said.
The order also said that the rationale underpinning the impugned clarification represents a constitutionally impermissible revival of the discredited common law doctrine of coverture, under which a woman's legal existence was subsumed into that of her husband.
"Contemporary constitutional jurisprudence has firmly rejected such notions, affirming that marriage neither extinguishes a woman's legal personhood nor curtails her entitlements under the law. Any policy or executive clarification that seeks to reintroduce this logic under the pretext of marital dependency violates the core constitutional guarantees of dignity, equality, and non-discrimination," the court said.
The judgment warned that excluding married daughters from compassionate appointment under the Rule 10(4) not only violated Pakistan's constitutional framework but also breached its international legal obligations, particularly, those under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Articles 2 and 11 of CEDAW explicitly prohibited discrimination in employment on the basis of sex and marital status, the judgment noted, adding that the CEDAW committee had repeatedly underscored that laws and administrative practices rooted in cultural stereotypes or customary norms eere incompatible with the state's duty to secure substantive gender equality.
The court also expressed concern over the language used in the impugned judgment, particularly the phrase "a married daughter becomes a liability of her husband," saying that such language was not only factually and legally erroneous, but also deeply patriarchal, reinforcing outdated stereotypes that were fundamentally incompatible with constitutional values.
"The use of gender-biased language by judicial or administrative bodies does not merely reflect prevailing social prejudices, it perpetuates and legitimizes structural discrimination, and risks encoding bias into the law itself," the judgment warned. "As constitutional subjects, women are entitled to equality not only in result but also in the form, tone, and respect with which the law addresses them."
In this context, the judgment said, the Feminist Judgments Project undertaken in several jurisdictions, including Pakistan, had demonstrated how judicial reasoning could be reframed through a feminist lens, applying existing legal principles, while eschewing gendered assumptions and incorporating inclusive, equality-affirming language.
"The core premise is clear: how law is written matters as much as what it decides."