Validity of Khula in Islam

Divorce

Validity of Khula in Islam

The topic of this discussion has been contested to a great extent – despite not being one of the most controversial topics in the history of laws under Islamic jurisprudence – as there has been a lot of confusion over the validity of khula in Islam, even though khula is a very commonly recognised right in today’s world.

As far as the emergence of khula is concerned, it is an undeniable fact that it is a product of judicial activism in Pakistan. Divorce through this procedure was substantiated in the case of Balqis Fatima v Najm-ul-Ikram Qureshi by Justice Kaikaus. Not only the validity of khula but also its need has been so widely accepted both by judges and scholars that since this decision judicial khula has been incorporated into the laws of Pakistan, Bangladesh and Egypt.

It is worth mentioning here that the sources of the right to khula are none other than the Quran and Hadis themselves. Khula draws it validity from Surah 2:229, 4:35 and Jameela Hadis. According to Surah 2:229:

“But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself.”

The learned judge in the aforementioned case interpreted “you” to be judicial officers rather than the parties themselves or their representatives. His decision has also created a binding precedent on future cases of a similar nature. However, the important condition attached to the right of khula is that the judicial officer should be satisfied that the married couple cannot go on as prescribed by the limits of Allah. So this right is not absolute.

At first sight, this interpretation might not sit well according to some principles of Islam. But the reality is that this is the true interpretation as can also be evidenced by Jameela Hadis, quoting which the judge argued that Prophet Muhammad (peace be upon him) was also acting in his judicial capacity while deciding upon such a matter rather than exercising any powers under divine capacity.

Ibn Abbas (RA) narrated that the wife of Thabit ibn Qais (RA) came to the Prophet (PBUH) and said, “Regarding Thabit (RA), I do not fault his character nor his deen (religion), but I fear being ungrateful in Islam. I want to return his garden to him (in exchange for talaaq).”
The Prophet (PBUH) asked, “Do you really want to do this?”
She replied, “Yes.”
He then said to her husband, “She wishes to return your garden to you (in exchange for talaaq).”
The husband asked, “Do I have the right to (accept it)?”
The Prophet (PBUH) replied, “Yes”.
The husband said, “Then I accept (the garden in exchange for talaaq).
 – (Musannaf Abdul-Razzaak vol.5 pg.391; HM Saeed).

Hence, this granting of this right confirms the validity of khula in Islam. Moreover, Surah 4:35 also strongly supports this right as under this Surah there is power to reconcile by appointment of two arbitrators, one from each party. And then the decision of those arbitrators is held to be binding. It is usually recommended that they only reconcile differences between the parties, but they also have authority to dissolve the marriage.

There is no doubt that there exists a valid basis for khula in Islam as evident from the sources mentioned above. However, the debate as to the circumstances in which khula can be granted is still ongoing as can also be witnessed in cases like Abdul Rahim v Shahida Khan. The matter is under debate by both scholars and judges as to ‘when’ the grant of khula is justified in Islam, but what is not contested is that it is a chartered right granted to the wife by law and by religion and that there is no shame attached to it.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.

Rida Noor

The writer is a final year law student at Blackstone School of Law, Lahore.



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2 Comments

  1. Azeem said:

    اس آرٹیکل سے اتفاق کرنا ممکن نہیں جس قران کی آیت مبارکہ کا حوالہ دیا جا رھا ھے کیا اس کا ترجمہ یہ ھے کے عورت کو طلاق کا اختیار ھے ھرگز نہیں اگر حوالہ دینا ھے تو پوری آیت مبارکہ کا دیں جسکا اختتام مرد کو ایک درجہ برتری حاصل ھے پورے قران میں کہیں بھی عورت کو طلاق کا اختیار نہیں دیا گیا اور جس حدیث کا ذکر کیا ہے اس میں کلیر ھے کہ عورت اگر خلع کا مطالبہ کرے تو اگر انکے درمیان معاہدہ ھو تب بھی مرد کے طلاق دینے سے ہی خلع واقع ھو گی جیسے ثابت ابن قیس نے معاہدہ ھو جانے کے بعد طلاق دی تو خلع واقع ہوی نا کہ مشرف صاحب کے مغربی پریشر پر بناے ھوے یکطرفہ قانون سے جس میں بس جھوٹ بولو اور خلع لے لو یہ کیسے ممکن ھے ک نکاح خاوند کی ھاں سے ھو لیکن خلع میں اسکی ہاں ضروری نہ ھو بلکہ جج صاحب کی ہاں ضروری ھو جسکا عورت کے نکاح سے کوئ تعلق نہیں ۔

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