Khula: A Gateway Of Escape For Women
Most of us, including myself, before penetrating into this issue, may be heedless about a women’s right to khula (khulʿ in Arabic) in Islam. Marriage is not necessarily considered to be a holy order among Muslims, rather more of a civil contract with “spiritual and moral” connotation. Therefore, legally, a marriage, like other contracts, can be dissolved for “good cause”. Under Shariah Law, khula is a wife’s right to separate or seek divorce from her husband. The term in Arabic has been defined as “removing the union of marriage in exchange for financial settlement” (Ibn Humam, Fath al-Qadir, 3/1999). It has also been defined in cases including Saleem Ahmed v Government of Pakistan PLD 2014 FSC 43, where the following has been established:
“The word khula literally means ‘to put off’… It signifies as [a] conditional situation on the part of the wife, entered into for the purpose of dissolving the marital tie at her instance, in lieu of a compensation paid or agreed to be paid by her to the husband out of her property.”
With regards to the above-mentioned context of compensation, if a woman commences the khula in her marriage, she is supposed to reimburse the mehr (dower, if any) back to the husband which was given at the time of nikah, unless of course the husband willingly wishes the wife to retain the mehr. Contrastingly, if the husband initiates the divorce, it is utterly unsanctioned for him to demand any payment or recompense of the mehr or any other gifts he might have given to his wife during their marriage.
There is no doubt that divorce is considered unpleasant in the eyes of Allah Almighty, as also narrated by Abdullah ibn Umar that the Prophet (peace be upon him) said, “Of all the lawful acts the most detestable to Allah is divorce.” However, it is nonetheless allowed in situations where things do not work out between the husband and the wife. Those situations are enacted in the Dissolution of Marriage Act 1939 which provides ten grounds for the dissolution of marriage:
i. Disappearance of the husband for four years;
ii. Husband’s failure to provide maintenance for two years;
iii. Husband’s taking of an additional wife without the consent of the wife as required under the Muslim Family Laws Ordinance (MFLO) 1961;
iv. Husband’s imprisonment for seven or more years;
v. Husband’s failure to perform his marital obligations for three years;
vi. Impotency of the husband at the time of marriage and its continuity;
vii. Insanity of husband for two years or suffering from leprosy or a virulent venereal disease;
viii. Repudiation of marriage by a minor upon attaining the age of puberty;
ix. Cruel treatment of the wife by the husband (includes mental cruelty, association with women of ill repute or leading an infamous life, forcing a wife to live an immoral life, interference with wife’s property, obstruction in her observation of religious profession or practice, and failure to treat wives equitably); and
x. Any other ground recognized as valid under Muslim law.
In today’s world, it would seem dull to say that women cannot be equal to men. Women, through their qualifications and achievements, have proven that they are no less than anyone else. The Quaran also teaches that “women have rights against men similar to those over them” (Al-Baqra Verse No: 228). This verse can be interpreted in a way which gives a woman the right of divorce as is available to men. Such right, if accessed by women, may be a delegated right of divorce or khula.
The foremost prerequisite for a wife to obtain khula is that the said right, which is called talaq-e-tafweez (delegated power of divorce), should not have been taken away in paragraph 18 of the nikahnama (marriage contract form). If not delegated, this is exclusively a right available to the husband. However, the law cannot be so unjust. It still bestows women with an alternative method of exercising the right of khula. For this reason, the 2002 amendment to s.10(4) of the Family Courts Act 1964 provides a summary of the procedure in khula cases and declares that in circumstances where reconciliation fails, the court is obliged to pass a decree for dissolution of marriage and restore to the husband the haq mehr (dower) received by the wife in consideration of marriage.
Thus, although there is an element of perplexity as to how a woman can avail this right of khula, according to the Holy Quran, authentic Hadith and Shariah Law, khula may be obtained by mutual agreement between the husband and wife, or by judicial decree. Khula by mutual consent transpires when the husband pronounces talaq at the wife’s request when she no longer wishes to remain in the marriage with him. Conversely, khula by judicial decree comes into being when the husband is not willing to grant her a divorce. If so happens, the wife has a standing in Shariah to approach the court and present her divorce case to the judge. The judge would then convoke the husband and supplicate him to assert a divorce upon his wife and the marriage contract. If the husband still refuses, the judge has the right to declare a divorce between the two.
Similarly, in Mst. Balqis Fatima v Najm-ul-Ikram Qureshi PLD 1959 Lahore 566, the Lahore High Court interpreted verse 2:229 of the Quran to rule that a wife could be granted khula without the husband’s consent and that the state (represented by the judges) was entrusted with the command to regulate the nullification of the marriage.
Therefore, keeping in view the notion of khula, it promotes equality between men and women by providing women the rights that are similar to those of men. Thus, khula is not only a woman’s legal right but is also a religious right and can be used as a gateway of escape, if and when needed.
[Update: In light of a recent judgment, courts in khula cases can require the wife to return only 25% of the dower amount (2016 CLC Note 103). Another judgment holds that if a wife claims khula due to the fault of the husband, then she need not return the dower.]
[Update: Through the Family Courts (Amendment) Act 2015, an amendment was introduced in section 10 of the Family Court Act 1964, whereby a woman had to leave 50% of her deferred dower and 25% of prompt dower. So it became mandatory for women to relinquish their dower if they wanted to opt for khula. Practically, the courts also implemented it in letter and spirit. This was seen to be discriminatory and discouraging for women pursuing their right to khula.]
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