Although the sacred act of marriage has been given immense importance in Islam, both husband and wife have been given the right to dissolve the marriage if they deem their continued union to be the source of conflicts.
In Pakistan, however, divorce law remains to be one of the most contested branches of Muslim Personal Law, especially when it comes to dissolution of marriage by the process of Khula.[1] The right of dissolution of marriage by the wife through the process of khula was recognized by Pakistani courts as late as in 1959 in Bilqis Fatima vs. Najm-ul Rehman, and even after that, the courts faced a number of instances where they had to decide as to whether this right was absolute or not; one such instance arose in Khurshid bibi case when the court decided on the question of wife’s right of khula without the consent of her husband. Where the secular courts were trying to solve the problems related to Muslim Family Law (MFL), the Federal Shariat Court in Allah Rakha vs. Federation of Pakistan relied on a previous judgment of Supreme Court and stretched its jurisdiction to include the Muslim Personal Law under its domain. This paper aims to focus on the legal framework revolving around khula– from its recognition in the much celebrated Dissolution of Muslim Marriages Act (DMMA), 1939 to its evolution and fortification in the recent judgment delivered by the Federal Shariat Court. It will also discuss the process whereby Federal Shariat Court extended its jurisdiction to bring Muslim Family Law under its realm, and the effects of this islamisation of MPL on khula rights.
To start off with the history of khula rights, there existed a misconception among the public that Muslim women could not dissolute their marriages under Muslim Law. To remedy this state of affairs, the Dissolution of Muslim Marriages Act, 1939, under its Section 2, brought extensive changes in the law. This section provided for dissolution of marriage by the wife through a court decree provided that any of the specified conditions were met. The conditions provided in the Act included cruelty, impotence, non-maintenance by the husband, and a number of other grounds that could be deemed reasonable. The right of khula, however, depended on husband’s consent.[2]
The law has undergone much development thereafter. The very first case that brought massive changes to the concept of khula was Bilqis Fatima vs. Najmul Ikram Qureshi.[3] In that case, the court recognized khula as a wife’s right of divorce. Court reached its conclusion by interpreting verse no.2 of Surah Baqr and the Sunnah of Prophet available on the matter. The court also relied on a number of scholarly works available on the matter including Haquq-uz-Zaujain by Maulana Maudoodi where he dealt extensively with this question by quoting this verse from Quran, “And if you fear that they (spouses) cannot be kept within the limits of Allah, there is no blame on them or what she may give up to become free thereby” (Quran 2:229). Maulana Maudoodi interpreted this verse to suggest that khula was the exclusive right of the wife, but she would have to forgo her consideration of marriage in order to be released.[4] One astonishing feature of Bilqis Fatima judgment was that the court, while interpreting the verses of Quran, referred to equality of rights in divorce among men and women, yet it limited women’s right of divorce by stating that the wife can only get a divorce through khula if the judge deems it reasonable.
Following the Judgment, the Muslim Family Laws Ordinance (MFLO), 1961 was soon introduced. Based on the common law framework, this legislation tried to address some of the issues regarding divorce. The Ordinance gave wife the right to dissolve the marriage as Section 8(2) reads: “where husband or wife wishes to dissolve marriage otherwise than by Talaq”. However, this piece of legislation also remained unclear since no procedure for dissolution was outlined in the MFLO, 1961, except for the procedure of Talaq. The judges, nonetheless, included khula as a procedure for the dissolution of marriage by the wife.[5]
It was not until 1967 when the wife’s right of khula was made parallel to husband’s right of divorce during the judgment of Khurshid Bibi vs. Baboo Muhammad Amin[6], which integrated fiqh into the common law framework. In this case, the courts recognized that Quran was the basis of all the fundamental laws of Islam and it placed husband and wife on an equal footing with regards to their rights against each other.
The court held that the wife did not require the consent of her husband in order to get a khula. It reasoned that the Quran, when read with Sunnah, prescribes that ‘the person in authority, including the Qazi, can order separation by khula even if the husband disagrees’[7].
In Khurshid bibi case, the court interpreted Khula and Talaq as the respective rights of wife and husband, running parallel to each other. The court restated that the judge had the power to grant a decree of khula even if the husband does not give his consent. What is interesting to note here is that even though the right of khula was recognized as wife’s right, nonetheless, she had to satisfy the judges that there was no way both the spouses could live together in harmony.
Even though the Dissolution of Muslim Marriages Act, 1939 and Muslim Family Law Ordinance, 1961 did not specify khula as a judicial process, the courts, nevertheless, treated it as such. The courts made khula and talaq comparable rights, yet they made a procedural distinction between them.[8]
Where the Muslim Family Law was undergoing much developments, the Federal Shariat Court, on the other hand, was trying to bring these laws under its jurisdiction and consequently Islamising them. The court finally succeeded in bringing MFLO, 1961 under its jurisdiction in 2000 while deciding the much famous case of Allah Rakha vs. Federation of Pakistan.[9]
The Federal Shariat Court (FSC) was established in 1979 through a presidential order, and the government declared it a matter of policy that Islamisation of laws would be given the top priority.[10] The FSC, under Article 203B(c), was allowed to adjudicate on laws, including customs and statutes, and to declare them void if they were not in accordance with the injunctions on Holy Quran and Sunnah. However, adjudication on statutes relating to Muslim Family Law was beyond the realm of jurisdiction of the Court.[11]
The first issue pertinent to this matter arose in Gul Hassan Khan vs. Government of Pakistan,[12] where the court set aside a number of provisions of the statutes relating to MFL on the basis that they were repugnant to the injunctions of Islam. The Shariat Appellate Bench, however, in Federation of Pakistan v. Mst. Farishta,[13] discarded this judgment and reasoned that ‘Muslim Family Law’ fell outside the jurisdiction of the Shariat Courts.
This restriction on the FSC to examine MPL was partially taken down in the judgment of Dr. Mehmood-ur-Rehman Faisal v. Government of Pakistan.[14] The court, in this case, held that the interpretation of the term ‘Muslim Personal Law’ must be done in a manner so as to enlarge its scope while keeping all the statue law and codified law out of its meaning. The court made the following observations in the case of Dr. Mehmood-ur-Rehman:
“In our humble view, this aspect of the case needs reconsideration and to that extent the view expressed in Mst. Farishta’s case requires to be reviewed by us. After carefully considering the various provisions of the Constitution in the light of the submissions at the bar, we are of the view that the expression “Muslim Personal Law” used in Article 203-B (c) of the Constitution, while defining “law” did not mean all codified and statute law or provision of a law which exclusively applied to Muslim population of the country as a class.”
According to the court, Muslim Family Law was the personal law of each sect and thus it did not come under the sphere of jurisdiction of FSC. However, the ordinances and statutes that were based on the belief of majority of the population did come under its jurisdiction as it was not MPL in a strict sense.[15]
FSC, later on, relied on the dictum of Dr. Mehmood-ur-Rehman judgment, and examined the provisions of MFLO, 1961 on the touchstone of the injunctions of Islam in Allah Rakha vs. Federation of Pakistan.[16] In this judgment, the court declared Section 4 and 7 of the Ordinance to be void due to the fact that they were repugnant to the Islamic Injunctions. This was the first time in the history of FSC that the court declared the sections of a statute related to MFL to be void; thus enlarging its sphere and bringing the mattes within MFL – including khula rights – under its own jurisdictions consequently Islamising them.
Now that FSC could adjudicate on MFLO, 1961, and the khula rights accordingly, a massive campaign was started by the Ulema whereby they argued that khula was not a wife’s right. They relied on Hanafi Jurisprudence to justify their points, as under the Hanafi law, a wife could only ask for a judicial divorce on one or two grounds. Moreover, these religious groups also substantiated their point by saying that the amendment in the judicial divorce law was made by Mawlana Ashraf Ali Thanawi and others in 1931, and that there was no clear text in Quran and Sunnah that gave women the right to divorce their husbands. Even the decree of Qazi was questioned in situations where the husband did not give his consent.[17]
After the Islamisation of Muslim Family Law in 2000, several petitions were filed in FSC, asking to declare Section 10(4) of the Family Courts Act, 1964 to be void. This section provided that a Qazi/Judge would be obligated to grant khula if the reconciliation during pre-trial proceedings fails. The petitioners sought the FSC to make khula rights subject to the consent of the husband. They also relied on some Fatwas stating that the ‘Qazi has no authority to order dissolution of marriage by way of khula if the husband does not agree to it’.[18] FSC disposed off all these petitions in one case, Saleem Ahmed and others vs. Government of Pakistan, [19] where it reiterated that khula was the right of wife, and the consent of husband was not a condition for the qazi to grant a khula decree. Regarding the point that there was no clear Quranic text or Sunnah that gave women the right of Khula, the court held that it couldn’t declare the provision of any Act to be repugnant to Islamic Injunctions on the basis of Fatwas and views of different ulemas and scholars.
Much to the surprise of religious factions – who were hoping that Islamisation of MFL would lead to the cancellation of khula rights regardless of the husband’s consent – the court refused to declare khula rights void on the basis that there was no clear Quranic text or Hadith that prohibited this right. Even though the court admitted that “diversity in juristic interpretations (Ikhtilaf al-fuqaha) is a well-recognised principle in Islamic jurisprudence and a vital ground for the validity of the schools of law”[20], it nonetheless laid down that an act cannot be declared void unless there is a clear “Nass” in the Holy Quran prohibiting that act. The court relied on several Hadiths where, the Holy Prophet ordered the husbands to ‘divorce’, ‘separate’, or ‘leave’ their wives on the complaint of wives that they could not live with their husbands in harmony. FSC construed these Hadiths to suggest that Holy Prophet, while ordering the husbands to divorce their wives, was acting in his capacity as a Qazi; and thus, judges can grant khula without the consent of husbands.
The women’s right of divorce is a very complex right due to the fact that religious tradition does not make a distinction between the customs and Shari’a. Since customs usually do not allow a woman the right of divorce, it is usually mistakenly believed that the prohibition comes from the Shari’a. Islamisation of MPL not only brought positive changes to the right of khula, but it also made it clear that khula was the exclusive right of wife and the court could execute this right on her behalf even without the consent of her husband. Khula had been placed on equal footings with the right of divorce granted to men.
Even though the court annulled various provisions of the MFLO, 1961 in the judgment of Allah Rakha, it did not declare the right of khula to be void. In fact, the right of khula developed even more after the islamisation of MPL: in 2002, an amendment was made in the Family Courts Act, 2002 whereby judges were required not to investigate the grounds for the dissolution of marriage. Moreover, in a later case of Khalid Mehmood vs. Anees Bibi[21], the court held that the judges could dissolve a marriage even without requiring the wives to pay any compensation. Though this interpretation was overruled in the later case of Ikram Ullah Khan vs. Maliha Khan[22], the courts even then did not question the absolute nature of khula rights and the power of Qazi to grant a khula decree without the consent of the husband.
Since Khurshid Bibi case, the judicial interpretation of khula had been oscillating between common law and fiqh law framework. However, after the Islamisation of MFL, the FSC, in its recent judgment of 2014, not only clarified the right of khula by stating that there was no clear prohibition of khula in the Holy Quran or Sunnah but it also fortified it by maintaining that khula was the absolute right of a wife. And hence, the Islamisation of MFL brought immense positive changes both in the procedure as well as the interpretation of khula.
[1] Muhammad Khalid Masud, “Divorce Laws in Pakistan”, (Maruf.org, 2011), p.196
[2] Paper written by Rashida Muhammad Hussain Patel, available on www.supremecourt.gov.pk, p.3
[3] PLD 1959, Lah. 566
[4] Ibid
[5] Shagufta Omar, “Dissolution of Marriage: Practices, Laws and Islamic Teachings”, Policy Perspective,
Institute of Policy Studies, Vol.4, Jan. – June 2007, No. 1, 91
[6] PLD 1967, SC 97
[7] Ibid
[8] Muhammad Khalid Masud, “Divorce Laws in Pakistan”, (Maruf.org, 2011), p.197
[9] PLD 2000, FSC 1
[10] Federal Shariat Court- Annual Report 2003 (Secretariat of the Law and Justice Commission of Pakistan, 2004), p.11
[11] Ibid
[12] PLD 1980, Peshawar 47
[13] PLD 1981, SC 120
[14] PLD 1994, SC 607
[15] Ibid
[16] PLD 2000, FSC 1
[17] Muhammad Khalid Masud, “Divorce Laws in Pakistan”, (Maruf.org, 2011), p.200
[18] Shagufta Omar, “Dissolution of Marriage: Practices, Laws and Islamic Teachings”, Policy Perspective,
Institute of Policy Studies, Vol.4, Jan. – June 2007, No. 1, 91
[19] PLD 2014, FSC 43
[20] Muhammad Khalid Masud, “Ikhtilaf al-Fuqaha: Diversity in Fiqh as a Social Construction”, Wanted Equality and Justice in the Muslim family, (Musawah, 2009), p.73
[21] PLD 2007, Lah. 626
[22] PLD 2007, Lah 423
The learned author states that the FSC in Allah Rakkah case didn’t declare khul as un-Islamic. The question to ask is whether khul was challenged in that case? Secondly, was khul a statutory law; Thirdly, if the answer to number two is in the negative and khul was a binding precedent under the Constitution, then could the FSC rule against the precedent of the Supreme Court, i.e. the Khurshid Bibi case 1967? Fourthly, the learned author should have also mentioned that the FSC forget about Islamic law arguments in deciding Saleem Ahmad case. It didn’t go to the discord verse (shiqaq verse) of the Qur’an where all Maliki commentators and jurists are unanimous that the consent of the husband is not required in granting khul by the court. The FSC comments amount to a sweeping statement and not a good decision. The learned author also did not discuss the recommendations of the Council and whether these are in itself Islamic or not.