Is A Wife’s Hatred For Her Husband Enough To Be Granted A Right Of Khula?
Under Muslim Personal Law, a wife can release herself from the ties of marriage after payment of the compensation (mahr) to her husband. This is called khula which literally means to “extract something” or to “strip off”. In a legal sense, khula is the right awarded to a wife to seek dissolution of her marriage.
Section 2 of the Dissolution of Muslim Marriages Act 1939 (DMMA) of Pakistan provides that a wife can obtain divorce in case of her husband’s disappearance for four years, husband’s imprisonment for seven years, non-maintenance for two years, failure to perform marital duties, husband’s impotency or insanity, and cruelty by the husband. However, khula is a separate right of a woman which is provided under section 10(4) of the Family Courts Act 1964. It allows women the right of khula if reconciliation fails after returning mahr (dower) to her husband. Section 10(4) states the following:
“In a suit for dissolution of marriage, if reconciliation fails, the Family Court shall immediately pass a decree of dissolution of marriage and, in case of dissolution of marriage through khula, may direct the wife to surrender up to fifty percent of her deferred dower or up to twenty-five percent of her admitted prompt dower to the husband.”
The Quranic verse 2:229 which grants the right of khula to a woman states the following:
“… (While dissolving the marriage tie) It is unlawful for you to take back anything of what you have given them, unless both fear that they cannot keep within God’s bounds. So if ye fear that ye cannot keep within God’s bounds, there is no crime in you both about what she ransoms herself with.”
Accordingly, a woman has a right to terminate the marriage on the basis of khula if she has developed hatred towards her husband and fears that she is unable to perform her marital duties as prescribed by Allah Almighty.
In interpreting the aforementioned Quranic verse and the law of khula, one issue before the courts in Pakistan is to determine the criteria or yardstick by which aversion of a wife towards her husband can be determined.
This issue was addressed in Abdul Rahla v. Mst. Shahida Khan in 1984, where the Supreme Court of Pakistan noted that in order to reach a conclusion on this matter, it should consider the circumstances of a particular case, the incompatibility of temperament between the spouses and any possibilities of the parties living together forever in order to perform their marital duties. And while doing so, the court should consider the fact that Islam neither forces a woman to continue a hateful marriage if she is unwilling to do so nor requires her to produce evidence of facts and circumstances to show the extent of animosity towards her husband in order to satisfy the conscience of the judge. Furthermore, the judgment noted that a judge should bear in mind that the Quran places husband and wife on an equal footing with respect to rights of one against the other. What needs to be noted is that the right to khula of a woman is equivalent to a man’s right to talaaq; the difference between the two rights is that the former is a controlled right and its success depends upon the discretion of the qazi, while the latter is an unconditional right.
The Pakistani judiciary has been faced with similar questions in subsequent suits filed for khula. In 1996, the Supreme Court observed that because the relationship between the spouses is of such an intimate and private nature, there is no fixed standard or any objective criteria by which hatred between the spouses can be determined. Rather the only possible way for the court is to rely upon the wife’s assertion. In 1997, the Supreme Court advanced in its reasoning and noted that prolonged litigation full of allegations and counter-allegations between parties should be considered sufficient to hold that the wife had developed hatred towards her husband and was unwilling to continue the relationship. The same inference was reached again in 1999 in Abdul Ghafoor v. Judge Family Court, where the court amounted prolonged litigation to be a sufficient ground to establish wife’s hatred towards her husband.
Recent case-law has suggested a similar trend. For instance, in 2005 in Naseem Akhtar v. Muhammad Rafiq, the Supreme Court made it very clear that hatred and aversion of a wife towards her husband could not be determined with precision; the mere fact that the wife had brought a suit for dissolution of marriage indicated that she had developed hatred towards her husband. Courts have held that in situations where there are no chances of reconciliation, it is their duty to terminate the marriage on the basis of khula and further observed that matrimonial relations are based on trust and love and not force and hatred. In many instances, Pakistani courts have noted that hatred of a wife is indicated through the narration of her plaint.
An interesting rule to which our courts have arrived pertaining to the right of khula is that this right is available to a woman even when she has not claimed it, provided she does not want to continue the relationship with her husband. For instance, in Muahammad Faisal Khan v. Mst. Sadia, the wife was awarded khula even when she did not claim it because the circumstances of the case indicated that compelling her to reside with her husband would give rise to a hateful union. Similarly, in Shazia Haider v. Gul Islam, the Peshawar High Court awarded khula to the wife even when the word khula was not used by her.
Another rule laid down by the courts is that where husbands have been proven to be at fault, there is no requirement for dissolving a marriage on the basis of khula, rather the marriage is automatically terminated under the Dissolution of Muslim Marriages Act. However, a noteworthy trend is that khula is always invoked as an alternative option so that when the grounds mentioned under the Act cannot be proved, the wife is able to release herself through khula. In most cases, khula is used as a last resort to get out of a hateful marriage, while the initial attempt is always to prove the husband’s fault and retain the amount of dower. In certain cases, however, Pakistani courts have awarded khula to the wife without repayment of dower. This indicates that while khula is normally awarded on the condition of repayment of dower, there can be certain compelling circumstances where it is not necessary. Moreover, the Pakistani judiciary has minimized the benefits and expenses to be returned to the husband, insisting that the monetary repayment is limited to returning the dower that the wife personally received upon marriage. Another interesting observation is that khula is not irrevocable. Pakistani courts have repeatedly held that khula is treated as a single divorce and the husband would be at liberty to remarry his wife again, after solemnization of nikah without intervention by third parties. This conclusion was derived from fiqh literature and reliance upon hedaya.
The most significant and recent judgment on the topic at hand is that of Saleem Ahmed v Government of Pakistan. In this case, section 10(4) of the Family Courts Act 1964 was challenged before the Federal Shariat Court as being inconsistent with Islamic injunctions. The petition, however, was dismissed on grounds that the sacred institution of marriage could not be preserved where the wife had developed hatred towards her husband and was unable to live within the bounds prescribed by Allah. The court reaffirmed the already established principle and resolved the controversy of whether or not the husband’s consent was required for khula. In addition, it emphasized that the principle of khula was based on the notion of reciprocal rights between male and female genders. What is interesting to note in the Saleem Ahmed case is that the Federal Shariat Court did not rely on the opinions of various Islamic jurists, rather it preferred its own reasoning and depended upon the approach of Maqasid-ul-Sharia.
These judicial decisions have suggested that given the fact that the Pakistani judiciary has not determined any fixed yardstick to gauge hatred between the spouses, it has awarded khula to women by relying on the aversion of the wife towards her husband, the depiction of her hatred through narration of the plaint, prolonged litigation and failure of reconciliation attempts. The mere fact that the wife has brought a suit for the dissolution of marriage is sometimes sufficient to establish her hatred towards her husband. After the promulgation of section 10(4) of the Family Courts Act, an alarming number of khula cases were filed. The Council of Islamic Ideology (CII) has recommended that the moment wife has filed a written request for divorce, the husband has an obligation to divorce her within ninety days. The wife, on the other hand, should return the amount of mahr to her husband.
It can be observed that our judges have remained pro-women in their approach towards the law of khula. Contrary to the viewpoints of most jurists, the Pakistani judiciary has resorted to the Sunnah of the Prophet (peace be upon him) and incidents of Barirah and Habibah where khula was awarded to women without the consent of their husbands, while interpreting the Quranic verse 2:229. Islam has emphasized the concept of a happy marriage and reciprocity of rights between male and female genders. By introducing the no-fault based divorce process, Pakistani courts have proved that Islamic law can be rationally applied using principles of public policy, equity and justice. This indeed is a ray of hope and optimism towards the protection of the rights of women and promotion of gender equality in family matters.
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