Khula: Difference between revisions

Talaq (طلاق) (divorce) is the right of a man to end his marriage in Islamic law, which is permitted for any reason. According to traditional fiqh (Islamic jurisprudence), women do not share this right. Although modern Islamic feminists have challenged this inequality, it remains the position of the major madhaahab (schools of jurisprudence) of Islamic law. A woman who wishes to divorce her husband must instead obtain permission "through the (Islamic) court" by means of a process known as khula or Khul' (خلع)^{[1] [2]}.

Khul' is subject to several conditions and restrictions not applied to talaq.

• Khul' is not considered a right, and a woman's husband has the right to either grant or deny it.
• With the exception of a few specific circumstances, traditional Shari'ah does not allow Islamic courts to compel a husband to grant his wife's wish to divorce.
• Khul' requires that a woman financially compensate her husband in order to divorce him. If the husband accepts her offer, the divorce may proceed; if he does not accept, the woman must remain in the marriage.
• While physical abuse is generally not accepted as grounds to override the husband's veto, an exception exists for cases where the husband inflicts extremely serious injuries, such as broken bones. In such cases, a court can force the dissolution of the marriage over the husband's objection, though the woman must still compensate the husband financially.

Khul' is sometimes confused with the 'Faskh' (فسخ) of Nikah (dissolution of marriage).

In 'Faskh' (i.e. dissolution of marriage):

• A woman may obtain a dissolution of her marriage without the requirement to offer financial compensation.
• Faskh can take place only under a small number of special circumstances, such as a husband's failure to financially support his wife, mental illness, or his whereabouts being unknown. In these cases, the woman is still compelled to wait for several years before the dissolution of the marriage.

Quranic Verse about the Khul'

Physical abuse leaving bruises

According to Sahih Bukhari, even a brutal beating resulting in bruises is not enough to dissolve a marriage through Khul' or in any other way:

Physical abuse resulting in broken bones

Husband's infertility

All four schools of Sunni fiqh agree that the wife cannot be granted a divorce on the grounds that her husband is infertile.

On the other hand, if woman is infertile, Islamic law stipulates that a husband may immediately divorce her, as in the case of Umar Ibn Khattab^[3].

Character of women who seek divorce

Some hadith report that women who seek khul' are hypocrites and will not enter paradise.

No hadith attributes similar charges to men who seek divorce.

Influence of Islamic law on modern legislation

The 'Dissolution of Muslim Marriages Act, 1939' shows influence from the ideas of Faskh. The law was written by Muslim scholars of the Indian subcontinent and later became official legislation in Pakistan and Bangladesh, as well as personal/family law for Muslims in India.

Women's movement against the rulings of Khul' and Faskh rulings in Pakistan and Bangladesh

Women's protests against Khul' and Faskh regulations began shortly after Pakistan gained independence from the British Crown in 1947. The Supreme Court of Pakistan ruled that women may divorce their husbands through Khul' without offering their husbands financial compensation. The same rule took effect in Bangladesh after it gained its independence in 1971.^[4] During this period, the wait times prescribed in Faskh regulations were also reduced.

The Supreme Court of Pakistan's ruling had been subject to criticism from Islamic scholars, who consider it incompatible with the Qur'an and Sunnah^[5].

References