Khula

Talaq (طلاق) (meaning divorce) is the right of only men in Islam. If a man dislikes the wife or the marriage, he can divorce her without any reason; yet if a woman dislikes her husband, she cannot divorce him according to traditional Fiqh (Islamic Jurisprudence). Although modern Islamic feminists have challenged and criticized these laws, they remain the Islamic positions of the major madhaahab (school of jurisprudence) of Islamic law. Despite this disparity, some Islamic advocates such as scholars and du'aah claim that Islam is not 'unjust' to women, and counter that woman can also obtain separation from her husband 'through the (Islamic) court', by means of an Islamic legal device known as Khul' (خلع)^{[1] [2]}.

Despite these Islamic claims, Khul' is in many ways not the equivalent of the talaq for men:

• Khul' is not the 'right' of a woman, but it is still the 'right' of husband to either grant it or to deny it.
• No Islamic Court operating on traditional Shari'ah (Islamic Law) could compel the husband to divorce her if he doesn't want to divorce her (except in a very few special circumstances).
• In Khul', a woman has to offer money to her husband in exchange for the dissolution of the marriage.
• If he accepts the money offered, the dissolution of the marriage may proceed. But if he rejects the money on offer, then she must stay with him, and no traditional shari'ah court could compel him to divorce her.
• Even if the husband is abusive, and he beats her brutally (even leaving bruises on her body), she still cannot get the marriage dissolved through Khul' according to the traditional rulings of shari'ah if the husband does not agree to it.
• Only in the case that her husband causes grievous injury such as breaking her bones does the woman get the right to go to the court in order to forcefully dissolve the marriage. Yet she still has to pay the ransom money to her husband, even in the case that he broke her bones.

Moreover, Khul' is often mixed up with the 'Faskh' (فسخ) of Nikah (i.e. dissolution of marriage), although both of them are two different things.

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

• A women gets the right to go to the court, and obtain the dissolution of her marriage 'without paying' any 'ransom money'.
• Faskh can take place only in very few special cases (like impotency, or if he doesn't pay her the maintenance money, or if he has became insane, or if his whereabouts are not known).
• Nevertheless, even in the above mentioned special cases, traditional Islamic law still compels her to wait for several years to get the marriage dissolved and makes no allowances for her needs or suffering during this period of time.

Quranic Verse about the Khul'

Even if the Husband Beats Her Leaving Bruises, the Wife Still Has No Right to a Forced Dissolution of the Marriage

According to this tradition of the prophet, even a brutal beating (resulting in bruises) is not enough to dissolve a marriage through Khul' or in any other way through any Islamic court:

According to this hadith:

1. This woman was extremely unsatisfied with her husband, and didn’t love him, and wanted to get rid of him.
2. Since Khul’ is not the right of the woman, but depends only upon the will of the man, she was unable to get rid of him despite having a strong desire for the dissolution of the marriage.
3. This 2nd husband beats her brutally and as a result she has bruises all over her body. But despite this beating, Muhammd didn’t grant her a divorce through Khul’.
4. Muhammad didn’t prohibit that man from beating her, but made it a part of Islamic Sharia by keeping quiet upon it (known as a hadith taqriri حديث تقريريin Arabic or in Persian Hadith-e-Taqriri).
5. Muhammad also didn’t give the right to the woman to leave her husband through Khul’ after such a beating.

Even if husband breaks any of the wife's bones, she still must pay the ransom money for the Khul'

It should be noted here that she cannot get the right to have a divorce automatically, even if he beats her so brutally that any of her bones break, and she still has to pay the ransom money to get rid of such an abusive husband. As compared to Islamic law, under modern law in secular countries, women not only get the right to have divorce automatically from such an abusive husband, but she will also usually be granted compensation money from the husband by the court, and the husband will usually face some type of criminal charge for any physical harm inflicted upon her.

A woman cannot get her marriage dissolved through Khul’ even if the man is infertile:

All 4 Sunni 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, then according to Islamic law, he can immediately divorce her as Umar Ibn Khattab divorced his wife for this reason^[3].

Women who seek marriage dissolution through Khul’ are hypocrites & will not enter the paradise

If a woman does not simply like her husband, and seeks to get her freedom by using khul', then such a women was declared to be a hypocrite in these hadiths:

As compared to the woman, if a husband divorces his wife while he dislikes her or without any harm, then he will not become a hypocrite, and he will not get a problem in entering the paradise for this same action.

Faskh فسخ (i.e. dissolution of marriage), and unilateral burden on women in Islamic law:

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

• A women gets the right to go to the court, and get her marriage dissolved without paying any 'ransom money'.
• Faskh can take place only in very few special cases (like impotency, or if he doesn't pay her the maintenance money, or if he has became insane, or if his whereabouts are not known).
• Nevertheless, Islamic Faskh is also unequal towards the woman, since even in the above mentioned special cases, Islam still compels her to wait for several years to get her freedom and she bears the burden in all these cases with no consideration from the Islamic court of her wellbeing.

As a case of study, the 'Dissolution of Muslim Marriages Act, 1939' may be studied for its relationship to these laws. This was a law which was compiled by Muslims Scholars of Indian subcontinent, and later became the official law of Pakistan and Bangladesh, and Personal for Muslim in India.

It is noteworthy that:

• Although the woman gets the right to have divorce in these special cases, the duration of process is extremely long, and she has to suffer this whole period unilaterally.
• Moreover, as compared to the women, the husbands are allowed to 'immediately' divorce their wives if she is infertile, or she becomes insane, or if she is suffering from leprosy, or she does not respond to husband's call for marital obligation etc.

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

Right after the independence of Pakistan from the United Kingdom in 1947, women's struggle started against the Khul' and Faskh rulings in Pakistan. The Supreme Court of Pakistan sided with the rights of women and allowed them to take divorce through Khul' and even without paying the ransom money. In 1971, when East Pakistan gained independence and became Bangladesh, they then followed that modification Khul' as had been ruled by the Supreme Court of Pakistan.^[4]

Also during this period the women's rights struggle succeeded in reducing the time period in the Faskh rulings in favor of women.

Despite these gains, the issue later became a cause of conflict between the Supreme Court of Pakistan, and the Islamic scholars, with the later considering this new Khul' law against the Qur'anand Sunnah^[5].

References