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 Dawah 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).
Nevertheless, Islam critics point out that Khul' is in many ways an injustice towards the women, and it is not the counter part of husband's right of giving direct Talaq, while:
- Khul' is not the 'right' of a woman, but it is still the 'right' of husband to either grant it or to deny it.
- And no Islamic Curt could compel the husband to divorce her if he doesn't want to divorce her.
- In Khul', a woman has to offer the 'ransom money' to her husband for her freedom.
- If he accepts the ransom money offer, then he could divorce the wife and she gets her freedom. But if he rejects the money offer, then she should stay with him, and no court could compel him to divorce her.
- Even if the husband is abusive, and he beats her brutally (even with bruises on her body), still she could not get her freedom through Khul'.
- Only in case if husband breaks any part of her body (like bones), then she gets the right to go to the court, and get her freedom. But she still has to pay the 'ransom money' to her husband, even in case if he broke her body part.
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 get her freedom 'without paying' any 'ransom money'.
- But Faskh could 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, Islam critics point out that Islamic Faskh is also an injustice towards the woman, while even in the above mentioned special cases, Islam still compels her to wait for several years to get her freedom and she suffers unilaterally during all this period.
Quranic Verse about the Khul'
A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms, or separate with kindness. It is not lawful for you, (Men), to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she gives something for her freedom ( Arabic word:افْتَدَتْ which means Ransom money).
If the husband is abusive and beats her brutally (even with bruises), still she has no right to get her freedom
Islam critics point out that following tradition, which shows that even brutal beating (even with bruises) is not enough that she could get her freedom through Khul' or through any Islamic court.
When `AbdurRahman heard that his wife had gone to the Prophet, he came with his two sons from another wife.
She said, "By Allah! I have done no wrong to him but he is impotent and is as useless to me as this," holding and showing the fringe of her garment,
`Abdur-Rahman said, "By Allah, O Allah's Messenger! She has told a lie! I am very strong and can satisfy her but she is disobedient and wants to go back to (her first husband) Rifa`a (by doing Halala with me).
" Allah's Messenger said, to her, "If that is your intention (i.e. to do Halala), then know that it is unlawful for you to remarry Rifa`a unless `Abdur-Rahman has had sexual intercourse with you."
Then the Prophet saw two boys with `Abdur- Rahman and asked (him), "Are these your sons?" On that `AbdurRahman said, "Yes." The Prophet said, "You claim what you claim (i.e.. that he is impotent)? But by Allah, these boys resemble him as a crow resembles a crow,"Therefore, this tradition tells:
- This woman was extremely unsatisfied with her husband, and didn’t love him, and wanted to get rid of him.
- Since Khul’ is not the right of woman in Islam, but depends only upon the will of man, that is why she was unable to get rid of him despite having a strong desire for her freedom.
- And this 2nd husband used to beat her brutally till she got bruises all over her body. But despite this beating, he didn’t give her divorce or freedom through Khul’.
- And Muhammad didn’t prohibit that man from beating her, but made it a part of Islamic Sharia by keeping quiet upon it (known as Hadith-e-Taqriri).
- And Muhammad also didn’t give the right to the woman to take her freedom through Khul’ after such beating.
Even if husband breaks any part of the wife, still she has to pay the ransom money for her freedom
Habibah daughter of Sahl was the wife of Thabit ibn Qays Shimmas. He beat her and broke some of her part. So she came to the Prophet after morning, and complained to him against her husband. The Prophet called on Thabit ibn Qays and said (to him): Take a part of her property and separate yourself from her. He asked: Is that right, Messenger of Allah? He said: Yes. He said: I have given her two gardens of mine as a dower, and they are already in her possession. The Prophet said: Take them (as the ransom money) and separate yourself from her.
Sheikh Albani declared this Hadith to be “Sahih” (authentic)Critics of islam point out:
- She could not get the right to have divorce automatically, even if he beats her so brutally that any part of her body breaks (like bones etc.), but she still has to pay the ransom money to get rid of such abusive husband.
- As compared to Islam, in the Western world, she will not only get the right to have divorce automatically from such an abusive husband, but she will also get the compensation money from the husband for the injury.
A woman could not get her freedom through Khul’ even if the man is infertile:
All 4 Sunni Fiqh Imams agree that the wife could not take divorce if the man is infertile.
Islam critics point out that on the other hand, if woman is infertile, then according to Islam, he could right away divorce her as Umar Ibn Khattab divorced his wife for this fault[1].
Women who seek their freedom 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 the ransom money, then such a women was declared to be a hypocrite.
The Prophet said: "The women who seek a Khul are hypocrites."
Grade: Sahih (Darussalam)The Messenger of Allah said: "Whichever woman seeks a Khul from her husband without harm, then the scent of Paradise will be unlawful for her."
Grade: Sahih (Darussalam)Islam critics point out that 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 the unilateral women's sufferings:
In 'Faskh' (i.e. dissolution of marriage):
- A women gets the right to go to the court, and get her freedom 'without paying' any 'ransom money'.
- But Faskh could 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, Islam critics point out that Islamic Faskh is also an injustice towards the woman, while even in the above mentioned special cases, Islam still compels her to wait for several years to get her freedom and she suffers unilaterally during all this period.
In order to understand it, let us see the example of 'Dissolution of Muslim Marriages Act, 1939'. This was the law which was compiled by Muslims Scholars of Indian subcontinent, and later became the official law of Pakistan and Bangladesh, and Personal Muslim law in India.
Under the act a woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds,[1]
(i) that the whereabouts of the husband have not been known for a period of four years ;
(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years ;
(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards ;
(iv) that the husband has failed to perform, without reasonable cause his marital obligations for a period of three years ; continues to be so:
(v) that the husband was impotent at the time of the marriage and
(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease ;
(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years : Provided that the marriage has not been consummated (i.e. if the husband has slept with her before she becomes 18 years old, then she will loose her right to get divorce) ;Islam critics point out that:
- Although woman gets the right to have divorce in these special cases, but 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 movement against the rulings of Khul' and Faskh rulings in Pakistan and Bangladesh
Right after the independence of Pakistan in 1947, women's struggle started against the Khul' and Faskh rulings. And they also got success when the Supreme Court of Pakistan sided with the women and allowed them to take divorce through Khul' and even without paying the ransom money. In 1971, when East Pakistan became Bangladesh, then they also followed that modified Khul' ruling by Supreme Court of Pakistan.
Also women struggle succeeded in reducing the time period in the Faskh rulings in favour of women.
Nevertheless, it became a cause of conflict between the Supreme Court of Pakistan, and the Islamic Scholars, while the later consider this new Khul' law against the Quran and Sunnah.
For details, please read these Study 1[2] and Study 2[3]. The abstract from study 2 is as under:
References
- ↑ Umar Ibn Khattab divorced his wife due to the fault of her being infertile.[1]
- ↑ Judicial Law-Making: An Analysis of Case Law on Khul‘ in Pakistan
- ↑ Right of Women to Divorce: Adjudication of Redemption (Khul') In Islamic Law and Pakistani Law, A Critical Analysis of the Orthodox Islamic Scholars and Recommendations of Pakistani Courts On The Basis of Legal Opinion (Ijtehad)[2]