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.
- 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 with 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 consent.
- Only in the case that her husband causes grievous injury such as breaking her bones, does she get the right to go to the court in order to dissolve the marriage. Yet she still has to pay the 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 get her freedom '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, while 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'
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
According to this tradition of the prophet, even a brutal beating (even with bruises) is not enough to dissolve a marriage through Khul' or in any other way 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.
" 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"According to this hadith:
- 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 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.
- 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’.
- 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).
- 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 bone of wife, she still must 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)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 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 could not 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:
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)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 laq:
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.
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) ;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
- ↑ Women in Islamic Law: Examining Five Prevalent Myths
- ↑ Yaqeen Institute, "Can Muslim women divorce?", YouTube, 17 December 2019, https://www.youtube.com/watch?v=OY8KtRQWzrg.
- ↑ 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]