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Khula: Difference between revisions
→If the husband is abusive and beats her brutally (even with bruises), still she has no right to get her freedom
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#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. | #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’. | #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 Hadith-e-Taqriri). | #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 | #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 | ==Even if husband breaks any bone of wife, she still must pay the ransom money for her freedom== | ||
{{Quote|{{Bukhari||13|54|in-book}}|Narrated Aisha, Ummul Mu'minin: | {{Quote|{{Bukhari||13|54|in-book}}|Narrated Aisha, Ummul Mu'minin: | ||
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'''. | 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)}} | Sheikh Albani declared this Hadith to be “Sahih” (authentic)}} | ||
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* | *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 | ==A woman could not get her marriage dissolved through Khul’ even if the man is infertile:== | ||
All 4 Sunni | All 4 Sunni schools of Sunni [[fiqh]] agree that the wife cannot be granted a divorce on the grounds that her husband is infertile. | ||
{{Quote|[https://web.archive.org/web/20211011105923/https://islamqa.info/en/answers/21592/ruling-on-asking-for-a-divorce-from-a-husband-who-has-some-medical-problems Fatwa Website Islam Question and Answer]|With regard to the man’s sterility, i.e., his inability to father children, this is not counted as a fault that would necessitate annulment of the marriage, according to the majority of scholars, apart from the view of al-Hasan al-Basri, and Shaykh al-Islam Ibn Taymiyah}} | {{Quote|[https://web.archive.org/web/20211011105923/https://islamqa.info/en/answers/21592/ruling-on-asking-for-a-divorce-from-a-husband-who-has-some-medical-problems Fatwa Website Islam Question and Answer]|With regard to the man’s sterility, i.e., his inability to father children, this is not counted as a fault that would necessitate annulment of the marriage, according to the majority of scholars, apart from the view of al-Hasan al-Basri, and Shaykh al-Islam Ibn Taymiyah}} | ||
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<ref>Umar Ibn Khattab divorced his wife due to the fault of her being infertile.[https://web.archive.org/web/20211010131320/https://www.islamweb.org/en/fatwa/93808/the-status-of-the-barren-women-in-islam]</ref>. | |||
==Women who seek | ==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 | 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: | ||
{{Quote|{{Al Tirmidhi||2|11|1186}}|عَنْ ثَوْبَانَ، عَنِ النَّبِيِّ صلى الله عليه وسلم قَالَ " الْمُخْتَلِعَاتُ هُنَّ الْمُنَافِقَاتُ " | {{Quote|{{Al Tirmidhi||2|11|1186}}|عَنْ ثَوْبَانَ، عَنِ النَّبِيِّ صلى الله عليه وسلم قَالَ " الْمُخْتَلِعَاتُ هُنَّ الْمُنَافِقَاتُ " | ||
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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." | 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)}} | 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 | ==Faskh فسخ (i.e. dissolution of marriage), and unilateral burden on women in Islamic laq:== | ||
In 'Faskh' (i.e. dissolution of marriage): | In 'Faskh' (i.e. dissolution or annulment of marriage): | ||
*A women gets the right to go to the court, and get her | *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, | *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 [https://en.wikipedia.org/wiki/Dissolution_of_Muslim_Marriages_Act,_1939 '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. | |||
{{Quote|[https://en.wikipedia.org/wiki/Dissolution_of_Muslim_Marriages_Act,_1939 Dissolution of Muslim Marriages Act, 1939]|'''Grounds for divorce''' | {{Quote|[https://en.wikipedia.org/wiki/Dissolution_of_Muslim_Marriages_Act,_1939 Dissolution of Muslim Marriages Act, 1939]|'''Grounds for divorce''' | ||
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(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'') ;}} | (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 woman gets the right to have divorce in these special cases, | *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. | *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== | ==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. | Right after the independence of Pakistan 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. | ||
Also women struggle succeeded in reducing the time period in the Faskh rulings in | 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'an]]<nowiki/>and [[Sunnah]]. | |||
For details, please read these Study 1<ref>Judicial Law-Making: An Analysis of Case Law on Khul‘ in [https://www.iiu.edu.pk/wp-content/uploads/downloads/journals/ilr/volume1/num-1/Article_1_Vol1_1_010817.pdf Pakistan]</ref> and Study 2<ref>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)[https://www.researchgate.net/publication/281634445_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]</ref>. The abstract from study 2 is as under: | For details, please read these Study 1<ref>Judicial Law-Making: An Analysis of Case Law on Khul‘ in [https://www.iiu.edu.pk/wp-content/uploads/downloads/journals/ilr/volume1/num-1/Article_1_Vol1_1_010817.pdf Pakistan]</ref> and Study 2<ref>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)[https://www.researchgate.net/publication/281634445_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]</ref>. The abstract from study 2 is as under: | ||