Qn5: Explain the role of Khula in traditional Hanafl Law, in traditional Maliki Law and in the present law of Egypt. Under Islamic law, divorce can take place in three forms, namely by talaq (repudiation of wife by husband), by khula (by mutual consent) or by faskh (decree of the court dissolving the marriage). It can be said that If Talaq is defined as the right specifically granted to men to divorce their wifes , khula can be said to be its equal for women as it gives them the right to raise it when seeking for a divorce, and even if the men do not accept it, they can refer to the Qadi for help to nforce it.
Khula operates the same way as marriage is concluded in Islam, being by way of offer and acceptance, except this time it is usually the wife that makes the offer of divorce and the husband has a choice of whether to accept it or not. Like how a dowry must be gifted to the bride upon marriage, the wife has to offer some kind of compensation to the husband, as consideration for the husband releasing her from the marriage. Similarly, as in contract law, the wife has the right to revoke this offer as long as before acceptance is made.
However this is not the case for a husband relying on this form of divorce, his offer will be to repudiate the wife in return for a certain amount of compensation and this offer of his is not revocable and remains effective until rejected. The four schools of Sunni Law though divided as to how the Khula doctrine may be performed all agrees that generally under the doctrince of Khula, that in order for the wife to release herself from the marriage, she has to give up some property in return as consideration of the husband granting her a khula, the nly exception being that she was subjected to abuse and threats.
The value of the compensation is not to exceed the amount of dower that was given to her initially. This is reflected in a hadith where a woman approach the Prophet and told him in return for divorce, she was willing to return more than what was given to her, but the prophet replied, You should not return more than that. ” The compensation can be anything that is of value but Shan law holds that is has to be monetary. Nonetheless, once accepted by the husband, the marriage itself is dissolved and operates as a ingle talaq but it is immediately irrevocable.
The only way of reconciling would be to remarry. As to when Khul can be given, it would be fair to say that the same conditions for talaq are to apply in that the wife has to be in the state of purity. The Hanafis holds to this but the Malikis say this is not necessary as the woman has willingly obtained Khul in consideration of payment, therefore her right to do so even when menstruating. Similarly the Hanbalis is of the same view that since Khula comes about by mutual agreement of the two married partners, there is no harm ven if it is given during menstruation.
The very first form of Khula was narrated in the hadith by Imam Bukhari whereby a woman approached the Holy prophet and said that though she shared not animosity with her husband, she wish to separate from him because she feared she could not perform her functions as a wife. The prophet asked if she was willing to give her husband the garden he gave to her as dower and when she agreed, the prophet asked the husband to take back his garden and divorced her at once.
From this hadith, we can infer that Khula need not only ake in the form of mutual consent but can also be granted by third parties like the refuses to accept the wife’s offer, she can go to the Qadi and demand a formal separation and the Qadi upon satisfaction of her reasoning for wanting the divorce, may call upon the husband to repudiate her. But where the husband still refuses to do so, the Qadi can himself pronounce a divorce which will operate as valid repudiation and the husband will be liable for the whole amount of the deferred Mahr.
However the granting of Khula by the Qadi is only granted in extreme ircumstances, the Prophet warned the women who asked for Khula without any reasonable ground with: ‘If any woman asks for divorce from her husband without any specific reason, the fragrance of paradise will be unlawful to her” The following are the grounds where divorce may be granted by the Qadi: 1 . Habitual ill-treatment of the wife 2. Non-fufillment of the terms of the marriage contract 3. Insanity 4. Incurable incompetency 5.
Abandoning the marital home without making provision for the wife 6. Any other similar causes which in the Qadi’s opinion Justifies a divorce As can be seen, where Khula is not consented by the husband, the wife has an alternative route to the court. When the matter is brought to court, if it falls under Faskh, she will not owe the husband any compensation but otherwise if she has to do it by way of Judicial Khula, the court will require her to return the compensation to the husband.
Even so, Khula or Faskh was never easily applied previously as in the traditional Hanafl law. The Hanafl law has the most restrictive view towards women seeking for dissolution; the only ground acknowledged was if the husband proves unable to consummate. Thus nce consummated, she loses her request for dissolution even where the husband fails to support her, abuses her, or is imprisoned for life. The rest of the schools are more open in the sense that they recognized that a divorce may be granted upon other grounds such as those stated above.
The Maliki law is the most liberal in that it gives the women the right to obtain a divorce on the ground of dhahar, being harm or prejudice. If she is unable to prove that continuing to be with her husband is causing her harm but insist that a discord existed between her and her husband, the Maliki court will reconstruct itself into an arbitration tribunal. Two arbitrators will be appointed, one being a representative from the wife’s family and the other from the husband’s.
Their mission together with the Qadi would be to reconcile the spouses but if unsuccessful, they will hear evidences from both side and determine who is primarily responsible. If it is the husband, they will pronounce an irrevocable talaq on his behalf and if it the wife, they will pronounce a repudiation in return for the giving of compensation by the wife to the husband. Over the then years reforms have een introduced to extend the rights of wife to divorce through the inspiration of the Maliki law.
In India, the Dissolution of Muslim Marriage Act 1939 extended the earlier mentioned grounds for divorce to include other grounds such as where the husband has been missing for four years, the husband having been imprisoned of seven years or more, the husband was impotent at the time of marriage and repudiation by wife who married before she was 15 before attaining the age of 18 and provided the marriage had not been consummated.
In Pakistan, The Muslim Family Law Ordinance akes a second wife without complying with the provision of the Ordinance. Soon later, in the case of Khurshid Bibi v Mohammed Amen, the Supreme Court of Pakistan recognized another form of dissolution by recognising the role of Judicial Khula that now allows wives in Pakistan to petition for it on the grounds that the marriage had broken down irretrievably but provided the court was satisfied that the parties could no longer cohabit together within the limits prescribed by Allah.
However, more recently in the case of Naseem Aktar V Mohammad Raflq, where the argument was hat the wife failed to prove the alleged hatred was dismissed by the Apex court and held that the fact she applied for dissolution was sufficient evidence of hatred and aversion, thereby not requiring to prove that it was impossible to cohabit with her husband and the court must grant a Khula.
In addition, in a more liberal approach in Aurangzeb v Gulnaz (actually goes against the whole concept of Khula), the court held that even if the wife refused to return the dower, the marriage would be dissolved once the Family Court decided that the parties could not remain together. Similarly he law of divorce in Egypt had been reformed to recognize Judicial Khula in the event where mutual consent cannot be obtain, the wife can bring the matter to court and the wedding will be dissolved upon her returning her dower to the husband.
However before the divorce is granted, the court must attempt to bring about a reconciliation within the next three months but after which the wife still formally declares that she cannot live with her husband within the bounds prescribed by Allah, the marriage will be dissolved and the Judge will have no discretion to refuse the divorce.
