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Sunday, December 5, 2010

Khula’ and issues relating to it.

There are many ways of separation between the spouses (zaujayn). One of these ways is Khula’. Where the husband considers that it is impossible for him to continue the wedlock, he has the right to give divorce. Likewise where the wife considers that it is extremely difficult for her to pull on with the marital tie with her husband, she has the right to get Khula’. However, this is not the only distinction between divorce (talaq) and’ that one is the right of the man and the other is the right of the woman. Rather, there is a basic difference between the two. The divorce (talaq) takes place the moment a man utters some specific words. However the Khula’ does not take place by mere statement of the woman or her demand for Khula’. Rather there is a method for its taking place.
Literal Meaning of Khula’
Literally, the word "Khula’ " means to bring out a thing from another thing. The definition of nikah is to intermingle a thing into the other, to pierce a thing into another, to absorb a thing into another. The Khula’ is opposite to it. Its meaning is otherwise. This word has been made to convey the sense of separation and parting.30
Khil`at is that dress or garment which is put of by an emperor from his own person and bestowed upon any one among his subjects or taxpayer. Thus khil`at is that clothing which is put of by a person from his body. As a separation takes place on account of Khula’ the same has been so termed.
Legality of Khula’
The validity of Khula’ is proved on the authority of both the Holy Qur’an and Sunnah. The Holy Qur’an says:
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.31
30. Sa`di, Abu Habib, Al-Qamus al-Fiqhi lughatan wa istilahan, Karachi, Idarah al-Qur'an wa al-`Ulum al-Islamiyyah, p.120.
31. Al Quran 2:229.
From this verse, two kinds of Khula’ are known. Firstly, any of the spouses (zaujayn) may apprehend that it is difficult to keep the limit of Allah during the wedlock and consequently they part from each other. Secondly, the person vested with authority among the Muslims like a judge (qadi) who considers that the limits of Allah will be broken if separation is not ordered. In such an apprehension the judge may order dissolution of marriage (nikah) on payment of some compensation by the woman to the husband.
In this verse to obtain Khula’ the mention of payment of compensation by the woman is absolute. For detailed injunctions (ahkam) the Sunnah provides guidance. The incident of Thabit bin Qays is mentioned in the Sahih of Imam Bukhari and Sunan of Imam Nisa'i.
The words of the hadith show that two of his wives did not like his countenance as his colour was black and his stature was short. One of his wives, namely, Jamilah bint Abi Salul brought her suit for dissolution of marriage (nikah) in the Court of the Messenger of Allah. After hearing the pleas put forth by her, the Messenger of Allah asked her: Was she prepared to return the garden that had been given to her by Thabit bin Qays. She replied in the affirmative. On that the Messenger of Allah directed her to return the said garden to her husband and directed her husband to accept it and give him a single divorce.32 Similar is the incident of the other wife of Hadrat Thabit bin Qays (Allah’s Pleasure be on him).
Why the woman has not the right of khula` of the same nature as the man has the right of divorce?
To understand this thing it is essential that the basis of nikah is kept in mind which has been termed as Ihsan (a fort) and the man has been termed as Muhsin (One who builds the fort) and the woman has been termed as Muhsinah (the protected one in the fort). It is the man who lays the foundation of the family. It is he who is responsible to pay dower (mahr) to the woman. It is he who is responsible for the food, clothes and shelter and other social needs of the woman. It is he who is to bear the expenses of the maintenance and upbringing of his children. Thus for a family unit he alone is answerable in all manners. So, logically it becomes necessary that he should possess rights in relation to those duties. When he is the Master of the house, he has arranged and put in order everything according to his will and liking.

32. Al-Bukhari, Kit b al-Talaq, Bab al-Khula`, ibid

Those under his care and command must proceed subject to his will and desire. Among other grounds this is also one ground on the basis of which the man has been vested with the right to give divorce (talaq).
Khula’ By Mutual Consent
This is the reason that the process of Khula’ does not become complete by the mere intention, desire or will of the woman. Rather, it has certain circumstances which are mentioned below.
Firstly, there may be a circumstance that a woman demands Khula’ from her husband and the husband immediately gives his Khula’ and makes no demand from her.33
Secondly, there may be a circumstance that a woman demands Khula’ from her husband and the husband also demands some compensation for the upsetting of his marital life and the woman agrees to pay it to her. This compensation cannot exceed the total value of the dower (mahr) of the woman. (see Al-Quran 2/229 and Bukhari and Muslim).
Thirdly, there may be a circumstance that the woman demand Khula’ and the man accepts it willingly. If he demands the dower (mahr) paid by him to her to be returned to him and the woman is willing to do so, the Khula’ may take place.
Khula’ By the Decree of Court
The aforesaid three forms of Khula’ are dependent upon the mutual consent of the parties. Where the Khula’ is not by any one of these three ways and the woman insists that she is to get separation and the man does not agree to it then the woman has a right to lodge a claim for dissolution of marriage (nikah) on the basis of Khula’ before the Court.
At the trial the judge is responsible for two things. Firstly, to examine and consider as to whether there is apprehension of breaking of limits of Allah by any party. Secondly, the judge should hear the stand point of the woman and know the will of the woman. A judge is not expected of anything more. He cannot give a verdict against the stand of the woman.
Where any one of the above two situations are proved, the judge must order separation (Khula’). Where the woman is fulfilling

33. Al-Quran 2:229.

all the conditions of grant of Khula` the judge cannot give any other decision except that of separation (Khula’).
Here a question may arise that if the judge is bound to give a particular kind of decision in a suit for Khula’ then what is the use of judicial proceedings?
The answer is that with regard to Khula’ we have before us a clear question of law. There is no scope for any deviation from the injunctions (ahkam) of Allah and the Messenger of Allah. The only thing which a judge is responsible to see is the question of fact. May be the grievances of the woman be such as may be redressed after the hearing given to by the judge. In such a situation the judge may direct the other side to redress those grievances. The reason is that in the Islamic system of justice it is not the success or failure of either party at the trial. Rather, it is to keep all elements of the society at their proper place for the discharge of their respective functions. Where the judge can remove the grievances of the woman and she is also satisfied with such order there is no reason to cause separation between spouses (zaujayn).
Where after all efforts, sermons, advices, and using all possible means to maintain the family life between the spouses (zaujayn) the woman insists for separation (Khula’) the judge has the power to order the woman to pay back the dower which she had received at the time of Nikah to the husband and then order dissolution of marriage (nikah) on the basis of Khula’. Except this, the judge has no more power in such a case.

After Khula

Khula’ is equal to a single irrevocable divorce (talaq ba'in). A man has no right to revoke it. As the Khula’ is according to the will of the woman. Hence the question of its revocation does not arise. Hence it is considered equal to an irrevocable divorce. However, if the woman agrees to remarry the same man she can with the consent of the man remarry with him.

Dr Shahzad Iqbal Sham
Assistant Prof. Sharia Academy, International Islamic University, Islamabad

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