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Sunday, December 5, 2010

Khula-Family Laws and Judicial Perceptions by Mrs. Rashida Mohammad Hussain Patel


A large number of Ulema even today, refuse to recognize Khula granted by courts
without the consent of the husband as a valid divorce. Confusion is caused by two
parallel and conflicting interpretations of the Islamic Law. On one hand, there is the
statutory law and interpretation by the Superior Courts of Pakistan and on the other, is
the archaic interpretation as preached by the Ulema and supported by their fatwas
(opinion).

PROCEDURE FOR KHULA

Formerly in the case of Khula, women had to face the same stress delay and difficulties
as in cases for dissolution of marriage on other grounds such as cruelty or nonmaintenance.
The husband usually refused to grant Khula to the wife and in order to
defeat this right, the husband claimed huge compensation for Khula, often making false
allegations of having given the wife huge sums in the shape of jewelry and property and
even claiming the property in the name of the wife as belonging to him. This placed a lot
of strain on the judges for such cases required heavy sifting of evidence thus leading to
lengthy procedures.

President General Musharraf has tried to curb this through amendments to the Family
Law Courts Act dated 1st of October, 2002. Presently in cases of Khula, the procedure
has been shortened and simplified. When the wife files a case for dissolution of
marriage, the court issues notice to the opposite party being the husband. If he fails to
appear after the due process of posting and publication, the court can proceed with the
case ex-parte. In case where the husband or his representative appear, he is required to
file a written statement following which the court has to fix a date for pre-trial
proceedings for reconciliation.
The amendments require that “the family court in a suit for dissolution of
marriage, if reconciliation fails, shall pass Decree for dissolution of
marriage forthwith and shall restore to the husband the mehr received by
the wife in consideration of the marriage at the time of marriage.”
This change in the procedural law has brought much needed relief to suffering wives
who had to bear insurmountable delays or long drawn out legal battles for the
enforcement of their right of Khula.
The consequences of Khula differ from that of Talaq by the husband since following a
Khula,

the ex-husband and the ex-wife can remarry without the necessity of any
intervening marriage to another person by the wife, as required for under the doctrine of
Halala which is recognized by most jurists.


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