Khula

Khula (Arabic: خلع‎‎) is the right of a woman to seek a divorce from her husband in Islam , by waiving off or returning her presents( MEHR ) that she received from her husband.[1] Based on traditional fiqh, and referenced in the Quran and hadith, khula allows a woman to initiate a divorce through the mutual consent of the husband or a judicial decree. However, differing interpretations of khula exist across Islamic schools of law and regions in regard to the compensation, consent of the husband, role of the court and judge. [2]

Origins in Texts

Quran

2:229 "Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah . But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah , so do not transgress them. And whoever transgresses the limits of Allah - it is those who are the wrongdoers."

4:128 "And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement between them - and settlement is best. And present in [human] souls is stinginess. But if you do good and fear Allah - then indeed Allah is ever Acquainted, with what you do, ."

65:4 "...And for those who are pregnant (whether they are divorced or their husbands are dead), their iddah (prescribed period) is until they deliver (their burdens)..

Hadith

The most well known story that references khula and serves as the basis for legal interpretations is the story of Jamilah, the wife of Thabit ibn Qays:[3]

Narrated Ibn 'Abbas: The wife of Thabit bin Qais came to the Prophet and said, "O Allah's Apostle! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner if I remain with him." On that Allah's Apostle said to her, "Will you give back the garden which your husband has given you as Mahr?" She said, "Yes." Then the Prophet ordered to Thabit, "O Thabit! Accept your garden, and divorce her once."[4]

".. When Rabia bint Masood obtained Khula from Thabit, the prophet asked her to wait until one menstrual cycle before she could go to her home". (An-Nissai, Abu Daud, Tirmidhi)

Doctrine Differences By School

Compensation

Most Islamic schools of law agree that the husband is not entitled to more than the initial amount of dower (mahr) given to the wife. However, some interpretations suggest that the husband is entitled a greater compensation, while other interpretations suggest that the husband is not entitled to any compensation.[5] Technically, khula demands that the mahr already paid be returned along with any wedding gifts. Many imams interpret this law only to apply if there is no fault on the husband. Men sometimes prefer and pressure their wives to demand a khula instead of the husband pronouncing a talaq so that the husband can demand the return of the mahr. Another scenario that rarely arises in khula is that the husband will request an unreasonable financial compensation. This can effectively constrain her from seeking khula because they have no means to support themselves financially with the loss of their mahr and other wedding “gifts.”[6]

In regard to the consent of the husband, most schools agree that husband's agreement is a basic procedure and essential to the granting of divorce, unless extenuating circumstances apply. While this is the prevailing interpretation, other interpretations suggest that the husband does not have to consent if the grounds of divorce are valid, such as cruelty (darar) or impotence (if undisclosed to bride at time of marriage). In addition, if a husband cannot provide his wife with basic marital obligations, such as shelter or maintenance, a woman may be granted khula.[7] If the woman is underage, then consent must be given from the guardian of her property.[8] In almost all cases, a woman must have clear evidence in her favour to be granted khula[9] The laws of khula in particular cannot be found in the Qur'an directly, so a Sharia court judge must discern from Hadith and Islamic jurisprudence historical cases what they believe to be valid reasons for divorce.[10]

Role of the Court

Views on role of the court and judge varies across schools, depending on whether or not the divorce is considered a type of talaq (husband's repudiation of the marriage) or judicial annulment. If the husband does not consent to the divorce, a woman often goes to a mediating third party, such as an imam. Only a person versed in Islamic law i.e. a qazi, or Islamic Sharia court judge, can grant the khula without the husband’s consent. When petition for khula is taken to the Sharia courts, a judge is permitted to substitute the husband and annul the marriage. This process of judicial annulment is also commonly referred to as faskh, which typically occurs when the husband refuses to consent to the wife’s decision to divorce.[11]

Iddah

When a woman is granted a divorce khula, she must enter a waiting period known as iddah. During this period, a woman is not allowed to remarry for one menstrual cycle to ensure that she is not pregnant. This is in contrast to when the husband pronounces divorce known as talaq which requires waiting until three full menstrual cycles have passed, although some jurists recommend waiting for the three menstrual cycles even for the iddah of a khula. If a woman has already gone through menopause, she must wait three calendar months. The waiting period for a woman who has irregular periods is dependent on different interpretations. While some jurists believe that a woman should observe the waiting period for three calendar months as well, others believe that a woman should observe the waiting period for nine months, or the duration of pregnancy. If a woman is pregnant or becomes pregnant during the waiting period, she must observe the waiting period until birth or miscarriage.[12][13]

Custody

Custody over children tends to favor the mother if she has not remarried, but the father is still expected to provide childcare, unless the wife is able to take on the expenses herself. Once a child is old enough, he or she is given the choice to decide who has custody.[14]

Interpretations By Region

North America

According to a ten-year study from 1992-2002 conducted by Dr. Ilyas Ba-Yunus, the overall divorce rate amongst Muslims in North America was at 32% which was significantly lower than the 51% rate for the general population.[15] Further, In North America, a 2009 a study conducted for SoundVision, an Islamic foundation, concluded that 64% of Islamic divorces are initiated by women.[16] Imams in North America have adopted multiple approaches towards Khula. One of the biggest issues that causes imams to differ in their views is whether or not the women should return the mahr to the husband. Another important issue for women in North America is getting both a civil decree and religious force. Religious divorce is sought out as "a meaningful personal and spiritual process" that is attained in addition to (not as a substitute) to a civil decree. Another important issue that arises in North America is that many women are unaware of their Islamic right to seek khula. Some North American women even caution that being assertive and knowledgeable of Islamic law in front of their imam may even be detrimental to them. Women have said that the imams appeared to be "less sympathetic" because they saw the women as challengers to their authority.[17]

Egypt

A form of Khul' was adopted by Egypt in 2000, allowing a Muslim woman to divorce her husband. As a condition of the divorce, the woman renounces any financial claim on the husband and any entitlement to the matrimonial home.[18] In Egypt, it is very difficult for a woman to be granted Khula. In the first two years after Khula was adopted 5,000 cases were brought before Egyptian courts. Of the 5,000 cases, only 122 were approved. Although difficult to obtain, many believe that the implementation of Khula in Egypt is a milestone for Islamic activists.[19]

Pakistan

According to the "Dissolution of Muslim Marriage Act" passed in 1939, judicial Khula was allowed to be authorized without the husband's consent if the wife was agreed to forfeit her financial rights.[20] Marriage is not considered a sacrament among Muslims but rather a civil contract with "spiritual and moral" undertones. Therefore, legally, the marriage can be dissolved for "good cause." The wife has the right to have the marriage dissolved on the grounds of Khula if she decides she cannot live with her husband. In Pakistan there are two different classes of Khula. The first '(i) is by mutual agreement; and the (ii) By order of the court Qazi and dissolution of marriage taking place by the husband’s pronouncing talaq in the first class of cases and by the order of the Qazi or the court in the second class of cases. The Quran declares “Women have rights against men similar to those them."'[21] The wife alone wishes to divorce her husband; and there are two ways for her to achieve this divorce or 'khula' (i) She requests her husband that she no longer wishes to remain in marriage with him; and the husband declares a divorce upon her. (ii) If her husband is not willing to grant her a divorce, the wife is well within her rights in Shariah to approach a Shariah Court and present her divorce case to the Shariah Judge. The Judge would then summon the husband and ask him to declare a divorce upon his wife and free her from the marriage. If the husband for any reason refuses, the Sharia Judge has the right to declare a divorce between the husband and the wife in marriage.[22]

Yemen

In Yemen, khula is recognized as a judicially supervised annulment. Alcoholism, jail time of more than three years, impotence, mental feebleness, and hatred constitute as valid reasons for a woman to seek khula. While domestic violence is not always constituted as valid, it is against the law in Yemen for husbands to physically or psychologically harm their wives. [23]

Nigeria

Khula is the most common form of divorce in Northern Nigeria. If a woman can provide enough compensation on her own or with the help of family, it is likely that she will be able to get out of an unhappy marriage.[24]

Morocco, Syria, Jordan

In Morocco, if a woman is coerced or harassed by her husband, the husband has no entitlement to compensation. In Morocco, Syria, and Jordan, compensation other than money can include child care or custody. In Jordan, a new law has been recently passed that allows a woman to end her marriage by using the principle of khula itself. Within the first two passing this law, the courts saw an exponential increase in khula lawsuits. The law has yet to be approved by parliament, however, and it is still condemned by many lawyers to this day.[25]

Iraq

Iraq is unique in that it is stated in the law that infidelity constitutes as a valid reason for divorce. In addition, a woman is allowed to seek khula if her husband is infertile and they do not have children.[26] When a woman is granted khula, compensation can be greater or less than the dower.[27]

Saudi Arabia

Women awarded Khula in Saudi Arabia are required to financially compensate their husbands or give away marriage settlements. Sometimes, this may include custody rights to their children. Other than the dowry, it is also common for the wife, especially in the case of newlyweds, to return marriage expenses. Older females in Saudi Arabia generally don’t support Khula. They believe that the increased number of Khula requests is the result of Western influences of Saudi culture. Mainly, the new belief that women should also pursue financial aspirations. In Saudi Arabia, women can end up losing when awarded Khula. This is because often they cannot support themselves or their children.[28]

References

  1. ↑ Nasir, 2009, p. 129
  2. ↑ Tucker, 2008, p.97-99
  3. ↑ Macfarlane, 2012, p. 34
  4. ↑ http://www.searchtruth.com/book_display.php?book=63&translator=1&start=0&number=197
  5. ↑ Engineer, 1992, p. 137-138
  6. ↑ Macfarlane,2012, 195-6.
  7. ↑ Engineer, 1992, p. 137-138
  8. ↑ Nasir, 2009, p. 131
  9. ↑ Engineer, 1992, p. 137-138
  10. ↑ Macfarlane, 2012, p. 168-9.
  11. ↑ Tucker 2008, p.97-99
  12. ↑ Tucker 2008, p. 100-101.
  13. ↑ http://islamqa.info/en/5163
  14. ↑ Welchman, 1998, p. 121
  15. ↑ Macfarlane 2012, Islamic Divorce in North America, 142.
  16. ↑ Macfarlane, 167.
  17. ↑ Macfarlane, 175-176.
  18. ↑ Arabiya 2011, Egypt Divorce Rates Hit New High With 'Khula' Law.
  19. ↑ Hamada 2010, The Hard Way Out, Divorce By Khula.
  20. ↑ Barrister Tasheen Butt and Associates, Laws of Pakistan Relating to Marriage, Divorce, Custody and Maintenance
  21. ↑ Kakhakel 2008,The Law of Divorce in Pakistan
  22. ↑ http://www.irfanlaw.com
  23. ↑ Amanat, Abbas and Frank Griffel 2009, p. 175.
  24. ↑ Nasir 2009, p. 130.
  25. ↑ Nasir 2009, p.131-134
  26. ↑ Welchman 1998, p. 109.
  27. ↑ Nasir 2009, p. 131
  28. ↑ Hamada, 2010, The Hard Way Out: Divorce By Khula

Further reading

Engineer, Asghar Ali (1992). The Rights of Women in Islam. New York: St. Martin's Press.

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