The Council of Islamic Ideology (CII) has declared it un-Islamic for courts to use ‘Khula’ (right of a woman to seek divorce) without the consent of a husband to dissolve a marriage.
The powerful religious body observed on Thursday that courts were dissolving nikkahs in the name of ‘Khula’, which is not correct since only the husband has the right to grant Khula after which courts can dissolve marriage contracts.
Urging civil courts to differentiate between ‘Khula’ and a unilateral dissolution of marriage through a court order, the CII said several women who had dissolved their marriages using ‘Khula’ were still not certain if their marriage had actually been dissolved.
“While Shariah has explicitly defined the framework and procedure for Khula, it has not been defined in the country’s existing marriage laws,” the CII observed.
Therefore, a civil court decreeing dissolution of marriage on a wife’s plea without her husband’s consent, under the name of Khula, would be in violation of the holy Quran and Sunnah, the council observed.
The council also observed that denying a husband the right to appeal against such a ‘unilateral’ court decision would also be unjust as per Islamic law.
According to a majority of ulemas, a wife has to forfeit her financial rights when ‘Khula’ is used to dissolve a marriage. However, the two can reach an agreement outside the law if a mutual understanding is established.
As per the Dissolution of Muslim Marriage Act passed in 1939, “Judicial khula is allowed to be authorised without the husband’s consent if the wife has agreed to forfeit her financial rights. 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 a good cause. The wife has the right to dissolve a marriage on grounds of Khula if she decides she cannot live with her husband [any longer].”
Khula’ means the divorce of the wife in return for a payment; the husband takes the payment and lets his wife go, whether this payment is the mahr which he gave to her, or more or less than that.
The fundamental rule regarding this is the verse of the Holy Quran in which Allaah says (interpretation of the meaning):
“And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal-money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allaah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allaah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul‘ (divorce)”
[al-Baqarah 2:229]
The evidence for that from the Sunnah is that the wife of Thaabit ibn Qays ibn Shammaas (may Allaah be pleased with him) came to the Prophet (peace and blessings of Allaah be upon him) and said, “O Messenger of Allaah, I do not find any fault with Thaabit ibn Qays in his character or his religious commitment, but I do not want to commit any act of kufr after becoming a Muslim.” The Prophet (peace and blessings of Allaah be upon him) said to her, “Will you give back his garden?” Because he had given her a garden as her mahr. She said, “Yes.” The Prophet (peace and blessings of Allaah be upon him) said to Thaabit: “Take back your garden, and divorce her.”
(Narrated by al-Bukhaari, 5273).
From this case the scholars comprehended that if a woman cannot stay with her husband, then the judge should ask him to divorce her by khula’; indeed he should order him to do so.
Comments are closed.