Posted on: December 17, 2020 Posted by: admin Comments: 0

Author:  Shloka Shailesh Rasal, Student at Symbiosis Law School, Hyderabad.

ABSTRACT

Multicultural societies key feature is its religious diversity. This diversity stems back to the colonial period. Post-Independence Muslim feminist activist as well as legal scholars such as Fyzee began contending for changes in Muslim law which mainly focused on divorce given by women as they had to give up their rights. In Islam, the modus operandi of Khula is when a woman files for divorce against her husband by repaying the mehr(dower)amount which she attains before marriage along with wedding gifts. In reference of Quran and Hadith, the imams named Abu Hanifa, Malik, Hanbal interpreted Khula as it sanctions a woman to pledge for the divorce either by a judicial decree or mutual consent. Currently men prefer attainment of divorce in the form of khul by pressurising their wife to return the mehr instead of articulating talaq; another scenario is where men demand for perverse financial compensation. It is difficult to get an Islamic divorce expressly for women as they have to face stricter requirements for commencing divorce as compared to men. There were various debates which took place on giving back the mehr by a woman during the breakdown of a contractual Muslim marriage as it is noticed as purchasing a woman during the marriage. The notion that the Khula is not acknowledged until the husband ‘signs off’ and consents to it is also of a significant concern. In this 20th century Muslim Personal Law has become identity of Muslim’s. Hence the law needs to be reformed due to changes in the society. This paper discusses robust feminist critique on khula and the resultant debates and also comprises khula in top Muslim countries.

Keywords: Khula, Islamic Divorce, Mehr, Feminist.

INTRODUCTION

In Arabic, the word ‘KHULA’ itself can be defined as having removed the union of marriage in return for financial settlement (Ibn Humam, Fath al-Qadir, 3/1999).[1] Women could divorce their husband under Section 5 of Shariat Act of 1937.[2] This section was deleted and substituted by The Dissolution of Muslim Marriages Act, 1939. In the Holy Quran, Chapter 2 of Surah Baqarah verse 229, Allah says: Divorce might well be pronounced twice; then either hold the wife with dignity, or let her depart graciously.[3] The first opportunity which is given to a woman as a right to Divorce is called ‘Khula’. The Shariah has given certain rights to woman for divorce only when the situation requires. A Muslim woman can petition a Qazi(judge) or a non-Islamic community panel for the grant of divorce if her husband refuses.[4] When a woman provides reasonable grounds that she cannot cope with her husband, she can release herself from the marriage by refunding the mehr amount which she received during or after marriage by her husband. The waiting period (iddah) of a woman who is seeking divorce is three menstrual cycle or three months if she is post-menopausal. This is provided to ensure that the woman is not pregnant. If the woman is pregnant then the waiting period is until the time, she gives birth. According to Shariah Law, there are two reasons a wife may be granted divorce:

  1. When she can prove that the husband did not have intercourse with her or for more than three months.
  2. If the husband does not provide her with what she needs for living such as food and shelter.pregnant, then the waiting period is until she gives birth.

Women’s right to initiate a divorce is very limited to that of the Muslim men. Women had to face various legal and financial tribulation to initiate a divorce. On the other hand, it was very tranquil for men to divorce their wives. The objective behind writing this paper is to perceive the condition of Muslim women prevailing likewise in India and other parts of the world. During the time of colonial period there are various reforms in the Muslim Personal Law to protect rights and avoid discrimination of rights of Muslim women. The focal objective to perceive whether these changes has eliminated the discrimination of women during their divorce by taking into consideration the opinion and critique of women.

RESEARCH QUESTIONS
  • Despite various reforms in Muslim Personal Law (Shariat) do the Muslim women have equal footing as the Muslim men at the time of divorce?
  • How is Khula in India Islamic Law different from various developed Muslim Countries? How do we overcome those differences?
  • Are the Muslim women categorically discriminated attributable to return their Mehr (dower) and gifts received at the time of marriage? Is this the core reason that is hampering the equality of rights of women?
  • During the time of Khula is it obligatory for a woman to take consent from her husband?
RESEARCH METHODOLOGY

The title of the Research paper is ‘Feminist critique on Khula’, the principal objective of the paper is to investigate and analyze the working mechanism of Islamic Divorce prevailing in India and other ASEAN Islamic countries to attain a holistic panorama. However, contemplating the veracity in the title, the researcher can’t devise a single research methodology in the entire paper. Thus, various provisions, journals, articles, statistical reports and news articles are relevant secondary sources that are referred to.

The research methodology utilised in this research paper is an amalgamation of Doctrinal Research Methodology by referring Dissolution of Muslim Marriages Act,1939 and Egyptian Personal Status Law and Descriptive Research Methodology.

LITERATURE REVIEW
PAPER TITLE NAME OF THE AUTHOR PREPOSITIONS LACUNA CITATION
Muslim women and Muslim laws: debating the model Nikahnama A Suneetha This paper mainly focuses on the initiatives that reports disadvantageous position of Muslim women during their divorce and inkling between Muslim law and Muslim woman have helped me in my research. The ulema debate has helped me in my research as the main question was should women be given increased Mehr before marriage. This paper deals with evolution of Islamic law and the spaces of women’s economic rights. This paper fails to deal with the theoretical concept which is provided in Holy Quran of Chapter 2 verses 229 and 239 clearly state that women after divorce should be left gracefully of let her live with honour. Economic and Political Weekly, Vol. 47, No. 43 (OCTOBER 27, 2012), pp. 40-48
The two husbands of Vera Tiscenko: Apostacy, Conversion and Divorce in late Colonial India This paper emphasises on the consequences faced by Muslim women who were not granted divorce in the late colonial period due to which they were forced to convert to set free from the unfulfilled marriage which was not a respectable strategy. The author of this paper focuses only on men’s perspective prevailing in India and fails to compare the situation of women facing consequences due to male dominant societies in the other Muslim countries. Law and History Review, Vol. 28, No. 4 (November 2010), pp. 1011-1041

 

 

 

 

 

Understanding the Islamic Law of Divorce

 

 

 

 

 

 

 

 

 

 

 

Furqan Ahmad

 

 

 

 

 

 

 

 

 

 

 

 

 

This paper chiefly focuses on the basic introduction of divorce in Muslim Law. The author discourses various types of divorces by explaining the nature and concept of divorces in Islamic law keeping in view of the historical background of Islamic divorce. This paper deals with classification of Divorce but fails to explain Islamic perspective of divorce in various Muslim countries.

 

 

 

 

 

 

 

 

 

 

 

This paper does not abide ethnocentricity nor is it judgmental of the various legal regimes.

Journal of the Indian Law Institute, Vol. 45, No. ¾, Family Law Special Issue(July-December 2003), pp. 484-508

 

 

 

 

 

 

Volume 4; Issue 4; July 2018; Page No. 81-88

 

Comparative analysis of divorce laws: A look into the divorce laws of Islamic world. S Keerthana, Sathishprem, SR Raghuvarathan The authors in this paper have analysed various national laws regarding Islamic divorce and have compared it with India’s Islamic divorce laws.  The authors have also investigated the modus operandi, institutional framework, the substantial provisions and the jurisprudence that has gone into the making of the respective national legal constructs.

 

MUSLIM MARRIAGE (NIKAH)

Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act, 1986 Marriage or Nikah among Muslims is a ‘Solemn Pact’ or ‘Mithaq-e-ghalid’ between a man & a woman, soliciting each other’s life companionship, which in law takes the form of a contract.[5] In Islam, the groom and the bride have to accept (qubūl,) and also consent to their marriage on their own free will hence Muslim marriage between a man and a woman is a civil contract as it attracts all the features of civil contract. The messenger of Allah has clearly stated that according to Allah it is a tradition to marry and whosoever turns away from this tradition (Sunnah) will not be considered in his nation. According to Imams Abu Hanifa, Ahmad ibn Hanbal & Malik ibn Anas, in order to stay in his (Allah) path of salvation it is obligatory for an individual to marry.[6] The general hypothesis of Islamic marriage is that the sexes can provide company to each other, procreate legitimate children and follow the commands of Allah.[7]

DIVORCE UNDER MUSLIM LAW

The Shariah term for divorce is ‘talaq’. This term has been derived from Arabic word tallaqa which means to set free or to untie a knot.[8] Under Islamic law firm union of the husband and wife is an indispensable condition for a happy family. Thus, Islam prescribes that breach of marriage contract should be avoided. Initially no marriage is being contracted to be dissolved in future but in some unfortunate circumstances the matrimonial contract is broken.one of the renowned way of such dissolution is ‘Divorce’. As mentioned in [Quran 2:226-227] those who intend to divorce their wives shall wait four months (cooling off); if they change their minds and reconcile, then God is Forgiver, Merciful. If they go through with the divorce, then God is Hearer, Knower.[9] Under Islamic law divorce may take place through act of parties or by a decree of court of law. However, divorce is not regarded as a rule of life and is considered as an exception to the status of marriage. There are categories of Divorce under Islamic law:

  • Extra judicial divorce.
  • Judicial divorce
  • The category of extra judicial divorce is further subdivided into three types:
    • Talaaq, Illa and Zihar (divorce initiated by Husband)
    • Talaaq-i-tafweed and Li’an (divorce initiated by Wife)
    • Khula and Mubarat (divorce initiated by mutual consent between Husband and Wife)
  • The category of judicial decree is divided into two:
    • Lian and
    • Faskh
POSITION OF MUSLIM WOMEN AFTER VARIOUS ISLAMIC REFORMS AND ALSO AFTER RELENQUISHING RIGHTS (MEHR)

The practice of divorce prevailed from the pre-Islamic era which was know as Jahiliyaah. The form and the method of divorce back then were inhuman. For example, whenever a man was outraged whether for a valid reason or just t show that he did not like her, he divorced his wife and she did not have any recourse to any legal procedure nor could she receive any maintenance or claim any right against him. The Arabs used to divorce their wives at any time without any reason. They could easily accuse their wife arbitrarily for adultery and leave them in a defamed situation and the husbands would be exempted from all legal and formal responsibilities of maintenance or legal punishment. During the Arabian pre-Islamic law, there were no limitations on men to marry or to divorce a woman. Mohammed reformed the laws and procedures that were being practiced in his prophethood and a set of strict rules and regulations were put up. Several chapters and verses from the Holy Book of Quran were revealed which banned such practices. Marriage by agreement was reformed and ‘marriage by inheritance was forbidden’. Women were given their right to initiate divorce with a condition that they have to relinquish the mehr amount which she received from her husband during marriage as well as other rights. If the wife does not admit to khula then it does not constitute to divorce. The divorce was affected if the husband repudiated the divorce. Despite of various progressive legal reforms in provisions, it is chiefly the customs and practices that are prevalent in the society. Recent studies have proved that mehr (Quranic Right) is an integral part of marriage. the communities practice dowry system and is it observed that the dower amount is always higher than the mehr. In Moonshee Buzul-ul- Raheem v Luteefutoon-Nissa[10] the husband had not paid the whole amount of mehr which was decided prior to the marriage in 1842. In 1847 the husband remarried. The second wife laid a condition that he will have to divorce his first wife but if he divorced his first wife, he will have to pay all the mehr dues. Hence, he started treating his first wife with cruelty and also denied her food and clothing so that she initiates the divorce (Khula) in which she will have to pay the forfeit her right of dower.[11] Women are being discriminated of their economic rights even after being given a right to initiate the divorce.

COMPARITIVE ANALYSIS OF PROCEDURE OF KHULA IN INDIAN ISLAMIC LAW FROM VARIOUS MUSLIM COUNTRIES
  1. EGYPT

Egypt is a country with 88% of the population comprising of Muslims out of the total population. The total population of Egypt is 80 million around which 86.68% are Sunni Muslims, 2.9 are Shia muslims,10.2 are Christians and the remaining 0.1% follow other faiths.[12] Divorce initiated by women in Egypt are given two options:

  1. Fault based divorce
  2. No-fault divorce or Khula
  • Fault based divorce:

In order to initiate a divorce proceeding a woman is required to obtain a legal counsel and also to provide unblemished evidence of harm which is considered as an eyewitness and submission of mediation process which is held to be compulsory. The woman should prove to the court that it is impossible for her to live with her husband to obtain a divorce.

  • No-fault divorce or Khula

The then president of Egypt, Mubarak on 29th January,2000 had signed a new law which granted Egyptian women the right to file divorce on ‘incapability’ without providing substantiation of harm. To file for divorce under ‘no-fault’ divorce a woman was not required to provide grounds for filing the request but she had to forfeit her right to alimony and maintenance or ‘mu’akhar’ as well as relinquish her dower amount. For Egyptian women Khula is proved to be a faster process and men in Egypt have no right to appeal for no-fault divorce. On the other hand, the process of divorce in India involves a process of mediation, order of judicial separation which makes the process of divorce tiring and lengthy. In India is it necessary for a woman to show evidence of harm caused which makes it difficult for a woman to seek divorce and to get released from an unhappy contractual Muslim marriage.

  1. PAKISTAN

It is clear that marriage is a civil contract in Pakistan which can be executed and also dissolved like any other contract. Its contract will be automatically dissolved on the death of either of the spouse thus both parties of the contract are entitled with a religious right to terminate the contract (marriage).[13] Divorce can be done by Talaq or Khula subjected to certain conditions. The husbands right of talaq cannot be waived off and the wife’s unilateral right to terminate the marriage arises only when husband provides her of such right through nikahnama. Such methods can only be carried out in Family Courts. In Pakistan Khula can be granted without husbands consent if the wife is willing to forgo her financial rights.[14] The grounds to for a woman to seek divorce are:

  • Failure to maintain for two years
  • Husband contracting a polygamous marriage in contravention of established legal procedures,
  • Husband’s imprisonment for seven years,
  • Husband’s failure to perform marital obligations for three years,
  • Husband’s continued impotence from the time of the marriage
  • Husband’s insanity for two years or his serious illness
  • Wife’s exercise of her option of puberty if she was contracted into marriage by any guardian before the age of 16 and repudiates the marriage before the age of 18 (as long as the marriage was not consummated),
  • Husband’s cruelty (including physical or another mistreatment, unequal treatment of co-wives),
  • Any other ground recognised as valid for the dissolution of marriage under Muslim law
  • The Family Court will issue a decree and send a notification to Union Council which proceeds as if it received the notice of Talaq and once the iddat period is over the khula becomes effective.[15]

Indian Muslim women have always grabbed the spotlight in the debates about talaq. Shah Bano filed a petition in the honourable Indian Supreme Court last year in order to rule on the constitutionalism of ‘triple-talaq’ in which a Muslim husband can divorce his wife merely by pronouncing talaq thrice with or without her consent. After suffering mental torture and emotional abuse for fifteen consecutive years her offered her a divorce. This case undoubtedly acts as a precedent in other divorce cases thereby progressing women’s rights. There should necessarily be reconciliation efforts initiated by two arbiters from either side, which has to be effectively evidenced as a formal declaration by the husband. This is the Indian model of gender equality under Islamic divorce law. In the judgment of the Balaqis Fatima case, the Lahore High court observed that it does not seem reasonable that only a husband should be given a right to divorce in a marriage contract. The Court also acknowledged the Muslim wife’s right to obtain a judicial khula without the consent of her husband.[16]

  1. SAUDI ARABIA

The legal procedure for a woman to seek a Divorce under Khula was as follows:

  1. The woman was required to go a Personal Status Court and file a Khula case where she had to submit sufficient evidence that would support her claim.
  2. The judge of the Personal Status Court would examine all the grounds and then determine whether the case must be considered as the Khula plea.
  3. If the judge is convinced that the woman has valid reasons to seek a divorce (Khula) then he will grant her the divorce in which the husband has should receive monetary compensation by the wife in return of the divorce.
  4. In certain cases, the judge himself estimates the amount of money the which was payable by the wife to her husband. This happens only when the grounds of divorce are strong and there was no hope in the marriage.

According to the statistics which is released by the Ministry of Justice, it is observed that there is a gradual increase in the number of khula cases in 2018. The total number of cases in 2018 were 2,033 cases.[17] There were many weird cases in which the women were granted divorce on the ground of second-hand smoking done by the husband especially when the wife was diagnosed of lung ailment.[18]

 In Saudi Arabia (Muslim country) the personal laws are based on the principles that were laid down in the holy book of Quran and the applicability of personal laws in India is based on the religion of an individual due its diversity. Saudi Arabia has an un-codified law and India has codified divorce laws in lieu with every religion. The Muslim divorce is based on the principles of Quran which are regulated by the Dissolution of Marriage Act,1939. In Saudi Arabia for a woman to seek divorce it is necessary for her to have a male guardian whereas it is not essential in India. Divorce by the mode of Triple Talaq is still valid in Saudi Arabia but it is unconstitutional in India since 22nd August,2017.

REQUIREMENT OF CONSENT OF HUSBAND IN KHULA

A divorce by Khula is divorce with the consent and at the instance of wife in which she gives or agrees to give consideration to the husband for her release from the marriage tie.[19] Thus, Khula is a right of divorce that a wife purchases from her husband in which the husband agrees to dissolve the connubial connection in lieu of compensation. In Khula form of divorce the wife may seek divorce extra-judicially when her husband consents for the divorce but if the husband denies his consent for the divorce then the wife can seek judicial divorce (Khula) through Family Courts.[20] In the case of Mariam Bibi v Noor Mohammad the court held that Muslim woman cannot compel their husband to divorce her under the provision of Khula. Such a suit will not be maintainable in the court of law as in Khula the consent of the husband is needed. If consent of husband is not there then divorce cannot be taken place. Gradually the courts have considered women’s right and they urged different interpretation of Khula. Section 2 of Dissolution of marriages act (VIII of 1939) states that consent of husband for dissolution of marriage would not be necessary. if the husband does not give his consent the woman then the court can intervene where the judge can determine the question as to whether spouses can continue living together and could observe limits of god or not by hearing both the parties. It is based on the principle that the court has inherent to deal with any sort of wrong in the society. Thus, if court feels that there is no consensus between the parties by the laws of Allah then divorce can be granted.

SUGGESTIONS

In order to eradicate violation of legal rights of the women it should be the utmost duty of the Qazi to disclose the legal rights to aggrieved woman. Pursuant to the reforms endured by Muslim Laws it is significant for the Indian Government to organize awareness campaigns for educating women on the rights that they legally possess.

CONCLUSION

The author has provided a reflection on all the cultural equivocator debates as well as feminist critique on Khula, particularly with regard to the status of women. Though the parts provided in Quran, Sunna and Shia law call for equality of women and also non-discrimination of women, they have unfortunately been selectively overlooked from the general practices prevailing in India. Comparing the case studies (India, Egypt, Pakistan, Morocco, Saudi Arabia) it is unblemished that the women are still being economically discriminated due to non-awareness of their rights.

REFERENCES

[1] Irtiqa, A Woman’s Right to Divorce in ISLAM, Irtiqa (2013), https://www.irtiqa.co.zo (last visited Dec 15, 2020).

[2] Muhammad Ifzaal Mehmood, Judicial Separation at the Wife’s Initiative: A Study of Redemption (<em>Khul</em> ‘) in Islamic Law and Contemporary Legislation in Pakistan and Malaysia, 5 Journal of Civil & Legal Sciences 1–8 (2016).

[3]Muslim women’s right for dissolution of marriage – Muslim Divorce – Marriage is a sanctified contract, http://www.legalserviceindia.com (last visited Dec 15, 2020).

[4] Lawal Mohammed Bani & Hamza A Pate, Dissolution of Marriage (Divorce) under Islamic Law 6 (2015).

[5] Jafar Abbas Rasoolmohammad Merchant v. State of Gujarat, (2016) 57 (2) GLR 1529,

[6] قالَ رَسُولُ اللهِ (صَلَّى اللهُ عَلَيهِ وَآلِهِ وَسَلّمَ): مِنْ سُنَّتِي أَلتَّزْوِيجُ فَمَنْ رَغِبَ عَنْ سُنَّتِي فَلَيْسَ مِنِّي.

[7] Concept of Marriage in Muslim Law, http://www.legalserviceindia.com/article/l162-Concept-of-Marriage-in-Muslim-Law.html (last visited Feb 24, 2019).

[8] Muslim Mirror, The Islamic concept of divorce (Talaq), Muslim Mirror (2018), http://muslimmirror.com/eng/islamic-concept-divorce-talaq/ (last visited Dec 15, 2020).

[9] Divorce, based on Quran | Submission.org – Your best source for Submission (Islam), https://submission.org/Divorce.html.

[10] (1861) 8 MIA 379

[11] Flavia Agnes, Economic Rights of Women in Islamic Law, 31 Economic and Political Weekly 2832–2838 (1996).

[12] Klaus kästle-nationsonline.org, Islamic world, countries with a cultural Islamic population – Nations Online Project, https://www.nationsonline.org/oneworld/muslim-countries.htm (last visited Dec 15, 2020).

[13] Lucy Carroll, Talaq-i-Tafwid and Stipulations in a Muslim Marriage Contract: Important Means of Protecting the Position of the South Asian Muslim Wife, 16 Modern Asian Studies 277–309 (1982).

[14] LAw of Divorce & Khula in Pakistan, 9.

[15] Comparative analysis of divorce laws: A look into the divorce laws of Islamic world/ http://www.lawjournals.org

[16] Subodh Asthana, Elucidating the provisions of Muslim Law on Divorce, iPleaders (2019), https://blog.ipleaders.in/muslim-law-divorce/ (last visited Dec 15, 2020).

[17] Why are more and more Saudi women asking for divorce? | Al Arabiya English, https://english.alarabiya.net/en/perspective/features/2015/05/30/Why-are-more-and-more-Saudi-women-asking-for-divorce- (last visited Dec 15, 2020).

[18] Saudi Arabia: Family Court Permits Divorce of a Couple Based on Husband’s Smoking Habit | Global Legal Monitor, (2012), //www.loc.gov/law/foreign-news/article/saudi-arabia-family-court-permits-divorce-of-a-couple-based-on-husbands-smoking-habit/ (last visited Dec 15, 2020).

[19] Moonshee Buzloor Rehaman v. Lateefun Nisa, (1987) 11 MIA 551

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