A Woman’s Right to Divorce in ISLAM

– By Nadia Cassim

Al-Khul or Khula

Contrary to popular belief, Muslim women have the right to divorce in Islam. Whilst it is common knowledge that men in Islam hold the greater responsibility in issuing a Talaq (divorce issued by men) mainly due to the fact that they provide a woman with Mahr (dowry) in return for her hand in marriage- a woman is not devoid of the right to ascertain her freedom from an unfulfilling marriage by returning the said Mahr¹.

According to Shariah Law, a Khula is the wife’s right to separate or seek divorce from her husband. The term itself can be defined in Arabic as “removing the union of marriage in exchange for financial settlement” (Ibn Humam, Fath al-Qadir, 3/1999). According to the Holy Quran and Authentic Hadith, a Khula may be obtained by mutual consent between husband and wife, or by judicial decree¹.

The right to Khula is stipulated in the Holy Quran Surah 2 (Al-Baqarah), Verse 229 ²:

… (While dissolving the marriage tie) it is unlawful for you to take back anything of what you have given to your wives unless both fear that they may not be able to keep within the bounds set by Allah. Then, if they fear that they might not be able to keep within the bounds set by Allah, there is no blame upon them for what the wife might give away of her property to become released from the marriage tie. These are the bounds set by Allah; do not transgress them. Those of you who transgress the bounds set by Allah are indeed the wrong-doers.

Furthermore, reference to the issuance of a Khula is made in Hadith (Al-Bukhaari 5273) wherein the story of Thaabit ibn Qays’s wife approaching the Prophet (PBUH) with the following plea, is narrated:

“O Messenger of Allah, 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 Allah 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 Allah be upon him) said to Thaabit: “Take back your garden, and divorce her.”

Hence, it is evident that Islam provides women with the right to seek divorce, the conditions for which are outlined below:

When Can a Woman ask for a Khula?

According to Asgharali Engineer, in his book Rights of Women in Islam (2008), a Muslim woman can ask for a Khula based on the following grounds:

–          She cannot live with her husband (intense dislike)

–          Her husband has a physical defect

–          Ill-treatment

–          Male impotence

–          The husband has been imprisoned

–         The husband is not fulfilling his Islamic obligations towards her such as, maintenance, shelter etc

What Is the Procedure for initiating a Khula?

The first step in a woman initiating a Khula, is asking her husband to divorce her (give her a Talaq). Should he disagree to, the woman would need to initiate proceedings in a Shariah Court. Here, the court decides (under the supervision of a Qazi –Islamic judge), after considering all the facts, on whether or not a Khula can be granted. There are some scholars who firmly believe however, based on the abovementioned Hadith, that the court should ORDER a man to divorce his wife based on the simplest notion that she cannot live with him and is afraid that due to her dislike of him, she may not be able to fulfil her Islamic obligations towards him³. Furthermore, some scholars believe that if the matter can be settled by mutual agreement between husband and wife, then there would be no need for court intervention at all⁴.

In the event that a woman initiates the Khula and there is no fault with her husband’s actions towards her, she would be required to return the mahr (dowry) to him in full. If however, the man is at fault, it would be sinful should he request any part of it back from her for her freedom.⁴

This is reiterated in the Holy Quran (Surah An-Nisa, Verse 20-21):

But if you want to replace one wife with another and you have given one of them a great amount [in gifts], do not take [back] from it anything. Would you take it in injustice and manifest sin?

And how could you take it while you have gone in unto each other and they have taken from you a solemn covenant?

 

In the event of a Khula being issued, the stipulated “waiting period” for a woman is one month or in the event of pregnancy, when the woman gives birth⁵/ ⁷

 

Controversies surrounding the Khula

 

On the 10th May 2013, a seminar hosted by the Socio-Reforms Society in Jeddah broached the subject concerning the difficulties faced by Muslim women in enforcing their right to Khula. Furthermore, the seminar focused on the injustice of Shariah Courts who give men greater rights concerning divorce, than women. During the seminar, the following noteworthy points were made:

 

Whilst Islam, according to the Holy Quran and Hadith, afford women equal rights to men and recognizes their status in society as being equal to men, every Muslim community interprets the laws of Islam according to their own convenience⁶. The seminar raised an important concern namely, “that the man is at liberty to utter the words of TALAQ and darken the future of the woman and children and that TALAQ is applicable instantly. However, if the woman wants to leave her husband, she has to face humiliation for months and years. In the husband-wife disputes, both are equally responsible, but it is the woman who is punished mostly”.

Of concern is also the notion that the Khula is not recognized unless the husband “signs off” and consents to it. This act alone marginalizes the rights of Muslim women in Islam and makes them prey to vengeful tactics by their disgruntled husbands                         .

 

The abovementioned debates and concerns are reiterated when observing the following facts regarding the recognition of the Khula in Muslim societies and the roles of their respective Shariah Courts¹:

–          In the year 2000, the right for Muslim women to file for a Khula became recognized, rendering it a milestone in Egyptian Islamic law, however, of the5000 cases filed in the first two years, only 122 were approved

–          In Pakistan, the Dissolution of Marriages Act 1939 gives women the right to ascertain a Khula, however, the law has not been revised to accommodate the current times and women and their respective families are being forced to give up their property and assets to ascertain their freedom (held at ransom so-to-speak)

–          Nigeria is one of the leading countries in enforcing a woman’s right to Khula. In fact, the majority of divorces issued are by women however, the biggest challenge is women gathering enough money to secure the Khula.

–          In Saudi Arabia, a woman’s rights have been severely marginalized as often, a woman’s child is taken away from her and custody is granted to the husband should she seek a Khula.

 

In South Africa, the right to Khula is barely recognized as there is no Qazi available in our courts who can instill a woman’s right to seek a Khula. This fact however, is purely based on the experiences of Muslim women in the country when approaching the courts.

 

 

Footnotes:

¹ http://en.wikipedia.org/wiki/Khula

² http://www.islamicstudies.info/tafheem.php?sura=2&verse=229&to=231

³ http://www.islam-qa.com/en/26247

http://spa.qibla.com/issue_view.asp?HD=12&ID=1796&CATE=11

http://www.islamhelpline.com/node/7196

http://www.siasat.com/english/news/why-talaq-easy-khula-almost-impossible-muslim-society

 

http://muslimfaith.wordpress.com/2012/08/04/khula-its-conditions-and-iddah/

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