Islamic Law - Islamic Khul Divorce
ISLAMIC LAW:
The institution of judicial khul may be a fascinating exercise in contemporary ijtihad but is of marginal significance to women
INTRODUCTION
Khul is basically a right for a woman to ask a divorce from the husband in certain circumstances. It could be defined as 'the separation of a husband from his wife, while receiving a return (of monetary gain from her) and using specific statements (to bring about the dissolution of the marriage).' According to Abdur Rahman I.Doi, the term 'khul'' is derived from Khul'-al-Taub, meaning 'releasing or removing the dress from the body, because a woman is a dress of a man, and vice versa.' This is based on the Quranic verse that 'The women are your dress and you are their dress.' This is also based on another verse that 'It is made lawful for you to have sexual relations with your wives on the night of fasting. They are a Libaas (a body cover) for you and you are a Libaas (a body cover) for them.'
This essay will discuss whether the existence and the exercise of khul would have any significance to women. This essay will begin with the discussion on what khul and ijtihad under Islamic family law and the relationship between khul and ijtihad. This will be followed with the main discussion about the impact of khul on women.
Khul and Ijtihad under Syariah
The Quran, being the supreme source of Islamic law, allows a wife to ask from her husband for a divorce based on the fear that the husband might have been cruel to her and also the fear of desertion from the husband. This based on several verses in the Quran. One of them is in Al Baqarah which provides that 'except when both parties fear that they would be unable to keep the limits of ordained by Allah (i.e. to deal with each other on fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the Mahr or part of it) for her to achieve al Khul.'
The other verse states that 'If a wife fears cruelty or desertion on her husband's part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best; even though the man's souls are swayed by greed. But if you do good practice self-restraint. Allah is well acquainted with all that you do.'
The above Quranic injunctions show that a woman can ask for a divorce from the husband on one of two grounds: (a) when she fears that the husband will be cruel to her, such as in the case of torture and maltreatment; and (b) the wife know that she could not keep the ordainment of Allah.
Abdul Rahman I. Doi also quoted Sunnah Al Baihaqi which states that 'a woman came to the Propeht (SAW) and said: 'I hate my husband and like separation from him.' The Prophet asked: would you return the orchard that he gave you as a dower?' She replied: 'Yes, even more than that'. The Prophet (SAW) said: 'You should not return more than that'.
Based on the above, if the wife applies for a divorce based on khul, the wife has to return the dowry that was given by the husband as the marriage consideration and the consideration for khul should not be more than the dowry. It has also been argued that awarding the dower is not absolutely necessary as khul can also take place without payment of compensation by the wife.
Kamali states that khul is an option opens to the wife to use in the event that she wants to be separated from the husband. Kamali states that 'the married couples are thus given the choice to divorce by mutual consentif they so wish, but they are under no obligation of do not.'
According to Abdul Rahman I. Doi, all the jurists, except Bikr bin Abdullah Al Muzni, have agreed on the legality of khul. He based his argument on Imam Malik who is quoted as saying that if a husband has forced his wife to enter into a khul, the wife is entitled to get back the dowry but the separation will be valid under Islamic law.
Although Khul can be demanded at any time, it is argued that it should be exercised only on the extreme cases. This is based on the saying of the Prophet that: If any woman asks fro a divorce from her husband without any specific reason, the fragrance of paradise will be unlawful to her.' The Prophet was also quoted as saying that 'The women asking for separation and khul are hypocrites.'
Thus, despite the legality of khul, women are not encouraged to apply for a divorce through this method. There are two views on the legality of this right. One is that khul is makruh or disliked except that there is fear that the limits imposed by Allah will not be observed if release is not sought. On the other hand it is argued that khul is mubah or permissible and not disliked.
This brings the role of ijtihad as scholars need to decide whether khul should be allowed and whether it is makruh (disliked by Allah) or mubbah or harus (permissible and not disliked). Ijtihad is one the most important source of Islamic law after the Quran and the Sunnah and ijtihad is important because it is a continuous process of development whereas the Quran and the Sunnah discontinued after the demise of the Prophet.
Ibnu Taimiyyah in Majmoo Al Fatawa argues that in the view of Imam Ahmad khul is permanent separation and complete dissolution of the marriage that is not to be incorporated as from the three talaq pronouncements. Ibnu Taimiyyah argues this position had been adopted as jumhur or the consensus of the views of Islamic scholars.
Khul and it significance to women
In contemporary and modern time, one of the important decisions about the availability of khul to women is Khurshid Bibi v. Muhammad Amin, a Pakistani case. This is one of the leading cases of judicial khul. In this case the wife applied for khul despite the unwillingness of her then husband to release her. Judge Abdul Rahman in The Supreme Court of Pakistan decided that the application is consistent with the letter and spirit of the Quran which place the husband and the wife on equal footing and that the wife can claim judicial separation (khul) despite the unwillingness of the husband. Judge Abdul Rahman also refers to Ibnu Rushad who states that khul is provided for woman in the opposition to the right of divorce vested in a man.
One of the problems with khul in modern and contemporary times is that it is underutilised although Moosa considers this as an effective tool at the disposal of an unhappy wife in a marriage. This argument is based on the fact that the wife does not have to go to court and without having to relinquish the wife's right to full dower.
The second problem identified by Moosa is that in the case of Khul, even though the wife has the right to apply for a divorce, the wife still needs the co-operation of the husband. This is based on the facts that the separation based on khul has to be mutually agreed by the husband and the wife.
In Malaysia, under the Islamic Family Law Act 1984, a wife can file for an annulment of marriage based on one of the twelve grounds stated in the Act, which includes abandonment and cruelty. However Kamali argues, in relation cruelty, that husbands always abuse their wives in the privacy of the bedrooms and it is hardly possible for the wives to find a witness'. This is a very strong and valid argument. This means that when a wife complains about cruelty, she has to produce hard evidence such as medical reports and this would then inflict criminal conduct on the part of the husband. Thus a woman asking for khul may find it difficult to prove her argument.
In Egypt, under the Personal Status Law 2000, section 20, a wife can apply to the Court for divorce under Khul. The law provides that the wife can apply to the Court for khul even without the mutual consent from the husband, contrary to the traditional understanding that khul has to be agreed mutually by the husband and the wife. Under this law, the wife has to sacrifice what would normally due to her under the talaq procedure and returns the advance portion of the dower.
The other argument is that the wife who applied for khul may be ridiculed by the society. This could be true in countries where there is strong patriarchal tradition such as Bangladesh and Pakistan. In patriarchal society, it is argued that women are veiled or otherwise covered with some limited access to the public and denied the right to apply for divorce. This is further attributed to the facts that Islamic scholars always argue that ulama should be respected and in Islamic society, ulamas are men, which lead to the argument that religious laws are basically interpreted in favour of men. An Indian Islamic scholar, Asgar Ali Engineer argues that scholars find ways to hijack religion for their own benefit.
In addition Murata argues that many people misunderstood or took the wrong view of the rights of women in Islam. This is because, men and women are supposed to be equal under Islam, based on the concept of 'the male and female muslims and the male and female believers'.
The above discussion leads to the following conclusions. Firstly, khul is a right to women to apply for divorce by mutual consent. However this right is not easy to be exercised as it requires consideration and mutual consent. Secondly, the concept of contemporary judicial khul where women can apply to court for a divorce without even getting a mutual consent is not an effective tool for women as it still requires consideration. Thirdly, the Muslim society is dominated by patriarchal rules, thus women who seek khul may be ridiculed. This means that judicial khul although allows women to seek divorce is off little significance to them.
BIBLIOGRAPHY
Al Baihaqi, Al Sunan Al Kubra
Al Shaukani, Fath Al Qadir
Karen McCarthy Brown, Fundamentalism and the Control of Women, in Jonathan Stratton Hawley, Fundamentalism and Gender, Oxford: OUP, 1994
Abdul Rahman I. Doi, Shariah: The Islamic Law, London: Ta-ha Publishers, page 192
John L. Elposito, Women in Muslim Family Law, New York: Syracuse University Press (1982)
Asghar Ali Engineer, Islam, Women and Gender Justice, New Delhi: Gyan Publishing, 2001
Ibn Taimiyyah, Majmoo Al Fatawa, Volume 32, page 292, Translated by Yahya Ibrahim, Al Manhaj Publication.
Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, Cambridge: Islamic Text Society (1991, Revised Edition)
Mohammad Hashim Kamali, Islamic Law in Malaysia, Issues and Development, Kuala Lumpur
Najma Moosa, An Overview of Divorce and Dispute Resolution in Islamic Law, IFLJ 2004, 226
Sachiko Murata, The Tao of Islam, A Source Book of Gender Relationship in Islamic Thought, Albany, SUNY Press, 1992
The Quran
Shaykh Saalih bin Fawzan, Al-Mulakhas al Fiqhee, Volume 2, pp 381-385, Translation by Yahya Ibrahim, AlManhaj Publication
Please note: The above essays and dissertations were written by students and then submitted to us to display and help others. Thanks to all the students who have submitted their work to us.
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