Qn5: Explain the role of Khula in traditional Hanafi Law, in traditional Maliki

Law and in the present law of Egypt.

Under Islamic law, divorce can take place in three forms, namely by talaq
(repudiation of wife by husband), by khula (by mutual consent) or by faskh
(decree of the court dissolving the marriage). It can be said that If Talaq is defined
as the right specifically granted to men to divorce their wifes , khula can be said
to be its equal for women as it gives them the right to raise it when seeking for a
divorce, and even if the men do not accept it, they can refer to the Qadi for help
to enforce it.

Khula operates the same way as marriage is concluded in Islam, being by way of
offer and acceptance, except this time it is usually the wife that makes the offer of
divorce and the husband has a choice of whether to accept it or not. Like how a
dowry must be gifted to the bride upon marriage, the wife has to offer some kind
of compensation to the husband, as consideration for the husband releasing her
from the marriage. Similarly, as in contract law, the wife has the right to revoke
this offer as long as before acceptance is made. However this is not the case for a
husband relying on this form of divorce, his offer will be to repudiate the wife in
return for a certain amount of compensation and this offer of his is not revocable
and remains effective until rejected.

The four schools of Sunni Law though divided as to how the Khula doctrine may
be performed all agrees that generally under the doctrince of Khula, that in order
for the wife to release herself from the marriage, she has to give up some
property in return as consideration of the husband granting her a khula, the only
exception being that she was subjected to abuse and threats. The value of the
compensation is not to exceed the amount of dower that was given to her initially.
This is reflected in a hadith where a woman approach the Prophet and told him in
return for divorce, she was willing to return more than what was given to her, but
the prophet replied, ‘You should not return more than that.’’ The compensation
can be anything that is of value but Shafi law holds that is has to be monetary.
Nonetheless, once accepted by the husband, the marriage itself is dissolved and
operates as a single talaq but it is immediately irrevocable. The only way of
reconciling would be to remarry.

As to when Khul can be given, it would be fair to say that the same conditions for
talaq are to apply in that the wife has to be in the state of purity. The Hanafis
holds to this but the Malikis say this is not necessary as the woman has willingly
obtained Khul in consideration of payment, therefore her right to do so even
when menstruating. Similarly the Hanbalis is of the same view that since Khula
comes about by mutual agreement of the two married partners, there is no harm
even if it is given during menstruation.

The very first form of Khula was narrated in the hadith by Imam Bukhari whereby
a woman approached the Holy prophet and said that though she shared not
animosity with her husband, she wish to separate from him because she feared
she could not perform her functions as a wife. The prophet asked if she was
willing to give her husband the garden he gave to her as dower and when she
agreed, the prophet asked the husband to take back his garden and divorced her
at once. From this hadith, we can infer that Khula need not only take in the form
of mutual consent but can also be granted by third parties like the Qadi through
decree of court, thereby amounting to judicial Khula. If the husband refuses to
accept the wife’s offer, she can go to the Qadi and demand a formal separation
and the Qadi upon satisfaction of her reasoning for wanting the divorce, may call
upon the husband to repudiate her. But where the husband still refuses to do so,
the Qadi can himself pronounce a divorce which will operate as valid repudiation
and the husband will be liable for the whole amount of the deferred Mahr.

However the granting of Khula by the Qadi is only granted in extreme

circumstances, the Prophet warned the women who asked for Khula without any
reasonable ground with:

‘’If any woman asks for divorce from her husband without any specific reason, the
fragrance of paradise will be unlawful to her’’

The following are the grounds where divorce may be granted by the Qadi:

1. Habitual ill-treatment of the wife

 2. Non-fufillment of the terms of the marriage contract
3. Insanity
4. Incurable incompetency
5. Abandoning the marital home without making provision for the wife
6. Any other similar causes which in the Qadi’s opinion justifies a divorce

As can be seen, where Khula is not consented by the husband, the wife has an
alternative route to the court. When the matter is brought to court, if it falls under
Faskh, she will not owe the husband any compensation but otherwise if she has to
do it by way of Judicial Khula, the court will require her to return the
compensation to the husband. Even so, Khula or Faskh was never easily applied
previously as in the traditional Hanafi law. The Hanafi law has the most restrictive
view towards women seeking for dissolution; the only ground acknowledged was
if the husband proves unable to consummate. Thus once consummated, she loses
her request for dissolution even where the husband fails to support her, abuses
her, or is imprisoned for life. The rest of the schools are more open in the sense
that they recognized that a divorce may be granted upon other grounds such as
those stated above. The Maliki law is the most liberal in that it gives the women
the right to obtain a divorce on the ground of dhahar, being harm or prejudice. If
she is unable to prove that continuing to be with her husband is causing her harm
but insist that a discord existed between her and her husband, the Maliki court
will reconstruct itself into an arbitration tribunal. Two arbitrators will be
appointed, one being a representative from the wife’s family and the other from
the husband’s. Their mission together with the Qadi would be to reconcile the
spouses but if unsuccessful, they will hear evidences from both side and
determine who is primarily responsible. If it is the husband, they will pronounce
an irrevocable talaq on his behalf and if it the wife, they will pronounce a
repudiation in return for the giving of compensation by the wife to the husband.

Over the then years reforms have been introduced to extend the rights of wife to
divorce through the inspiration of the Maliki law. In India, the Dissolution of
Muslim Marriage Act 1939 extended the earlier mentioned grounds for divorce to
include other grounds such as where the husband has been missing for four years,
the husband having been imprisoned of seven years or more, the husband was
impotent at the time of marriage and repudiation by wife who married before she
was 15 before attaining the age of 18 and provided the marriage had not been
consummated. In Pakistan, The Muslim Family Law Ordinance 1961 added on to
the extended list with a further ground being when a husband takes a second wife
without complying with the provision of the Ordinance. Soon later, in the case of
Khurshid Bibi v Mohammed Amen, the Supreme Court of Pakistan recognized
another form of dissolution by recognising the role of Judicial Khula that now
allows wives in Pakistan to petition for it on the grounds that the marriage had
broken down irretrievably but provided the court was satisfied that the parties
could no longer cohabit together within the limits prescribed by Allah. However,
more recently in the case of Naseem Aktar V Mohammad Rafiq, where the
argument was that the wife failed to prove the alleged hatred was dismissed by
the Apex court and held that the fact she applied for dissolution was sufficient
evidence of hatred and aversion, thereby not requiring to prove that it was
impossible to cohabit with her husband and the court must grant a Khula. In
addition, in a more liberal approach in Aurangzeb v Gulnaz (actually goes against
the whole concept of Khula), the court held that even if the wife refused to return
the dower, the marriage would be dissolved once the Family Court decided that
the parties could not remain together.

Similarly the law of divorce in Egypt had been reformed to recognize Judicial
Khula in the event where mutual consent cannot be obtain, the wife can bring the
matter to court and the wedding will be dissolved upon her returning her dower
to the husband. However before the divorce is granted, the court must attempt to
bring about a reconciliation within the next three months but after which the wife
still formally declares that she cannot live with her husband within the bounds
prescribed by Allah, the marriage will be dissolved and the judge will have no
discretion to refuse the divorce.