KHULA: THE GREAT CONTROVERSY
Director & Head Faculty of Law
GC University Faisalabad.
The dynamic concept of Khula has touched new heights of controversy through the recently proposed recommendations made by Council of Islamic Ideology in its recent meeting.1 The Council has recommended a law under which it will be mandatory for a husband to divorce his wife within 90 days if she submits a written demand for divorce. This is a remarkable step forward in the dynamics of Khula.
The law in the country was probably moving towards this end but the Council of Islamic Ideology has made a sudden leap forward. 2 This has sent waves throughout the country, plunging the matter into greater controversy the clerics rising in protest and certain sections of civil society applauding in disbelief.
In the statement made by the Council wherein the recommendations were made, the Council reviewed the wife’s right to divorce in the following words.3
“In usual circumstances, it is expected that a
decent husband will not refuse his wife’s request
(for dissolution of marriage) in a situation
where no reasonable possibility of reconciliation
exists. However, if the husband does not accept
the request, what is the woman to do? The shariah
does not answer this question; instead, as with
many other matters related to life, it leaves this
matter also to our discretion.”
Such a viewpoint of the Council has invoked criticism that the matter is settled law in Shariah and it does not allow an independent unilateral right of divorce to the wife. Another strain of thought states that the substantial law has been decided by Islamic law while procedural law may have been left to “discretion” or to ijtehad. The Council accepted the position that the prevalent procedure has been for the wife to resort to the courts for final settlement. The Council asks a pertinent question does going to the court enhance the opportunity of reconciliation or secure the sanctity of marriage? If not, then it should be discouraged that marriages end up inside the courts. The Council states:
“Since the Prophet’s time (PBUH) the procedure
that has been adopted for this purpose is that the
woman then approaches the court. In our times,
this step is often fraught with innumerable difficulties
for the woman. One suggestion to resolve this
problem is that the man be asked to delegate
his authority in divorce to the woman. However,
such demand is again not easy to make in
our society, especially on the occasion
of marriage. Furthermore, such stipulation
also negates the spirit and the wisdom in not
giving a woman the right to divorce her husband.”
The Council believed that sending the woman to the court was tantamount to depriving her of the right to seek dissolution of marriage. It was emphasized that “Khula” was a right that belonged to the wife as “Talaq” was the right that belonged exclusively to the husband. The council then recommended (it being a recommendatory and not a law-enacting body):
“Therefore, in our opinion, a law should be
enacted at the level of the state that, after
a woman’s request for termination of marriage,
if the husband refuses to divorce her in the next
90 days, the marriage shall stand dissolved.”
Khula dissolution of marriage at the instance of the woman has another very important side. That is the return of gifts, benefits, matrimonial rewards in lieu of Khula. The principle of “forfeiture” is integral to the doctrine of khula. The doctrine of Khula has an integral and a reciprocal duty for the woman of forfeiture of gifts and remaining dower. The Council has made the recommendation (controversy to established law?):
“If the husband gives his wife assets and
property and demands them back at the
time of divorce, the wife will have to return
the assets except for dower and maintenance
or else approach a court of law for the resolution
of the conflict (of return of assets/Valuables).”
Here again is an interesting deviation from the established position of law. The wife would clearly be entitled to deferred dower and maintenance.
Now the question is whether Council of Islamic ideology can change the existing law? What is its legal status or the status of its dictates? Council of Islamic Ideology is a Constitutional creation 4 and out of twelve parts of the Constitution of 1973, one whole part, Part IX has been allocated to the creation, functions and powers of the Council and is titled “The Islamic Provisions”. The Council was initially established as Advisory Council of Islamic ideology on August 1, 1962 5 and re-designated as Council of Islamic Ideology in the current Constitution of Pakistan. The object for the establishment of the Council is to bring “all existing laws in conformity with the injunctions of the Holy Quran and Sunnah”.6
The Constitution states that the Council if it deems a law to be a deviation from the primary Injunctions of Islam, shall bring such deviation to light and “recommend” to the President or Governor 7 such measures as would bring the law in conformity with Quran and Sunnah. The Council therefore does not have the power of enactment but only recommendation. It is thus that the federal law ministry has asked the Council to prepare a draft on the basis of these recommendations. The finialised Bill would then be introduced and debated in the Parliament. As the Council is supposed to make its recommendations on the basis of Injunctions of Holy Quran and Sunnah, the Council has relied on Surah Nisa for its expositions.8
The fact that the proposals by the Council of Islamic Ideology still need to be tested by the wisdom of Parliament has inspired the opposing views to contest their case with great vigor. There are clerics who have claimed this expanded right of divorce for the woman to be outrightly unIslamic. Some have gone a step further and attacked the very existence and the wisdom of the Council itself, claiming its members to be political appointees rather than true Islamic Ulemas.9
Certain sections of the civil society 10 have hailed the decision of the Council. A very intriguing view has been expressed in this regard. It has been contended that a speedier and an expedient implementation of the Council’s decision would be to amend section 18 of the Nikahnama. The section asks the husband whether he is giving his wife the right to divorce. 11 This agreement from the groom is obtained at the time of marriage. Practically, in more than 95 per cent of the cases section 18 of the Nikahnama is struck out at the time of marriage and rendered not applicable. It has been suggested that the application of section 18 be made mandatory. This would save the Parliament from long and laborious debates and controversial legislation.
The right granted under Section 18 of the Nikahnama refers to section 8 of Muslim Family Law Ordinance .12 When invoked, it allows a woman to divorce her husband using section 7 of the Muslim Family Law Ordinance 1961, which defines the procedure for divorce .13 Significantly, it allows a woman to institute divorce proceedings while retaining her rights over the dower amount, or haq mahr, agreed upon by the contracting parties and recorded on the Nikahnama.
There is a significant difference between “khula” and divorce under section 18 0f the Nikahnama. This difference must be understood as the consequences may differ. While the divorce proposed by the Council is “Khula”, divorce at the instance of the wife wherein normally she loses her claim over the dower, alimony or maintenance. The Council, however, proposed a deviation from the classical position that the wife may return partial right to dower. The divorce under section 18 of the Nikahnama is “Talaq-e-Tafweez” or “delegated divorce” where the right originates in the husband and is then delegated to the wife. 14 As the right comes into existence through agreement and delegation, conditions as per the forfeiture of dower and other benefits may be pre-decided by the parties.
The Council, interestingly has, also dwelt upon the amendment of the Nikahnama as an altered and a more expedient option then going through the Parliament. The statement thus read,
“Another possibility is that, in the current marriage
form, the section for the option of transferring
the right of divorce to the wife be replaced with the
following statement, ‘This marriage contract takes
effect with the proviso that, if the wife ever makes
a written request for divorce, the husband shall be
obliged to divorce her within 90 days. If he does not
do that, it shall be deemed that an irrevocable divorce
from his side has taken effect. Thereafter, if the
husband demands the return of any property or wealth
that she received from him, she shall be obliged to
return him that property or wealth except for mahr
or maintenance.’ ”
The Council very vigilantly uses the words “divorce from his side” thus ensuring that it remains talaq-i-tafweez rather than khula. This is the most expedient solution. It shall not only make dissolution expedient, but take a lot of unnecessary load off the courts. It only requires that a fundamental provision of the marriage form be given mandatory effect and its usual elimination by the registrars be made illegal. The Council of Islamic ideology has therefore made no great transgression in the classical law and most of the hue and cry against its recommendations is misplaced. The criticism that the Council’s recommendations undermine the sanctity of marriage are uncalled for. These recommendations would definitely reduce the many ugly long-drawn confrontations in the courts between the spouses. The Council deserves accolades not only for proposing an equitable solution to a Muslim woman’s right to divorce, but also for attempting to tread upon the often forbidden path to Ijtehad.
Foot Notes on Khula
- The “News”, Encore, 30th November 2008.
- In the case of Akhtar Vs. M. Rafique PLD 2005 SC P. 293 the Supreme Court it was decided that the wife’s assertion of “ aversion” and “ hatred” must be taken as professed and the benefit given to the wife. On an application for khula.
- Presented by Javed Ahmed Ghandi published in “Ishraq” 8th December, 2008.
- Created by Article 228 of the Constitution, Munir, M. “The Constitution of the Islamic Republic of Pakistan”, P. 495 PLD publisher.
- Khan, H, “Constitutional and Political History of Pakistan P. 147, 3rd Edition 2007.
- Munir, M. “The Constitution of the Islamic Republic of Pakistan”, P .496 PLD publisher.
Article 227 of the Constitution states, “All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah”.
- Sec 230 (c) P. 498 ibid.
“To make recommendations as to the measures for bringing existing laws into conformity with the injunctions of Islam and stages by which such measures should be brought into effect.”
- Surah Nisa, Ayat 35.
- See The News, Section 5, a comment by the president Jamiat Ulema-i- Islam Maulana Sami-ul-Haq questioning the credibility of the members of Council of Islamic Ideology.
- Especially Human Rights Commission of Pakistan and Women Action Forum, The News, Encore, 30th November, 2008.
- Dawn, Lahore, Monday, June 30, 2008, “Woman’s right to divorce; an under employed provision” by Meera Jamal.
- Section 8 of Muslim Family Law Ordinance 1961, says,
“Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right or where any of the parties wishes to dissolve the marriage otherwise than by Talaq, the provisions of Section 7, shall Mutatis Mutandis and so far as applicable, apply. Saghir, Ch. “Muslim Family Laws P.55.
- Sec. 7 of “ Muslim Family Law Ordinance 1961” ,
(1) Any man who wishes to divorce his wife, shall, as soon as may be after the pronouncement of Talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.”
Saghir, Ch. “Muslim Family Law Mansoor, P. 38
14. For a detailed discussion see Nishi P, “The Principles of Muhammadan Law” 2007 edition, p. 201