KHULA: THE GREAT CONTROVERSY
By:
PROF. ZILL-I-ATIF
Director & Head Faculty of Law
GC University
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
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
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
1.
The “News”, Encore,
2.
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.
3.
Presented by Javed Ahmed Ghandi published in
“Ishraq”
4.
Created by Article 228 of the Constitution, Munir,
M. “The Constitution of the Islamic Republic of Pakistan”, P. 495 PLD
publisher.
5.
Khan, H, “Constitutional and Political History of
6.
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”.
7.
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.”
8.
Surah Nisa, Ayat 35.
9.
See The News, Section
10.
Especially Human Rights Commission of
11.
Dawn,
12.
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.
13.
Sec. 7 of “
Muslim Family Law Ordinance
(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.”
14.
For a detailed discussion see Nishi P, “The
Principles of Muhammadan Law” 2007 edition, p. 201