A Woman’s Right to Divorce
In a world of convenient stereotypes, the Muslim woman is seen as a helpless, whimpering human being with the threat of triple talaq hanging over her...
In a world of convenient stereotypes, the Muslim woman is seen as a helpless, whimpering human being with the threat of triple talaq hanging over her head despite years of matrimony. Almost all men and women with access to newspapers would have heard of triple talaq. Not many, though, would have heard of khula, the woman’s inalienable right to divorce. Worse, even Muslim women seem unaware of this right.
Things get positively disappointing when one realizes that even among those who are aware of khula, there is no clarity on its provisions. There is a lack of unanimity on whether it is solely a woman’s right, or, as some advocates of male supremacy contend, it is a mutual right to part ways.
Under khula, a woman has a right similar to that of a man to dissolve the marriage. What’s more, she has to specify no grounds for effecting the divorce. She has to furnish no proof of harassment or ill treatment. Something as simple as a dislike for her husband’s looks can be reason enough for khula to take place, as proven in Islamic history.
In a well-known Hadith, it is narrated that a woman came to the Prophet and declared her intention to divorce her husband. The Prophet asked her to reconsider her decision. Thereupon, she asked the Prophet whether it was his recommendation or instruction. The Prophet said it was only a recommendation. The woman then rejected the recommendation and was granted khula.
There is a well-known incident, from the Prophet’s time, about a woman called Jameela, the wife of Sabit bin Quais. She hated her husband because of how he looked. He was, however, pretty fond of her. ‘If I had no fear of God, I should have struck him on the face whenever he approached me,’ the woman told the Prophet.
Thereupon, the Prophet asked the husband to take back the garden he was offered and divorce Jameela. This illustration shows the Prophet’s recognition of the right of a Muslim wife to ask for divorce when it was clear that the parties could not live within the limits of God. It speaks volumes about the freedom a woman enjoyed during the Prophet’s time.
Indeed, khula has been in existence for as long as the Quran has—probably the first known instance in history where a woman has been granted the right to dissolve her marriage. No qazi can overrule the decision of the woman. Nor can he inquire into the reasons for her action. He cannot even ask her to rethink her decision. She needs no cleric, no intermediary for this divorce to take place.
All that the qazi has to do is to play the role of a facilitator and make sure that the parting does not get ugly. Under khula, a woman has to announce her intention to obtain a divorce, and the husband has to agree. In case he does not agree, the matter can be presented before the qazi, who cannot invalidate the woman’s decision.
He only has to make sure that she is serious about it. He then asks the man to release the woman from wedlock. No grounds have to be stated. The man cannot say no. It is a simple, irrevocable, instant divorce. The whole process, including the qazi’s involvement, does not take more than a month, which is much faster than our Lok Adalats.
Unlike when talaq is pronounced by a man, a woman does not stay with her husband after khula comes into effect. There is no cooling-off period, no time to rethink the decision. And there is absolutely no need for the wife to stay on with her husband after khula. This is done to safeguard her chastity, as after khula her erstwhile husband is considered a stranger to her. If she were to stay with him, the man, being physically more powerful, could overpower her, resulting in greater ugliness and pain for both the parties.
If the man has not paid his wife the mahr before she decides to go in for khula, she cannot demand it. Some jurists feel that even if he has paid the mahr, she should surrender it. However, others point out that the Quran asks men to be generous and not take back any gifts they might have given to their spouse in happier times. The Quran, through a part of verse 229, Surah Baqarah, clears the picture. It says:
It is not lawful for you (men) to take back any of your gifts (from your wives). Except when both parties fear that they would be unable to keep the limits set forth by Allah. If you (judges) do fear that they would be unable to keep the limits set forth by Allah, then there is no blame on either of them if she gives something for her freedom.
As reputed Islamic scholar Maulana Muhammed Ali puts it, ‘These words give the wife the right to claim divorce. It is one of the distinguishing characteristics of Islam, that it gives the wife the right to claim divorce if she is willing to forgo the whole or part of her dower.’
A khula may take place orally or through a written document called khulnama. Like talaq, it must be seen as the last resort, something to be used when the woman feels she may not be able to observe the limits set by the scripture.
Illustrious Islamic scholar Maulana Mawdudi wrote in Huquq al-Zawjain: Islamic law effects a beautiful equilibrium between the divorce rights of men and women. It is a great folly that we have practically withdrawn from our women the right of Khula, little caring for the fact that denying them the right which Shariat gives them on a footing equal to talaq is absolutely un-Islamic. It is indeed a mockery of the Shariat that we regard Khula as something depending either on the consent of the husband or on the verdict of the qazi. The law of Islam is not responsible for the way Muslim women are being deprived of their right in this respect.
Extracted with permission