The Law of Khul' in Islamic Law and the Legal System of Pakistan

Introduction

Islamic law provides numerous remedies to a Muslim wife in cases where harm (darar) to her has been established to the satisfaction of a judge. In the subcontinent, under section 2 of the Dissolution of Muslim Marriages Act 1939 ('DMMA'), a Muslim woman can obtain a divorce in case of her husband's disappearance for four years, her non-maintenance for two years, imprisonment of the husband for seven years or more, failure of the husband to perform his marital obligations for a period of three years, the husband's impotence, his insanity, and her maltreatment by the husband.^[1] However, these grounds do not seem to have brought any positive change to the affected women in India, Pakistan, and Bangladesh. The primary reason for this is that grounds for divorce available under the DMMA are fault based. The complainant wife has to prove the offence. Matrimonial offences such as ill treatment and cruelty by the husband or his family are hard to prove, because such offences take place within the privacy of homes and those accused of wrongdoing tend not to testify for the women. For these reasons, a no-fault based remedy was badly needed in the subcontinent and elsewhere in the Muslim world. Khul' seems to provide an answer, but the issues surrounding khul' in Islamic law are complicated, as shall be explained below. As far as the judiciary is concerned the Lahore High Court ruled for the first time in the Balqis Fatima case in 1959,^[2] that khul' should be available to a woman as of right and without the consent of the husband. This position was endorsed by the Supreme Court in the Khurshid Bibi case of 1967.^[3] In Egypt, Law No. 1 of 2000 did exactly the same as was done by the Superior Judiciary in Pakistan.

This article gives special attention to the opinions of Maliki exegetes and jurists in their interpretation of verse 4:35 of the Qur'an. It examines the habiba's episode^[4] and asks whether it has precedential value. Furthermore, it evaluates the arguments of fuqaha' of various schools of thought regarding the issue of (in)validity of khul' without the consent of the husband and examines the Islamic nature of legislation on khul' in Pakistan as well as in Egypt. In terms of methodology, the opinions of Muslim exegetes are discussed in Part I, followed by an analysis of the Habiba's hadith in Part II. This is followed by an analysis of the opinions of Muslim jurists of various schools of thought and the reasons for their respective positions in Part III. Part IV evaluates selected decisions of high courts and the Supreme Court of Pakistan on khul' and asks whether these amount to judicial ijtihad. Part V discusses the Islamicity of section 10(4) of the West Pakistan Family Courts Act 1964 as amended in 2002. Part VI evaluates the views of the Council of Islamic Ideology (CII) and asks whether the CII has exceeded its mandate. Finally, Part VII provides a conclusion. 

PART I: Khul' and the Qur'an

Literally, the term khul' means 'extracting oneself'.^[5] According to 'Alauddin Mas'ud al-Kasani, '[t]he khul' is lexically, 'al-naz'' and 'al-naz'' is to pull out/extract something from something.'^[6] Thus, 'khala'ha means that he has removed her from his marriage.'^[7]In the technical sense, it is used for marital 'extraction',^[8] and is the act of accepting compensation from the wife in exchange for her release from the marital tie. Ibn hajr defines it as '[s]eparation of the husband from his wife for money consideration to be given to the husband.'^[9] According to Ibn Rushd, 'the terms khul', fidya, sulh and mubara'a refer to the same meaning, which is a transaction in which wife pays compensation for obtaining her divorce.'^[10]

While discussing khul', fuqaha' and commentators of the Qur'an refer to the Qur'anic verse 2:229, which states:

Divorce can be pronounced twice: then, either honourable retention or kindly release should follow. (While dissolving the marriage tie) it is unlawful for you to take back anything of what you have given to your wives unless both fear that they may not be able to keep within the bounds set by Allah. Then, if they fear that they might not be able to keep within the bounds set by Allah, there is no blame upon them for what the wife might give away of her property to become released from the marriage tie.

The crucial question on which exegetes differ concerns who is being addressed in the verse through the use of the term 'fa in khiftum': Is it addressed to the hukkam (state authority), which is represented by the courts, or is it addressed to both the partners? In other words, who will determine whether the two partners can or cannot live within the bounds set by God? Should the determination of that important point be the responsibility of a court, acting on behalf of the state, or should it be determined by the partners themselves? Moreover, what constitutes 'khawf' (fear), mentioned in the verse? According to Imam al-Shafi'l, 'when one of them cannot keep within the bounds set by God, so both [are considered] unable to keep within the bounds of God.'^[11]According to Abu Bakr al-Jassas, 'illa un yakhafa' means 'if both of them thought'.^[12] The fear that the 'two may not be able to keep within the bounds set by God', arises when either of them violates their marital duties^[13] and/or transgresses upon mutual rights, or the rights of one or both of the partners are denied. The Qur'anic verse provides, 'Women have the same rights against their men as men have against them.'^[14] 'Ali b. Abi Talib (May Allah be pleased with him) is reported to have said, '[There are three] phrases when uttered by the wife [to the man], it becomes legal for him to take 'al-fidya' (the compensation): When she tells him that I will not obey you, that I will not fulfil your promise on oath, and I will not purify myself after sexual intercourse with you.'^[15] It is reported from 'Abdullah b. 'Abbas that 'her omission to keep within the bounds set by God is [treated as] disdain for the husband and a bad nature on her part.'^[16] Jassas has mentioned the full statement of Ibn 'Abbas as:

Thus, if she says, "I swear by God [that] I will not fulfill your oath, and I will not agree to your request of sleeping with you in the bed, and I will not obey you. If she did this, it is allowed for him to take from her 'al-fidya' but he should not take more than what he gave her (i.e., the dower) and let her go [provided] she caused the harm." Then, he [Ibn 'Abbas]  recited, "but if they, of their accord, give up unto you aught thereof, then enjoy it with pleasure and good cheer," (4:4) and it is said, that when there is no harm or cheating [in obtaining it], then it is pleasure and good cheer as God described it.^[17]

Qurtubi mentions that according to 'Atta b. Abi Rabah, 'Khul' and taking (compensation for the husband) become legal when the woman says to her husband: I hate you and do not like you or something similar.'^[18]

Muhammad Abu Zahra (d. 1974) argues that the situation in which both the partners cannot keep within the bounds set by God, arises in two ways: first, if the woman is nashizah (violates her marital duties), disobedient, or coerced, such as the wife of Thabit b. Qays b. Shamas Al-Ansari (d. 11/632); second, when the man has a problem such that marital life with him is not possible anymore.^[19]

Qurtubi argues that 'the majority of jurists are of the opinion that the addressees in the words of the Exalted 'wa in khiftum' (And if you fear)^[20] are the hukkam (state authorities). And the statement [of the Exalted] 'if they both want to set things right' [4:35] means the arbitrators according to ['Abdullah] Ibn 'Abbas, Mujahid and others; that is, if the arbitrators wanted reconciliation, Allah will bring about reconciliation between the spouses.'^[21]

The Tunisian scholar Muhammad al-Tahir b. 'Ashur (1879-1973) argues that 'if the spouses would be addressed [by 'tum'], then the wording would be: 'fa in khiftum aullatuqimu aw ullatuqima' (if you feared that you cannot keep or you [two partners] cannot keep…'^[22] Abu Zahra argues that the addressees are either 'the group of Muslims because they cooperate with each other, as they got discord between the spouses, or it is to the group of women and men', and his preference is for the first meaning.^[23]

Jurists differ in their opinions on the matter of whether khul' ought to be adjudicated or not; a topic which will be elaborated upon later when the various schools of thought come under discussion. In Pakistan, the Lahore High Court accepted the interpretation that the 'you' in the phrase 'if you fear' must be addressed to the state and the judicial officers of the state in the Balqis Fatima case. It clearly was not addressed to the two spouses, who are in this section referred to in the third person as 'they' and 'them.'^[24]

Exegetes from the Maliki school of thought discuss khul' under verse 4:35 which reads, 'If you fear a breach between the two, appoint an arbitrator from his people and an arbitrator from her people. If they both want to set things right, Allah will bring about reconciliation between them. Allah knows all, is well aware of everything.' Qurtubi argues that 'the arbitrators chosen by the state authority should see who is the cause of discord and once this is established they should dissolve the marriage through khul'.'^[25] He further asserts that one arbitrator should be from the man's side and one from the woman's side because they know their problems better. However, 'if there is no one from the spouses' people who could be appointed as arbitrators, so other suitable persons may be appointed by the state authority.'^[26] He argues that the arbitrators should remind the spouses about their union, so that they agree to remain together as husband and wife. And if they refuse to live as husband and wife and 'the arbitrators consider [sic] it appropriate to decree separation they may decree separation. And decree of separation by them [arbitrators] is binding for the spouses whether it [the decree] coincided with or was against the decree of the local court and whether the spouses delegated them [the arbitrators] the authority to do so or not.'^[27]

Ibn 'Ashur argues that verse 4:35 makes it obligatory to appoint arbitrators in case of a continuing dispute between the spouses which is denoted as 'shiqaq' (breach or discord). Apparently the appointing authority is the ruler and state authority, and not the spouses because the verb 'ib'athu' (appoint) is not addressed to the spouses. If they are appointed by the spouses, then the word 'al-ba'th' would have no meaning in the verse.^[28] He asserts that '[w]hatever decree is issued by the arbitrators is binding whether it be separation or union or khul'. And there is no say for the spouses in it because this is what arbitration is meant for.'^[29]

In a nutshell, the Qur'anic concept of khul' is: first, either of the partners may initiate it if he or she thinks that marital rights cannot be upheld in the marriage. Second, according to the preferred opinion of the majority of exegetes, the court has to determine the extent of discord, harm, aversion, coercion, etc. Third, and this is very crucial, the court must ascertain whether it can grant khul', especially when the discord or harm is attributed to the woman and she is ready to pay compensation to her husband without the husband's consent, or is it conditional upon the consent of the husband? In other words, is khul' a consensual act or can the court put an end to the marriage by khul' without the husband's consent? The answer is not clear from the wording of the Qur'an in verse 2:229 and this is why exegetes had to resort to ahadith regarding khul'. Fourth, Maliki jurists also discuss khul' under the Qur'anic verse 4:35 and conclude that khul' can be affected by the arbitrators and their decision shall be binding without the consent of the husband and the wife. Fifth, in case khul' is consensual (or even if it is not consensual or the consent of the husband is not required), then the court may put an end to the marriage and ask the wife to return the dower or what is agreed upon by both the partners as compensation for her freedom. Finally, there is no sin on the part of the spouses to receive such compensation. The apparent language of the verse 2:229 indicates that it is the wife who has to pay compensation to free herself, 'fima'fdatbehi' (what the wife may give up [to her husband]).^[30] To answer the remaining questions, we have to resort to ahadith of the Prophet (peace be upon him).

Part II: Khul' in hadith literature

Many collections of hadith have referred to the case of habiba bint Sahl-wife of Thabit. The incident is described in four of the six authoritative compendia of the Prophetic reports. According to the report of Al-Bukhari in his al-jami' al-sahih (The Authentic Collection) section on khul':

It is reported from Ibn 'Abbas that the wife of Thabit b. Qays came to the Prophet (peace be upon him), and said: "I see no fault with Thabit's conduct or his religious demeanour, but I dislike ingratitude in Islam." The Prophet (peace be upon him) said: "Will you return his garden to him?" "Yes", she answered. The messenger of Allah said: (to Thabit): "Accept (iqbil) your garden and divorce her [Talliqha (once)]."^[31]

In the second and third versions of the same incident, the Prophet (peace be upon him) is reported to have ordered Thabit ('amarahu) to divorce her in return for his garden.^[32]

In the first version in Al-Bukhari, the words 'iqbil' (accept) and 'Talliqha' (divorce her) are used in the imperative form by the Prophet, but in the second one the indirect speech is very clear that Thabit's approval was not sought but the Prophet had ordered him.  According to the report of Imam Al-Nasa'i:

Thabit b. Qays b. Shamas hit his wife and broke her limb and she was Jamila bint 'Abdullah b. Uby. She complained to her brother who took her to the Prophet (peace be upon him) and the Prophet (peace be upon him) summoned Thabit and told him, "take (khudh) [from her] what you have given her and let her go (free) (khalli sabilaha). He said: "Yes."^[33]

According to the collection of Abu Dawud, in which habiba's case is reported:

'A'isha (the Prophet's wife) relates that habiba bint Sahl was married to Thabit b. Qays b. Shamas, who hit her and broke a limb of hers. She approached the Prophet (peace be upon him) after dawn, and he summoned Thabit and told him: "Take (khudh) some of her money and separate from her." Thabit said: "Is this permissible, Prophet of God?" The Prophet said: "Yes." Thabit: "I gave her two gardens as dower and they are her property." The Prophet (peace be upon him) said: "Take them and separate from her (fariqha)", which he did.^[34]

Ibn Maja, in his collection of ahadith, narrates on the authority of Ibn 'Abbas that this case is similar to Al-Bukhari's first version of the case, with the difference that the Prophet (peace be upon him) 'has ordered Thabit to take only the garden and not more (than the garden).'^[35]

According to the report of Ahmad b. hanbal:

Sahl b. Abi Hathma related that habiba bint Sahl was married to Thabit b. Qays Al-Ansari, who was an ugly man. She said: "Messenger of Allah: O, by Allah, were I not to fear God, I would spit in his face whenever he touches me." The Prophet (peace be upon him) said: "Would you give him back his garden?" She said: "Yes", and she gave it back. Then the Prophet (peace be upon him) separated them (farraqa baynahuma).^[36]

In the report of Ibn Maja, as well as Abu Dawud, Thabit - the husband - does not play any decisive role (as assigned to him by the legists) as the Prophet never asked for his consent for the separation. The crux of the matter is that according to the above reports, which are different versions of the same incident, khul' is not consensual and the consent of the husband is not essential. As will be explained below, however, the majority of fuqaha' of hanafi, Shafi'i, hanbali as well Shi'a schools of thought purport that khul' cannot be granted by the court without the consent of the husband. The four compilers of ahadith collections who narrate habiba's episode 'neither mention nor allude to her husband's approval as a condition for her divorce; on the contrary, what they all have in common is the command aspect of the Prophet's order to Thabit to take the compensation and separate from habiba.'^[37] Despite this 'imposed' passivity on the part of Thabit, the majority jurists have unanimously assigned a decisive role to the husband in khul'. According to Jassas of the hanafi school, the fact that both Thabit and habiba were asked by the Prophet (peace be upon him) implies that khul' is consensual because the husband has been placed at the center point in this episode, otherwise the Prophet could have dismissed him completely and divorced habiba entirely on his own.^[38]

The conclusion that can be derived from this narrative is that the majority of legists differ from the hadith, and to some extent from the Qur'an, regarding khul', especially regarding the approval of the husband. There is no doubt that the Qur'anic verse was further explained by the habiba's episode and that the Prophet's ruling has precedential value. Oussama argues that Muslim legists seem to allow the Qur'anic implication of a consensual transaction to overrule the Prophetic ruling in the habiba's khul' separation case.^[39] However, Maliki jurists differ from most Sunni scholars on the issue of the consent of the husband. In addition, as explained above, there is no unanimity on the issue that the Qur'anic verse 2:229 only allowed a consensual bargaining-based negotiated settlement as some exegetes have expressly mentioned that the word 'tum' (you) is addressed to the state authority. The habiba incident stands on its own and has not been overruled by the Qur'an. Moreover, one has to analyse the opinions of jurists regarding verse 4:35 to reach a clear conclusion. It is this precedent that provided the basis for the new law of khul' in Pakistan, as well as in Egypt.^[40]

 

Part III: Khul' in Fiqh Literature

Khul' in the hanafi School

hanafi jurists fully acknowledge the hadith of habiba but unanimously assign the husband a decisive and controlling role in the process of khul'. Jassas points out that the fact that the Prophet had sought the opinions of both habiba and Thabit, places the latter at the centre stage of the debate since the Prophet could have dismissed him completely and granted a divorce to habiba himself.^[41] hanafi jurists insist that the consent of the husband is necessary for the validity of khul'. Abu Bakr al-Sarakhsi argues that khul' 'is a transaction that requires the consent of the [parties] like all other transactions.'^[42] Kasani states that the basic element of khul' is 'offer and acceptance because it is Talaq for compensation, thus, there cannot be any separation without acceptance.'^[43] In other words, for Kasani, a court cannot force anyone to enter into contractual relations, and therefore, it cannot grant khul' without the husband's consent. There is no disagreement among hanafi jurists on this issue,^[44] all of whom consider khul' an irrevocable Talaq^[45] and agree that adjudication is not necessary for affecting it as it can be concluded outside the court.^[46] According to Abu hanifa, a man cannot retract his offer should he initiate khul', as he is governed by the rules of oaths; he has to wait for his wife to accept or reject his offer. She has to submit to the rules of compensation and is allowed to retract her offer before his response. Abu hanifa bases his reasoning on the principle that khul' is bay' (sale transaction) on the part of the wife, as she is buying back control over herself.^[47] If the discord emanates from the husband, 'then it is not permissible for him to take any compensation in return for khul'.'^[48] The apparent wording of the Qur'an presumes that the woman pays compensation to free herself (fimaaftadat behi), so the discord is always assumed to be because of her. Kasani argues that:

If the matter is resolved by a stranger, then he is allowed to order [her to pay] the equivalent of the dower, and if he ordered [her to pay] more or less [than the amount of dower], then, in case of more [amount], it is not binding without the consent of the woman and in case it is less, then [it is not binding] without the consent of the husband.^[49]

Thus, Kasani - referred to as the king of 'ulama' (malak al-'ulama) within the hanafi school of thought - considers the consent of the husband necessary even if the amount of compensation to be given to him is less than the amount of dower. In other words, the husband according to the hanafi school of thought, seems to have the equivalent of a veto regarding Talaq and khul'.

Khul' in the Maliki School

The linguistic formulations of the Maliki jurists on khul' are not easy to understand and need an in-depth analysis to reach a clear conclusion on whether the consent of the husband is necessary for khul'. The confusion is mainly whether the Malikis consider the consent of the husband a legal necessity by implication or not. Imam Malik has discussed the Qur'anic verse 4:35, habiba's ruling, and two cases involving neglectful husbands, and his legal formulations suggest that he gives the two arbitrators the main role in the dissolution of marriage, either by Talaq or khul'. In addition, he also presumes a negotiated settlement.^[50] Certain points within the Maliki school are clear and these are mentioned below.

In circumstances where it is difficult for a woman to live with her husband and she approaches the court, it must be clear that which one of the two is the cause of discord. When it is known to the court that the husband or the wife has caused the discord, the court shall attempt to bring about reconciliation. If this is not possible, then the court may dissolve the marriage.^[51] The court shall order khul' if it finds that the husband was the cause of the discord. In this situation, the wife will be ordered to return the dower given to her by the husband. However, if it comes to the conclusion that the wife was the cause of the discord, it shall dissolve the marriage by divorce and shall order the husband to pay the dower if not yet paid. The court under the Maliki school can issue a decree of Talaq or khul' without the consent of the husband and wife.^[52]

If the court does not know which one of the two is to blame for the dispute, it has to appoint two arbitrators: one to represent each the husband and the wife. Maliki jurists have elaborated on the role assigned to the arbitrators.^[53] In general, they agree that the arbitrators may dissolve the marriage either by Talaq or khul' depending upon who is to blame for the dispute. Some Maliki jurists have even stated that the court or the arbitrators can dissolve the marriage through Talaq or khul' without the consent of both the husband and the wife. This is evident from many classical Maliki texts (mutun), as well as commentaries on the main texts. While commenting on Qur'anic verse 4:35, which reads 'If you fear a breach between the two, appoint an arbitrator from his people and an arbitrator from her people. If they both want to set things right, Allah will bring about reconciliation between them. Allah knows all, is well aware of everything', Ibn Juzi al-Kalbi al-Garnati states:

Allah has mentioned what to do with a disobedient wife and how to deal with an obedient one, then he mentioned another situation, that is, when there is discord between the two which they cannot reconcile themselves and it is not known who caused it. So [in this situation the court] should appoint two Muslim arbitrators to investigate the matter between the two. And their decision has to be implemented whether it is the dissolution of marriage through Talaq or khul' without the consent of the husband.^[54]

Ibn 'Abdul Bar - another leading Maliki jurist - has said something similar. He argues:

The spouses may appoint one arbitrator each without the intervention of the State authority. If the husband is the cause of discord they shall dissolve the marriage without anything. The arbitrators should not take anything from the wife [in this situation] with the condition that she is divorced [by the husband]. And it is said that it is allowed [to take something from the wife in this situation]; and if she was the cause of discord, they [the arbitrators] should take [money or compensation] from her as they think appropriate and it [the resultant separation] will be khul' and the two should be separated [their marriage be dissolved].^[55]

Maliki jurists have also explained the situation in which both the husband and the wife are equally blameworthy for the discord. According to 'Abdari, 'the husband shall not be given anything if both the husband and the wife were equally guilty of discord.'^[56]

Imam Malik discusses three different versions of habiba's case and seems to introduce the husband's consent in the third version, in which the Prophet (peace be upon him) invited Thabit and told him about his wife and about her willingness to return him the garden to which Thabit said: 'This is to my liking; Yes.' The Prophet said: 'Then she gives it back.'^[57] Unfortunately, Imam Malik is not very specific about whether the consent of the husband is necessary for khul'. Imam Malik is more specific in the chapter on 'Hakamayn' (the two arbitrators), where he gives an interesting opinion. On the role of the two arbitrators, Malik states,

If the arbitrators could bring in reconciliation [between the two], they should reconcile between the two [the husband and the wife]; then, it is lawful [for the two arbitrators] if the two [arbitrators] decided to dissolve the marriage between the two [the husband and the wife] without the [permission] of the state authority. And if the two [arbitrators] decided to take [compensation] from her [and give it to the husband] so that it becomes [separation by] khul', they [the arbitrators] can do that.^[58]

Imam Malik's opinion gives the impression that the consent of the husband is not necessary for the validity of khul'. Above, we have given more precise opinions of other Maliki jurists to clarify this issue. Since Imam Malik does not mention his opinion in precise words on whether the consent of the husband is necessary for khul', this made the issue confusing. However, the assertion of other Maliki jurists clarifies the issue that the consent of the husband is not necessary in khul' and that it can be implemented without his consent.

According to 'Abdul Wahab Baghdadi:

In case of a dispute and eruption of a discord, if it is known that harm is caused by one of them it should be eliminated. However, if it is unknown which one of the two have caused the discord the State authority [court] shall send in two arbitrators one from the husband's side and one from the wife's side. The arbitrators should be jurists and fair and should investigate the matter and should do whatever they think is better for the husband and wife ranging from reconciliation to separation between the two regardless of the consent of the two [husband and wife] and whether the State authority [court] agrees or disagrees with their decision.^[59]

Ibn Rushd has an interesting opinion regarding khul'. He states that, 'yet, the juristic reasoning is that fida (ransom) granted to a woman is something equivalent to what is possessed by the man; namely, (the right to) divorce. A man possesses repudiation when he pressurises a woman, while a woman possesses khul' when she wants to pressurise a man (her husband).'^[60] It can be construed from this passage that Ibn Rushd treats khul' as a right possessed by a woman that is the equivalent of a man's right to divorce and that khul' is not dependent upon the consent of the husband. This passage is not clear about Ibn Rushd's opinion or the opinion of Maliki school on the issue of consent of the husband. However, mentioning the crucial role of arbitrators, Ibn Rushd says:

They [the jurists] disputed the agreed decision of the arbiters to separate them [the husband and wife], whether it would require the consent of the husband. Malik and his disciples said that their decision about separation and union is valid without specific delegation by the spouses and without their consent. Al-Shafi'i, Abu hanifah and their disciples said that they have no right to separate them, except when the husband delegates such authority to them.^[61]

Taqiuddin al-hilali, a leading 20^th century Maliki scholar argues:

Jurists differ regarding the issue of arbitrators; are they appointed by the state authority so that their ruling is binding without the consent of the spouses or are they proxies for the spouses? There are two opinions regarding this issue: the majority of scholars prefer the first opinion [i.e. their ruling is binding without the consent of the spouses] because of the Qur'anic verse, 'appoint an arbitrator from his people and an arbitrator from her people', so they are named as 'hakamayn' (arbitrators) and an arbitrator is allowed to rule without the consent of the disputant and this is the apparent meaning of the Qur'anic verse [4:35].^[62]

It is very clear from the above that Maliki jurists have given a crucial role to arbitrators and they may decide to dissolve the marriage by khul' without the consent of the husband as well as the wife. In addition, Maliki jurists consider khul' as Talaq.^[63] As far as the amount of compensation is concerned, Ibn Rushd argues that according to Imam Malik and a group of jurists, 'it is permitted to a woman to secure freedom with more than what has come to her from the husband, by way of dower.'^[64]

Khul' in the Shafi'i School

According to Imam al-Shafi'i, khul' just like Talaq, can only be affected by the husband.^[65] He argues that:

Where a man wants to separate from his wife and he intends divorce but does not intend a specific number, then the separation is a single irrevocable divorce (fa al-khul' Tatliqatan la yamliku fihi al-ruju'); this is so because it is a sale (bay') like other sales and it is not allowed for him to take possession of her money while continuing to possess her.^[66]

Al-Shafi'i has narrated two versions of habiba's incident: one from Imam Malik and the other one from Ibn 'Uyayna. In the second version, habiba complains of some 'harm' done to her person, which probably implies that the harm was of a physical nature. The Prophet (peace be upon him) ordered her husband, Thabit, to '[t]ake what she is giving you (khudh minha)', which is repeated in both versions by al-Shafi'i.^[67] Imam al-Shafi'i treats khul' as Talaq^[68] and allows for it to be settled in or outside of a court 'as the paying of compensation and Talaq are permissible in the court as well as outside it.'^[69]

Khul' in the hanbali School

While discussing the Prophet's ruling in the case of habiba,^[70] Ibn al-Qaiyam of the hanbali school of thought refers to the versions of Al-Bukhari, Al-Nasa'i, Abu Dawud, and Al-Dar QuTni, and derives various rules pertaining to khul'. He argues that khul' is legal as stated in the Qur'an in verse 2:229, and that the verse allows it with or without the permission of the sulTan (state authority). The verse indicates that the resultant separation will be an irrevocable Talaq because God has named it 'fidya (ransom) and if the (separation) would be revocable, as thought by some people, there would be no ransoming for the woman after paying him.'^[71] The Qur'anic verse 'fa la junaha 'alihima fima aftadat bihi' (there shall be no sin upon either of them for what the wife may give up [to her husband] in order to free herself), 'also indicates that taking more or less (than the amount of the dower) is allowed and that he can take more than what he gave her.' Ibn al-Qaiyam produces a ruling given by 'Uthman b. 'Affan (d. 35/656) in which a woman paid as her khul' settlement everything she owned and 'Uthman ordered the husband to take even her hair-band ('Iqas),^[72] and that 'Umar b. Al-KhaTTab was reported by a man whose wife had violated her marital duties (nashiza) and 'Umar said (to him): 'separate from her (ikhla'ha) even if she gives (you) her earrings (qirat) [in compensation].'^[73] Ibn al-Qaiyam discusses details of the difference of opinions of jurists and mentions that taking more than the amount of dower is reprehensible (makruh) according to Imam Ahmad b. hanbal.^[74] Ibn al-Qaiyam argues that 'khul' is called fidya (ransom) because it involves the paying of the compensation (al-mu'awaḍa) and therefore it is consensual.'^[75]

According to Muhammad b. hazam (d. 456A.H.), if a woman thinks that she cannot obey her husband and fulfill his demands, then 'she may free herself if he agrees.' However, 'if he refuses (to divorce her), he cannot be forced (to do so).'^[76] He goes on to say that a woman cannot be forced to free herself. '[A]nd the consent of both (the husband and wife) is essential for its legality (i.e., khul'). And if it (i.e., khul') was affected without these two conditions (i.e., compensation from the wife and the consent of the husband), then it is invalid.'^[77]

The Ahl al-hadith in Pakistan also allow khul' if the wife abhors the man and has a natural hatred for him. 'Abdullah Ropri produces two versions of habiba's case and concludes that mere aversion or abhorrence is enough for a woman to obtain khul'.^[78] Although, Ropri does not explicitly mention whether the consent of the husband is necessary for khul', he advises that 'in such a situation the wife has the option of dissolving her marriage (faskh e nikah) through 'Panchayat', etc.'^[79]

Khul' in the Shi'a school

According to hilli of the Ithna 'asharia (twelver) Shi'a school of thought, the specific words used for khul' are: when the husband says, 'you are redeemed for so much (khala'tuki 'ala al-kaza).'^[80] Khul' is also allowed if the husband used the word khul' only without mentioning the word Talaq. But according to another opinion, the word khul' must be followed by the word Talaq to be valid.^[81] Khul' is defined by the editor of hilli's book as '[p]utting an end to marriage when the woman abhors her husband only in return for compensation from the woman.'^[82] This means that if she abhors him she has to make an offer, which may be accepted or rejected by the husband. This makes the consent of the husband mandatory. The preferred view is that separation through this way is irrevocable Talaq and not faskh. 'If they agreed on khul', then the husband cannot retract but she can retract in paying fidya during her 'iddat' (waiting period) and he can retract if she offers to do it.'^[83]

After discussing the opinions of the fuqaha' belonging to the various schools of thought, the picture that emerges is as follows: 1) all of the schools of thought permit khul' and cite verse 2:229^[84] and habiba's incident; 2) according to the Maliki school, if the husband is the cause of the discord then he should not take or be given any compensation, but if the wife is the cause of the discord then she must pay compensation to the husband; 3) all the fuqaha' agree that the resultant separation will be irrevocable, that is, a Talaq;^[85] 4) the compensation to be paid may be the equivalent of, or more or less, than the amount of dower; 5) if they settled on more than what he gave her, it is morally reprehensible but legally binding; 6) the majority of schools disregard the ruling in habiba's case and require the consent of the husband for khul', however, the Maliki jurists have reached a different conclusion based on verse 4:35 by allowing the arbitrators authority to put an end to marriage without the consent of the husband, even if the spouses have not delegated them the authority to do so; 7) the majority agree that khul' is consensual and the consent of both spouses is necessary, whereas the Malikis allow the arbitrators to dissolve the marriage by khul' without the consent of the husband or wife; 8) khul' can be settled between the partners with or without the intervention of state authority; 9) fuqaha' of all Sunni schools have referred to the Prophet's ruling in the case of habiba, in which in some narrations, the Prophet prohibited her from paying more than her dower but they (fuqaha') consider paying more by the wife to be legally permissible.

The majority of jurists grant the husband an absolute right at the expense of his wife because of the notion of qawama.^[86] However, resort to a court in case of khul' seems unavoidable and the court must have a role to determine the issue of harm to the wife or hatred between the two parties in addition to determining the amount and extent of compensation. If a husband claims that they can live within the boundaries fixed by Allah but the wife says that they cannot, then whose claim should be accepted? It would require a third person to determine whether the wife cannot live with the husband and whether the level of hatred and aversion has reached the point of no return (irrevocable breakdown of marriage).

 

Part IV: Khul' and the Superior Courts in Pakistan: Interpreting Islamic Law or Judicial Ijtihad?

 

The Traditional View

The earliest reported case on khul' in the subcontinent- now India, Pakistan, and Bangladesh, is that of Munshi Buzul-ul-Raheem case,^[87] in which the Judicial Committee of the Privy Council ruled that khul' was not available without the consent of the husband under Islamic law. Unfortunately, this case is applicable in India even today where it has not been overruled, however, the situation in Pakistan and Bangladesh is different. Gangrade argues that in India, it is uncertain whether a wife can ask for khul' against the wishes of the husband.^[88] In Umar Bibi v Mohammad Din,^[89] a Divisional Bench of the Lahore High Court rejected appeals by two women who were seeking divorce on the basis of khul' against the consents of their husbands and on the basis of incompatibility of temperament as grounds for their divorces. This view was upheld by a full bench of the same Court in Sayeeda Khanam v Muhammad Sami^[90] in 1952. The questions before the Court were: 1) whether incompatibility of temperament constitutes a ground for divorce under Islamic law; and 2) whether discord (shiqaq) constitutes a ground for divorce under Islamic law. The Court answered both the questions in the negative. The Court held that the crucial role of the Prophet (peace be upon him) in the Jamila episode discussed above, was that even the Prophet (peace be upon him) did not take it upon himself to dissolve the marriage; he had only ordered the husband to do so and the Prophet's role in this case was not that of a judge at all, but of a law-giver.^[91] As explained above, the Court merely endorsed the traditional view of the hanafi jurists.

 

Part V: Judicial Ijtihad?: Islamic Law (Re)-Interpreted

 

In 1959, a Full Bench of the Lahore High Court revisited the established law of khul' in Islam. In Balqis Fatima v Najm-ul-Ikram Qureshi,^[92] the main question before the Court was '[whether] the wife [was] entitled to dissolution of marriage on restoration of what she has received from the husband in consideration of the marriage?' The Court answered the question in the affirmative by giving a fresh interpretation to verse 2:229, and held:

This verse [2:229] admittedly permits the termination of a marriage by the wife passing consideration to the husband. The question for consideration is whether this termination can be affected only by agreement between the husband and wife or whether the wife can claim such termination even if the husband was not agreeable.^[93]

Justice Kaikaus argued that the 'you' in the phrase 'if you fear' [khiftum] must be addressed to the state and the judicial officers of the state but it clearly was not addressed to the spouse. In his view, a reference to the judge could possibly arise in circumstances where the wife wanted a divorce but the husband had refused his assent. Thus, it was for the judge to determine whether the parties would keep within the limits of Allah if the marriage were to continue. There is no point in referring the matter to a judge and in requiring him to make a determination if, in the end, he is powerless to do anything should he be convinced that the spouses could not remain within the bounds set by God. The Court concluded that the reference to the judge under the verse can only mean that he is entitled to pass an order dissolving the marriage even though the husband is not ready to divorce.^[94]

In its understanding of verse 2:229, the Court deviated from the interpretation of this verse by Muslim exegetes discussed above. In this case the judges themselves interpreted verse 2:229 by directly relying on the Qur'an itself and ahadith of the Prophet (peace be upon him), and by ignoring the opinions of the classical and the medieval jurists. In addition, the Court considered khul' as Talaq (divorce) rather than fasakh (dissolution of marriage). Thus, in the Court's view in khul', the wife has to redeem herself in return for some consideration and a Court can dissolve the same if it was convinced that the spouses would not be able to live within the bounds set by God, and that the consent of the husband for the validity of khul', in such cases, was not necessary. The Court also argued that in the Jamila's case discussed above the dissolution was directly ordered by the Prophet (peace be upon him) acting as a judge (rather than as a social or a political leader, as viewed by some authors), without commenting on the reasonableness of the attitude of the wife, and without seeking the consent of the husband.^[95]

The Court relied upon the opinion of Maulana Mawdudi, who has deviated from the opinions of the majority of fuqaha' and has explicitly given the opinion:

[A] Wife's right to khul' is parallel to the man's right of talaq. Like the latter the former too is unconditional. It is indeed a mockery of the Shariat that we regard khul' 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 denied their right in this respect.^[96]

The Supreme Court of Pakistan endorsed Balqis Fatima and rejected Sayeeda Khanam^[97] when it decided the Khurshid Bibi case.^[98] Commenting on verse 2:229, the Court gave its own interpretation while ignoring the opinions of the exegetes, and held:

[W]here the husband disputes the right of the wife to obtain separation by khula [khul'], it is obvious that some third party will have to decide the matter and, consequently, the dispute will have to be adjudicated upon by the Qazi, with or without assistance of the Hakams. Any other interpretation of the Qur'anic verse regarding khula [khul'] would deprive it of all efficacy as a charter granted to the wife. It is significant that according to the Qur'an she can "ransom herself" or "get her release" and it is plain that these words connote an independent right in her.^[99]

However, the Supreme Court put some limits on the wife's right to obtain khul'. The Court opined, '[T]he Qur'anic condition must be satisfied that it is no longer possible for the husband and the wife to live together in harmony and in conformity with their obligations.'^[100] The Lahore High Court in Balqis Fatima case had already observed:

There is an important limitation on her right of khul'. It is only if the judge apprehends that the limits of God will not be observed, that is, in their relation towards one another, the spouses will not obey God, that a harmonious married state, as envisaged by Islam, will not be possible that he will grant a dissolution. The wife cannot have a divorce for every passing impulse.^[101]

Carroll argues that the 'apprehension' or 'satisfaction' of the judge is 'essentially a subjective evaluation.'^[102] It has to be supported by some material evidence. Justice Javed Iqbal of the Lahore High Court, tried to clarify the law for the lower courts, when he observed:

If the Judge Family Court arrives at the conclusion that no reconciliation was possible, that the wife was determined to get the marriage dissolved, and that not dissolving the marriage would amount to forcing or compelling her to live in a hateful union with the husband, then he must dissolve the marriage on the basis of khula [khul'].^[103]

The method used by the Courts in Pakistan to arrive at this new law of khul', which is not based on the formulations of the various schools of thought in Islam, should be discussed here. In Balqis Fatima,^[104] the Full Bench of the Lahore High Court ruled that the court can adopt a course different from that laid down by the classical jurists. Further, the Court opined: 

We are dealing with the interpretation of the Holy Qur'an and on a question of interpretation we are not bound by the opinions of jurists. If we be [sic] clear as to what the meaning of a verse in the Qur'an is, it will be our duty to give effect to that interpretation irrespective of what has been stated by the jurists.... Similar considerations apply to the interpretation of the traditions of the Prophet.^[105]

The Supreme Court affirmed this principle in the Khurshid Bibi case, when it observed:

The opinions of Jurists and Commentators stand on no higher footing than that of reasoning of men falling in the category of secondary sources of Muslim law, and cannot, therefore, compare in weight or authority with, nor alter the Qur'anic law or the Ahadith. If the opinions of the jurists conflict with the Qur'an and the Sunnah, they are not binding on Courts, and it is our duty, as true Muslims, to obey the word of God and the Holy Prophet (ati-ullah-waati-ur-Rasool).^[106]

In 2002, the legislature amended section 10(4) of the Family Courts Act 1964 to provide summary dissolution of marriage in cases of khul' by requiring that 'the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and also restore the husband the Haq Mehr [dower] received by the wife in consideration of marriage at the time of marriage.' The Islamicity of the above section, especially the new provision, was challenged in Saleem Ahmad v The Government of Pakistan^[107] in the Federal Shariat Court. The Court observed:

With great regard and utmost respect for the scholarship, 'Taqwa' and deep insight of  the  eminent  Aimma Ezam and Ulema kiram this Court cannot declare any law or provision of law merely on the basis of views, verdicts and Fatawa issued by the honourable scholars whosoever they might be.^[108]

The Court held that '[t]he impugned provision of law [i.e., S. 10(4)] was not found to be in conflict with any specific injunction contained in the Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him).'^[109] The Court further observed:

The courts are there to dissolve [sic resolve] the disputes that arise between the parties. They can decide all type of matters including, admittedly, dissolution of marriage on certain grounds. One wonders why they are not authorized to decide the case of Khula [khul'], if a husband does not at all agree to the divorce of his wife and all the reconciliatory efforts fail.^[110]

After discussing the various arguments, verses of the Qur'an, ahadith, and opinions of jurisprudents, the Court came to the conclusion that 'there is no specific verse or authentic Ahadith that provides a bar to the exercise of jurisdiction by a competent Qazi to decree the case of Khula agitated before him by a wife after reconciliation fail.'^[111] This was indeed a very bold decision and must be appreciated.

Under the above section, i.e., 10(4), obtaining khul' has become easier for women, but the problem is that khul' is availed as an alternative remedy. Usually, a complainant woman requests dissolution of her marriage on the basis of cruelty of her husband or in-laws or non-maintenance by her husband or any other remedy under the DMMA 1939, and requests khul' only as an alternative remedy. It is very unfortunate that in some cases, the judges only grant khul' and ignore all other remedies and order the wife to return her dower to the husband.^[112] However, there are many cases in which the courts have corrected these aberrations and laid down the true exposition of the law of khul'.^[113]

          The Superior Courts in Pakistan have not considered themselves bound by taqlid and, by seemingly resorting to ijtihad,^[114] have asserted three rights: first, their right to independent interpretation of the Qur'an and Sunnah, where necessary; second, their right to differ from the doctrines of traditionally authoritative legal texts of the various schools of thought in Islam, especially the hanafi;^[115] and third, their right to not follow the decisions of the Privy Council in this regard.^[116] It is generally thought that the Superior Courts in Pakistan seem to have exercised ijtihad rather than takhayur^[117] or talfiq^[118] and have mainly relied on the Qur'an and the Sunnah and not on the opinions of jurisprudents. However, section 2 of the Enforcement of Shari‛ah Act, 1991 seems to be have added another source that Courts may take into consideration. Section 2 of the Act states that 'Shari‛ah' means the injunctions of Islam as laid down in the Qur'an and [the] Sunnah. The explanation provided for section 2 states that:

While interpreting and explaining the Shari'ah the recognized principles of interpretation and explanation of the Holy Qur'an and Sunnah shall be followed and the expositions and opinions of recognized jurists of Islam belonging to prevalent Islamic schools of jurisprudence may be taken into consideration.^[119]

It is noteworthy that the words 'may be taken into consideration' in section 2, are recommendatory only and not mandatory. Moreover, it is unclear what is meant by the word 'prevalent'; it apparently allows the judges to resort to takhayur or choosing the opinion of one school over that of the other(s), and not to strictly adhere to the interpretation of only one school of thought.      

A closer look, however, reveals that in the case of khul', the Courts in Pakistan did not resort to ijtihad per se but rather applied the Sunnah of the Prophet (peace be upon him) in preference to the interpretations of Muslim jurists. In other words, the Courts deviated from the opinions of the majority of Muslim jurists only thinking that these opinions were not based on the Qur'an and more specifically, the Sunnah of the Prophet. Since the topic of ijtihad and the modes of ijtihad are complex, any statement to the effect that the Pakistani Courts resorted to ijtihad regarding khul' would be a sweeping one.^[120] Balqis Fatima and Khurshid Bibi are indeed very bold decisions, but these have deviated from the settled opinions of the majority of fuqaha' of hanafi, Shafi'i and hanbali schools as well as the Shi'a school of thought. Moreover, in both cases, the judges have given the opinions of some scholars to support the view that the consent of the husband is not required in khul', but the Courts needed to mention the vast literature within the Maliki school to support its stance. This is why the 'ulama in Pakistan have managed to level a scathing attack on the precedent repeatedly upheld by the Superior Courts regarding khul'.^[121] It is worth noting that the Superior Courts in Pakistan have repeatedly granted khul' to women summarily, especially after the 2002 amendment in the Family Courts Act 1964.^[122]

 

Part VI: Recommendations of the Council of Islamic Ideology: The Return of Traditional View

 

The Council of Islamic Ideology makes recommendations to the Parliament, Provincial Assemblies, the President, or any Governor, on whether a proposed law is repugnant to the injunctions of Islam.^[123] The Council's duties are only of an advisory and recommendatory nature. The Council has no independent power of enforcement. Articles 227-231 of the Constitution of Pakistan only established a process by which the Council may have advisory input on the 'Islamic' credentials of existing and proposed laws.^[124] The Council made its recommendation regarding khul' to the Government of Pakistan, which is reproduced below:

Therefore, in our opinion, a law should be enacted at the level of the state that, after a woman's written request for divorce, the husband must have an obligation to divorce her within 90 days. If the husband refuses to divorce her, the marriage shall stand dissolved after the passage of this time [90 days] except if the wife revokes her request. The husband should have no right to revoke after this. The wife must return assets and property given to her by the husband except dower and maintenance if demanded by the husband or else approach a court of law for the resolution of the conflict (of return of assets/valuables).^[125]

There are several points to note. First, the Council's Recommendation seems to be a deviation from the apparent words of verse 2:229 of the Qur'an,^[126] according to which the wife pays something to free herself. Second, the Recommendation also seems to deviate from the precedent laid down by the Prophet in the habiba's case, discussed above, in which she was asked by the Prophet to return her dower to her husband in return for her freedom from marriage. Third, the Recommendation is in accord with Islamic law, especially the Qur'an and the Sunnah, in cases when the husband is the cause of discord. Finally, the Recommendation overlaps with section 10(4) of the West Pakistan Family Court Act 1964 as amended in 2002, which governs the existing law on khul'. However, the view of the Council seems to change with the change of its Chairman. On 27 May 2015, Mawlana Muhammad Khan Shirani, Chairman CII, opined that 'courts should refrain from dissolving 'nikah' (marriage contract) in the name of 'khula' or separation.' He argued that '[k]hula is an agreement between two parties and it should not be granted until the husband agrees to it.'^[127] Mawlana Shirani wishes to impose the views of the hanafi school on Pakistani society, forgetting that the Council has to render advise according to the Qur'an and the Sunnah of the Prophet (peace be upon him) only.

 

Conclusion

 

The main argument of the article may be reiterated here. The jamhoor (majority) of schools of thought argue that khul' is consensual between the husband and the wife. In their view, a judge cannot dissolve a marriage by khul' on the request of the wife without the consent of the husband. On the other hand, Maliki jurists argue that the decree of the arbitrators is valid whether they order separation or union between the two, and it neither requires the consent of the husband nor of the wife. Maliki jurists and exegetes focus on verse 4:35 of the Qur'an rather than verse 2:229. The Superior Courts in Pakistan have been more sympathetic towards helpless women demanding khul' as compared to courts in India. The Federal Shariat Court has upheld section 10(4) of the Family Courts Act 1964 as not violative of the Injunctions of Islam. In addition, it ruled that it is not bound by the opinions of Muslim jurists. The Council of Islamic Ideology changed its views on the law of khul'. The Council had a radical view in 2008-9 about khul' under Dr Khalid Mas'ud, but it returned to the traditional view in 2015 under Mawlana Shirani. It is surprising that neither the Superior Courts, nor the Federal Shariat Court have dug deeper into the interpretation of verse 4:35 of the Qur'an as understood by numerous Maliki jurisprudents and exegetes who do not give the husband any controlling power in khul'. The CII has ignored verse 4:35, along with the habiba/Jamila precedent as well as the views of Maliki jurists.

 

* PhD (Karachi University); LL.M (Stockholm University); LL.M & LL.B (Hons) International Islamic University. Currently he is serving as Director General Shari'a Academy, International Islamic University Islamabad.