Khul’ Or Khula, Divorce Initiated By Muslim Women: Victims Welcome Relief Offered By Kerala High Court
By
Grace Mubashir, New Age Islam
24 February
2024
The Community
Leadership Who Conduct Marriages Must Also Take Initiatives To Facilitate Khul’
Or Khula Divorce As Per Kerala High Court Verdict
Main
Points:
1.
The 2023 Kerala High Court ruling related to
Khul' can be seen as a positive step towards untying this tangle. According to
this ruling, a Muslim woman does not have to go to court to get a divorce. It
will be very helpful in avoiding delay in this matter.
2.
Victims of abusive marriages have welcomed
court decision.
3.
Khul’ is divorce initiated by women.
4.
This facility is not encouraged by community
and clerical leadership causing a setback to women's rights.
5.
Khula is a human right of married women granted
by Islam in which community leadership and ulema routinely interfere on the
side of the errant husband.
------
A few years
ago, a case came to the attention of the Kerala High Court. Police had
registered a criminal case against a young woman in Kollam. They want to cancel
it. A case had been registered against her on the complaint of her first
husband. When it became difficult to get along with her husband, she decided to
leave him. She understood that the woman had an Islamic right to leave her husband
because she lived by Muslim religious rules. She informed the decision to
family. The matter was also conveyed in the Mahallu (local religious
leadership) where the Nikah took place. Divorce was sought under the leadership
of the Khadis of the Mahallu.
After this,
woman prepared for another marriage. Then the first husband came forward
seeking restitution of conjugal rights. His complaint was that she was going to
marry someone else while she was still his wife. His complaint also stated that
they had not sought a legal divorce. The complainant said that there were
charges of fraud and cheating. With this, the police registered a case against
the woman.
It took her
some time to realize that she had done no wrong. Because divorce was sought
following Islamic methods. Later, preparing for another marriage was also done
religiously. Then the woman asked why there was a police case against her. But
later she realized that according to Islamic law, divorce is only permissible
for a Muslim man. If a woman seeks divorce, there is a provision to file a case
against her. This woman approached the High Court to quash the case taken in
such a manner.
It was only
when this issue came to my attention that I thought of the Fasq advertisement
(dissolution of an Islamic marriage pronounced by a Sharia court, on the
application of the wife) that is often seen in newspapers. In fact, some of the
women announced that they had divorced their husbands according to Islamic law.
But it was only when they got into some kind of legal entanglement that they
themselves knew that it was not legal. Everyone had been giving such
advertisements for ages, but no one had said anything about its legality.
This was a
major legal issue before the Kerala High Court in 2023 as well. Under Islamic
law, women have the right to seek divorce. However, the Indian legal system
does not recognize this. It is in this context that we should learn about the
historic verdict of the High Court in relation to Muslim women. The court said
that a Muslim woman can get a divorce outside the judiciary as prescribed by
Islam. That means that the woman from Kollam has the right to seek divorce in
the Islamic way. The 49-year-old practice has been changed with this judgment
of the High Court. For 49 years, a Muslim woman should have been denied the
right granted by Islam and approached the court for divorce and convinced the
magistrate to seek divorce. But when both families and both mahals intervened
and abolished the Islamic law of seeking divorce without complications, no one
objected. It should also be read that when a judge of the Kerala High Court
once remarked that it would be more appropriate to go through the Talaq court,
some community leaders woke up and acted. The court itself has said that the
male-centric society of the community has confined Muslim women to judicial
divorce for centuries. Men used illegal systems such as triple talaq to obtain
divorce. But no such system was allowed for women. It is also noteworthy that
the High Court has mentioned that Muslim women are facing many hardships
related to divorce despite the rights provided by the Constitution.
There will
be many Muslim women among us who will be comforted by this High Court verdict.
A mother and daughter in Kochi is an example of that. The husband is a drunkard
and wanders around without looking at the house. As her daughter grew up, the
mother became more and more concerned. Their biggest wish at that time was a
closed house. Some good men of the Mahallu decided to make amends for their tears.
A good house has been prepared for mother and daughter. A husband who was
irreconcilable in any way became a liability for that woman. The daughter was
afraid of her father. What they were afraid of was what her husband would do if
he came claiming the house for her and her daughter. Thus, if the husband comes
claiming the right, he will have the right to it. In fact, it was impossible
for the woman to go to court and get released from this marriage. This is where
they thought of Islamic ruling. Problem-solving can be easily sought under the
leadership of the Khadi by informing the Mahallu. Now it should be said that
their matter has been resolved with the judgment of the High Court.
A girl who
is a doctor had approached the court to seek a divorce before the Kerala High
Court verdict. She was prepared for this because of her husband's cruelty. When
the harassment continued, she approached the court. However, the husband
repeated that he did not agree to the divorce in court. The case dragged on
endlessly without reaching a decision. The girl's position is that she does not
need anything as compensation, only divorce is enough. However, it had many
legal obstacles. She kept losing her job and her life. At one such stage, the
girl was also thinking of an Islamic divorce. That did not happen. But the
court verdict helped her get a divorce with the help of local Khadi.
Often the
society and family are reluctant to accept any divorce initiated by women.
Especially if the girls put up with it a little bit, it's okay, the family will
also want them not to seek divorce. When a girl in Kottayam found out that her
husband was having affairs with many other women, she revealed it at home. But
it seemed like a problem that the family could adjust to. One day this girl left
home. With that, the family members also thought that the problem had worsened.
After she left the house, her husband also came to the position that he did not
want her. Later, the girl herself took the initiative and both of them got an
Islamic divorce very easily. It was the process of divorce according to Islamic
law that made it possible to seek divorce very quickly without ending up in an
unwanted marriage. Muslim women used to come to the court verandah for so long
when there was a good legal system that states that what is not compatible
should not be added.
But there
are cases where Muslim women need the protection of the court. An example of
this is the judgment of the Amini Sub Court in Lakshadweep regarding Talaq. A
34-year-old man from Amini divorced his 30-year-old wife. They got married nine
years ago. The young man from Amini became close to the girl he was working
with. This affair was known to his wife and her family. Later fights started
over this. In 2019, the young man divorced his wife for the first time. Later,
the second Talaq was performed strictly following the intervals
prescribed by Sharia law. A divorce certificate was also obtained from the
local Khadi showing that the Talaq proceedings were completed.
In this
case, Amini Sub Court Judge ordered that the certificate of divorce issued by
Khadi is not legally valid. The husband pronounced three Talaq at
regular intervals. But before pronouncing Talaq, according to the Sharia
ruling, mediation should be held between the husband and wife's family first.
After that, the first Talaq should be recited and again after mediation,
the second Talaq should be recited. Talaq was pronounced in this
case but no mediation was held at any stage. The purpose of mediation is to
reconcile the relationship if it is somehow possible to go together. The
finding of the Amini court was that the Supreme Court itself had clarified in
the Sira Banu case that divorce without mediation is not legal. In such a
situation, women have to approach the court itself. Therefore, if women seek
divorce according to Islamic law, if they do not comply with all its
conditions, they will be questioned in court.
When Islam
respects and makes Muslim women dignified, it needs to be checked whether the
system here is ready for it. A society changes through its own thoughts. It is
a big mistake for Muslim women to think that anyone can create a revival if
they involve themselves.
Muslim
women's rights have been denied for so long by making false claims that the
mental state of women changes and there are situations where a woman cannot
make a clear decision. It is comforting that Muslim women have come out of the
hypocrisy of sometimes glorifying Muslim women in speeches and reiterating that
the kitchen is yours when you come home. Muslim women should understand the
fact that those who protested in the courts and on the streets to restore some
of the anti-feminist customs that entered Islam like triple Talaq a few days
ago turned a blind eye to women's rights to move forward.
The Community
Should Facilitate Women-Led Divorce (Khul')
Islam has
given women civil rights that are surprising even in our time. They are not
limited to certain religious rights. Freedom of worship, freedom of education,
freedom to choose a spouse and divorce from the spouse when married life
becomes difficult, freedom to earn and spend property, freedom to choose a
ruler, freedom to criticize, freedom of opinion and so on.
Marriage in
Islam is a very sacred and binding contract. The Qur'anic verse, 'They (wives)
have taken from you (men) a firm covenant' clarifies the importance given to
marriage in Islam. It is a very solemn covenant in which the woman is placed
under the care of the groom by her guardian in the service of the responsible
men of the palace, taking into account her will. Islam insists that it should
be built on feelings of love and compassion. No matter how much you try and
take care, sometimes married life does not turn out to be as happy as expected.
There will be cracks and friction between the couple. Reconciliation efforts
may also be fruitless. It can be a man or a woman who is not ready for
reconciliation. It can be male or female. A woman has the same right of divorce
as a man has in such unavoidable circumstances.
This legal
right is given by Allah, the lawgiver. Once you hate each other, married life
becomes an unbearable burden. How much better to be free than to live with that
crown of thorns for the rest of your life. Allah says: “Talaq is twice. The
wife can then be fairly retained or gracefully dismissed. It is not permissible
to withdraw anything from what you have given them when it is sent. Unless you
are concerned that both of the couples will not follow the laws of Allah. If
you are concerned that both of the spouses will not follow the rules, then
there is no guilt for the woman to pay the husband something and be
freed." (Al-Baqarah: 229)
It is
interesting to note that where the divorce is mentioned, the laws related to
the divorce by the woman are mentioned. This right of women is known as Khul'
in technical language. But the woman must obtain a divorce from her husband in
return for the dowry or other reward given by him. If the woman asks for a
divorce under duress, the man is obliged to take back the Mehr and give
her the divorce. A woman should not be made difficult without getting a
divorce.
The 2023
Kerala High Court ruling related to Khul' can be seen as a positive step
towards untying this tangle. According to this ruling, a Muslim woman does not
have to go to court to get a divorce. It will be very helpful in avoiding delay
in this matter.
Community
and clerical leadership should come forward to facilitate women-led divorce. If
the Mahallu leadership is responsible for the marriage of the Mahallu, they
should facilitate Khil’ also. If the Mahallu leadership is ready for that, it
will be a big relief for the Muslim woman. It will be possible to get justice
for her. If talaq is also handled by the Mahal leadership, it will also pave
the way to prevent abuse in this field.
-----
A regular columnist for NewAgeIslam.com, Mubashir
V.P is a PhD scholar in Islamic Studies at Jamia Millia Islamia and freelance
journalist.
URl: https://newageislam.com/islam-women-feminism/khul-khula-divorce-muslim-victims-kerala-hc/d/131791
New Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism