New Age Islam
Sun Jul 14 2024, 06:47 PM

Islamic Sharia Laws ( 8 Dec 2021, NewAgeIslam.Com)

Comment | Comment

Can A Wife Demand A Khula Divorce From Her Husband, And What If The Husband Refuses? Is Present Islamic Sharia Unjust To Women?

 It Is Forbidden In the Discriminatory Sharia That Prevails Today For a Wife to Demand a Divorce from the Husband without a Solid Reason

Main Questions:

1.    A wife asks her husband for a divorce, but he refuses. What options does she have under present Islamic Sharia?

2.    What is the right method for requesting a Khula’? Or should the question be, why should there be any method for seeking divorce when her husband can summarily divorce her, no questions asked 

3.    Her husband has anger issues, and she doesn't feel comfortable around him, therefore she wants a Khula’. Is this a good reason to ask for a Khula’ from him?

4.    ..  Can one say that the real question is: why should the woman have to seek divorce from a husband who simply wants to torture her by denying her divorce?

5.    . Why should there be two different terms and procedures of divorce, one for husband and another for wife?

......

By New Age Islam Special Correspondent

8 December 2021

(Representational Photo)

----

It will be good to understand Khula’ (the divorce that a wife has to seek from a husband) before answering these questions. The procedure of separating married couples in which the lady requests divorce by returning the dower (Mahr) or something else that she received from her husband is known as Khula’.' The husband cannot be held responsible for the instant divorce because Khula’ is issued at the woman's request.

It is forbidden in the discriminatory Sharia that prevails today for a wife to demand a divorce from the husband without a solid reason. “Whoever woman, without justification, asks her husband for a divorce, then the scent of Jannah is forbidden for her,” Allah's Messenger, peace be upon him, is said to have said in Hadith, that are more often than not, of doubtful authenticity.

------------------------------------------------------------------------

Also Read:   Qur’anic Sharia (Laws) On Divorce: Triple Divorce, Temporary Marriage, Halala Stand Forbidden (Haram)

------------------------------------------------------------------------

A lady who desires Khula’ from her husband is labelled a hypocrite in another Hadith by Allah's Messenger (peace be upon him). This is undeniably the case when the khula' is desired for no good cause. Otherwise, it is allowed to seek Khula’ when there is a valid basis. In the Quran, Allah Almighty says,

“Divorce is twice; then either to retain in the recognized manner or to release in fairness. And it is not lawful for you to take back anything from what you have given them unless both apprehend that they would not be able to maintain the limits set by Allah. Now, if you apprehend that they would not maintain the limits set by Allah, then, there is no sin on them in what she gives up to secure her release. These are the limits set by Allah. Therefore, do not exceed them. And whosoever exceeds limits set by Allah, then, those are the transgressors” (2:229)

In this verse of Surah Al-Baqarah, Allah Almighty has authorized the woman to seek a divorce in exchange for the dowry she was given at the time of Nikah if they both believe they are unable to fulfil one other's rights. Khula' is the name for this. If this is the case, and the husband has failed to meet his obligations, he is not allowed to demand anything in exchange for the divorce, including the dowry paid at the time of Nikah. If the wife fails, he may ask for the dowry and the freedom from paying her provision while she is in Iddah; however, asking for anything more is frowned upon in Shariah, though it is permissible.

-----------------------------------------------------------------------------

Also Read:  Sultan Shahin Raises Triple Talaq Issue at UNHRC, Asks Muslims to Engage In Serious Rethinking Of Islamic Theology and Bring It In Line With the Needs of 21st Century

-----------------------------------------------------------------------------

The story of Jamilah, Thabit ibn Qays’ wife, is the most well-known account that mentions khula and serves as the basis for legal interpretations:

It is narrated by Ibn Abbas that Thabit bin Qais’ wife approached the Prophet and said, “Greetings, Allah’s Apostle! I don't hold Thabit responsible for flaws in his character or religion, but as a Muslim, I don't want to behave in an un-Islamic manner if I remain with him"

(Representational Photos)

----

The Messenger of Allah said to her, “Will you give back the garden that your husband has given you as Mahr?” She said, “Yes”. The Prophet then gave Thabit the following command: “O Thabit! Accept your garden, and divorce her once.”

It's vital to emphasize that Khula' only takes place with the husband's consent because, in actuality, it's a divorce. It executes a Talaq-e-Baa'in, which is an irreversible divorce.

According to Islamic Law, Khula' is when the husband releases the woman from the Nikah in exchange for the dowry and other things. The woman is incapable of completing the task on her alone.

“If the husband and wife continue to argue and fear that they will be unable to abide by Allah's boundaries, there is no harm in her freeing herself in exchange of wealth (khula'), and when they do Khula', a Talaq-e-Baa'in will occur, and the wealth agreed upon is necessary upon the woman,” (Al-Marghinani, Al-Hidaya)

The criterion for Khula' is that the woman accepts the offer, which can only happen if precise terminology is used and an amount is mentioned in exchange. If the husband says, “I have done Khula with you,” without specifying an amount of money, it will be declared a Talaq, not a Khula’, because it is contingent on her agreeing or accepting it. If he says, “I have done Khula’ with you in exchange for the dowry I paid at the time of Nikah,” it will be contingent on the wife’s agreement. If she says, “I accept this,” then Khula has taken place and a Talaq-e-Baa'in has been issued; she will enter Iddah, and after Iddah, she will be free to marry another, and the amount mentioned will be due.

All of their rights owed to them as a result of their Nikah are terminated by Khula'. The burden of providing maintenance for the wife will remain with the husband while she is in Iddah unless he has liberated himself from it in the phrase used for Khula' that she accepted.

Based on the reasons mentioned in the questions, anger is a common human trait, but the question about feeling uncomfortable implies that he is physically abusing her. She has the right to bring other people into the relationship and petition for divorce if she is scared for her life or the safety of her bodily limbs. If his fury stems from his own problems and stress, he is among the worst of people, and Allah and the Prophet (peace be upon him) are displeased with such a person. She must act quickly to avoid being plagued by such abuse. Allah Almighty says, “Allah does not burden a soul but that which it is capable of.”

There are many cases reported in the present day when the husband deliberately runs away and refuses to give divorce. He may have gone abroad for work and doesn't want to have anything to do with his wife. Nor would he release her from the prison that her marriage may have become. He simply uses the iniquitous and unjust provisions of Sharia laws to torture her. The ulema, who are by an large themselves the biggest violators of human rights, will do nothing to change the situation and make Islamic laws more gender just. As far as Islam is concerned, there are enough possibilities in jurisprudence to bring about gender justice. If the Prophet himself simply demanded the return of the dowry, for allowing Khula, why should present day ulema make the wife's release from bondage of marriage so conditional?

-----------------------------------------------------------------------------------

Also Read:  Muslim Women’s Right To Unilateral Divorce Given In Quran Restored By Kerala High Court After Five Decades

-----------------------------------------------------------------------------------

It's time we Muslims seriously rethink all provisions of Islamic Sharia, unless we are happy watching our educated youth, well-versed in Islamic studies, leave Islam in droves, as is happening around the world, particularly in Muslim majority countries where Islamic laws are enforced.

URL:    https://www.newageislam.com/islamic-sharia-laws/khula-divorce-muslim-islamic-laws/d/125919


New Age IslamIslam OnlineIslamic WebsiteAfrican Muslim NewsArab World NewsSouth Asia NewsIndian Muslim NewsWorld Muslim NewsWomen in IslamIslamic FeminismArab WomenWomen In ArabIslamophobia in AmericaMuslim Women in WestIslam Women and Feminism

Loading..

Loading..