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)
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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.
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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.
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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)
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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?
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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