– Muhammad Faheem
Islam has granted a Muslim husband the right to divorce. A Muslim man can divorce his wife whenever he desires. But in Islam a Muslim woman is not vested with such a right. She cannot divorce her husband whenever she desires. But the recent verdict of Telangana High Court has granted a Muslim woman a quite similar right in the form of khula. The wording has changed from talaq to khula, but she has obtained a similar right, thanks to the verdict of the High Court.
According to the verdict delivered on June 25, a Muslim woman’s right to seek khula is absolute and does not require the husband’s consent. “A wife’s right to khula is parallel to a husband’s right to talaq,” the verdict said.
The verdict does not conform with the teachings of the Quran and Ahadith. A woman can enter into her marriage on her own will, but she cannot walk out of marriage without her husband’s consent. The Quran says, “… or he in which hand is the marriage tie, …” (2:237). It shows that only husband can untie the marriage tie. In Islam, a Muslim woman has no unilateral right to khula. She can only request her husband to grant it. Because Khula is an agreement which cannot come to fruition without consent (signature) of husband.
Husband has both rights – accept or refuse. If husband affixes his signatures on the khula paper, it will be valid. In case husband refuses to comply with her request, khula will not occur. Then she can approach the Shariah court with valid reasons.
The first khula in Islam occurred when Hazrat Jamila came to Holy Prophet ﷺ and said that she did not want to live with her husband. Then Holy Prophet asked her husband Hazrat Sabit bin Qais to grant khula to her (Bukhari 5273). The hadith shows that woman has no unilateral right to khula.
And, even in court, she will have to prove her stand. The Shariah court will try to convince husband, but cannot force him. Khula will occur only after husband signs the khula papers even in the Shariah court. In case husband becomes obstinate and resists in the Shariah court that he will not sign khula papers, then khula will not occur. The Shariah court cannot grant unilateral khula to wife. A Muslim judge can break up his own marriage by pronouncing talaq, but he has no right to break up the marriage of any couple. As the above hadith shows, the Holy Prophet acted as a judge of Shariah court and he himself did not annul the marriage of Hazrat Jamila.
Also Read: Telangana High Court’s Verdict on Khula Misleading and Incorrect: Dr. Raziul Islam Nadvi
In case husband chooses to become a eunuch or changes his gender, becomes mad or impotent, does not discharge his responsibility of maintenance, is cruel to her, goes abroad and does not return, etc., the Shariah court will first try to convince husband to improve. If husband improves, wife cannot take khula. If husband neither improves himself nor gives khula, then Shariah court can annul (faskh) the marriage.
If a married woman falls in love with another man, the present verdict allows her to leave her husband and elope with another man. But in such cases, she can neither obtain khula from Shariah court nor can the court annul (faskh) her marriage. We must be aware of rules of Khula in order to preserve our homes, otherwise our social fabric will be disintegrated.
