KHULA: ANOTHER ASPECT OF PATRIARCHY

      KHULA: ANOTHER ASPECT OF PATRIARCHY

WRITTEN BY: ARJIM JAIN

B.A. LL.B. (2^ND YEAR),

NATIONAL LAW UNIVERSITY, ODISHA

 

EDITED BY: JAIN DIVYA LALIT

B.L.S. LL.B. (4^TH YEAR),

MGM LAW COLLEGE,

NAVI MUMBAI, MAHARASHTRA

 

INTRODUCTION

Recently, the Kerala High Court  said that “the right of a Muslim wife to terminate the marriage at her request is an absolute right conferred on her by the Quran and is not subject to the acceptance or will of her husband”. So the question is, what is ‘khula’, how a Muslim woman might invoke it, and if calling it even without the husband's consent affects the husband's right of choice and will? Or the woman's right has been infringed if she has not been furnished with a divorce decree if she wants to divorce her spouse?

WHAT IS KHULA?

Khula, also known as khula, is a process by which a woman can grant her husband a divorce in Islam, either by returning the dower (mahr) or another item she got from her husband, as agreed between the spouses, or by a Qadi's (court) judgment depending on the circumstances. The gift that the groom presents to his bride after their wedding is known as the dower or, more often, Mahr in Hebrew. Khul' permits a woman to file for divorce in accordance with conventional fiqh and is mentioned in the Quran and hadith.

The Kerala high court also stated that Khula is valid if certain conditions are met. (i) The wife's statement of repudiation or termination of the marriage, (ii) an offer to restore her dower or any other pecuniary gain obtained during her marriage, and (iii) a successful attempt at reconciliation was made prior to the declaration of the Khula.[1]

We must go back to the development of women's legal rights to divorce beginning in the pre-Islamic era to comprehend the actual meaning of khula and the process to be followed. In pre-Islamic Arabia, marriage was a recognized institution for establishing a family, which served as the foundation of society. Without marriage, there wouldn't be a family or bonds to bring together many individuals in society. In pre-Islamic civilization, having more offspring—the tribe's future leaders—through marriage was one method to strengthen the group.[2]

In Chapter 2, verse 229 of the Quran, the passage that deals with khula, it is clearly stated that a Muslim wife has the right to divorce her husband. If we refer to The Hadith (the Prophet Muhammad's gathered traditions, based on his acts and sayings), one Thabit, an Arabic name for males, had two wives. Jamilah was one of them. The way Thabit looked did not appeal to Jamilah. She went up to the Prophet and said, “Messenger of Allah”, nothing will be able to keep us two together. I don't detest him because of any flaws in his morality or his religion. I don't like him because of his looks. In response to the statement “I wish to separate from him”, the Prophet said, “Will you return the garden he gave you to him”? I'm ready to offer him the garden he gave and even more, she said in response. You only need to give him the garden, the Prophet said. The Prophet then called Thabit, telling him to accept the garden and get rid of Jamilah.[3] It follows that the wife can commence the divorce process through Khula and is in charge of giving back the dower.

RESPONSE OF ALL INDIA MUSLIM PERSONAL LAW BOARD

A Muslim woman does not have the unilateral power to dissolve her marriage through the Khula, according to a ruling issued on Nov 3, 2022, by the All India Muslim Personal Law Board. The AIMPLB declared that a Muslim woman does not possess a unilateral right to dissolve her marriage through Khula. Instead, the husband has the power to accept or reject her proposal. The Board states that “the husband has the discretion to accept or reject her claim for Khula”. The Board declared in a statement that “Khula is reliant on both husband and wife agreeing to dissolve the marriage if a woman proposes it” and the wife has the right to file for faskh or judicial divorce if the husband does not consent to Khula but the final say is of the husband.

The Board's reaction follows the Kerala High Court decision as mentioned above, which reaffirmed the court's position that a Muslim woman has the right to dissolve her marriage through the khula and that a man has no right to refuse to provide his approval.

SO WHOSE RIGHTS ARE ACTUALLY BEEN VIOLATED HERE?

The situation breaches a woman's right to human dignity because the Muslim board has said unequivocally that women do not have the right to unilaterally break a marriage. A successful attempt at reconciliation with her husband is one of the requirements, as was already indicated, for invoking khula. If the husband rejects the attempt, the woman may employ faskh instead. However, the question of why the wife is seeking the court's assistance emerges. Will she pleadingly petition the court for a divorce, or will she ask the court to issue a divorce order? The court is not a personal guardian of a Muslim woman. The procedure to do the same is unclear.

The woman should be granted a divorce if she chooses not to cohabitate with her husband for any practical reason but refusing to do so will violate her right to fundamental human dignity and freedom of choice. Although the instant triple-talaq was outlawed in India in 2017, it gives the husband the right to divorce her wife unilaterally and without even giving her a chance to reconcile relations. Why did the Muslim board not do away with this practice earlier? But now the Muslim board has stated that the wife does not have the authority to unilaterally divorce her husband even if there is a condition that an act of reconciliation must be there.

The board is unwilling to recognize the statement of Muslim women's rights to use the unilateral Khula extrajudicial divorce procedure since this evaluation depicts Muslim women as being subservient to the will of their male counterparts, as is customary. As several judgments have stated, choosing a partner is a Fundamental right as is separating from the partner if staying with him/her is not practicable. Denying Muslim women this freedom would be a violation of several fundamental rights.

This could also lead to a variety of issues, such as marital rape. Women who do not want to cohabit with her husband also do not want to have sexual relations with him, but if the husband forces her to do so, she has no recourse because there is no legislation governing the subject. Another example is when the wife is the sole breadwinner, and the husband is a heavy drinker. He neglects her in favour of his children, is selfish, and beats her every night in front of their children. Now his wife wishes to divorce him through khula, but he refuses because he does not want it. How will the wife live with him now that the facts show that it is impossible to live with such a man? She cannot seek divorce from her husband because it is against his will, according to AIMPLB. These are just a few of many possible scenarios. Restricting her right to separate from her husband violates her right to life as well.

A forced relationship is not a relationship. What will she do if she does not wish to remain with her husband? Is she obligated to do all of the work against her will? Is it necessary for her to lose all respect and dignity and remain with her husband against her will? When discussing living against one's will, these questions require special consideration.

The court's statement that “the right of a Muslim wife to terminate the marriage at her request is an absolute right conferred on her by the Quran and is not subject to the acceptance or will of her husband” provides a broader view of wives' rights. This statement implies that women are not subjects of men and have their own rights under which they can live.

CONCLUSION

This isn't just about Khula. This is about the patriarchal nature of society, which views women as an object for men to possess. They believe that women have no rights of their own and must follow the wishes of their husbands. This, however, can be corrected through education, in which people are educated and respect each other's rights.

These phrases necessitate a broader interpretation. Every issue, such as a woman's right to live, right to choose, and many more, must be considered in order to give her divorce. There have been relatively few declarations on the subject. Now that the court has stated that “the right of a Muslim wife to terminate the marriage at her request is an absolute right conferred on her by the Quran and is not subject to the acceptance or will of her husband”, it must be followed by everyone as it protects multiple human rights of women as stated above and assists women in achieving a respectable position in society.

These human rights must be protected at all costs so that women can live peacefully and with dignity, free from the patriarchal nature of society.

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[1] XXXX v. XXXXX (2022) LiveLaw (Ker) 559.

[2] Faryal Abbas Abdullah Sulaimani, The Changing Position Of Women In Arabia Under Islam During The Early Seventh Century (University Of Salford 1986) 17.

[3] M Sayyid Abul Ala Maududi, The Rights and Duties of Spouses (first published 2010 Markazi Maktaba Islami Publishers 7^th edn 2017) 49.