KHULA Divorce in Pakistan

Khula (Arabic: خلع‎) is the right of a woman in Islam to seek a divorce or separation from her husband. More accurately, it is merely the right of a wife to seek a release from the marriage bond, similar to the Get in Judaic law, but unlike the latter where the husband has unilateral right to refuse, a Muslim woman may petition a qadi to grant her a divorce, overruling the husband’s refusal. This authority of the qadi is subject to certain criteria which differ amongst the jurisprudential schools (fiqh), and subsequent to attempting reconciliation between the parties, failing which further arbitration to seek an amicable solution and voluntary proclamation of triple talaq by the husband.

Ultimately the qadi has authority to grant the divorce subject to the wife fulfilling requirements to return the mahr and compensate the husband by reimbursing him for what he provided during marriage, unless the husband is willing to forgo it, (which the qadi usually encourages) unless the woman’s action or behavior has been such not to warrant it

After divorce, the husband is responsible for the education and maintenance of the children. The children live with the mother for seven years. After seven years, the children have the right to live with the father or the mother, as they decide. There are differences between scholars in regards to the number of years a husband is obliged to provide for the welfare of the children of the marriage, and who is to reside with whom.

A woman seeks a khula while a man gives a talaq. The iddah period (waiting time after a divorce) of a woman who seeks a khula, is one menstrual cycle or one month if she is post-menopause i.e. ceased menstruating. This is to ensure she is not pregnant. This differs from when a man gives a talaq; the iddah period is three cycles or three months. The iddah period also allows for reconciliation between the husband and wife. If the woman is pregnant, then the waiting period is until she gives birth. There is still the need for witnesses when seeking a khula as in a talaq.

There are differing opinions regarding the iddah (waiting period) for a woman after the khula has been granted, the support of a one month waiting period is taken from the following hadith and Qur’anic verses:

“.. When Rabia bint Masood obtained Khula from Thabit, the prophet asked her to wait until one menstrual cycle before she could go to her home”. (An-Nissai, Abu Daud, Tirmidhi)

“…And for those who are pregnant (whether they are divorced or their husbands are dead), their iddah (prescribed period) is until they deliver (their burdens)…” (Qur’an 65:4)

Also the mahr does not have to be surrendered in full if the husband does not request the entire amount. The basic principle concerning this is the following verse from the Qur’an (interpretation of the meaning) stating:

“..Divorce must be pronounced twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that ye take (back from wives) aught of that which ye have given them; except (in the case) when both fear that they may not be able to keep within the limits (imposed by) Allah. And if ye fear that they may not be able to keep the limits of Allah (to deal with each other fairly), in that case it is no sin for either of them if the woman ransom herself (by returning what the husband provided). These are the limits (imposed by) Allah. Transgress them not. For whoso transgresseth Allah’s limits: such are wrong-doers.” (Qur’an 2:229).

الطَّلاَقُ مَرَّتَانِ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ وَلاَ يَحِلُّ لَكُمْ أَن تَأْخُذُواْ مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلاَّ أَن يَخَافَا أَلاَّ يُقِيمَا حُدُودَ اللّهِ فَإِنْ خِفْتُمْ أَلاَّ يُقِيمَا حُدُودَ اللّهِ فَلاَ جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ تِلْكَ حُدُودُ اللّهِ فَلاَ تَعْتَدُوهَا وَمَن يَتَعَدَّ حُدُودَ اللّهِ فَأُوْلَئِكَ هُمُ الظَّالِمُون

In Pakistan

In November 2008, the Council of Islamic Ideology made a number of recommendations to reform the procedure for a woman’s request for divorce (Khula). The recommendations were severely criticized in the traditionalist quarters.[citation needed] The number of divorces amongst Muslims of Indian sub-continent is rarer than amongst Arab cultures, partly due to ignorance about Islamic ordinances concerning it, and also stigmatization of talaq/khula as a result of over 1000 years influence from the majority Hindu culture surrounding them, for in Hinduism there is no concept of divorce, marriage is a sacrament and not a contract, hence divorce was not permissible.

 

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