Definition of Khula as provided by the Islamic Shari’a Council of 34 Francis Road, Leyton, London E10 6PW: The removal of the husband’s right to matrimonial life in the context of a correct marriage in exchange for financial return with the agreement of woman concerned.
While Faskh (Dissolution), according to it, is the dissolution of a procedurally incorrect marriage or a marriage dissolved by a Qadi of an Islamic Court in a Muslim Country, or by a body of Islamic Scholars in a non-Muslim country.
Section 8 of the Muslim Family law Ordinance, 1961 states that in case where wife sought dissolution of Marriage or Khula from the Family Court, she has to follow the procedure laid down in West Pakistan Family Courts Act, 1964 and Section 7 of the Muslim Family Law Ordinance 1961.
In the light of Fatwa ( Religious Opinion) obtained from a well-recognized Religious Institution
The fatwa obtained from Darul Iftaa, Jamia Darul-Uloom, Karachi, is as follows: “According to Shari’ah, a non-Muslim judge can neither grant Khula to Muslim woman, nor can he annul her Nikah (Marriage)”.
APPLICABILITY OF ARTICLE 3 OF THE COUNCIL REGULATION EC2201/2003
The objection generally raised by the UK lawyer is that Under Article 3 of the Council Regulation EC2201 / 2003, where a Petitioner is habitually resident in a country having resided there for at least one year immediately before the Application for Divorce was made, a court will have jurisdiction with respect to that Divorce. It is pertinent to mention here that Pakistan is not the member of European Union, so such Council Regulation is not applicable on its nationals.
OBJECTIONS IN RESPECT OF FINANCAIL CLAIMS OF WIFE IN CASE OF KHULA OR DIVORCE IN LIEU OF KHULA
The marriage in Islam being in nature of a contract, dower is the consideration agreed between the parties, which the husband has to pay the wife either promptly or subsequently, in accordance with the terms of agreement. However, in case where the wife seeks Khula or Divorce from her husband, she is not entitled to it.
JUSTIFICATION IN THE LIGHT OF MUSLIM PERSONAL LAW
Under Muslim Personal Law Khula is the right of wife, through which she can relieve herself from the marital obligations. But she has to seek it by adopting a judicial procedure. In order to get Khula the wife has to forego her dower money written in the Marriage contract.
REFERENCE FROM HOLY QURAN
Allah (SWT) says:
“…And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul’ (divorce)…” (Al-Baqarah 2:229)
REFERENCE FROM HADITH
Explaining this Hadith, Hafiz Ibn-e-Kathir writes: It is not lawful for you to tease your women so that you may take the dower back. However if the disagreement does not dissolve and the wife dislikes the husband and does not fulfill his rights, then she can obtain Khula by giving the dower back.
Narrated Ibn ‘Abbas (RA): The wife of Thabit bin Qais came to the Prophet and said, “O Allah’s Apostle! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner (if I remain with him).” On that Allah’s Apostle said (to her), “Will you give back the garden which your husband has given you (as Mahr)?” She said, “Yes.” Then the Prophet said to Thabit, “O Thabit! Accept your garden, and divorce her once.” (Sahih Al-Bukhari)
FATWAS (RELIGIOUS OPINIONS) OBTAINED FROM WELL-RECOGNIZED RELIGIOUS ORGANIZATIONS
The wife is not entitled to claim anything from the assets of her husband after seeking Khula and any such acquisitions are termed ‘HARAM’ in Islam, which means un-Islamic, unlawful, prohibited and ill-gotten wealth. The fatwa obtained from Jamia Ashrafia, Lahore, which is a well-recognized and reputable religious organization is as follows:
“There is no claim of wife on the assets of husband except livelihood during the life of husband. Therefore in the case under reference to divide 50% of the assets of husband to give to a divorced wife or after KHULA has no legitimacy as per SHARIA which is done in UK. And it is wrong to claim any such share by wife as per SHARIA”.
The fatwa obtained from Darul Iftaa, Jamia Darul-Uloom, Karachi, is as follows: The British law of Divorce, where a wife typically gets half of her husband’s assets is against shari’ah. Rather in case of Divorce, according to shari’ah if the husband didn’t pay his wife the Meher(dower), as she has not willfully forgiven it she will only be entitled for the Meher.
It is really remarkable in Islam that as soon as two sui juirs persons enter into contract of marriage so many rights are created but as soon as the marriage is dissolved, those rights will continue according to injunctions of Holy Quran.
Agreement entered between her and her husband consciously, with due consent she can claim that with the exception of Dower money. In addition therewith if Divorce is given by husband, then also she is entitled to claim her Dower money, maintenance till Iddat period and any amount or gift given to her either through Marriage Contract or by any other means