Woman’s right to Khula
By Mushtaq A. Tejarwi

ISLAMIC Shariah provides for Nikah in order to keep the society morally healthy, bring to an end all that is evil and obscene, and let husband and wife live in peace and harmony. If a couple fails to reap these benefits from a Nikah-based wedlock, viz. the matrimonial relations do not remain pleasant and harmonious and in case that situation prevails, there arises the danger of spoiling the very purpose of Nikah, then it is desirable to annul such a Nikah.
Since it is binding upon the husband to pay Mahr to his wife and provide all the basic needs to her, he has the right to pronounce divorce. If a woman wants separation from her husband, she will have to return her Mahr. In Islamic parlance, this right of a woman is called Khula. Khula means to annul, to free, to rescind. Precisely, it is a typical form of breaking the marriage bond. Scholars of Islamic jurisprudence have defined it differently, and at great length. The gist of all this is that a man’s pronouncing divorce after receiving money for the purpose from his wife is called Khula.
The right to divorce rests with the husband. If the wife wants to seek divorce, the way is open for her on the condition of returning her Mahr. If the husband is not ready to divorce her even on the condition of getting the Mahr back, the woman can move the court and the court in turn would secure divorce from her husband in lieu of the Mahr.
During the lifetime of Prophet Muhammad (peace be upon him) there arose some cases of Khula which led the Islamic State of Madina to lay down its rules and procedure. The Holy Qur’an says: “...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). These are the limits ordained by Allah, so do not transgresses the limits ordained by Allah, then such are the Zalimun (wrong-doers).” (Qur’an, 2:229)
As divorce without any rhyme or reason is most detrimental, similarly seeking Khula without any solid ground is most detestable in the eyes of Shariah. A tradition of the Noble Prophet (peace be upon him) says: ‘The woman who demands divorce from her husband without having any ground, will be deprived of the fragrance of Heaven.’ (Bukhari)
However, if there is any reasonable ground, securing Khula is permissible and there is no hitch about it. Another Hadith says: “The wife of Thabit Bin Qais went to the Noble Prophet (peace be upon him) and said to him: ‘Messenger of Allah, I dislike Thabit the most. I do not level any charge against his faith or morals; but I fear that living with him may plunge me into Kufr.’ The Noble Prophet (peace be upon him) asked her whether she would return the garden which he (Thabit) had given her as Mahr. To which she replied in the affirmative. Then he (the Prophet) asked Thabit Bin Qais to get the garden back and divorce her.” (Bukhari)
Another case of Khula relating to the same Thabit Bin Qais is reported thus: “Thabit Bin Qais beat his wife Jameelah. She (Jameelah) or, according to another report, her brother complained to the Noble Prophet (peace be upon him) against him. He (the Prophet) sent for Thabit and told him to take the Mahr back and divorce his wife.” (Nasai)
A study of these traditions brings to light certain facts about Khula. One, if a woman dislikes her husband, and as a result fears that the couple might not be able to keep within the bounds set by Allah, opting for Khula is better.
Two, the woman will have to return the Mahr in order to secure divorce. And if the husband does not want to divorce her even on the condition of taking the Mahr back, he will be compelled by the court to accept the money and divorce her. Three, these traditions also indicate that the amount of Mahr should be considered as the maximum for granting Khula. That is, a man should accept the Mahr back from his wife and divorce her on demand. If a man demands more than the amount of Mahr to grant Khula, it is undesirable. However, it is not illegal according to Ibn Abbas, Ibn Umar and Uthman.
The divorce pronounced in case of Khula, in whatever words it is done, will be final and irrevocable. That is, the man will have no right to revoke the divorce during the woman’s Iddah. Had the man been given the right to revoke the divorce in case of Khula, the very purpose of Khula would not have been served. Khula has been provided for to give the woman the right to separation from her husband if she dislikes him; and for this kind of separation she returns her Mahr. In spite of this, if a man were to have the right to revoke the divorce, it would mean the woman was not given that right.
Like divorce, Khula also becomes effective without the intervention of the court. It can be demanded and granted in the privacy of the man and wife or in the presence of some relatives and friends. However, if the man is not willing to grant Khula, the case should be referred to a court.
Unlike divorce, Khula can be demanded and granted even while the woman has not completed her menstrual period.
A woman can herself demand Khula or her Wali (guardian) can do so on her behalf. However, if the woman has not attained puberty, her Wali has no right to demand Khula on her behalf.

Khula' Divorce or Talaqul Khula'

2535. The divorce of a wife who develops an aversion from husband and hates him, and surrender to him; her Dower or some of her property so that he may divorce her, is called Khula' Divorce. The hatred must have reached a proportion where she would not allow him conjugal rights.

2536. If the husband himself wishes to pronounce the formula of Khula' divorce and his wife's name is, say Fatima, he should say after receiving the property; (Zawjati Fatima Khala'tuha ala ma bathalat) and he should also say as recommended precaution; (Hiya Taliqu) i.e, (I have given Khula' divorce to my wife Fatima in lieu of what she has given me, and she is free), And if the wife is identified, it is not necessary to mention her name in 'Talaqul Khula' and also in Mubarat Divorce.

2537. If a woman appoints a person as her representative to surrender her Dower to her husband, and the husband, too, appoints the same person as his representative to divorce his wife, and if, for instance the name of the the husband is Muhammad and the name of the wife is Fatima, the representative will pronounce the formula of divorce thus: (Inna muwakkilati Fatima Bathalat mahraha li muwakkili Muhammad li Yakhla'aha alayh). Then he says immediately: (Zawjatu muwakkili khala'tuha 'ala ma Bathalat hiya Taliqu).

And, if a woman appoints a person as her representative to give something other than the Dower to her husband, so that he may divorse her, the representative should utter the name of tha thing instead of the word (Mahraha) (her Dower), For example, if the woman gives $500 he should say (Bathalat khamsa mi'ati Doller).

Mubarat Divorce

2538. If the husband and the wife develop mutual aversion and hatred and the woman gives some property to the man so that he may divorce her, this divorce is called 'Mubarat'.

2539. If the husband wishes to pronounce the formula of Mubarat, and the for example, his wife's name is Fatima he should say: (Bara'tu zawjati Fatima ala ma bathalat), And as an obligatory precaution, he must add: (Fahiya Taliqu), that is (My wife Fatima and I separate from each other in consideration of what she has given me. Hence, she is free). And if he appoints someone as his representative, the representative should sayAnna quibali muwakkili bara'tu zawjatahu Fatima ala ma bathalat Fahiya Taliqu). And in other case, if he says: (Bima bathalat) instead of the words "ala ma bathalat" there is no harm in it.

2540. It is necessary that the formula of Khula' or Mubarat divorce is pronounced in the correct Arabic. And if that is not possible, then the rule explained in 2515 will apply. However, if for the sake of giving her property, the wife ways in English or any language that (I give you such and such property in lieu of divorce) it will be sufficient.

2541. If during the waiting period of Khula' or Mubarat divorce the wife changes her mind and does not give her property to the husband, he can take her back as a wife without reciting the formula of marriage.

2542. The property which the husband takes in Mubarat divorce should not exceed the Dower of the wife. But in case of Khula' divorce, there is no harm if it exceeds her Dower.
Divorce at the Wife’s Demand – Khula and Talaq-e-Mubarat
Khula is a process through which a woman can dissolve the marriage by surrendering certain rights given to her, such as dower (jewelry, ornaments and any fixed amount given or to be given by the husband), dowry (gifts brought by the bride at the time of marriage) and bari (the gift given by the groom to the bride on the occasion of marriage), etc. In no event is she required to pay from her own pocket to secure her freedom from a non-functional marriage. It is also widely believed that it can be obtained only through court since out-of-court khula settlements are not so common.
With not much to her name legally, the average Pakistani woman normally has to surrender jewelry gifted to her by her husband in cases of khula. There are also cases when she is pressurized to surrender the rights to the tangible items or property given to her by her own parents.
There is a widespread misconception that, in Islam, men alone are empowered with the right to dissolve their marriages. In reality, Islam also gives the woman the right to dissolve her marriage, through an agreement between herself and her husband, which may take the form of either khula or talaq-e-mubarat. In khula, the wife dissolves the marriage by paying for dissolution or surrendering certain rights.[42] In talaq-e-mubarat, both spouses are desirous of separation and reach a mutual settlement that makes this possible.[43] This divinely granted right of khula is stated in the Qur’an as follows:
“If you (the judge) do indeed fear that they would be unable to keep the limit ordained by Allah, there is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah, so do not transgress them.”[44]
There is a consensus among jurists that it is unjust[45] for a husband to receive some kind of payment from his wife if he has been the oppressor. However, if a woman is the guilty party and seeks divorce, the husband can receive something from her the worth of whichshould not be more than what he had given to her or was supposed to give her as the dower.[46]
The effect of dissolution of marriage through khula is similar to talaq-e-bain: the two cannot rejoin each other without a remarriage through a new matrimonial contract.[47] Jurists of all four major schools in the Muslim world hold that khula can be decided at bilateral level; however, some hold that it can only be obtained through a competent court.[48]
Using the right of khula without reasonable grounds is disapproved of in Islam: according to a saying of the Prophet Muhammad (PBUH), such women will not be able to get even the fragrance of Jannah (paradise).[49]
The family laws of Pakistan are very clear about khula, and it is dealt with under Section 8 of the MFLO. Khula comes into effect by an offer from the wife to compensate the husband to release her from marital responsibilities. With mutual consent, she can be released through talaq-e-mubarat.[50] In the light of a judgment of the court, the production of evidence by a woman is not necessary to establish that she cannot live with her husband anymore.[51]
Notwithstanding these rights and laws, the right of khula is seldom exercised by a woman out of court and in many cases she has to surrender, not only the dower given to her by her husband, but also the belongings and property gifted to her by her own parents to avoid lengthy litigation and character assassination, even where her husband has been an oppressor.
Dissolution of Marriage through Court
In Pakistani society, a woman normally does not seek separation from her husband and goes to every possible extent to resolve her differences with her husband within the family. In extreme cases, she may seek to terminate her marriage through the intervention of elders or close relatives. She approaches a court for dissolution of marriage only when her matrimonial life is filled with unbearable troubles but the husband is not willing to free her from wedlock. Recently, however, there has been a noticeable increase in the number of cases reaching courts, which is attributed to the enforcement of the decision by courts to resolve each family case within a period of six months.
Muslim jurists believe that, under certain circumstances, a judge can terminate a marriage even without the consent of a husband, for instance, if the husband has gone missing, lost his sanity, or is impotent, or even if he fails to provide maintenance. Similarly, if the husband is unwilling to fulfill marital obligations, the court can intervene and, despite his unwillingness, separate him from his wife.[52] The effect of dissolution of marriage through court is similar to talaq-e-bain, i.e. the two may rejoin through remarriage.
Section 2 of the Dissolution of Muslim Marriage Act 1939 provides a woman the right to terminate her marriage if her husband:

• is missing,

• has failed to provide maintenance,

• is sentenced to imprisonment for seven years,

• has failed to perform marital obligations,

• is impotent,

• is insane,

• is suffering from leprosy or venereal disease,

• is cruel,

• is associated with women of evil repute,

• attempts to force her to lead an immoral life,

• dispossesses her of her property, or

• obstructs her from practicing religion.

She can also dissolve her marriage if it was arranged before she reached the age of puberty, whether with consent or without her consent, solely by declaring that she has now become an adult and does not recognize the marriage. (This right is discussed further below in the discussion of khiyar-al-buloogh.)
It needs to be underlined that both Islam and the laws of the land allow a woman to approach the judiciary for the dissolution of her marriage. In reality, however, the stumbling blocks are so many and so insurmountable that only a small portion of suffering women dare to seek relief and justice through courts. Society’s overall disapproval, lengthy litigation processes, high costs, lack of support from parents, and mental and physical stress are some of the difficulties that keep most suffering women away from the courts.
Delegation of the Right of Divorce to Women – Haq-e-Tafweez-e-Talaq
Haq-e-Tafweez-e-Talaq is another option for dissolution of marriage under which a woman is granted the right to annul her marriage. A broad consensus exists among Muslim jurists that Islam gives a woman the right to seek this power from her husband, and it can be delegated by him to her both verbally as well as in writing, at the occasion of marriage solemnization or afterwards, with different forms and conditions.[53] If she has this right, she can divorce herself and dissolve the marriage. Once this right is delegated, it cannot be repudiated. The husband’s right of divorce remains intact even after he delegates it to his wife.
MFLO also acknowledges this right. Accordingly, in Column 18 of the current nikahnama (standard marriage contract form), the husband may delegate the power of divorce to his wife with conditions arrived at by the parties. In the event that the wife subsequently exercises this right, she is required to send the divorce notice to the Chairman of the Arbitration Council, who issues a divorce certificate if reconciliation efforts from the platform of the Arbitration Council fail.

This option is rarely availed by women in Pakistani society, mostly because of ignorance about this provision in the nikahnama. The parents of a bride also do not seek this right for their daughter considering it a bad omen for the beginning of her marital life. Although the option is there on the official nikahnama, people normally cross it out, often without even consulting the bride. Notably, however, in the literate class in urban areas in general and in the aristocracy in particular, an increasing number of women are seeking this right, especially on the occasion of marriage.
In sum, though there is no religious or legal dispute on this issue, owing to lack of awareness and superstitious thinking, few women avail this option while men normally do not support it.

Dissolution of Marriage after Charges of Adultery – Liaan
Liaan, though rare, is another procedure of dissolving marriage. When a husband levels adultery charges against his wife but is unable to produce four witnesses to prove his claim. In such cases, he may either accept that his allegation was false and face the punishment for committing qazaf—in which 80 stripes are inflicted on him for a false allegation of zina (a</< p>

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However, in the case where the husband refuses to issue a divorce, the wife may persuade the husband to enter into an agreement of Khul’ (a release for payment from the wife). The wife may also opt to forgive the husband from paying her dowry (mahr).
Khul’ is an Arabic term that literally means ‘to take out’ and ‘remove’. The Arabs say: “Khala’tu al-libas” (I took off my cloths). Similarly, AllahSWT said to Sayyiduna Musa (Peace be upon him) when he went to receive the sacred law:
“Verily I am your lord! Therefore, take off (fakhla’) your shoes.” (Surah Ta Ha, 12)
The lexical definition of Khul’ as explained by the famous Hanafi Mujtahid, Ibn Humam is as follows:
“To remove the union of marriage in exchange of a financial settlement with the words of Khul.” (Ibn Humam, Fath al-Qadir, 3/1999)
Similar to other agreements and transactions, an agreement on Khul’ will also come into effect by acceptance and offer. (al-Kasani, Bada’i al- Sana’i, 3/145 & Radd al-Muhtar, 2/606)
The couple can normally agree upon any financial arrangement they desire. However, the Fuqaha state that, if the husband was at fault and it was his wrongdoings that resulted in the failure of their marriage, then it is impermissible for him to demand a financial payment in return for a divorce. He should divorce the wife without demanding anything in return.
“But if you decide to take one wife in place of another, even if you had given the latter a whole treasure for dower, take not the least bit of it back. Would you take it by slander and a manifest wrong? And how could you take it when you have gone into each other, and We have taken from you a solemn covenant?” (Surah al-Nisa, 20-21)
Due to the above verse of the Qur’an, the Fuqaha have declared the taking of anything in return as a major sin if the husband was at fault.
However, if the husband was not at fault, but the wife for some reason or another wishes to end the marriage, then it is permissible for the husband to demand and receive some financial payment. It would be superior for him not to take more than the actual stipulated dowry. However, it would be permissible for them to agree on any amount. (See: Bada’i al-Sana’i, 3/150 & Bahr al-Ra’iq, 4/83)
“It is unlawful for you (men), to take back (dowry, etc…) from your wives, except when both parties fear that they would be unable to keep the limits ordained by Allah. If you (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she gives something for her freedom.” (Surah al-Baqarah, 229)
According to the Majority of Jurists (jumhur), a Khula’ agreement can be carried out without having to go to an Islamic court. Merely, the consent of both parties is sufficient. (See: al-Sarakhsi, al-Mabsut, 6/173)
A Khul’ is considered an irrevocable divorce and a finalized cancellation of marriage (ba’in), differing from a threefold divorce by the fact that they may remarry in such a case without her marrying another husband first.
If they did remarry, the husband will only remain the owner of two more divorces. Meaning, if he further issued two more divorces, it will total to three, thus he will not be able to take her back until she marries another man. (See: al-Mabsut, 6/173)
The waiting period (idda) for the woman will be similar to that of a woman who was given an irrevocable divorce (ba’in) which is three menstrual cycles. The husband can not take her back within or after the waiting period without her consent (by contracting a new agreement of marriage).
Finally, it should also be remembered that a Khul’ agreement can only be carried out with the consent of the husband. The wife does not have the jurisdiction to enforce Khul’ without the consent of her husband. This is an agreed upon ruling in all of the four Sunni schools of Islamic law.