plz help:Is khula an absolute right of woman??
 

[B]Is khula an absolute right of woman or it is subject to some conditions?how can she use this right and what are legel effects of khula?[/B]

plz help me how to answer the question

[QUOTE=Afshan Choudary;544505][B]Is khula an absolute right of woman or it is subject to some conditions?how can she use this right and what are legel effects of khula?[/B]

plz help me how to answer the question[/QUOTE]


Khulla is a right of woman to seek dissolution of marriage on certain grounds. It is not absolute but subject to many conditions and grounds which include failure to perform martial obligations and maintenance, insanity of husband, impotency, cruelty, obstruction in religious affairs etc.
Khulla is exercised by wife with or without the consent of husband. She has to give up the right of Haq mahr under khulla arrangements.

It is not absolute in the sense that Court has tobe satisfied that there are valid reasons for seeking khulla. Court can not pass a decree of khulla just because wife has the right to the same effect.

[B]how can she use this right[/B]?

It can be exercised either by mutual consent of the parties (wife offers and husband accepts)

or Wife can file a suit for Khulla in a family court whereby she will write down the reasons in plaint.

[B]legel effects of khula?[/B]

1- Right to contract an marriage.
2- Has to observe period of iddat
3- cessation of mutual rights
4- no right of cohabitation

Khula is right of a woman to seek a divorce from her husband in Islam for compensation (usually monetary) paid back to the husband from the wife. Based on traditional fiqh, and referenced in the Quran and hadith, khula allows a woman to initiate a divorce through the mutual consent of the husband or a judicial decree. However, differing interpretations of khula exist across Islamic schools of law and regions in regards to the compensation, consent of the husband, role of the court and judge, number of witnesses a woman must have, and the iddah (“waiting”) period, and child custody.

[COLOR="Black"][B]Quran[/B][/COLOR][FONT="Arial Black"][SIZE="5"][/SIZE][/FONT]

"Divorce is twice. Then, either keep (her) in an acceptable manner or release (her) with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep (within) the limits of Allah . But if you fear that they will not keep [within] the limits of Allah , then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah , so do not transgress them. And whoever transgresses the limits of Allah - it is those who are the wrongdoers."2:229 AL-QURAN

"And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement between them and settlement is best. And present in (human) souls is stinginess. But if you do good and fear Allah then indeed Allah is ever, with what you do, Acquainted."4:128

"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)..."65:4

[SIZE="4"][I][I][B]Hadith[/B][/I][/I][/SIZE]

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."

"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)

[QUOTE=sajidnuml;544518]Khulla is a right of woman to seek dissolution of marriage on certain grounds. It is not absolute but subject to many conditions and grounds which include failure to perform martial obligations and maintenance, insanity of husband, impotency, cruelty, obstruction in religious affairs etc.
Khulla is exercised by wife with or without the consent of husband. She has to give up the right of Haq mahr under khulla arrangements.

It is not absolute in the sense that Court has tobe satisfied that there are valid reasons for seeking khulla. Court can not pass a decree of khulla just because wife has the right to the same effect.

[B]how can she use this right[/B]?

It can be exercised either by mutual consent of the parties (wife offers and husband accepts)

or Wife can file a suit for Khulla in a family court whereby she will write down the reasons in plaint.

[B]legal effects of khula?[/B]

1- Right to contract an marriage.
2- Has to observe period of iddat
3- cessation of mutual rights
4- no right of cohabitation[/QUOTE]

thank you dear sajidnuml...

above answer is enough to write under this question??? or we need to explain that 9 grounds and other material..

khula
 

Husband can confer the wife the power to pronounce talaq. Once conferred, he cannot revoke it afterwards. Such conferment is called tafwid[ ]. If the husband confers the right in exchange for money or property, it is called KHULA.It is a divorce by common consent.
Literal meaning is “to take off clothes” in law it means to lay down ones authority over a wife.
It is not the absolute right of the woman it is subject to condition
“the woman can release herself from the tie by giving up some property in return in consideration of which the husband is to give her a khula, and when they have done this a talq ul-bain would take place”[fatwa alamgiri]
As a general rule in khula the wife makes some compensation to the husband or gives up a portion of her mahr; but this is not absolutely necessary.
Failure on part of wife does not invalidate the divorce but husband can sue her.

I completely disagree with the answer of Sajid as he has explained judicial divorce instead of KhuLa. The divorce taken on the grounds mentioned by sajid is judicial divorce. the answer of the question should be:
Khula is right of a woman to seek a divorce from her husband in Islam for compensation (usually monetary) paid back to the
husband from the wife.

Is KhuLa an absolute right of woman?
KhuLa is not an absoLute right of woman and it is subject to certain conditions. Although it originates from the women but it needs acceptance of the husband for its completion.

Essentials of KhuLa:
1. The demand of divorce shouLd originate from the woman.
2. A certain consideration is offered to the husband by the wife.
3. It completes on the acceptance of consideration by the
husband.
4. The proposal and acceptance need not to ne in any particular
form in Sunni law.
5. In Shia law certain forms are to be strictly followed and
witnesses are required.

LegaL effects of the khuLa:
1. One irrevocable divorce (talaq-i-bain) takes place.
2. Mahr
i. According to Imam Abu Hanifa, in absence of agreement,
woman's right to dower abolishes.
ii. According to Imam Muhammad and Imam Yousaf, woman
remains entitled to receive mahr.
3. Woman is bound to observe iddat if the marriage is
consummated.
4. Woman doesnt lose her rights of maintenance during iddat.
5. Share in inheritance is abolished for both the parties.
6. Children inherit from both mother and father.
7. Woman becomes free to get into a new marital relation.
8. A fresh nikah is needed if the man and woman wants to resume their relationship.

Well to me, in substance, KHULA is the absolute right of women. Courts are not considering traditional view of conditions in practical. For courts it is enough that the parties could not remain within the limits of Allah.
Secondly, satisfaction of court is not a condition rather it is in the best interest of women to consult able mind for her future.
Legal effects are well discussed by Jhoota and Sajid.

For me the technical point is, if courts decree khula and women refuse to pay back her dower after attaining such decree, in such case, whether the decree becomes invalid or what?

Well to me, in substance, KHULA is the absolute right of women. Courts are not considering traditional view of conditions in practical. For courts it is enough that the parties could not remain within the limits of Allah.
Secondly, satisfaction of court is not a condition rather it is in the best interest of women to consult able mind for her future.
Legal effects are well discussed by Jhoota and Sajid.

For me the technical point is, if courts decree khula and women refuse to pay back her dower after attaining such decree, in such case, whether the decree becomes invalid or what?

well as per to my knowledge as law student and lawyer.khula is an absolute right... though in most of circumstances women have to seek the assistance of court...but once she has demnded for khula it will be granted no matter husband is agreed to it or not.if he is not and women still wants so she will be granted khula any way.and consideration will be paid to husband via court no matter he accepts it or not...so khula is absolute right of women in shriah ad general law..furthermore Khula is an Islamic right of Muslim wife. She can take khula from her husband on many grounds. Some of these grounds are discussed in the section 2 of West Pakistan dissolution of Marriages Act, 1939.Moreover there is no right of appeal, right of review, right of revision and writ that lies once khula is granted by the court.The procedure of khula is very simple in pakistan. The wife has to file a plaint in the family court demanding khula. She has to leave haq mehr when she applies for that. Khula is usually granted in 4-6 months in Pakistan when it proceeds ex-parte and in other circumstances it also do not take much time.

LAW OF DIVORCE & KHULA IN PAKISTAN By: Barrister Ali Shaikh
 

Introduction
A Muslim Marriage is a civil contract which can be executed and dissolved
like any other contract, however it is automatically dissolved on the death of
either spouses. Additionally spouses legal right to dissolve marriage contract
is also recognized in Islam and hence both are entitled with a religious rights
to dissolve a marriage. Husband has an inalienable legal right of divorce by
way pronouncement of Talaq on the other hand wife can only exercise the
right of divorce if the same is granted to her in her marriage contract or
nikkhanama. If in the event the right of divorce is not granted to the wife
then she has recourse of filing for khula before the family courts of law to
obtain judicial divorce.
It is critically important to note that whether the marriage has been
dissolved through talaq or khula, it must be legally recognized failing which
serious doubts may arise about the effectiveness of the divorce, such as a
case of bigamy or zina against a woman who later remarries, or difficulties in
settling issues related to the divorce such as past maintenance or claiming
deferred haq mehr. The paternity of children can also be dispute. Therefore
as per Pakistani Law it is vital to obtain dissolution of marriage certificate
from concerned government office as a documentary proof of dissolution of
marriage. However it is also important to note that as per Islamic scholars,
divorce once pronounced by the husband and khula once obtained from the
court of law is effective and binding.2
Husband’s Right of Divorce or Talaq and the Legal procedure
A husband has the unilateral right of Divorce or talaq and he cannot be
alienated from this right but can but can be restricted through the marriage
contract also known as nikkahnama. As per Muslim Personal Law and under
section 7 of the Muslim Family Law Ordinance the husband can pronounces
talaq orally as well as by way of Deed of Divorce.
Husband is duty bound to send written notice by registered post to the Union
Council or concerned government office in charge for issuance of divorce
certificates. In the said notice the husband must mention the address of his
ex- wife, thereby enabling the government office to issue notices to her by
registered post and it shall constitutes arbitration Council within 30 days of
receipt of notice for the purpose of reconciliation and settlement if possible.
This legislation was introduced to protect women from an instant and
unrecorded divorce. Earlier cases were recorded where woman who was not
properly divorced and who later remarried could be punished for bigamy and
sentenced up to 7 years (or up to 10 years if she concealed the previous
marriage) and only on the complaint of her first husband as there was no
proof of dissolution of marriage. Therefore, this legislation was enacted to
protect a woman who re-marries from a frivolous criminal case and
sentencing. hence it is vital for a woman to be absolutely clear about her
marital status and to have documentary proof that she is properly divorced.
Notice of talaq can be served on a wife with permission of concerned
government office through her father, mother, adult brother or sister – but
no other relatives. If this is not possible because her whereabouts are not
known and notice cannot be served on her through her immediate family,
the husband can still serve notice through a newspaper approved by the
concerned government office.
It is important to receive a notice from the concerned union council, whereas
it has been reported that in some cases families have refused to receive
notices, fearing that it is a notice of talaq and hence talaq will not become
effective. This practice could lead to unfavorable results as service of notice
can be done by way of publication in the newspaper hence refusal to receive
notice of talaq is merely an attempt to act like an ostrich.3
Once the iddat period which is 90 days from the date the concerned
government office receives the talaq notice is over, the office will issue a
certificate of Talaq being effective to the husband and wife. Please note that
talaq is not effective until the expiry of iddat period and failure to abide by
law will cause a simple imprisonment for up to one year and/or a fine of up
to Rs. 5000/-, hence the Importance of Registered notice of Talaq
A verbal talaq is not recognised by law and the husband’s failure to send
written notice to the government office is treated as no divorce in law.
However it is also important to note that as per Islamic scholars, divorce
once pronounced by the husband and khula once obtained from the court of
law is effective and binding.
Talaq-i-Tafweez and Mubarat (Mutual Divorce)
In both of these forms of divorce, there is no need to approach the courts,
meaning that the marriage can be dissolved rapidly, cheaply and with few
procedural problems. In this case both husband and wife may sign a Mutual
Divorce Deed and send a written notice under section 8 of the Muslim Family
Law Ordinance to the concerned government office, however the
government office is duty bound to follow the procedure of issuance of
notices before issuance of dissolution of marriage certificate. 4
Wife’s Right of Divorce or Talaq
A wife can dissolve her marriage unilaterally only if the right of divorce has
been unconditionally delegated to her by the husband in the marriage
contract or the nikahnama. If such right of divorce is not delegated then in
such circumstances wife can dissolve her marriage by apply for Khula from
the Family Courts of Law, which is also known as dissolution of marriage by
way of judicial divorce.
Therefore if the wife is not delegated the right of Divorce in her
nikahnama then she would need to apply for Khula. Khula, which literally
means ‘untying the knot’, is the dissolution of marriage initiated by the wife
and is granted by the court. To apply for Khula the wife would need to file a
suit for Khula in the Family Court under the West Pakistan Family Courts
Ordinance, on the grounds that she feels she can no long live with her
husband “within the limits prescribed by Allah’ and such a statement on oath
made in her suit would be sufficient to establish her case for Khula.
Dissolution of Muslim Marriages Act 1939
Judicial khula may also be granted without the husband's consent if the wife
is willing to forgo her financial rights.
Grounds for Judicial Divorce
Grounds on which a woman may seek khula include:
 Desertion by husband for four years,
 Failure to maintain for two years
 Husband contracting a polygamous marriage in contravention of
established legal procedures,
 Husband's imprisonment for seven years,
 Husband's failure to perform marital obligations for three years,
 Husband's continued impotence from the time of the marriage
 Husband's insanity for two years or his serious illness
 Wife's exercise of her option of puberty if she was contracted into
marriage by any guardian before the age of 16 and repudiates the
marriage before the age of 18 (as long as the marriage was not
consummated),
 Husband's cruelty (including physical or other mistreatment, unequal
treatment of co-wives),
 Any other ground recognised as valid for the dissolution of marriage
under Muslim law5
The Family Court will issue decree and send notification to Union Council
which proceeds as if it received the notice of Talaq and once the iddat period
of over the khula becomes effective.
At the time of filing of Khula suit the wife usually has to return haq mehr and
other benefits received from husband as zar-ikhula, gifts received from
husband’s family do not have to be returned court decides how much & what
is to be returned on the facts of the case wife’s failure to pay zar-i-khula
does not render khula ineffective; husband has to file separate suit for
recovery of zar-i-khula.
Commonly Right of Divorce is deleted in Nikkahnam
It is a common practice that the delegated right of divorce is deleted before the
nikahnama is presented to the bride for signatures. The Law of Pakistan entitles a
woman to exercise right of divorce as oppose to file for Khula before the Family
courts of Law but as a common practice, the marriage contract is prepared in
advance, in manner to defeat the purpose of the legislation. Therefore it is hoped
that this article and dissemination of legal information may educate many in our
society to change the practice and secure their legal rights. If Islamic scholars are
of the opinion that the said practice is valid and legal, then in such circumstance it
is urged that it should be debated in the parliament and necessary legislation
should be enacted to remove such clauses from the Nikanama. Whereas as of now
the Divorce Laws of Pakistan states that a woman has a delegated right of divorce
and hence her right should not be removed or deleted without her consent in the
nikhanama prior to obtaining her signatures and therefore it is further urged that all
the clauses should be read and understood by the bride before signing the
Nikanama. 6
Steps to consider before Divorce in Islam
Narrated Abdullah ibn Umar: The Prophet (peace_be_upon_him) said: Of all the
lawful acts the most detestable to Allah is divorce1
.
Islam and Quran has stressed both partners to live in peace and harmony,
however it is a natural process of life that some disagreements between
spouses arise during the course of marriage, especially during early years of
marriage. It is always encouraged in Islam to resolve such disagreements
by acting fairly and kindly, however if in the event such disagreements
cannot be resolved then in such circumstance the following procedure is
prescribed in Islam before termination of marriage.
1. The two parties must try to settle their differences on their own. It is
understood by family counselors commonly intervention of third
parties, such as parents, siblings, friends or cousins are common cause
of non-settlement of disputes. As it is documents by many family
consultants all over the world that adults are capable of resolving their
disputes amicably by conversing and expressing their grievance. It is
always a process of give and take. Therefore it is recommended that
couple should attempt to talk their difference with the intervention of
others in any form and should always keep in mind that happy life
always means give and take.
Narrated AbuHurayrah: The Prophet (peace_be_upon_him) said: Anyone who
incites a woman against her husband or a slave against his master is not one
of us2
.
2. In the unlikely event of non-settlement between the couple, two
impartial personalities/ arbitrators, one from the husband’s relatives,
and one from the wife’s relatives, must be appointed to try to make
peace and to settle their differences.
3. If this attempt also fails, then the husband or the wife may seek a
divorce.
4. In case divorce is notice served through the concerned government
office, a reconciliation period of ninty 90 days time or three months is
1
'Divorce (Kitab Al-Talaq)' of Sunan Abu-Dawud, No.2173
2
'Divorce (Kitab Al-Talaq)' of Sunan Abu-Dawud, No.21707
available (except if the parties have divorced each other for the third
time), also known as iddat period.
5. The two parties can reconsider their views and reunite during this
waiting time. However, if the above time limit expires and no
reconciliation occurs, then the divorce becomes effective and marriage
is terminated.
6. If in the event the wife is pregnant then the waiting period is till
delivery of her child plus iddat period. Hence divorce is pronounced by
the husband but the same will not become effective during pregnancy. 8
Revocation of Divorce by a Husband
It is commonly noted by us that most families, especially husbands exercise
their right of divorce with proper thought process and thereafter approach
various counselors and lawyers for revocation of divorce. The common
problem is that most lawyers or draftsmen prepare divorce deeds without
allowing the opportunity to revoke the divorce by causing the husband to
pronounce triple divorce.
A divorce can be revoked by the husband without intervening marriage as
long as the same is done up till three pronouncements!
Therefore a Divorce Deed should always be prepared in the form and
manner to suggest that it shall be treated as one single divorce, if the
divorce deed is prepared with a triple divorce then the same cannot be
revoked without intervening marriage and hence the said act should be
exercised with caution.
In most cases the client is not informed of his legal rights of triple divorce
and their divorce deed is prepared with triple divorce. Limited scholars
believer that with full knowledge of triple divorce is treated as single divorce,
whereas majority are of the opinion that ignorance of basic Islamic Law is no
excuse and therefore pronouncement of triple divorce is final and binding
until intervening marriage.

[QUOTE=Afshan Choudary;544505][B]Is khula an absolute right of woman or it is subject to some conditions?how can she use this right and what are legel effects of khula?[/B]

plz help me how to answer the question[/QUOTE]



Khul` is an out of the court settlement
1. In Islamic law, khul` is a compromise between the husband and the wife whereby the wife relinquishes some of her rights and, in consideration thereof, the husband pronounces divorce. As it is a contract that has to be concluded by the parties between themselves, a cause of action cannot arise till the parties enter into an agreement. The judge merely confirms the contract and pronounces divorce. Thus, it is an out-of-the-court settlement.

2. If the husband does not pronounce divorce - or any other word or statement signifying divorce - the court cannot dissolve the marriage contract. Hence, even after the court had decreed that the marriage was dissolved, it remained intact. As a result, the lady continues to be the wife of that person and she cannot marry another person.

for a detailed fatwa, visit our website.

khula is definately an absolute right. even if the woman lacks the grounds for seeking khula i.e cruelty,impotence,imprisonment,desertion,failure to maintain, lunancy etc, she can seek khula by filing a petition in the court.

[B][SIZE="3"]"however, it must be remembered that jurisprudence is developed in such a way that bow wife does not have to rely upon these grounds and only thing she has to establish is profound hatred and courts release her from marriage tie"[/SIZE][/B]

page 305,muslim law and jurisprudence by aatir rizvi( jahangir success series)

[QUOTE=sadafnoorelahi;673774]khula is definately an absolute right. [/QUOTE]

well, it depends on what is your idea of an "absolute right".

khula is a process which includes:

1. demand for divorce from the husband

2. fixation of a consideration

3. pronouncement of divorce by the husband.

if you mean by absolute right, that can a woman seek divorce and show willingness for payment of consideration? yes, it is her absolute right.

but, if you mean by absolute right that even husband will be bound by her demand to pronounce divorce, i am afraid that is not the case. that is why arbitrators and even courts get involved in the case, and they then ask the husband for his choice. if it was an absolute right and divorce was supposed to be pronounced in every case, why is husband's willingness essential?

moreover, when case of khul' at the end comes down to pronouncement of divorce, it is an exclusive right of the husband to pronounce it and the right does not lie with anyone else, including the judge. the prophet peace be on him states الطلاق لمن اخذ بالساق, right of divorce is the right of who consummated the marriage, hence, everyone including the judges and arbitrators are out.


it is also important to note that if demand by wife is made, and the issue is settled between the spouses, that is case of mubarah and not of khul'.

Q 3. What is the meaning of Islamic Jurisprudence? Compare it with that
of Western or Secular Jurisprudence.

kindly help with this question

[QUOTE=sadafnoorelahi;679580]Q 3. What is the meaning of Islamic Jurisprudence? Compare it with that
of Western or Secular Jurisprudence.

kindly help with this question[/QUOTE]

Islamic jurisprudence, also called Usul al-Fiqh, is the queen of Islamic sciences. It has been developed, refined, and applied for the derivation of the law by some of the greatest Muslim minds, through-out the ages. The discipline of Islamic jurisprudence covers three things:
• The formal structure of Islamic law.
• The sources of Islamic law.
• The analysis of legal concepts.
These meanings may be explained briefly as follows:
1. The Formal Structure of Islamic Law: The formal structure of Islamic law is studied by the Muslim jurists under the title “the hukm shar‘i,” which is translated as “the legal rule of shari‘ah.”
This study of the conceptual structure of Islamic law attempts to answer the following questions:
a. What is the meaning of Islamic law?
b. What is the nature of rules in this legal system?
c. How many kinds of rules are there and how do they unite with each other to give rise to the Islamic legal system?
d. What is legal capacity and how does it interact with the operation of the rules?
e. What kinds of rights underlie the various kinds of rules?
f. How are these rights secured through the legal framework and machinery of Islamic law?

2. The Sources of Islamic Law: Islamic law is derived from its sources. The primary sources are those that are unanimously accepted by all the schools and all the jurists as the fundamental sources of Islamic law. In addition to these there are the secondary sources of Islamic law, which are not unanimously accepted by all schools or all the jurists.
3. The Analysis of Legal Concepts: Islamic jurisprudence under-takes the analysis of legal concepts like: legal capacity, rights, persons, liability and so on. It is through these concepts that the rules of law are understood, applied and developed.

what about secular or western jurisprudence?

IS THE MEANING OF ISLAMIC JURISPRUDENCE SIMILAR TO THAT OF WESTERN JURISPRUDENCE?
IN MANY WAYS THEY ARE SIMILAR IN STRUCTURE
Western jurisprudence also deals with the same three things:
- the formal structure of the law,
- the sources of law and
- the legal concepts.
Thus, when we look at Salmond’s book, we find that it has three parts that deal with the subject in exactly the same way. It deals with the general structure and classification of laws; the sources of law (legislation, precedent and custom) and then with legal concepts (like rights, persons, ownership, property, obligations, liability and so on).

THERE IS A SLIGHT DIFFERENCE
The difference lies in the number of legal concepts discussed. Usul al-Fiqh discusses rights, persons (legal capacity), and liability. It does not include the discussion of concepts like property, ownership, obligations, titles, evidence and procedure. In his well known book on jurisprudence, Sir Abdur Rahim added these topics to traditional system. This was a good attempt and there is no reason why these concepts cannot be discussed in usul al-Fiqh. The additional concepts are available in the books of Fiqh or the law. It is for this reason that Abdur Rahim writes in the preface to his book “The Principles of Muhammadan Jurisprudence: According to the Hanafi, Maliki, Shafi‘i and Hanbali Schools”:
In writing the remaining chapters I have not had the same invaluable help of these eminent jurists [of Usul}, who did not think fit to pursue their investigations beyond the limits of the topics dealt with in Chapters II to V. In Chapters VI to XII, I have endeavoured to explain the fundamental theories and legal ideas on which the different departments of the Muhammadan system are based and to set forth the important principles which impart to the Muhammadan legal code, under its several heads, its peculiar features. These theories and principles are to be found interspersed in such authoritative works on Muhammadan law as the “Hedaya,” the “Sharhu ’l-Viqaya” and others.

[QUOTE=sadafnoorelahi;682191]what about secular or western jurisprudence?[/QUOTE]
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