By Mubasher Hussain
Background:
- “Munshi Buzul-ul-Raheem case ruled upon in 19[??], in which the Judicial Committee of the Privy Council (the highest court then) decided that the khul‘-divorce was not available without the consent of the husband under Islamic law.
- However, in the Balqis Fatima v. Najm-ul-Ikram Qureshi case, the Lahore High Court ruled for the first time in 1959 that the khul‘-divorce should be available to a woman even without the consent of the husband.
- Later, this position was endorsed by the Supreme Court of Pakistan in the Khurshid Bibi case of 1967 that says in its decision that “If the opinions of the jurists conflict with the Qur’ān and the Sunnah, they are not binding on Courts, and it is our duty, as true Muslims, to obey the word of God and the Holy Prophet.”
1- Abstract: To ensure the smooth functioning of the family unit, Islamic law outlines a set of guidelines regarding each spouse’s rights and responsibilities. However, Islamic law also provides guidelines for the dissolution of marriage. Of the different types of marriage dissolution (ṭalāq), divorce-by-iftidāʾ, usually called khulʿ, is available to a dissatisfied wife who elects to return her dowry and sometimes additional payment, as consideration for exiting the marriage. Conventional Sunnī interpretation permits such divorces to take place for cause, but still, requires the husband’s consent to be legitimate. However, there is an alternative interpretation in the Indian Subcontinent now advanced by Textualist Scholars (Ahl-i Ḥadīth ʿUlamāʾ), some members of the judiciary, and the arbitration council. They permit women-initiated dissolution of marriage without the consent of the husband, provided certain conditions are met. This talk will explore the arguments that justify these scholar-jurists’ view, as articulated in several recent leading opinions (fatwās) from their circles.
2- According to the conventional interpretation of Islamic personal status law, a husband has the unilateral right of Divorce and he cannot be alienated from this right but can be restricted through a contract (usually at the time of marriage). In contrast the wife has not been given the right to divorce her husband in this fashion, but she can dissolve her marriage through several ways, such as apostasy (if she renounces Islam, the marriage stands automatically dissolved according to the majority of Muslim jurists), divorce of tafwīd and khul’. The tafwīd-divorce (talāq al-tafwīd or tafwīd al-talāq) refers to a sub-type of divorce in which the power of divorce is delegated to the wife through a mutual contract. If there is no such option available to a married woman then she can dissolve her marriage through the khul’-divorce. Conventional Sunnī interpretation permits such divorce to take place for a valid reason (such as non-maintenance of the wife, failure of the husband to perform his marital obligations, his impotency, or insanity, or systematic maltreatment, or disappearance as well as imprisonment for a certain period etc.), but still, requires the husband’s consent to be legitimate.
3-The said grounds have significantly favored the affected women of South Asia in several ways. Yet, the complainant wife has to prove the offense to be successful in her plaint, which has been usually impossible. Furthermore, if the wife is determined to have the marriage dissolved due to any reason (including hatred for her husband, a reason which has not been considered valid by the majority), but the husband refuses to divorce his wife and all the reconciliatory efforts fail, what is the solution then? No solution at all, according to the conventional view point (which is held by the overwhelming majority of the classical and medieval jurists)! (because:) The majority of the jurists of the Sunnī as well as the Shī’ī schools maintain that the khul‘ is a consensual matter and not subject to adjudication under most circumstances. Therefore, consent of both the husband and the wife is mandatory, while the Mālikī jurists observe that the arbitrators, whether they are appointed by the state authority or the mutual consent of both the parties/families, has the authority to dissolve the marriage (by khul’) with or even without taking the consent of neither the husband nor the wife into account.
Argument: The majority of the jurists granted the husband an absolute right of divorce probably because of: 1) the notion of qawama (man’s superiority over his wife); 2) the contractual nature of the marriage agreement (they consider the khul‘ as a sale transaction which requires the consent of both sides.); and 3) the Prophet (PBUH) did not take it upon himself to dissolve the marriage. Rather he had only ordered the husband to do so and hence the Prophet’s role in this case was not that of a judge at all, but of a law-giver.
4-The ḥadīth of Jamilah/Habibah bint Sahl
Many collections of ḥadīth have referred to the case of Habibah bint Sahl – wife of Thabit b. Qays b. Shamas al-Ansari. It is reported (from Ibn ‘Abbas) that the wife of Thabit b. Qays came to the Prophet (peace be upon him), and said: “I see no fault with Thabit’s conduct or his religious demeanor, but I dislike ingratitude in Islam.” The Prophet (PBUH) said: “Will you return his garden to him?” “Yes”, she answered. The Prophet (PBUH) said: (to Thabit): “Accept (iqbal) your garden and divorce her (talliqha) once.” [Bukhari]
In the second and third versions of the same incident, the Prophet (PBUH) is reported to have ordered Thaibit (‘amarahu) to divorce her in return for his garden. In the first version in Al-Bukhari, the words “iqbal” (accept) and “talliqha” (divorce her) are used in the imperative form by the Prophet but in the second one the indirect speech is very clear that Thabit’s approval was not sought but the Prophet had ordered him, instead.
According to the report of Imam Al-Nasa‟i: Thabit b. Qays b. Shamas hit his wife (Jamilah) and broke her limb. She complained to her brother who took her to the Prophet (PBUH) and the Prophet summoned Thabit and told him, “take (khudh) [from her] what you have given her and let her go (free) (khalli sabilaha). He said: “Yes.”
According to the collection of Abu Dawud, in which Habiba’s case is reported: “Aisha (the Prophet’s wife) relates that Habibah bint Sahl was married to Thabit b. Qays b. Shamas, who hit her and broke a limb of hers. She approached the Prophet (PBUH) after dawn, and he summoned Thabit and told him: “Take (khudh) some of her money and separate from her.” Thabit said: “Is this permissible, Prophet of God?”… Prophet: “Yes.”.. Thabit: “I gave her two gardens as dower and they are her property.” Prophet: “Take them and separate from her (farriqha)”, which he did.
Ibn Maja narrates on the authority of Ibn Abbas that “the Prophet has ordered Thabit to take only the garden and not more (than the garden).”
According to the report of Ahmad Ibn Hanbal: Habibah was married to Thabit, who was an ugly man. She said: “Messenger of Allah: O, by Allah, were I not to fear God, I would spit in his face whenever he touches me.” The Prophet said: “Would you give him back his garden?” She said: “Yes”, and she gave it back. Then the Prophet (PBUH) separated them (farraqa bayna huma).
According to the conventional interpretation of the Jamila/Habibah episode mentioned in the ḥadīth literature, the Prophet (PBUH) did not take it upon himself to dissolve the marriage; he had only ordered the husband to divorce his wife. Hence, the Prophet’s role in this case was not that of a judge at all, but of a law-giver.
5-The Role of the Fatwās in the Judicial Law-Making
The earliest reported case on the khul‘-divorce in the Indian subcontinent is that of the Munshi Buzul-ul-Raheem case ruled upon in 19[??], in which the Judicial Committee of the Privy Council (the highest court then) decided that the khul‘-divorce was not available without the consent of the husband under Islamic law.
Unfortunately, this case is still applicable in India where it has not been overruled and even, until 1959, the Pakistani courts were still endorsing the traditional viewpoint of the Hanafi school, whose followers have formed the majority of the population in the Indian sub-continent. But (in the Balqis Fatima v. Najm-ul-Ikram Qureshi case), the Lahore High Court ruled for the first time in 1959 that the khul‘-divorce should be available to a woman even without the consent of the husband. Later, this position was endorsed by the Supreme Court of Pakistan in the Khurshid Bibi case of 1967 that says in its decision that “If the opinions of the jurists conflict with the Qur’ān and the Sunnah, they are not binding on Courts, and it is our duty, as true Muslims, to obey the word of God and the Holy Prophet.”
The L.H.Court relied on Syed Abul ‘Ala Mawdudi’s legal opinion presented in his book/journal Huqooq-uz-Zaujain for its interpretation of the verse… Moulana Mawdudi has deviated from the well-established opinions of the previous jurists in this respect and observes that the “wife’s right to khul‘ is parallel to the man’s right of talāq. Like the latter the former too is unconditional. It is indeed a mockery of the Sharia (law) that we regard khul‘ as something depending either on the consent of the husband or on the verdict of the (judge) qazi. The law of Islam is not responsible for the way Muslim women are being denied their right in this respect.”