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.
– The writer is an eminent scholar of Fiqh from India.