By Mohammad Tahir Hakim
The recent Kerala High Court judgement in review petitions on the issue of way/manner/method of the exercise of Khula as a form of divorce in Islam has resulted in mixed reactions. While the Muslim clergy has expressed disappointment, those on the other end of the spectrum have welcomed the judgement.
Two things need to be stated about the issue. (A) In Islam, the Muslim man (husband) is given the right to divorce his wife by pronouncing Talaq. A similar right is given to Muslim Women (wives) to ask for divorce by Khula. Additionally, the husband and wife can dissolve their marriage by mutual consent, and it is known as Mubarat. Moreover, the dissolution/annulment of marriage can also be by a Qazi or a /Court and it is known as Faskh. (B) The theologically and judicially recognized sources of Islamic Law/Shariah/Fiqh are (i) the Quran, the revealed word of Allah, (ii) the Hadith, the sayings and precepts of Prophet Muhammad (Peace be Upon Him), (iii) the Ijma, the consensus of the Muslim Ummah and its Imams/Juriconsults and (iv) the Qiyas, theological deductions in absence of da irect answer from the earlier sources, but based upon the earlier sources.
For appreciating the controversy, the facts from its inception leading to recent judgement are required to be considered. Briefly stated, the facts are that many wives had approached the courts seeking Khula from their husbands. But in view of a judgement of a single judge of the High Court of the year 1976 (K.C. Moyeen), Khula as a form/mode of divorce was held to be not available and inapplicable. In other words, such wives were held not entitled to dissolve their marriage by Khula and ask for a divorce.
Therefore, these matters reached the division bench of the High Court. Thereby, the High Court correctly applied Islamic law and held that the 1976 judgement of a single judge was not a correct law and held that such wives have the right to get an extrajudicial divorce by Khula. This author also welcomed the said judgement, as it restored the correct principle and practice of Islamic law. However, though not very apparent, an ambiguity appeared as to the way/manner/method of exercising Khula.
It is required to be emphasized that the issue and the ambiguity were not qua right of a wife to ask for Khula, as the same is unanimously and consensually accepted, but was with respect to the way/manner/method to effect the same. Consequently, review petitions were filed seeking the said clarification. It appears that neither the review petitioners projected their case unambiguously, nor the Court appreciated the same, as it ought to have been.
The resultant effect is the recent judgement wherein several established and settled principles of understanding and application of Islamic law have been discussed and turned on its head. Thereby, the High Court has held that the wife has the absolute right of Khula and rejected the contention of the Petitioners on the way/manner/method for exercising Khula as provided for in the Hadith. Further, it is also held that Quran alone is to be applied and the Hadith can be ignored, the clergy cannot provide answers to the issue, as they do not have a judicially trained mind and therefore, the court is not bound to follow them.
The answer to the controversy could have been and ought to have been given by following the binding precedent and judgement of the Supreme Court in the case of Juveria Abdul Majid Patni (2014), which is a direct answer. In that case, the dispute between husband and wife was that whether ex-parte Khula obtained by a wife from Mufti (Islamic Scholar, who can give opinion/Fatwa) results in divorce when other conditions for valid Khula are not performed by either of the parties.
The Supreme Court referred with approval, to the Delhi High Court judgement in the case of Masroor Ahmed (2007) and held that as the proper and complete procedure i.e., way/manner/method for effecting Khula was not followed, no valid Khula/divorce has taken place. The Kerala High Court while deciding review was bound by the judgement of the Supreme Court and ought to have followed the same. However, it ignored the same and embarked upon unnecessary and unwarranted judicial adventurism to dismiss the review petitions and came out with observations and conclusions disturbing the settled principles of Islamic law and disgracing, dissenting, and brushing aside the same.
Even otherwise, the issue of Khula, theologically, is based upon the first two sources of Islamic law, i.e. the Quran and the Hadith. The Quran provides for the same in Surah Baqarah(2), Ayah No.229. “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.”.
Theologically, the commandment of the Quran has to be effected and implemented following and obeying the Hadith of the Prophet (PBUH) and as practiced and commanded by him, during his lifetime. The same is to be adhered to and followed, since Allah commands so in the Quran, in Surah Ahzab(33) Ayah No.36. “It is not for a believing man or a believing woman, when Allah and His Messenger have decided a matter, that they should [thereafter] have any choice about their affair. And whoever disobeys Allah and His Messenger has certainly strayed into clear error.”
It is therefore required to be acknowledged that the way/manner/method of the Prophet (PBUH) of Khula is reported in the famous Hadith in Sahih Bukhari and other Hadith books. It is thereby reported, “Narrated Ibn ‘Abbas: 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.” (Book No.63, Hadith No.197). The said way/manner/method of Khula is accepted and followed unanimously and consensually by all the schools of thought (Madhhabs/Maslaks) and cross-section of Muslims including Sunni, Shia and the different schools of thought among them and the clergy for more than 1400 years, without any difference of opinion, so there is complete Ijma on it.
Thereby, as the first three sources of Islamic law, the Quran, the Hadith, and the Ijma answer the issue, the application of the fourth source Qiyas, does not arise at all. Therefore, the High Court ought to have accepted and followed the same, particularly when the same was the prayer in the review petition. However, the High Court rejected the same, embarked upon its own interpretation, and foisted its Qiyas and Ijtihaad (attempt by analytical inquiry and reasoning to arrive at a decision). Thereby, again the High Court did not answer the question about the way/method/manner for Khula and the ambiguity continued.
It may be stated that, as such, there is no quarrel qua the right of a wife to ask for Khula. Therefore, once she does so, the same must be in the way/manner/method as per the Hadith and as practiced for more than 1400 years. For clarification, it is stated that the wife has to ask for Khula and the husband is bound to agree to give her divorce by Khula. However, in case, the husband does not agree then as per the applied and accepted practice and procedure the Arbiters/Qazi/Court is mandated to declare the wife divorced by annulling the marriage by Faskh and the same has to be, without any adjudication of the fault of either of the parties and only on the mere asking by wife and subject to her fulfilling the conditions for Khula.
It needs to be emphasized that the permission or consent of the husband is neither crucial nor relevant nor required and the right and desire of the wife to relieve herself from marriage is supreme. Unfortunately, all this has been completely overlooked and glossed over by the court. Thereby, the issue of Khula remains embroiled in ambiguity and Muslim women have not got any substantial relief.
(The author practices law at Gujarat High Court. The views are personal)