DETAILS AND AFFILIATION
AN ANALYSIS OF KHULA FROM A GENDER
PERSPECTIVE
Submitted by
Sai Harshitha Kapa
AFFILIATION: SYMBIOSIS LAW SCHOOL, HYDERABAD.
SYMBIOSIS INTERNATIONAL DEEMED UNIVERSITY,
INDIA.
ABSTRACT: Khula is a subject that is often overlooked. Khula has been perceived
differently by different schools of Islam over time, and it has lost its true essence in the
process. Islam is a faith that empowers both the man and the woman to seek divorce from
their marriage. Divorce in Islam has always been a contentious matter due to the husband's
inclinations, but when we examine ancient Islamic scriptures, we can find that there are a
variety of other types of divorce, such as Khula, Mubarat, and so on. The main reason these
are unknown to many is that they were not recognized by the widespread male-dominated
society of the time, and hence aren't included during the development period, leading to
several theories and issues that need to be answered. The objective of this research is to learn
about the complexities of Khula and the reasons for its preservation through the prism of
gender and equality. It also tries to examine different interpretations of Khula based on the
Quran and legal rulings. Its goal is to demonstrate the difference in interpretation between the
two. It also highlights the aspects that influence a woman's decision to summon or think
about Khula. It also focuses on the advancement of Khula in different countries, as well as
the reforms that have been implemented, which have a direct impact on women and men.
Structures and themes in relation to Muslim women through Khula within Islam have
emerged as a result of interpretive efforts through jurisprudence and indictive views, and this
study highlights the same.
INTRODUCTION: Gender equality is a contentious issue in personal law. In India,
where each community has its own variety of specific rules, Muslim Personal Law, in
particular, is seen as contributing to female disparity. Gender disparity in India derives from a
profound cultural conservatism that isn't based on faith, and it's backed up by legislation.
Muslims would follow Muslim(sharia) Law in areas of marriage, divorce, succession, and so
on, according to the Muslim Personal Law (Shariat) Application Act, 1937. The Dissolution
of Muslim Marriages Act, 1939 would be the judicial procedure of requesting divorce by the
woman in India. Khula is a Muslim notion in which a Muslim woman can divorce her
husband extrajudicially. Marriage is characterised as a social, honorable, and sacred contract
in Islam, and is referred to as Mishaqan Ghaliza 1, solemn covenant, in the Holy Qur'an. It
1
The Holy Quran, 4:21
refers to union or aqd in Islamic law2. Nikah is the Arabic term for marriage. Islam
recognises the importance of marriage in a country's cultural life, and it encourages its
adherents to respect one another and to motivate both parties to keep their relationship going
under difficult circumstances. We can claim that Islam has done everything possible to ensure
that the sacramental connection lasts until death, and that divorce is only recommended when
there is a grave matter. We can add that Islam has granted equal rights to both parties to
dissolve marital connections if there is no harmony or compassion between them and all
attempts to reconcile them have failed, then the law of Islam enables them to separate with
integrity and kindness. The holy Quran has given a Muslim woman the right to set herself
free from the confines of such a marriage by returning a portion or all of the Mehar she got
from her husband, just as a husband has the power to divorce his wife. This right is known as
Khula and is inscribed in the holy Quran. The legislature has codified laws affecting Hindus,
Christians, and Parsis, but the Muslim Personal Law is essentially uncodified. The
distinctions between different personal laws are striking because they are driven by religious
scriptures and conventions, impacting the rights of two individuals who are similarly
positioned to drastically different sets of laws just because they belong to different faiths.
Indigenous cultural norms, patriarchal customs, unconscious misogyny, and female
empowerment dynamics have reasserted themselves under the guise of religious doctrine, as
seen in the Islamic world.
RESEARCH METHODOLOGY: The Doctrinal Form of research was found to
be suitable and appropriate to analyze Khula in a gender perspective. The outlook of Islamic
scholars, various committees and judicial experts have been taken into consideration while
compiling this research paper. The research includes various opinions and articles from
varied and reputed individuals from the humanities and authorities from legal fraternity. A
combination of descriptive, conceptual analysis and analytical research design has been
employed in the course of this study to come out with appropriate findings.
2
Muhammad Ali, THE RELIGION OF ISLAM, 608 (1936).
LITERATURE REVIEW: Numerous experts and authorities concerned with the
legal, religious and organizations promoting equal rights in fraternity have dealt with the
concept of Khula and the perception of gender each one in the domain of their own. A journal
article by the title “The Impact of Islam as a Religion and Muslim Women on Gender
Equality: A Phenomenological Research Study3”gives us valuable insights about how the
personal laws as prescribed in Islam are often interpreted in such a way that they lose their
actual essence. It provides a study of Khula which categorises it based on the life led by
Muslim women across the world. It emphasises on the fact that geographical places,
academic levels, religious sects, financial origins, and countries like influence the personal
laws of women.. A Journal article by the title “Muslim personal Laws and Gender Equality
Concerns in India4 talk about the gender disparity with regard to the dissolution of marriage.
It also talks about the instances where numerous women in India that are unaware about the
rights they have. It also sheds light on the traditional Islamic jurisprudence that governs the
aspect of Khula making it even more detailed. “Marriage Agreements Under Muslim Law- A
Weapon in the Hands of Muslim Women 5” is a journal article that talks about various
agreements that a women can do in a marriage. It specifically includes Khula because the
article emphasises on how a woman becomes empowered with individuality through the
provision. It may be suggested that in the hands of a Muslin woman, marriage agreements
will operate as a tool. They can control their marital relationships by laying conditions. A
journal article entitled “Mohammedian Divorce by Khula6” gives us valuable insights into the
functioning of Khula in Islamic countries through judicial interpretations. It has case studies
pertaining to special cases on Khula to showcase the nuances of Khula and Mohammedian
law as to the interpretation of it from the Quran. It explains how the practice varies from sect
to sect and communities. A journal article “Dissolution of Marriage: Practices, Laws and
Islamic Teachings7” gives us insights into the precise criteria for dissolution of marriage that
safeguard the interests of all family members although there are several contradictions and
disputes which also deal with Khula. To reduce the additional misery that this condition causes
3
Sonia D Galloway, The Impact of Islam as a Religion and Muslim Women on Gender Equality: A
Phenomenological Research Study, Nova Southeastern University (2014).
4
Saadiya Suleman, Muslim Personal Laws and Gender Equality Concerns in India, 162 EDUCATION AND
HUMANITIES RESEARCH, International Conference on Law and Justice (2017).
5
Nanda Chiranjeevi Rao, Marriage Agreements Under Muslim Law- A Weapon in the Hands of Muslim
Women, 55(1) JOURNAL OF THE INDIAN LAW INSTITUTE, 94-103 (2013).
6
E N Taylor, Mohammedian Divorce by Khula, 21 JOURNAL OF MALAYAN BRANCH OF THE ROYAL
ASIAN SOCIETY, 3-130 (1948).
7
Shagufta Omar, Dissolution of Marriage: Practices, Laws and Islamic Teachings, Political Perspectives, 4 PLUTO
JOURNAL, 91-117 (2007).
disintegrating families, existing contradictions and gaps between Islamic teachings and family
laws must be addressed, as well as public awareness.
DIVORCE IN ISLAM: Marriage, being a contractual arrangement, gives on the
parties the authority to dissolve the contract under specific special circumstances, according
to Islamic law. The husband is subjected to different stringent restrictions when it comes to
divorcing his wife in Islam. It has a clear structure and timetable for divorce, and the man is
obligated to pay the wife's dower and maintenance. Divorce, on the other hand, is looked
upon in Islam and is only permissible in extreme situations and on justifiable grounds. The
Holy Quran says about separation in the 4th part which states that:
“Virtuous women are obedient and careful during husband's absence, because god hath of
them been careful. But (as to) those for whose refractoriness you fear desertion, admonish
them, but if they are obedient, seek not a way against them. Verily God is high and exalted.
And if you fear a breach between husband and wife, refer the matter to two arbitrator one
chosen from the family of each party. If they desire, Allah will affect harmony between
them8.”
When it comes to Islamic legislation, two major issues arise: the process of divorce and the
unequal treatment of men and women when it comes to divorce. These two issues are very
contentious, but they are easily misconstrued. The principle of unilateral divorce, as Justice
Krishna Iyer pointed out, is against the spirit of Islamic marriage and divorce in the case of
“Yousef Rawther vs Sowramma9” that The idea that a Muslim husband has a discretionary
unilateral authority to divorce his wife immediately contradicts Islamic theology. It is a
common misconception that a Muslim male has unrestricted right to dissolve an union under
Quranic law. The common infraction observed in almost all of the codifications that have
occurred throughout the world is that they maintained different types of divorce forms based
on Islamic fiqh, which consists of divorce by talaq (unilateral divorce); khula (divorce by
mutual consent); tatliq or tafriq (judicial divorce) which can be invoked on a number of
grounds by both husband and wife; and faskh (judicial dissolution) which Legislators have
taken it upon themselves to address problems in legal separation in a limited pattern of
restricting the husband's right of talaq and widening the circumstances for which the wife can
8
Yousef Ali, Trans.The Holy Quran, CHAPTER IV Verse 32&35.
9
Yousef Rawther v. Sowramma, IR 1971 Ker 261.
seek judicial divorce from the earliest recorded mandated interventions in Muslim family
laws all over the world. Islamic law allows various forms of divorce which are categorized as
divorce by Husband which include Talaq (Repudiation), Ila (Vow of Continence), Zihar
(Injurious assimilation), divorce by Women are Talaq-e-Tafwid(Delegated divorce),
Khula(Redemption), Divorce by common consent are khula(Redemption), Mubaraa(Mutual
freeing) and divorce by judicial process lian (Mutual Imprecation) faskh( Judicial rescission)
10
. Furthermore, while legal divorce and dissolution take place in court, it can be noted that
the traditional procedures of talaq and khula are quasi and so can take place extra-judicially
without the assistance of the court. Legislators are frequently confronted with questions about
the legality of informal divorce when attempting to make divorce a judicial proceeding.
THE IDEOLOGY OF KHULA AND ITS EVOLUTION: The word
Khula is derived from the Arabic word Khal'un11. The connection one thing from another is
known as extraction. The partners are epitomized as clothing for one another and when they
invoke Khula, according to, they remove them. It denotes that the husband relinquishes all of
his rights over the wife at her request and dissolves the marriage by returning the mahir 12. In
simple terms its similar to giving consideration for consent to let go. The case of “Monshree
Buzloor Rehman13” is well known as it states that a divorce by Khula is divorce with the
agreement and at the instance of the woman in which she gives or agrees to give
consideration to husband for her liberation from marriage tie 14 the privy council said. In this
type of divorce an agreement between parties for a consideration paid or to be paid by wife to
the husband the honorable court held in the case of “Sakina v. Umar Bukhsh15”. It is also vital
for the wife to express a wish for separation. Thus, we can say that Khula is dissolution of
marriage by an agreement where a consideration is given to the husband by the wife. The
right of Khula is embedded in the following verse of the holy Quran:
“It is not allowed for you (men) to take any of your gift from your women except when both
parties fear that they will be unable to keep god's limitations." If ye (judges) are afraid that
10
Furquan Ahmed, Understanding the Islamic Law of Divorce, 45 JOURNAL OF INDIAN LAW INSTITUTE,
484- 508 (2003).
11
E N Taylor, Mohammedian Divorce by Khula, 21 JOURNAL OF MALAYAN BRANCH OF THE ROYAL
ASIAN SOCIETY, 3-130 (1948).
12
Yousaf Khan Trans. FATAWA-I- QAZIKHAN, 513 (2017).
13
Monshree Buzloor Rehman v. Lateefun Nisa, MIA 379 PC.
14
Ibid.
15
Mst. Sakina v. Umar Bukhsh, PLD 1964 SC 456.
they will be unable to keep the bounds set by God. If she contributes something in exchange
for her freedom, neither of them is to blame16”
When there is a fear of exceeding the bounds set by God, it should be implemented. The
words there is no harm attest to the fact that divorce is a negative thing, and that resorting to
khula when there is a fear of breaching the limitations is not a sin. When a woman wishes to
be free of her marriage's ties, she must give up some riches, just as a man must give up some
fortune when he divorces his wife on his own. He will not be able to reclaim any of the
wealth he has given to his wife if he initiates it. Similarly, if a wife wants to divorce her
husband, she must give up all or part of the riches she has received from him. If it is
definitively established that the wife despises him and makes cohabitation extremely difficult,
the husband and wife should be divorced. Forcibly keeping such a lady with her husband has
far worse religious, moral, and cultural ramifications than handing her a divorce. The former
is likely to jeopardize the shariah's core aim and object. As a result, it demonstrates that when
cohabitation is formed, it becomes abuse and assault and is against the foundations of Islam.
KHULA IN THE CONTEMPORARY WORLD: Rapid societal
developments in Islamic majority cultures have left individuals unclear of where they stand.
As an example, consider the uncertainty in the domain of male and female roles in
contemporary societies. The numerous stories of women, particularly poor women being
forced to surrender their financial rights in exchange for divorce from their spouses, having
spent significant money and time in courts pursuing legal divorce due to the judicial system's
incompetence (or lack of ability) garnered overwhelming support for an alternative method of
divorce law reform in Egypt17. In response to women's rights activists' agitation in 2000,
Egypt's government adopted a legal khula as an alternative. This option was proposed as an
explanation for the traditional khula divorce process, which, as previously indicated,
comprises the parties agreeing to a divorce agreement induced by a single, but instantly
conclusive (i.e. not subject to revocation) talaq in exchange for consideration from the
woman. This sort of divorce requires the approval of the spouse and can be completed
without the involvement of family members, relatives, or other third parties. Despite the fact
that this stipulation is seen as a major benefit to many aspects of the reform movement, those
16
Yousef Ali, Trans.The Holy Quran, CHAPTER II Verse 229.
17
Camilo Gomez Rivas, Women, Sharia and Personal Status Law Reform in Egypt after the
revolution, Middle East institute, October 1 (2011).
who endorse the legislation's objectives still express concerns that, under this regulation,
underprivileged women have significantly less accessibility to divorce than women and men
with more financial resources, especially in light of the need to not only waive the remaining
rights but also return the dower. Meanwhile, Egyptian legislation has grown in relevance on a
national and even worldwide. Jordan passed a temporary law in 2001 that included a
provision on Khula that was based on an Egyptian statute passed in 2000 18. This interim
measure was severely panned. Many people objected to the rule, claiming that it violates
Islamic beliefs and that men may be deceived. Finally, the bill was signed into law by the
president. However, according to Afghanistan Family Law, the right to divorce belongs only
to the spouse. The lady should only seek a divorce if she has good reason to do so. The judge
will make the final decision. It would also be necessary to assess and analyze the social,
cultural, economic, and other consequences of providing men ultimate discretion over
divorce. However, the premise of Khula is a woman's absolute authority to divorce. When a
woman needs to pay a price for something, she just has to buy it from another person. The
husband's consent is still required and comes within the same framework.
THE SIGNIFICANCE OF KHULA IN A GENDER
PERSPECTIVE: Sharia law's marital standards are particularly beneficial and
valuable to Muslim women in protecting themselves from marital insecurity, and they
support them after marital separation and even throughout marriage. Since only a Muslim
husband has the absolute ability to pronounce talaq for the termination of marriage. A
Muslim woman does not have this kind of authority unless it is conferred to her. As a result,
the Khula becomes an important aspect in empowering women to decide whether or not they
need to divorce their husbands, and the Quran offers a way for doing so. While Liberal
feminism is a platform for achieving gender equality within Islam, numerous Muslim women
are hesitant to join this ideological advancement for a variety of reasons, including their
family structure, individual freedom against larger organizations, gender archetypes
distinctions, and distinct legal status for Muslim women. These are all the elements that
determine a woman’s participation in self-empowerment. Even so in Khula there are
uncertainties as to what would be the just amount to be given from the Mehr or what should a
women do if her husband doesn’t agree to provide his consent. As we can see in the case of
18
Ibid.
where the judiciary gave their judgement on the concept of Khula not being maintainable
without the consent of the husband19. This judgement isn’t overruled in India but Pakistan and
Bangladesh seem to be progressive in this field. Although assertions can be obtained from the
hadith of Prophet Muhammad they simply won’t match to the circumstances of modern
scenarios because the situations in which Khula was invoked were different and the
interpretation depends from one preacher to the other and the interpretation of judiciary
changes from time to time. Unlike men, women are enslaved by society and religious duties,
which results in their sacrificing their own liberty. However, they are not the only ones who
dismiss it because these individuals believe that women were once oppressed but now enjoy
the same rights as men. It is clear when we witness cases in India and all around the world
where women wish to divorce men who have become oppressive or with whom they are
unable to cohabit but are hesitant to do so because they believe divorce is a matter of opinion
or goes against their duty as a wife. Even if women are unlikely to continue a failed marriage,
the issue emerges when their own families or religious officials such as Qazi and Maulvis
persuade them not to. Due to the rural population of India and other Asian countries, such
effect is stronger. Young women are persuaded to stay in a miserable marriage because they
are either completely reliant on their husband or fear of being shunned by society's
conservative members. The decision must be that of the woman and not of her Qazi or her
husband. Moreover, an issue arises if the husband refuses to accept. The disparity in gender
arises when women don’t start to recognize their own rights and privileges. While modernists
pushed for the most progressive reading of Islam achievable, conservatives argued for
restrictions on women's roles based on the same sources. Women’s legal rights, personal and
social prospects regarding marriage and divorce and public roles all improved due to
combined effort of everyone in the society.
CONCLUSION AND SUGGESTIONS: The rule of dissolving a Muslim
marriage at the request of the wife has several idiosyncrasies in the Indian setting, which,
given the country's current socio-political situation, adds to the noticeable conceptions of
gender inequality in Islam. Khula may also take centre stage, but how the community reacts
to the decision remains to be seen. The primary reason for Muslim women in India's
deplorable situation remains their failure to assert rights that Sharia already grants them. A
suggestion would be that women and men in India must be familiarised with usul-al-fikh
19
Munshi Buzul-ul-Raheem v Luteefutoon-Nissa (1861) 8 MIA 397.
which is the book of Islamic jurisprudence that was traditionally followed. This would help
women in asserting and invoking their rights. Another recommendation would be that the
principle of Khula can be codified to protect and help women in attaining a divorce through a
proper procedure without the intervention of a third party be it kin or a Qazi. The true
substance of Khula has been lost over time as a result of many jurists' interpretations. But if
we dig deep enough, we can figure out what Khula really is and what it signifies. The holy
Qur'an and the Sunnah establish Khula as a sort of divorce between couples. It can be
classified as a woman's right to use when she can no longer bear living with her husband and
is afraid of breaking Allah's laws. However, this has been interpreted in numerous ways over
time to be in line with patriarchal society. People have begun to break free from the restraints
of a male-dominated society, and progress is being made toward women's empowerment. It's
critical to raise awareness of customary rules like Khula, which ensure that men and women
are treated equally. In certain circumstances people ensure that the woman is ignorant
towards the rights she has in order to restraint her from taking a divorce. Also, India can
adopt reforms from other countries in order to strengthen the awareness about Khula. Despite
the fact that Muslim women are currently and actively practising Islam on a regular basis, it
was via personal experiences that they became aware of the religion and its position in their
life. All Muslims do not act in the same way or believe in the same ideology. It is a diverse
religion with adherents from all over the world who regard Islam as a matter of personal
choice, which in turn varies in sharia interpretation.
BIBLIOGRAPHY:
The Holy Quran and Hadiths
Muhammad Ali, THE RELIGION OF ISLAM, 608 (1936).
Yusef Ali Trans. The Holy Quran (2017).
Sonia D Galloway, The Impact of Islam as a Religion and Muslim Women on Gender
Equality: A Phenomenological Research Study, Nova Southeastern University (2014).
Saadiya Suleman, Muslim Personal Laws and Gender Equality Concerns in India, 162
EDUCATION AND HUMANITIES RESEARCH, International Conference on Law and
Justice (2017).
Nanda Chiranjeevi Rao, Marriage Agreements Under Muslim Law- A Weapon in the Hands
of Muslim Women, 55(1) JOURNAL OF THE INDIAN LAW INSTITUTE, 94-103 (2013).
E N Taylor, Mohammedian Divorce by Khula, 21 JOURNAL OF MALAYAN BRANCH OF
THE ROYAL ASIAN SOCIETY, 3-130 (1948).
Shagufta Omar, Dissolution of Marriage: Practices, Laws and Islamic Teachings, Political
Perspectives, 4 PLUTO JOURNAL, 91-117 (2007).
Yousef Ali, Trans.The Holy Quran, CHAPTER IV Verse 32&35.
Furquan Ahmed, Understanding the Islamic Law of Divorce, 45 JOURNAL OF INDIAN
LAW INSTITUTE, 484- 508 (2003).
Camilo Gomez Rivas, Women, Sharia and Personal Status Law Reform in Egypt after the
revolution, Middle East institute, October 1 (2011).
