Kerala Court’s Ruling on Muslim Women’s Right to Unilateral, Extrajudicial Divorce under Islamic Law

By Hasan Mahmud, New Age Islam 02 November 2022 The division bench of Justice A. Muhamed Mustaque (Muslim) and Justice C. S. Dias (Christian) of Kerala High Court in India ruled that Islamic law recognizes a Muslim woman's right to demand termination of a marriage. Thanks to both the judges to uphold the dictum of the Quran and the Prophet (peace be upon him). THE SHARIA LAW Sharia law is just the opposite. Dr. Suhaib Hasan, one of the senior Judges of Sharia Courts in the UK, said in an interview with the Financial Times[i] that a Muslim male can divorce his wife by simply saying “I divorce you,” preferably in front of two witnesses, but the wife must apply to the Sharia court for divorce. [ii] This is the Khula law of Sharia. If there is no proven reason such as a husband’s impotency, torture, etc., then the Sharia court would negotiate with the husband for his “approval” to divorce. Sharia law also dictates that if he divorces his wife then before completion of the divorce, he has the right to cancel the divorce “even if the wife does not want to continue.”[iii] These laws turn wives into virtual slaves. Islam never forces a woman to continue her marriage. Rather, as we will see below, both the Quran and Prophet gave women the absolute right to end their marriages without depending on anybody, even if it goes against Prophet’s (peace be upon him) wish. Impact of the law In real life after applying to the Sharia court for divorce the poor wife must continue working, housekeeping, maintaining the kitchen, taking care of her kids, etc. until the divorce is complete. How long could the Sharia court take to come to a decision? Here is a quote from Malaysia: “one woman had to wait seven years before her plea for a divorce was heard in a Sharia court. In the meantime, her husband had started a new family while refusing to give her a divorce. This is just one of many cases."[iv]At times, the wife becomes the victim of a familial and social outcast. During the negotiation, the husband normally puts a financial stipulation and other conditions to his “approval,” such as giving up her right of maintenance, custody of children, the share of the property, etc. In many cases, the helpless wife accepts those conditions. This law essentially turns a Muslim wife into a virtual slave to her husband. In fact, Imam Gazaali quoted Imam Shafi’i saying - “In marriage, a woman enters into virtual slavery of her husband.”[v] This nightmare happens not only in the Muslim world but also throughout Muslim societies in the West.[vi] Islamic references 1. “Narrated Ibn ‘Abbas: Barira’s husband was a slave called Mughith as if I am seeing him now, going behind Barira and weeping with his tears flowing down his beard. The Prophet said to ‘Abbas, “O ‘Abbas! Are you not astonished at the love of Mughith for Barira and the hatred of Barira for Mughith?” The Prophet then said to Barira, “Why don't you return to him?” She said, “O Allah's Apostle! Do you order me to do so?” He said, “No, I only intercede for him.” She said, “I am not in need of him.”[vii] The Tafsir section states: - “Barira knew that the Prophet would not be upset, so she said in clear words – ‘I am not taking your plea.’ Prophet happily allowed her to stay as she wanted.”[viii] 2. Narrated ‘Aisha: “Three traditions were established concerning situations in which Barra was involved: When she was manumitted, she was given the option to keep her husband or leave him.”[ix] 3. Narrated Ibn Abbas: “The wife of Thabit bin Qais bin Shammas came to the Prophet and said, ‘O Allah's Apostle! I do not blame Thabit for any defects in his character or his religion, but I am afraid that I (being a Muslim) may become unthankful for Allah’s Blessings.’ On that, Allah's Apostle said (to her), ‘Will you return his garden to him?’ She said, ‘Yes.’ So she returned his garden to him and the Prophet told him to divorce her.”[x] 4. “A young woman came to the Holy Prophet (PBUH) and said- ‘my father has married me with his brother’s son..…. The Holy Prophet (PBUH) left the decision (of continuing the marriage) to her…”[xi] 5. “Ye are forbidden to inherit women against their will. Nor should ye treat them with harshness, that ye may take away part of the bride money ye have given them, except where they have been guilty of open lewdness.”[xii] This verse is about wives because of the word ‘bride money’. The meaning is so unequivocal that many scholars, even Sharia stalwarts such as Dr. Jamal Badawi, admitted that this verse talks about wives.[xiii] Many of them translate the Quranic verse as - “It is not lawful for you to try to hold your wives against their will.”[xiv] The Quran is consistent with the directive, even when it comes to the wives of the Prophet himself, as seen here: “O Prophet! Say unto thy wives: If ye desire the world's life and its adornment, come! I will content you and will release you with a fair release.”[xv] The Prophet’s wife confirmed this: “Narrated Aisha: Allah's Apostle gave us the option (to remain with him or to be divorced) and we selected Allah and His Apostle.”[xvi] The time is high to give a clarion call to all Muslims to abandon these anti-women Sharia laws. Egypt has already taken the lead in this matter by enacting a law that gives women the right to divorce by submitting the bride's money. [1] We hope that the Muslim world will soon follow this lead. … Hasan Mahmud was born in Bangladesh in 1949, lived in the Middle East for several years, and in 1990 moved to Canada, where he became the director of Sharia Law for the Muslim Canadian Congress. He has fought against allowing Sharia courts in the country. [i] First Person: Dr. Suhaib Hasan, Financial Times (18 Sept 2009), https://www.ft.com/content/9064931e-a0f6-11de-a88d-00144feabdc0. [ii] Note the Quran warrants two witnesses in Chapter Twalak verse 2. [iii]Codified Islamic Law 352, (Vol. 1). [iv]Muslim Women’s Newsletter 10(55), Institute of Islamic Studies India, (Oct. 2011). [v]Gazzali, Eh-Hiya Ulum Al Deen, Dar Al Kotob Al Ilmiyah (Vol. 2, 2008). [vi] Marina Jimenez, A Muslim Woman’s Sharia Ordeal (8 Sept 2005), The Globe and Mail, http://www.theglobeandmail.com/news/national/a-muslim-womans-sharia-ordeal/article18247680/. [vii] Sahi Bukhari, VOL. 7, NUMBER 206, TRANSLATED BY Dr. Muhsin Khan, Medina University. [viii]Quran 271 (page). (From Bengali translation printed in Saudi Arabia.) [ix]Sahi Bukhari,Vol. 7, No. 202. [x] Sahi Bukhari, Vol. 7, No. 199. [xi] Sahi Ibn Majah, Vol. 3, No. 1874. [xii]Quran 4:19 (Yusuf Ali). [xiii] Dr. Jamal Badawi, Gender Equity in Islam, available at http://www.scribd.com/doc/4931814/Gender-equity-in-islam-By-Jamal-Badawi. [xiv]Feminist, Cresent life, http://www.crescentlife.com/thisthat/feminist%20muslims/4_34.htm. [xv]Quran 33:28 (Pickthal). [xvi] Sahi Bukhari, Vol. 7, No. 188. [1]Amendments on the Egyptian Divorce Laws, The Egypt Electionnaire, http://egypt.electionnaire.com/issues/?id=3, last accessed 27 Apr 2017. 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