Khul’ Or Khula, Divorce Initiated By Muslim Women: Victims Welcome Relief Offered By Kerala High Court

By Grace Mubashir, New Age Islam 24 February 2024 The Community Leadership Who Conduct Marriages Must Also Take Initiatives To Facilitate Khul’ Or Khula Divorce As Per Kerala High Court Verdict Main Points: 1. The 2023 Kerala High Court ruling related to Khul' can be seen as a positive step towards untying this tangle. According to this ruling, a Muslim woman does not have to go to court to get a divorce. It will be very helpful in avoiding delay in this matter. 2. Victims of abusive marriages have welcomed court decision. 3. Khul’ is divorce initiated by women. 4. This facility is not encouraged by community and clerical leadership causing a setback to women's rights. 5. Khula is a human right of married women granted by Islam in which community leadership and ulema routinely interfere on the side of the errant husband. ------ A few years ago, a case came to the attention of the Kerala High Court. Police had registered a criminal case against a young woman in Kollam. They want to cancel it. A case had been registered against her on the complaint of her first husband. When it became difficult to get along with her husband, she decided to leave him. She understood that the woman had an Islamic right to leave her husband because she lived by Muslim religious rules. She informed the decision to family. The matter was also conveyed in the Mahallu (local religious leadership) where the Nikah took place. Divorce was sought under the leadership of the Khadis of the Mahallu. After this, woman prepared for another marriage. Then the first husband came forward seeking restitution of conjugal rights. His complaint was that she was going to marry someone else while she was still his wife. His complaint also stated that they had not sought a legal divorce. The complainant said that there were charges of fraud and cheating. With this, the police registered a case against the woman. It took her some time to realize that she had done no wrong. Because divorce was sought following Islamic methods. Later, preparing for another marriage was also done religiously. Then the woman asked why there was a police case against her. But later she realized that according to Islamic law, divorce is only permissible for a Muslim man. If a woman seeks divorce, there is a provision to file a case against her. This woman approached the High Court to quash the case taken in such a manner. It was only when this issue came to my attention that I thought of the Fasq advertisement (dissolution of an Islamic marriage pronounced by a Sharia court, on the application of the wife) that is often seen in newspapers. In fact, some of the women announced that they had divorced their husbands according to Islamic law. But it was only when they got into some kind of legal entanglement that they themselves knew that it was not legal. Everyone had been giving such advertisements for ages, but no one had said anything about its legality. This was a major legal issue before the Kerala High Court in 2023 as well. Under Islamic law, women have the right to seek divorce. However, the Indian legal system does not recognize this. It is in this context that we should learn about the historic verdict of the High Court in relation to Muslim women. The court said that a Muslim woman can get a divorce outside the judiciary as prescribed by Islam. That means that the woman from Kollam has the right to seek divorce in the Islamic way. The 49-year-old practice has been changed with this judgment of the High Court. For 49 years, a Muslim woman should have been denied the right granted by Islam and approached the court for divorce and convinced the magistrate to seek divorce. But when both families and both mahals intervened and abolished the Islamic law of seeking divorce without complications, no one objected. It should also be read that when a judge of the Kerala High Court once remarked that it would be more appropriate to go through the Talaq court, some community leaders woke up and acted. The court itself has said that the male-centric society of the community has confined Muslim women to judicial divorce for centuries. Men used illegal systems such as triple talaq to obtain divorce. But no such system was allowed for women. It is also noteworthy that the High Court has mentioned that Muslim women are facing many hardships related to divorce despite the rights provided by the Constitution. There will be many Muslim women among us who will be comforted by this High Court verdict. A mother and daughter in Kochi is an example of that. The husband is a drunkard and wanders around without looking at the house. As her daughter grew up, the mother became more and more concerned. Their biggest wish at that time was a closed house. Some good men of the Mahallu decided to make amends for their tears. A good house has been prepared for mother and daughter. A husband who was irreconcilable in any way became a liability for that woman. The daughter was afraid of her father. What they were afraid of was what her husband would do if he came claiming the house for her and her daughter. Thus, if the husband comes claiming the right, he will have the right to it. In fact, it was impossible for the woman to go to court and get released from this marriage. This is where they thought of Islamic ruling. Problem-solving can be easily sought under the leadership of the Khadi by informing the Mahallu. Now it should be said that their matter has been resolved with the judgment of the High Court. A girl who is a doctor had approached the court to seek a divorce before the Kerala High Court verdict. She was prepared for this because of her husband's cruelty. When the harassment continued, she approached the court. However, the husband repeated that he did not agree to the divorce in court. The case dragged on endlessly without reaching a decision. The girl's position is that she does not need anything as compensation, only divorce is enough. However, it had many legal obstacles. She kept losing her job and her life. At one such stage, the girl was also thinking of an Islamic divorce. That did not happen. But the court verdict helped her get a divorce with the help of local Khadi. Often the society and family are reluctant to accept any divorce initiated by women. Especially if the girls put up with it a little bit, it's okay, the family will also want them not to seek divorce. When a girl in Kottayam found out that her husband was having affairs with many other women, she revealed it at home. But it seemed like a problem that the family could adjust to. One day this girl left home. With that, the family members also thought that the problem had worsened. After she left the house, her husband also came to the position that he did not want her. Later, the girl herself took the initiative and both of them got an Islamic divorce very easily. It was the process of divorce according to Islamic law that made it possible to seek divorce very quickly without ending up in an unwanted marriage. Muslim women used to come to the court verandah for so long when there was a good legal system that states that what is not compatible should not be added. But there are cases where Muslim women need the protection of the court. An example of this is the judgment of the Amini Sub Court in Lakshadweep regarding Talaq. A 34-year-old man from Amini divorced his 30-year-old wife. They got married nine years ago. The young man from Amini became close to the girl he was working with. This affair was known to his wife and her family. Later fights started over this. In 2019, the young man divorced his wife for the first time. Later, the second Talaq was performed strictly following the intervals prescribed by Sharia law. A divorce certificate was also obtained from the local Khadi showing that the Talaq proceedings were completed. In this case, Amini Sub Court Judge ordered that the certificate of divorce issued by Khadi is not legally valid. The husband pronounced three Talaq at regular intervals. But before pronouncing Talaq, according to the Sharia ruling, mediation should be held between the husband and wife's family first. After that, the first Talaq should be recited and again after mediation, the second Talaq should be recited. Talaq was pronounced in this case but no mediation was held at any stage. The purpose of mediation is to reconcile the relationship if it is somehow possible to go together. The finding of the Amini court was that the Supreme Court itself had clarified in the Sira Banu case that divorce without mediation is not legal. In such a situation, women have to approach the court itself. Therefore, if women seek divorce according to Islamic law, if they do not comply with all its conditions, they will be questioned in court. When Islam respects and makes Muslim women dignified, it needs to be checked whether the system here is ready for it. A society changes through its own thoughts. It is a big mistake for Muslim women to think that anyone can create a revival if they involve themselves. Muslim women's rights have been denied for so long by making false claims that the mental state of women changes and there are situations where a woman cannot make a clear decision. It is comforting that Muslim women have come out of the hypocrisy of sometimes glorifying Muslim women in speeches and reiterating that the kitchen is yours when you come home. Muslim women should understand the fact that those who protested in the courts and on the streets to restore some of the anti-feminist customs that entered Islam like triple Talaq a few days ago turned a blind eye to women's rights to move forward. The Community Should Facilitate Women-Led Divorce (Khul') Islam has given women civil rights that are surprising even in our time. They are not limited to certain religious rights. Freedom of worship, freedom of education, freedom to choose a spouse and divorce from the spouse when married life becomes difficult, freedom to earn and spend property, freedom to choose a ruler, freedom to criticize, freedom of opinion and so on. Marriage in Islam is a very sacred and binding contract. The Qur'anic verse, 'They (wives) have taken from you (men) a firm covenant' clarifies the importance given to marriage in Islam. It is a very solemn covenant in which the woman is placed under the care of the groom by her guardian in the service of the responsible men of the palace, taking into account her will. Islam insists that it should be built on feelings of love and compassion. No matter how much you try and take care, sometimes married life does not turn out to be as happy as expected. There will be cracks and friction between the couple. Reconciliation efforts may also be fruitless. It can be a man or a woman who is not ready for reconciliation. It can be male or female. A woman has the same right of divorce as a man has in such unavoidable circumstances. This legal right is given by Allah, the lawgiver. Once you hate each other, married life becomes an unbearable burden. How much better to be free than to live with that crown of thorns for the rest of your life. Allah says: “Talaq is twice. The wife can then be fairly retained or gracefully dismissed. It is not permissible to withdraw anything from what you have given them when it is sent. Unless you are concerned that both of the couples will not follow the laws of Allah. If you are concerned that both of the spouses will not follow the rules, then there is no guilt for the woman to pay the husband something and be freed." (Al-Baqarah: 229) It is interesting to note that where the divorce is mentioned, the laws related to the divorce by the woman are mentioned. This right of women is known as Khul' in technical language. But the woman must obtain a divorce from her husband in return for the dowry or other reward given by him. If the woman asks for a divorce under duress, the man is obliged to take back the Mehr and give her the divorce. A woman should not be made difficult without getting a divorce. The 2023 Kerala High Court ruling related to Khul' can be seen as a positive step towards untying this tangle. According to this ruling, a Muslim woman does not have to go to court to get a divorce. It will be very helpful in avoiding delay in this matter. Community and clerical leadership should come forward to facilitate women-led divorce. If the Mahallu leadership is responsible for the marriage of the Mahallu, they should facilitate Khil’ also. If the Mahallu leadership is ready for that, it will be a big relief for the Muslim woman. It will be possible to get justice for her. If talaq is also handled by the Mahal leadership, it will also pave the way to prevent abuse in this field. ----- A regular columnist for NewAgeIslam.com, Mubashir V.P is a PhD scholar in Islamic Studies at Jamia Millia Islamia and freelance journalist. 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