The concept of Khula in Pakistan is often misunderstood, leading to confusion both among the general public and even sometimes within legal circles. It is mainly due to the fact that that some people believe that Khula has no legal recognition in Islam as the only way prescribed for ending marriage in Islam is through Talaq by the husband merely.
A small segment of Islamic scholars in Pakistan are also overheard raising objections to the laws governing Khula, particularly in the context of how it is implemented in the legal system. These objections often revolve around interpretations of Islamic jurisprudence and the perceived deviations from traditional Islamic practices.
Law on Khula
Khula has been recognized as a legal right for women in Pakistan since the enactment of the Muslim Family Laws Ordinance, 1961. This ordinance, along with the Family Courts Act, 1964, and the Dissolution of Muslim Marriage Act, 1939,established the legal framework for Khula, allowing women to seek dissolution of marriage from their husbands through the courts.
Harmony between Law and Islam in Pakistan
It is important to understand that Article 2A and 227 of the Constitution of Islamic Republic of Pakistan, 1973 ordain that no law in Pakistan in violation of principles of Islam can be introduced by the Parliament and all existing law shall be brought in conformity with injunction of Islam. In furtherance to same, Islamic Ideology Council has been constituted to perform function including but not limited to rendering opinion on laws in place or aimed to be introduced as to whether such laws are in line with the principles of Islam and propose necessary changes required therein.
Role and Opinion of the Federal Shariat Court on Khula
Notwithstanding, in Pakistan, Federal Shariat Court has also been established since 1980, as a constitutional islamic religious court, which has the power to examine and determine whether the laws of the country comply with Sharia law.Article 203GG of the Constitution of Islamic Republic of Pakistan, 1973, stipulates that any decision passed by the FedralShariat Court in exercise of its jurisdiction shall be binding on a High Court and all court subordinate to High Court.
In respect of Khula, the Federal Shariat Court has already declared that there is no specific Quranic Verse or authentic Hadith that provides a bar to exercise of jurisdiction by a competent Court of law to adjudicate upon the case of Khula filed by a wife against her husband in case titled, “Saleem Ahmad and others v. Government of Pakistan through Attorney General of Pakistan and 2 others” (PLD 2014 Federal Shariat Court 43). In case titled “Imran Anwar Khan v. Government of Punjab, etc.” (PLD 2022 FSC 25), it was held that wife seeking to take khula, is required to surrender the dower (HaqMeher).
Whether Khula is an absolute Right of wife and court can grant wife khula even if husband is not agreeing to give Talaq?
The objection that Khula is not an absolute right of wife and that wife cannot seek dissolution of marriage if husband is not agreeing has been discussed by the Federal Shariat Court in case titled “Haji Saif-ur-RehmanShaheen v. Islmaic Republic of Pakistan, etc.” (Decision dated 06-10-2023 passed in Shariat Petition No. 16/I of 2022) at length. Following were 2 important questions before the Honorable Court:
- Whether the right of Khula is an absolute right of woman in Islam and what are the requirements that are necessary to obtain Khula?
- Whether a Judge can grant Khula when so demanded by a wife of a person and the husband is not agreeing to grant it to his wife?
In order to answer these questions, the Federal Shariat Courtperused verses of the Quran and Ahadith to draw a conclusion that indeed it is the absolute right of wife to obtain khula from court where husband refuse to divorce her. While approaching the court for khula levelling of allegation of maltreatment, mistreatment and misbehavior is not at all necessary. She can obtain khula through the court even if she states that she dislikes her husband to extent that she cannot live with him as his wife in the limits prescribed by Allah. However, as Badal-e-Khula, she must willfully return the full amount of dower (Mahar) to her husband.
The right of Khula is firmly rooted in Islamic law and has been legally recognized in Pakistan. The Federal Shariat Court has played a pivotal role in affirming this right and ensuring that the legal framework in Pakistan aligns with Islamic principles. Despite some objections from a small segment of scholars, the court has clarified that Khula is an absolute right of the wife, and the legal system supports women in exercising this right even without the husband’s consent, provided that the wife returns the dower as compensation. This approach reflects the harmony between Islamic teachings and the legal provisions in Pakistan, ensuring that women’s rights are protected within the bounds of Islamic law.
