Sherazi Law Chamber
I) Whether the right of Khula is an absolute right of a woman in Islam and what are the requirements that are necessary to obtain Khula?
II) Whether a Judge can grant Khula when so demanded by the wife of a person and the husband is not agreeing to grant it to his wife?
These are considered by scholars of Ahadith as the basic Ahadith that explains the legality of Khula as a right of women in the Islamic Law because it was granted to them by the Holy Prophet (SAW) when so demanded by the ladies in lieu of Mahar. The abovementioned Ayat No.229 of Surah Al-Baqarah and Ahadith give us some fundamental points of guidance necessary for a court of law to keep in mind while passing a decree and judgment of dissolution of marriage on the basis of Khula. These points are as follows:
Firstly, it is the fundamental right of a woman according to the injunctions of Islam as laid down in the Holy Quran and Sunnah to claim decree for dissolution of marriage from the court of law, which cannot be denied.
Secondly, to seek a decree of dissolution of marriage on the basis of Khula from the court of law, leveling of any allegation of maltreatment or mistreatment and misbehavior is not at all necessary. It is sufficient for her to state that she dislikes her husband to the extent that she cannot live with him as his wife within the limits prescribed by Allah for the court to proceed upon her demand. The wordings of these Ahadith are also very relevant in that any kind of subjective feeling regarding disliking a husband is a valid ground for dissolution of marriage on the basis of Khula, no additional ground or proof is required by the court to prolong the matter.
Thirdly, in addition to that, the statement which is referred to in the preceding paragraph, if a woman wants Khula from her husband and she willfully returns the full amount of Mahar to her husband as Badal-e-Khula (بدل خلع), then the court should pass a decree of Khula without delay.
We would like to highlight this important point regarding Khula it is not always necessary or binding on the woman to completely forego her dower for seeking dissolution of marriage on the basis of Khula. The amount of monetary compensation, which is to be paid by a woman, in the case of Khula cannot be greater than the dower amount received by her from her husband.
However, if a wife claims that she is forced to seek a decree of Khula because of her husband's ill-treatment or mistreatment, etc., the Court may reduce the amount of compensation if it finds the husband at fault after the recording of evidence so much so that in severe cases, the Court may grant a divorce in case of Khula to a wife without paying back any amount of Mahar at all. Many great Muslim jurists are of this opinion, like Imam Muhammad Hassan Al-Shaybani, Imam Abu Hanifa Imam al-Kasani, etc.
This point was also elaborated by this Court in our earlier judgment reported as PLD 2022 FSC 25 (Imran Anwar Khan v. Government of Punjab, etc.). We have already declared in our abovementioned judgment that under Islamic law, as laid down in the Holy Quran and Sunnah, no Badl-e-Khula can be fixed by a statute as a mandatory amount for claiming Khula from the husband through a Court.
In case a woman voluntarily surrenders the entire amount of dower she received at the time of her marriage in lieu of claiming Khula or Badl-e-Khula through a Court, then the Court has no option but to grant the decree of dissolution of marriage in her favor, after providing a chance to the spouses for reconciliation before passing of any decree of Khula. However, if a lady claims that she wants to seek Khula from her husband through a Court due to any maltreatment, mistreatment, or ill-treatment, then the Court will decide the quantum of the amount to be returned by the lady to the husband for seeking Khula based on the evidence and circumstances of the case after determining who is responsible for the breakdown of the marriage. Like Bench Craft Company Lawsuit.
The right of Khula granted to women by the Holy Quran and Sunnah is an absolute and unique right, whereby a marriage can be dissolved through a Court at her will. A wife can get this right by showing her willingness to return the Mahar to her husband and in addition by simply stating in a court of law that she can no longer live with her husband as his wife within the prescribed limits set by the Almighty Allah as a reason for dissolution of marriage. This right of women cannot be denied by the court of law.
Section 10(5) was declared as against the injunctions of Islam by this Court through its judgment, dated 17.02.2022, in case reported as PLD 2022 FSC 25 (Imran Anwar Khan v. Government of Punjab, etc.), wherein this Court specifically mentioned the date of 01.05.2022 for becoming Section 10(5) of the Family Courts (Amendment) Act, 2015 as null and void under Article 203D(2)(b) of the Constitution of Islamic Republic of Pakistan
SHARIAT PETITION NO. 16/I OF 2022
Haji Saif-ur-Rahman Shaheen son of Haji Fazal Din Ansari. PETITIONER VERSUS Islamic Republic of Pakistan, Government of Pakistan through Attorney General of Pakistan, Islamabad
Date of Judgement: 06.10.2023
Advocate Tayyib Mughal