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The Concept of Khula and how Pakistan gets it Wrong

Story Highlights
  • Talaq in Islam
  • Khula in Islam
  • Khula in Pakistani Law
  • Why does Khula Exist in Islamic Law?

At times the difference between the terms Talaq and Khula can be confusing to those not familiar with the concepts of the dissolution of marriage in Islamic law. However, the most common perception that we seem to keep is that Talaq is the husband’s right and Khula is the woman’s right, and this is the case in Pakistani law, but Islamic law is quite different.

Talaq in Islam

The Nikah (marriage) contract has one primary purpose; to signify the permissibility of conjugal relations between a man and a woman. Talaq is the revocation of the Nikah contract and the rights enjoyed due to it. This revocation requires a declaration of refusal to continue the marriage contract.

Talaq is classified into types based on the different types of declarations. Simply put, it can be done by the man, by a person to whom the right to Talaq has been delegated (this can be the wife or anyone else), or by a mutual agreement between the husband and wife. This mutual agreement is either a Khula or a Mubaraah.

Khula in Islam

A Khula is the dissolution of the marriage contract in exchange for compensation by the wife. This compensation may come in the form of some payment to be made to the husband by the wife (more often the case in a Mubaraah, but that is not important in this context) or in the form of the wife waiving some or all of her rights that come from the marriage—the right of Dower (Mehr), and the right to financial maintenance during the period of Iddat (waiting period after divorce).

The waiving of these rights or the payment of compensation to the husband is optional and is decided based on a mutual consensus between the husband and wife. More specifically, Khula cannot be decided by one party.

Instead, it is an agreement of terms for the separation of a couple, and as with any agreement, it requires the complete consent of both parties.

Khula in Pakistani Law

The details for Talaq and Khula in Pakistani law are present in the Dissolution of Marriages Act and the Muslim Family Law Ordinance. According to these, the Khula is the right of the wife only. If the woman has a valid reason for wishing to dissolve the marriage—which is contingent on many factors such as the husband’s complete absence, torture, lies that would affect his ability to fulfill her rights of the marriage, and such—she may file for Khula.

This is already a violation of the methods set according to Islam. On top of this, however, the wife is bound to waive her right of Mehr for the Khula to be effective. If she has taken the Mehr, she will have to return it to her husband. Islamic law allows Mehr for the wife in this case if both parties agree; however, in the 1990s, there were many court cases where unhappy wives were filing for Khula, and to curb this and ease the load on the courts, it was decided in 2002 that the waiving of Mehr would be made a necessity.

Why does Khula Exist in Islamic Law?

Divorce is not encouraged in Islam, but it is allowed when necessary. However, it usually becomes complicated with both parties willing to accommodate the other. For example, out-of-court settlements exist in the US to give both parties a chance to compromise and find a middle path. This is the case for matters related to marriage and otherwise as well.

Along those same lines, Khula exists to provide the husband and wife to bring their marriage to an end on amicable terms. It is an agreement where both parties’ concerns are met, and both end up on the same page.

The method of Pakistani law takes away from the essence of Khula as provided by Islamic law. It turns into another one-sided affair, this time in the wife’s favor, but she still needs to decide what rights she wishes to waive and what she wishes to keep. It is a gross oversimplification at best and a violation of the Islamic code at worst, and it only makes the issue of divorce more convoluted and complex.

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