There
are two major ways through which a marriage contracted in line with Sharia or
Islamic principles, can be dissolved, which are;
are two major ways through which a marriage contracted in line with Sharia or
Islamic principles, can be dissolved, which are;
1. Talaq
and
and
2. Khul’u.
In
view of the fact that the second method of dissolution of marriage is less
discussed and consequently, less known in this part of the world when compared
to Talaq, focus shall be on Khul’u in a bid to shed more light on the subject..
view of the fact that the second method of dissolution of marriage is less
discussed and consequently, less known in this part of the world when compared
to Talaq, focus shall be on Khul’u in a bid to shed more light on the subject..
The Khul’u System of
Dissolution of Marriage.
Dissolution of Marriage.
Khul’u
means the dissolution of a marriage, usually on the giving of something
of value, by the wife, to the husband. It is initiated at the instance of the
wife, against her husband, where she is so unhappy in her marriage, or the
relationship between her and her husband, is so strained, that a harmonious
relationship between them, as spouses, is impracticable. Certain scholars take
the position that for Khul’u to be effective, the dissatisfied wife may, as
consideration for the divorce, surrender the dowry and other material gifts,
where necessary, to her husband, to compensate him for his material losses. The
husband on the other hand, may, if he likes, waive his right to compensation,
and simply agree to divorce her. Once Khul’u occurs, it is an irrevocable form
of divorce. This system of divorce is sometimes referred to as ‘Khula’.
means the dissolution of a marriage, usually on the giving of something
of value, by the wife, to the husband. It is initiated at the instance of the
wife, against her husband, where she is so unhappy in her marriage, or the
relationship between her and her husband, is so strained, that a harmonious
relationship between them, as spouses, is impracticable. Certain scholars take
the position that for Khul’u to be effective, the dissatisfied wife may, as
consideration for the divorce, surrender the dowry and other material gifts,
where necessary, to her husband, to compensate him for his material losses. The
husband on the other hand, may, if he likes, waive his right to compensation,
and simply agree to divorce her. Once Khul’u occurs, it is an irrevocable form
of divorce. This system of divorce is sometimes referred to as ‘Khula’.
The
most well-known story that references khul’u and serves as the basis for legal
interpretations, is the story of Jamilah, the wife of Thabit ibn Qays:
most well-known story that references khul’u and serves as the basis for legal
interpretations, is the story of Jamilah, the wife of Thabit ibn Qays:
1. Narrated Ibn ‘Abbas: The wife of Thabit bin Qais
came to the Prophet (PBUH) and said, “O Allah’s Apostle! I do not blame
Thabit for defects in his character or his religion, but I, being a Muslim,
dislike to behave in un-Islamic manner if I remain with him.” On that
Allah’s Apostle (PBUH) said to her, “Will you give back the garden which
your husband has given you as Mahr (dowry)?” She said, “Yes.”
Then the Prophet (PBUH) ordered to Thabit, “O Thabit! Accept your garden
and divorce her once.” See http://www.searchtruth.com/book_display.php?book=63&translator=1&start=0&number=197
came to the Prophet (PBUH) and said, “O Allah’s Apostle! I do not blame
Thabit for defects in his character or his religion, but I, being a Muslim,
dislike to behave in un-Islamic manner if I remain with him.” On that
Allah’s Apostle (PBUH) said to her, “Will you give back the garden which
your husband has given you as Mahr (dowry)?” She said, “Yes.”
Then the Prophet (PBUH) ordered to Thabit, “O Thabit! Accept your garden
and divorce her once.” See http://www.searchtruth.com/book_display.php?book=63&translator=1&start=0&number=197
There
are two principal ways for a wife to achieve divorce through Khul’u;
are two principal ways for a wife to achieve divorce through Khul’u;
(i) She
informs her husband that she no longer wishes to remain in marriage with him;
and requests that he divorce her.
informs her husband that she no longer wishes to remain in marriage with him;
and requests that he divorce her.
(ii) If
her husband is not willing to grant her a divorce, the wife is well within her
rights in Shariah, to approach a Sharia Court and present her divorce case to the
Kadi (Shariah Court Judge) The Judge would then summon the husband and ask him
to declare a divorce upon his wife and free her from the marriage. If the
husband for any reason refuses, the Sharia Judge,
irrespectively, may declare a divorce between the husband and the wife of the
marriage, if he is satisfied that peaceful coexistence in matrimony, cannot be
achieved by the parties.
her husband is not willing to grant her a divorce, the wife is well within her
rights in Shariah, to approach a Sharia Court and present her divorce case to the
Kadi (Shariah Court Judge) The Judge would then summon the husband and ask him
to declare a divorce upon his wife and free her from the marriage. If the
husband for any reason refuses, the Sharia Judge,
irrespectively, may declare a divorce between the husband and the wife of the
marriage, if he is satisfied that peaceful coexistence in matrimony, cannot be
achieved by the parties.
Once
the wife expresses her desire to exercise her right under Khul’u, two
circumstances may arise,
the wife expresses her desire to exercise her right under Khul’u, two
circumstances may arise,
1. Both
the husband and wife mutually decide to divorce or the wife wants it, and
certain conditions are agreed upon, between the couple. In this case, the
couple need not have recourse to law, as it is enough to meet these conditions,
and then for the couple to pronounce that they are now divorced from each
other.
the husband and wife mutually decide to divorce or the wife wants it, and
certain conditions are agreed upon, between the couple. In this case, the
couple need not have recourse to law, as it is enough to meet these conditions,
and then for the couple to pronounce that they are now divorced from each
other.
2. A
wife wants it, but the husband is reluctant, and insists on the subsistence of
the marriage, despite the wife’s resentment to it. In this latter case, the
wife may proceed to the Sharia Court, and have her petition for the grant of
khul’u, heard. The following questions must be resolved;
wife wants it, but the husband is reluctant, and insists on the subsistence of
the marriage, despite the wife’s resentment to it. In this latter case, the
wife may proceed to the Sharia Court, and have her petition for the grant of
khul’u, heard. The following questions must be resolved;
– Can
anything be done at all, to salvage the marriage?
anything be done at all, to salvage the marriage?
– Is
the wife entitled to such separation? If so, under what circumstances?
the wife entitled to such separation? If so, under what circumstances?
– Can
the Khadi (a judge of the Sharia Court) dissolve the marriage, despite the
husband’s insistence on its continuance?
the Khadi (a judge of the Sharia Court) dissolve the marriage, despite the
husband’s insistence on its continuance?
· Because
the laws of khulʿu in particular cannot be found in the Qur’an
directly, a Sharia court
judge must discern from Hadith and Islamic jurisprudence historical cases what
they believe to be valid reasons for this system of divorce. See Macfarlane,
Julie Islamic Divorce in North America: A Shari’a Path in a Secular
Society Oxford: Oxford
University Press, 2012, p. 168-9.
the laws of khulʿu in particular cannot be found in the Qur’an
directly, a Sharia court
judge must discern from Hadith and Islamic jurisprudence historical cases what
they believe to be valid reasons for this system of divorce. See Macfarlane,
Julie Islamic Divorce in North America: A Shari’a Path in a Secular
Society Oxford: Oxford
University Press, 2012, p. 168-9.
In
Usman v Usman (2003) 8 NWLR (Pt. 208) 253 CA @ pp 129 – 130 paragraphs H – D,
the wife requested a divorce due to cruel conduct by the husband. The
husband refused to agree to the divorce and the Kadi dissolved the marriage and
ordered the wife to refund the estimated amount of the bridal gift and marriage
expenses. The Court of Appeal affirmed the divorce.
Usman v Usman (2003) 8 NWLR (Pt. 208) 253 CA @ pp 129 – 130 paragraphs H – D,
the wife requested a divorce due to cruel conduct by the husband. The
husband refused to agree to the divorce and the Kadi dissolved the marriage and
ordered the wife to refund the estimated amount of the bridal gift and marriage
expenses. The Court of Appeal affirmed the divorce.
It
must be noted that a kadi cannot compel a wife seeking divorce through khul’u,
to explain her reasons. Though it is desired that she does, it is enough for
her to state that she is discontented with her marriage and is no longer
interested in continuing with the marriage relationship. The kadi will
grant divorce, if he is satisfied that harmonious co-existence between the
couple is no longer feasible or the continuance of the union is strongly
resented by the wife, and/or that the couple would transgress the bounds of
Allah, if the divorce is not granted.
must be noted that a kadi cannot compel a wife seeking divorce through khul’u,
to explain her reasons. Though it is desired that she does, it is enough for
her to state that she is discontented with her marriage and is no longer
interested in continuing with the marriage relationship. The kadi will
grant divorce, if he is satisfied that harmonious co-existence between the
couple is no longer feasible or the continuance of the union is strongly
resented by the wife, and/or that the couple would transgress the bounds of
Allah, if the divorce is not granted.
Issues that are Usually
Considered, Upon a Petition for Khul’u.
Considered, Upon a Petition for Khul’u.
Compensation:
While
many scholars agree that the man is not entitled to more than the initial
amount of dowry (mahr/dower), given to the wife at the time of celebration of
the marriage, others do not think he is entitled to any compensation at all
while a few think he is entitled to more, especially where the wife has
attained a certain higher social status or is in a better financial standing,
by reason of the marriage. But what has been applicable in Nigeria, is that the
woman returns the dowry along with other wedding gifts, given to her, by her
husband. A considerable number of scholars have said the principle of
compensation is to apply, only when the husband is not at fault. They base this
idea on the fact, that Islamic law does not help the transgressor or wrong
doer, and that the law leans in favour of the party who is less at fault. I
tend to agree more with this group of scholars.
many scholars agree that the man is not entitled to more than the initial
amount of dowry (mahr/dower), given to the wife at the time of celebration of
the marriage, others do not think he is entitled to any compensation at all
while a few think he is entitled to more, especially where the wife has
attained a certain higher social status or is in a better financial standing,
by reason of the marriage. But what has been applicable in Nigeria, is that the
woman returns the dowry along with other wedding gifts, given to her, by her
husband. A considerable number of scholars have said the principle of
compensation is to apply, only when the husband is not at fault. They base this
idea on the fact, that Islamic law does not help the transgressor or wrong
doer, and that the law leans in favour of the party who is less at fault. I
tend to agree more with this group of scholars.
Another
scenario that occurs under this head, is where the unwilling husband to
divorce, requests an unreasonable financial compensation, as in the case of Usman
v Usman (supra), where the husband was requesting for half a million Naira
as compensation.
scenario that occurs under this head, is where the unwilling husband to
divorce, requests an unreasonable financial compensation, as in the case of Usman
v Usman (supra), where the husband was requesting for half a million Naira
as compensation.
Custody:
· Usually,
the issue of custody of the children of the marriage, is resolved in favour of
the woman. The man is still expected to provide child care and support, unless
the woman declines this and can afford to care for the children, without their
father’s help. Once a child is old enough, he is given the choice of
determining who has custody. See Welchman, Lynn (1998). Women and
Muslim Family Laws in Arab States: A Comparative Overview of Textual
Development and Advocacy. Amsterdam: Amsterdam
University Press p. 121.
the issue of custody of the children of the marriage, is resolved in favour of
the woman. The man is still expected to provide child care and support, unless
the woman declines this and can afford to care for the children, without their
father’s help. Once a child is old enough, he is given the choice of
determining who has custody. See Welchman, Lynn (1998). Women and
Muslim Family Laws in Arab States: A Comparative Overview of Textual
Development and Advocacy. Amsterdam: Amsterdam
University Press p. 121.
Iddah:
When
a woman is granted a divorce through khul’u, she is required to enter a waiting
period, known as iddah. The waiting period (usually three months), is observed
before she can remarry, to ascertain whether she is pregnant and where she is
found to be pregnant, avoid controversy as to the paternity. If the wife who
has successfully exercised her rights under the khul’u system, finds that she
is pregnant, she must be delivered of the baby before she can be totally free
to remarry. See Tucker, Judith E. (2008). Women, Family, and Gender in
Islamic Law. Cambridge: Cambridge
University Press, p. 100-101.
a woman is granted a divorce through khul’u, she is required to enter a waiting
period, known as iddah. The waiting period (usually three months), is observed
before she can remarry, to ascertain whether she is pregnant and where she is
found to be pregnant, avoid controversy as to the paternity. If the wife who
has successfully exercised her rights under the khul’u system, finds that she
is pregnant, she must be delivered of the baby before she can be totally free
to remarry. See Tucker, Judith E. (2008). Women, Family, and Gender in
Islamic Law. Cambridge: Cambridge
University Press, p. 100-101.
Another
way through which a woman may divorce her husband, in islam, is known as tafwid.
It is a less common system in Nigeria and involves the husband handing over the
power of divorce, to his wife. He may use words like, “I permit you to divorce
yourself from me” or “I hand over to you, the power of divorce”. The wife,
where she accepts it, is expected to say immediately (or a short time
thereafter, but no longer than the next day), “I divorce myself from you”. This
option is usually exercised by the husband, where he does not want the society
to look down on him, for divorcing his wife. It may also be exercised by him,
when the wife requests for it. In the latter case, it becomes a form of khul’u.
way through which a woman may divorce her husband, in islam, is known as tafwid.
It is a less common system in Nigeria and involves the husband handing over the
power of divorce, to his wife. He may use words like, “I permit you to divorce
yourself from me” or “I hand over to you, the power of divorce”. The wife,
where she accepts it, is expected to say immediately (or a short time
thereafter, but no longer than the next day), “I divorce myself from you”. This
option is usually exercised by the husband, where he does not want the society
to look down on him, for divorcing his wife. It may also be exercised by him,
when the wife requests for it. In the latter case, it becomes a form of khul’u.
In
conclusion, though many may not know this, the khul’u system of divorce is the
most common form of divorce in areas where the Sharia Law is applicable, in
Northern Nigeria. See Nasir, Jamal J (2009). The
Status of Women Under Islamic Law and Modern Islamic Legislation.
Brill. p. 130 ISBN9789004172739.
conclusion, though many may not know this, the khul’u system of divorce is the
most common form of divorce in areas where the Sharia Law is applicable, in
Northern Nigeria. See Nasir, Jamal J (2009). The
Status of Women Under Islamic Law and Modern Islamic Legislation.
Brill. p. 130 ISBN9789004172739.
Zeniath Abiri
Abiri & Mustafa LP
Source – LinkedIn
Photo Credit – www.muslimvillage.com