Essay Example on Khul is basically a commitment in which a wife pays Back








Khul is basically a commitment in which a wife pays back to her husband in order to take freedom from him and we can also say that she really buys that divorce from husband by paying him back her dower And if she wants to dissolve her marriage then she has to approach courts Only a Qazi or judge has authority to dissolve marriage on the basis of the grounds provided by Muslim marriage dissolution act 1939 If the case laws are considered Lahore High Court ruled stated in the Balqis Fatima case in 1959 that khul should be granted to a woman as of right and without the consensus of the man This situation was validated by the Supreme Court of Pakitstan in the Khurshid Bibi case of 1967 In Umar Bibi case a Divisional Bench of the Lahore High Court rejected appeals by two women who were seeking divorce on the basis of khul without consensus of their husbands and trial courts had accepted that incompatibility of temperament was also the ground of divorce under Muslim law and this ground can be brought under Muslim dissolution act 1939 and marriage can be dissolved on basis of that ground District judge rejected this ground and appeal was filed to high court But highcourt also not replied in positive way This opinion was supported by a full bench of the same

Court in Sayeeda Khanam v Muhammad Sami in 1952 Single judge kayani j opined that muslim law recognizes shiqaq as a ground of divorce But case was referred to full bench In both cases of 1945 and 1952 wives in appeal quoted hadith of Jamila and her husband Sabit The Court apprehended that the Prophet peace be upon him in the Jamīla incident where she was willing to leave her dower was that even the Prophet peace be upon him did not take it upon himself to annul the marriage he also ordered the husband to do so and where his role was of law giver So in both cases Court simply validated the traditional opinion of the Ḥ anafī jurists In case of Balqis Fatima v Najm ul Ikram Qureshi Where the court specified that a wife could claim a khul as of right as long as the court was satisfied that the marriage had in fact broken down The court extended this judgement furthermore on the reasoning that as a husband has complete authority to divorce his wife at his unilateral choice it would be awkward if such authority were granted to one spouse and other one is deprived off Thus a wife must not be called upon to prove misbehavior on her husband s part for dissolution of her marriage but should have a power similar to that of her husband And if court had tried their reconciliation and failed can order her to refund all benefits to her husband which she has got from the marriage and then dissolve the marriage At the point when court was asked that spouse can break down her marriage consequently of giving back what she has been given by her better half at that point court did the crisp translation of verse 2 229 and admittedly permits the termination of a marriage by the wife passing consideration to the husband

The question for consideration is whether this termination can be affected only by agreement between the husband and wife or whether the wife can claim such termination even if the husband was not agreeable In the perspective of Justice Kaikaus the reference to the judge could emerge in conditions where the spouse needed a separation yet the husband had rejected his consent Subsequently it was for the judge to decide if the gatherings would keep inside the points of confinement of Allah if the marriage were to proceed There is no reason for alluding the issue to a judge and in expecting him to make an assurance if at last he is frail to do anything should he be persuaded that the companions couldn t stay inside the limits set by God The Court inferred that the reference to the judge under the verse must imply that he is qualified for pass a request dissolving the marriage despite the fact that the spouse isn t prepared to separate The Supreme Court of Pakistan in case of Ghulam Sakima v Umar Baksh validated Balqis Fatima and rejected Sayeeda Khanam in 1964 came and they made no reference whatever to this improvement and held that a khul must always involve the consent of the husband But in Khurshid Bibi v Muhammad Amin 1967 the Supreme Court on appeal upheld the contention that a wife is always entitled to a khul This is considered a landmark decision because it affirms the right of a Muslim wife to obtain dissolution of marriage through khul

This case significantly improves the rights of Muslim women because they are able to obtain dissolution of marriage whether or not her husband consents provided the court fears that discord exists between the spouses A leading Deobandi scholar Mufti Taqi Usmani composed an intensive counter of the judgment in his book reality of khula in Islam in which he gave a nitty gritty elective record of the act of khula and the position of the different customary schools of fiqh on some of its standards and prerequisites He contended that khula is seen as an assertion between the partners thus fundamentally requires the assent of the spouse to discharge the wife from wedlock where he gives this assent as a byproduct of some type of remuneration Khula as indicated by him is an agreement between spouse who can t be compelled to execute its conditions with the exception of where they do as such voluntarily free from a pressure or compulsion

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