Page |1

Assignment: Islamic Personal Law

Submitted to: Ma’am ZARTASHA IQBAL

Group members: Muhammad Umar (01-177182-027)
Parsa khan (01-177182-046)
Mudassir khan (01-177182-021)
Shakeel Ahmed (01-177182-47)
Muhammad Saif Ullah (01-177182-020)

Class: LLB-5
Date: 16-10-2020
Topic: THE LAW OF KHUL IN ISLAMIC LAW AND THE LEGAL SYSTEM
OF PAKISTAN
 Page |2

Table of Contents
1. INTRODUCTION:...................................................................................................................3

2. KHUL AND THE QURAN:....................................................................................................3

3. KHUL IN HADITH LITERATURE:.......................................................................................4

4. KHUL IN FIQH LITERATURE KHUL IN THE HANAFI SCHOOL:.................................5

5. KHUL IN THE MALIKI SCHOOL:.......................................................................................6

6. KHUL IN SHAFI SCHOOL:...................................................................................................8

7. KHUL IN HAMBLI SCHOOL:...............................................................................................8

8. KHUL AND THE SUPERIOR COURT IN PAKISTAN:......................................................9

9. ISLAMIC LAW INTERPRETATION:.................................................................................10

10. COUNCIL OF ISLAMIC IDEOLOGY RECOMMENDATIONS ON KHUL:................10

11. CONCLUSION:.................................................................................................................11

12. REFERENCES:..................................................................................................................12
 Page |3

THE LAW OF KHUL IN ISLAMIC LAW AND THE LEGAL SYSTEM OF

PAKISTAN

1. INTRODUCTION:
The literal meaning of Khul is extracting oneself but actually it mean that he has removed her
from his marriage. The verse of Quran says “And it is not lawful for you (men) to take back
(from your wives) any of your Mahr (bridal-money given by the husband to his wife at the time
of marriage) which you have given them, except when both parties fear that they would be
unable to keep the limits ordained by Allaah (e.g. to deal with each other on a fair basis). Then if
you fear that they would not be able to keep the limits ordained by Allaah, then there is no sin on
either of them if she gives back (the Mahr or a part of it) for her Al-Khul‘(divorce). 1 Section
2 of the Dissolution of Muslim Marriages Act 1939 (DMMA) of Pakistan provides that a wife
can obtain divorce in some cases mention in that section.

2. KHUL AND THE QURAN:

From the case of wife of Thaabit ibn Qays ibn Shammaas (may Allaah be pleased with him).
Scholars understood that if a woman cannot stay with her husband, then the judge should ask
him to divorce her by khula’; indeed he should order him to do so. With regard to the way in
which it is done, the husband should take his payment or they should agree upon it, then he
should say to her “faaraqtuki” (I separate from you) or “khaala’tuki (I let you go), or other such
words.

There are different opinion of jurist on requirement of husband’s consent for the khul. The
Council of Islamic Ideology (CII) in 2016 has declared it un-Islamic for courts to use 'Khula’
(right of a woman to seek divorce) without the consent of a husband to dissolve a marriage. The
powerful religious body observed on Thursday that courts were dissolving nikkahs in the name
of 'Khula', which is not correct since only the husband has the right to grant Khula after which
courts can dissolve marriage contracts.the Qur’ānic concept of khul‘ is either of the partners may
initiate it if he or she thinks that marital rights cannot be upheld in the marriage. 2“But if you fear
that they will not keep [within] the limits of Allah, then there is no blame upon. Although the
consent of husband for the khul is not clear in quran but there is deference of opinion by jurist,
1
[al-Baqarah 2:229]
2
https://tribune.com.pk/story/1049717/khula-without-husbands-consent-is-un-islamic-rules-cii?amp=1
 Page |4

according to “Maliki” khul‘can be affected by the arbitrators and their decision shall be binding
without the consent of the husband an in case khul‘is consensual (or even if it is not consensual
or the consent of the husband is not required) andeither of them concerning that by which she
ransoms.”3. The great Hanafi jurist Imam Sarkhasi writes: “Khula is permitted by the ruler and
other than the ruler because it is a transaction that is entirely based upon mutual agreement.” 4
For the khula wife have to give something as compensation. Ibn Qudaamah said: “If a wife
asks for Khul‘and she gives the compensation and he responds to her with an explicit or indirect
Khul‘, the Khul‘ is valid without intention because the circumstance indicates that the Khul‘
was requested and the compensation was given; this indicates that it takes place, so it does
not require intention.”5However, if you did not explicitly give him the compensation, i.e. if you
did not renounce your dowry in return for the Khul‘, then the Khul‘ did not take place

3. KHUL IN HADITH LITERATURE:

In the time of the Holy Prophet (peace be upon him), there were two incidents happened, which
are important to quote and elaborate. One of the important case is of the Habiba bint Sahl, she
was the wife of Thaabit Ibn Qays. The facts of this case are discussed in different ahadith.
According to the report of Al-Bukhari in his al-jami al-sahih (The Authentic Collection) section
on khul;

It is reported from Ibn Abbas that the wife of Thabit Ibn Qays came to the Prophet (peace be
upon him), and said: Oh Messenger of God! I do not blame Thabit for any defects in his
character or his religion, but I cannot endure to live with him. The Messenger of God then
asked her: will you return garden to him? She said ‘Yes’ then the Holy Prophet (peace be
upon him) said to Thabit Ibn Qays “Accept your garden and divorce her. Thus, the basic
concept is that the woman offers to give back the dowry her husband originally gave her in order
that he divorces her against his preference. There are multiple versions of the story of Thaabit’s
wife, each narrator adds a detail that other narrators left off. And al-Bukhari’s tradition is often to
use a narration that has the main event or lesson of a story without unnecessary or uncertain
details. For example, her mentioning that whenever she saw Thaabit among men, he looked the
3
Surah 2:229:
4
(Al-Mabsut,vol. 6 p. 173, Matbaa` al-Sa`aadah)
5
https://www.islamweb.net/en/fatwa/276691/khul-is-not-valid-without-compensation
 Page |5

least among them, and also that she offered more than the garden in return, but the Prophet
(peace be upon him) negated any increase.

Thawban (may Allah be pleased with him) narrated that the Prophet (peace be upon him) said:
“The women who seek a Khul’ are hypocrites.” (Sahih)(Tirmidhi H: 1186; Nasa’I H: 3491
from Abu Hurairah) It is important to note that the holy Prophet (peace be upon him) does not
use the term khul and it is probably used as a legal term by later jurists. This is confirmed by
Ahmad’s transmission of this hadith in which Ahmad Ibn Hanbal himself adds that this was the
first khul in Islam. In the Prophet’s terminology however, according to the hadith, the man is
ordered to divorce (talaq) the woman, i.e., release her.

Khul is not consensual and the consent of the husband is not essential. According to Jassas of the
Prophet (peace be upon him) implies that khul is consensual because the husband has been
placed at the center point in this episode, otherwise the Prophet (peace be upon him) could have
dismissed him completely and divorced Habiba entirely on his own. The majority of legists
differ from the hadith and to some extent from the Quran, regarding khul, especially regarding
the approval of the husband. The Habiba incident stands on its own and has not been overruled
by the Quran.

4. KHUL IN FIQH LITERATURE KHUL IN THE HANAFI SCHOOL:

Hanafi jjurists fully acknowledge the hadith of habiba but unanimously assign the husband a
decisive and controlling role in the process of khul. Hanafi jurists insist that the consent of the
husband is necessary for the validity of khul. In other words, for Kasani, a court cannot force
anyone to enter into contractual relations, and therefore, it cannot grant khul without the
husband’s consent. Abu Bakr alSarakhsi argues that khul ‘is a transaction that requires the
consent of the [parties] like all other transactions. Jassas points out that the fact that the Prophet
had sought the opinions of both Habiba and Thabit, places the latter at the Centre stage of the
debate since the Prophet could have dismissed him completely and granted a divorce to Habiba
himself.

She has to have the foundations of compensation and is allowed to retract her offer before his
response. According According to Abu Hanifa, a man cannot retract his offer ought to he initiate
 Page |6

khul‘, as he's ruled by the foundations of oaths; he has got to anticipate his married person to just
accept or reject his offer.

Abu Hanifa bases his reasoning on the principle that khul is bay (sale transaction) On the off
chance that the friction radiates from the spouse, at that point it is not passable for him to take
any remuneration as a byproduct of khul'. The clear phrasing of the Quran assumes that the lady
pays pay to free herself, so the conflict is constantly thought to be a result of her. Kasani
contends that: If the issue is settled by a more peculiar, at that point he is permitted to arrange
what might be compared to the dower, and in the event that he requested [her to pay] more or on
the other hand less [than the measure of dower], at that point, if there should be an occurrence of
more [amount], it is not authoritative without the assent of the lady and on the off chance that it
is less, at that point [it is not binding] without the assent of the spouse. According to the Ḥanafī
school of thought, the husbands appears to have what might be compared to a denial with respect
to talaq and khul.

5. KHUL IN THE MALIKI SCHOOL:

The semantic details of the Maliki jurists on khul are difficult to comprehend and require a top to
bottom examination to arrive at a reasonable resolution on whether the assent of the spouse is
important for khul. The disarray is basically whether the Mālikīs consider the assent of the
spouse a lawful need by suggestion or not. Imām Mālik has talked about the Quranic verse 4:35,
Habiba's ruling, and two cases including careless spouses, and his legitimate definitions propose
that he gives the two referees the principle part in the disintegration of marriage, either by talaq
or khul. What's more, he likewise assumes an arranged settlement

Certain points within the Maliki's school are mentioned below:

In conditions where it is hard for a lady to live with her significant other also, she moves toward
the court, it must be certain that which one of the two is the reason for strife. At the point when it
is known to the court that the spouse or the wife has caused the strife, the court will endeavor to
achieve compromise. In the event that this is unimaginable, at that point the court may break
down the marriage. The court will arrange khul' in the event that it finds that the spouse was the
reason for the friction. In this circumstance, the spouse will be requested to restore the dower
given to her by the husband. Nonetheless, in the event that it arrives at the resolution that the
 Page |7

spouse was the reason for the conflict, it will disintegrate the marriage by separate and will
arrange the husband to pay the dower if not yet paid. The court under the Mālikī school can give
a pronouncement of ṭalāq or khul' without the assent of the couple.

Maliki's legal scholars have likewise clarified the circumstance where both the spouse and the
wife are similarly accountable for the dissension. As per Abdari, 'the spouse will not be given
anything if both the husband and the wife were similarly blameworthy of friction.

According to Abdul Wahab Baghdadi

If there should arise an occurrence of a debate and emission of a disagreement, in the event that
it is realized that hurt is brought about by one of them it ought to be wiped out. In any case, on
the off chance that it is obscure which one of the two have caused the dissension the State
authority [court] will send in two mediators one from the spouse's side and one from the spouse's
side. The authorities ought to be law specialists and reasonable and ought to examine the issue
and ought to do whatever they think is better for the couple going from compromise to
detachment between the two paying little mind to the assent of the two [husband and wife] and
whether the State authority [court] concurs or can't help contradicting their choice.

While Ibn Rushd states that 'however, the juristic thinking is that fida conceded to a lady is
something comparable to what in particular is controlled by the man; to be specific, (the option
to) separate. A man has renouncement when he pressurizes a lady, while a lady has khul' when
she needs to pressurize a man (her husband). It can be understood from this section that Ibn
Rushd treats khul' as a privilege controlled by a lady that is what might be compared to a man's
entitlement to separate and that khul' isn't reliant upon the assent of the spouse.

Regarding the crucial role of arbitrators Ibn Rushd says that, The jurists disputed the agreed
decision of the arbiters to separate them [the husband and wife], whether it would require the
consent of the husband. Mālik and his disciples said that their decision about separation and
union is valid without specific delegation by the spouses and without their consent. Al-Shafi,Abu
Hanifa and their disciples said that they have no right to separate them, except when the husband
delegates such authority to them.

Taqiuddin al-Hilali a Maliki scholar argues: Jurists differ regarding the issue of arbitrators; are
they selected by the state authority so their decision is authoritative without the assent of the life
 Page |8

partners or would they say they are intermediaries for the mates? There are two assessments with
respect to issue: most of researchers lean toward the main conclusion [i.e. their decision is
authoritative without the assent of the spouses] on account of the Quranic verse, 'name a referee
from his kin and an judge from her kin, so they are named as 'hakamayn'(arbitrators) and an
authority is permitted to run without the assent of the disputant and this is the obvious
importance of the Quranic verse [4:35]

It is extremely obvious from the over that Maliki's jurists have given a pivotal function to
arbitrators and they may choose to disintegrate the marriage by khul' without the assent of the
spouse just as the wife. What's more, Mālikī legal scholars consider khul as talaq. All things
considered, Ibn Rushd contends that as indicated by Imam Malik and a gathering of legal
scholars, 'it is allowed to a lady to protect opportunity with more than what has gone to her from
the spouse, by method of dower.

6. KHUL IN SHAFI SCHOOL:

Imam Shafi is of the opinion about the consent of the husband is that khul‘is like talaq (divorce)
and no any other person (without husband) has right to pronounce talaq (Judge). The right of
talaq cannot be used by other person other than his husband. The qazi cannot divorce his wife
without his consent. Imam Shafi writes that khul‘is talaq and no any other person can divorce
her. He further mentions in his book that her father, Hakim and qazi cannot divorce her on behalf
of the husband.6 Imam shafi is of the opinion about the consent of the husband is that khul‘is like
talaq and no any other person (without husband) has right to pronounce talaq.

7. KHUL IN HAMBLI SCHOOL:

Imam Ahmad Bin Hanbal also support the views of Imam Shafi that the khul‘is a contract like
talaq and there is no need of qazi to interfere. The absolute right of khul‘is with the spouses and
the qazi cannot dissociate the husband and wife without the consent of husband (Usmani, 2001).
Alama Maufiquddin Ibn Qadama Hanbali(R.A) writes khul‘ is dissolution of contract with
compensation; therefore there is no need of qazi. It is like talaq and there is no need of qazi in
talaq. Muhammad (peace be on him) called the khul‘as fidya, so it is cleared that there is
6
Khul‘(Redemption) in Islamic Law and Its Practice in Pakistani Courts, A Legal Critical Analysis March
2014Mediterranean Journal of Social Sciences by Muhammad Ifzal Mehmood of Shaheed Benazir Bhutto
University
 Page |9

compensation in khul‘and the consensus of both the spouses is necessary. Imam Malik has
another saying about khul‘that the wife will be forced back to go with her husband if the husband
does not want to be separated through khul‘7

There is different opinion of Jurists about the consent of the husband. Imam Abu Hanifa says
‘wife cannot get her khul‘without Consent of her Husband’. Imam Malik is of the view that qazi
have the authority to pronounce khul‘on behalf of husband. Imam Ahmad Bin Hanbal also
support the views of Shafi (Allah be pleased with him) that the khul‘is a contract like talaq and
there is no need of qazi to interfere. It shows that all Jurists are divided on the issue of consent of
husband. In my view Imam Abu Hanifa gives detailed proof that khul‘is like talaq and the right
of talaq is only with the husband.

8. KHUL AND THE SUPERIOR COURT IN PAKISTAN:

The Council of Islamic Ideology (CII) in 2016 has declared it un-Islamic for courts to use 'Khul’
(right of a woman to seek divorce) without the consent of a husband to dissolve a marriage. The
powerful religious body observed on Thursday that courts were dissolving nikkahs in the name
of 'Khul', which is not correct since only the husband has the right to grant Khul after which
courts can dissolve marriage contracts. Judicial Khul‘is exercised in Pakistani courts, according
to Article 2(ix) of dissolution of Marriages Act 1939. Here question arises that whether the
khul‘is considered as dissolution of marriage ( faskh-e-nikah) or divorce(talaq). Another issue
arise in Pakistani law that wife can dissociate herself from her husband on the ground of
incompatibility of temperament under the section 2(ix) of the 1939 statute. This law violates the
opinion of majority of jurists of Islam and pollutes the society because a bulk of cases is put in
courts. Every woman file case against her husband and desire to get rid from their husbands
through dissolution of Muslim Marriages Act 1939. Khul‘ is the proposal given to the husband
by the wife for divorce.

The court in Naseem Akhtar v Rafique, for instance, allowed judicial khula when the wife had
“developed such hatred for her husband that she would prefer to die rather than live with him.”
In fact, in the case of Abdul Majid, the court held that judicial khula does not even require the

https://www.researchgate.net/publication/272707694_Khul'Redemption_in_Islamic_Law_and_Its_Practice_in_Pa
kistani_Courts_A_Legal_Critical_Analysis
 P a g e | 10

proof of any specific or tangible grounds and that failure to prove the grounds alleged in a
divorce petition does not preclude the granting of a judicial khula.

9. ISLAMIC LAW INTERPRETATION:

The Lahore High Court answer the question whether the wife has entitled to dissolution of
marriage on the restoration of what she received form the husband for marriage? By revisiting
the established law of khul in Islam and give its answer in affirmative by giving new
interpretation to verse 2: 229 of Quran and held that wife has entitled to dissolution of marriage
by returning what she received form the husband in consideration of marriage. The Judge argued
that in verse 2:229 “you” in the phrase “if you fear” must address to the state or judicial officer
so it is the state responsibility that if court fear that spouse could not be remain within the bound
set by Allah than the can dissolve the marriage. The court also argued that in Jamila case the
Prophet PBUH act as a judge. The supreme court of Pakistan in Balqis Fatima case give the
opinion on verse 2: 229 of Quran and said the when dispute arise between husband and wife
regarding separation of Khul than it must be decided by third party which should be Qazi mean
court and wife can “ransom herself” or “get her release”. The court also put some limitations on
wife rights of khul that Quranic verse 2: 229 conditions must be satisfied that both the parties can
no longer live within bound set by Allah than Qazi can dissolve the marriage. The legislature
amended the section 10(4) of the Family Court Act 1964 in 2002 and provide the complete
summery of dissolution of marriage in case of khul. Now obtaining Khul under above section is
easier but mostly women seek dissolution of marriage on basis of cruelty of her husband and
some other remedy under DMMA 1939.

10.COUNCIL OF ISLAMIC IDEOLOGY RECOMMENDATIONS ON

KHUL:
The council of Islamic ideology can only makes recommendations to federal and provincial
government on a proposed law is either according to injunction of Islam or not. 8 On Khula the
council made recommendations to federal government that a law should be enacted at the state
level so when a woman request for divorce the husband must have an obligation to divorce her
within 90 days but if the husband refuse than the marriage shall stand dissolved after 90 days

8
See Articles 229 and 230 of the Constitution of the Islamic Republic of Pakistan (Islamabad: Ministry of Law and
Justice and Parliamentary Affairs, 2010) 130-131.
 P a g e | 11

automatically expect if the wife revoke the request and husband have no right to revoke after that
but the wife must have to return the assert and property given to her by the husband expect
dower and maintenance but if husband demand it than a court of law shall resolve it. However
when Chairman of the Council change the view of council also changed and opined that court
should refrain from dissolving the Nikah in the name of khula as it is social contract between two
parties and should be granted when both the parties are agreed.

11. CONCLUSION:
The main things which is discussed in the article is khul. The literal meaning of khul is extracting
oneself. Khul is the rights available to women as right of talaaq available to man. In the article
there different view on khul by different school of thoughts. In Pakistan the law of khul is
interpreted by the Lahore high court in 1959 in a case by answering the question whether the
wife has entitled to dissolution of marriage on restoration of what she has received form the
husband. The Judge argued that in verse 2:229 “you” in the phrase “if you fear” must address to
the state or judicial officer so it is the state responsibility that if court fear that spouse could not
be remain within the bound set by Allah than the can dissolve the marriage. The court also
argued that in Jamila case the Prophet PBUH act as a judge. The supreme court of Pakistan in
Balqis Fatima case give the opinion on verse 2: 229 of Quran and said the when dispute arise
between husband and wife regarding separation of Khul than it must be decided by third party
which should be Qazi mean court and wife can “ransom herself” or “get her release”. The court
also put some limitations on wife rights of khul that Quranic verse 2: 229 conditions must be
satisfied that both the parties can no longer live within bound set by Allah than Qazi can dissolve
the marriage. The legislature amended the section 10(4) of the Family Court Act 1964 in 2002
and provide the complete summery of dissolution of marriage in case of khul. Now obtaining
Khul under above section is easier but mostly women seek dissolution of marriage on basis of
cruelty of her husband and some other remedy under DMMA 1939. The council of Islamic
ideology also made recommendations to federal government that a law should be enacted at the
state level so when a woman request for divorce the husband must have an obligation to divorce
her within 90 days but if the husband refuse than the marriage shall stand dissolved after 90 days
automatically expect if the wife revoke the request and husband have no right to revoke after that
but the wife must have to return the assert and property given to her by the husband expect
dower and maintenance but if husband demand it than a court of law shall resolve it.
 P a g e | 12

12. REFERENCES:
[al-Baqarah 2:229]
https://tribune.com.pk/story/1049717/khula-without-husbands-consent-is-un-islamic-rules-cii

Surah 2:229:

(Al-Mabsut,vol. 6 p. 173, Matbaa` al-Sa`aadah)

https://www.islamweb.net/en/fatwa/276691/khul-is-not-valid-without-compensation
Khul‘(Redemption) in Islamic Law and Its Practice in Pakistani Courts, A Legal Critical
Analysis March 2014Mediterranean Journal of Social Sciences by Muhammad Ifzal Mehmood
of Shaheed Benazir Bhutto University
https://www.researchgate.net/publication/
272707694_Khul'Redemption_in_Islamic_Law_and_Its_Practice_in_Pakistani_Courts_A_Legal
_Critical_Analysis
See Articles 229 and 230 of the Constitution of the Islamic Republic of Pakistan (Islamabad:
Ministry of Law and Justice and Parliamentary Affairs, 2010) 130-131.