Dissolution of Marriage & Its Effect in Society (SABA QADRI THESIS)

Topic name Dissolution of Marriage & its effect in society
INDEX
CHAPTER I
INTRODCTION
 Marriage A Civil Contract
 Pakistan Divorce Law
 What are the ways marriage can be dissolved in Pakistan?
 What is meant by “Khula”?
 Hassle-free Khula
 Minorities View
 Husband’s Right Of Divorce Or Talaq And The Legal Procedure
 Talaq-i-Tafweez and Mubarat (Mutual Divorce)
CHAPTER II
KHULA PROCEDURE
 Definition
 When And How A Wife Can File Khula Suit In Family Court?
 Are Any Limits For Institution Of Divorce Suit?
 How Much Time Required For Getting Decree Of Dissolution Of Marriage?
 Wife’s Right of Divorce or Talaq
 Grounds For Judicial Divorce Grounds On Which A Woman May Seek Khula
Include
 Steps To Consider Before Divorce In Islam
 Revocation of Divorce by a Husband
CHAPTER III
LITERATURE REVIEW
 Grounds for Decree for Dissolution of Marriage
 Notice to Be Served on Heirs of the Husband When the Husband’s Whereabouts
Are Not Known
 Effect of Conversion to another Faith
 Right to Dower Not Be Affected
CHAPTER IV
THE LAW OF KHULA IN ISLAMIC LAW

 Khula and the Quran
 Khula In Hadith Literature
 Khula In The Hanafi School
 Khula In The Maliki School
 Khula In The Shafi School
 Khula in the Hanbali School
 Khula In The Shia School
CHAPTER V
THE LAW OF KHULA IN THE LEGAL SYSTEM OF PAKISTAN

 Imam Malik concept
 Overview of Khula in Muslim world
 Khula and the Superior Courts in Pakistan
Judicial Ijtihad
CHAPTER VI
CASELAWS RELATING TO THE TOPIC
2015 SCMR 804 SUPREME-COURT
2016 PLD 1 PESHAWAR-HIGH-COURT
2015 YLR 1547 SHARIAT-COURT-AZAD-KASHMIR
2016 YLR 371 SUPREME-COURT-AZAD-KASHMIR
CHAPTER VII
RESEARCH METHODOLGY
Sample investigation
Need for data collection
Kinds of data
Primary Data
Secondary Data
Methods of getting response
Self-addressed envelope
Reminders
Sufficient interval
Retention
Good questions
Research design
Selection and definition of problem
Sources of data
Nature of study
Object of study
Social cultural context
Temporal context
Dimension
Basis of selection
Techniques of data collection
Importance of the study of historical material
Types of educational history
Legal research in education
Bibliographical and summarizing studies
Experiment
Action research
Importance of action research
Applied research
Research proposal and synopsis
Hypothesis
Sources of hypothesis
Observation
Reflection
Deduction
Verification
Types of hypothesis
Explanatory or descriptive hypothesis
Tentative hypothesis
Representative fictions
CHAPTER VIII
CONCLUSION
Findings
Objective
References
CHAPTER I
INTRODCTION
 Marriage A Civil Contract:
A Muslim Marriage is a civil contract which can be executed and dissolved like any other
contract, however it is automatically dissolved on the death of either spouses. Additionally
spouses legal right to dissolve marriage contract is also recognized in Islam and hence both are
entitled with a religious rights to dissolve a marriage. Husband has an inalienable legal right of
divorce by way pronouncement of Talaq on the other hand wife can only exercise the right of
divorce if the same is granted to her in her marriage contract or Nikahnama. If in the event the
right of divorce is not granted to the wife then she has recourse of filing for khula before the
family courts of law to obtain judicial divorce. It is critically important to note that whether the
marriage has been dissolved through Talaq or khula, it must be legally recognized failing which
serious doubts may arise about the effectiveness of the divorce, such as a case of bigamy or Zina
against a woman who later remarries, or difficulties in settling issues related to the divorce such
as past maintenance or claiming deferred Haq Mehr. The paternity of children can also be
dispute. Therefore as per Pakistani Law it is vital to obtain dissolution of marriage certificate
from concerned government office as a documentary proof of dissolution of marriage. However
it is also important to note that as per Islamic scholars, divorce once pronounced by the husband
and khula once obtained from the court of law is effective and binding.
 Pakistan Divorce Law:
When husband and wife cannot live happily together within the limits prescribed by Almighty Allah
then they can dissolve their marriage through divorce or khula. The husband can pronounce
divorce and wife can file a suit for dissolution of marriage and can also pronounce Talaq, if such
right has been conferred upon her. Every divorce or khula case has its own facts, circumstances,
drawbacks, challenges and solutions.
 What are the ways marriage can be dissolved in Pakistan?

Marriage can be dissolved in any of the given ways i.e. divorce by the husband at his will
without the intervention of a court commonly called a “Talaq”; by mutual consent of the husband
and wife, without intervention of the court; by a judicial decree at the instance of the court and
by the wife in exercise of a contractual right of divorce.
 What is meant by “Khula”?
Khula is the right of a wife in Islam to seek dissolution of marriage from her husband through
intervention of the court. A woman seeks a “khula” while man gives a “Talaq”.
Khula is a religious term for divorce at the instance of a woman.
Seeking separation, or Khula, by a woman used to be quite a demanding task. Earlier, a woman
had to file a civil petition, and then there would be a pre-trial followed by provision of evidence
as well as statements by her family and witnesses at the time of the wedding, along with a
statement by the woman herself and her husband. This procedure would at times drag on for
years. However, according to the new system, a woman may file a case for Khula, and the court
is bound to decide within six months of her filing the case.
Interestingly, lawyer Javed Iqbal Barki was dismissive of the rising trend in Khula cases and claimed
that 80 per cent of the cases had been filed by women who married out of love
and once the delusion of love faded away, they came face to face with the reality of the
situation.
“It's mostly young women who seek Khula. The majority of them have married against the will
of their families. It is when the fever of love subsides that they become aware of the practicalities
of life, such as a jobless husband or a husband who has been married previously and has children
from the first wife,” he said.
Lawyer Riffat Mughal disagreed with Mr Barki's view and claimed that it was women in
distress who sought Khula.
“In this society, a large number of men prefer to just give a verbal Talaq (divorce) and it is
afterwards that the woman has to go to court and file a case for Khula. Previously, a woman had
to file separate cases for Khula, dower amount, child custody and maintenance. However, now,
after an amendment in 2002, it can be done in one go,” she explained.
The reasons cited for the drastic increase in such cases may vary. Ms Mughal said that before the
amendment to the Muslim Family Law 1961, the procedure used to drag for five to six years
whereas now it was decided in favour of the woman within months. “Owing to the fact that a
woman is entitled to a Khula, fewer men prefer to appear in court and fewer still wish to fill the
pockets of lawyers on such a futile venture,” she added.
 Hassle-free Khula:
“The hassle has been reduced to a point where a woman only has to produce a written statement
saying that she does not wish to stay with the man she is married to, along with the requisite
documents. After having a free trial, the court decides within two to three months on the matter
and grants a Khula,” said Noor Naz Agha of the Pakistan Women Lawyers' Association.
“Soon after a woman's statement for Khula is received, the court arranges a meeting of both
parties, where efforts for reconciliation are made. However, if these efforts are not successful,
the court issues a notice and within 15 days a court trial is held,” she added.
Ms Agha revealed that if a case for Khula was filed, the woman had to give up on the
alimony that had been mentioned in her Nikahnama or marriage contract. Furthermore, she
added, no specific reason was required to be cited while filing a Khula case.
The new law also gives a woman Khula if the husband fails to appear in court.
Lawyer Aftab Bano Rajput maintained that the majority of women filed for divorce
because of domestic violence and others for not getting proper maintenance from their
husbands. “Most of the women who file for Khula also file cases for child custody (if
they have one) or claim for return of the dowry and maintenance for the Iddat - three
months after the divorce,” she said.
Minorities View:
However, in case of a Christian woman seeking separation, she still has to go through the procedure
that had been used before 2002. Maryam, a Christian woman, soon after the birth of her son decided
she could no longer put up with the irrational demands of her in-laws. “I left my in-laws and came to
my parents'. Later, I filed a suit for separation and got it after three years,” she said.
Though in a Christian marriage there is a contract, there is no alimony mentioned in it. Maryam
earns her own living and is supported by her parents and a brother.
It was on similar grounds that Fatima sought Khula. “I had no clue how to go about the case. I
just knew one thing that I could no longer endure the torment I was going through,” she said.
Her husband had quit earning two years after the marriage and not even the birth of a daughter
could bring any change in him. “He was abusive and would smash things in rage and would
demand money from my father,” she said. However, five years after the marriage Fatima decided
to call it quits. “I was granted Khula within three months,” she said.
 Husband’s Right Of Divorce Or Talaq And The Legal Procedure:
A husband has the unilateral right of Divorce or Talaq and he cannot be alienated from this right
but can but can be restricted through the marriage contract also known as Nikahnama.
As per Muslim Personal Law and under section 7 of the Muslim Family Law Ordinance the
husband can pronounces Talaq orally as well as by way of Deed of Divorce.
Husband is duty bound to send written notice by registered post to the Union Council or
concerned government office in charge for issuance of divorce certificates. In the said notice the
husband must mention the address of his ex-wife, thereby enabling the government office to
issue notices to her by registered post and it shall constitutes arbitration Council within 30 days
of receipt of notice for the purpose of reconciliation and settlement if possible.
This legislation was introduced to protect women from an instant and unrecorded divorce. Earlier
cases were recorded where woman who was not properly divorced and who later remarried could be
punished for bigamy and sentenced up to 7 years (or up to 10 years if she concealed the previous
marriage) and only on the complaint of her first husband as there was no proof of dissolution of
marriage. Therefore, this legislation was enacted to protect a woman who re-marries from a frivolous
criminal case and sentencing. Hence it is vital for a woman to be absolutely clear about her marital
status and to have documentary proof that she is properly divorced.
Notice of Talaq can be served on a wife with permission of concerned government office through her
father, mother, adult brother or sister – but no other relatives. If this is not possible because her
whereabouts are not known and notice cannot be served on her through her immediate family, the
husband can still serve notice through a newspaper approved by the concerned government office.
It is important to receive a notice from the concerned union council, whereas it has been reported
that in some cases families have refused to receive notices, fearing that it is a notice of Talaq and
hence Talaq will not become effective. This practice could lead to unfavorable results as service
of notice can be done by way of publication in the newspaper hence refusal to receive notice of
Talaq is merely an attempt to act like an ostrich.
Once the Iddat period which is 90 days from the date the concerned government office receives
the Talaq notice is over, the office will issue a certificate of Talaq being effective to the husband
and wife. Please note that Talaq is not effective until the expiry of Iddat period and failure to
abide by law will cause a simple imprisonment for up to one year and/or a fine of up to Rs.
5000/-, hence the Importance of Registered notice of Talaq
A verbal Talaq is not recognised by law and the husband’s failure to send written notice to the
government office is treated as no divorce in law. However it is also important to note that as per
Islamic scholars, divorce once pronounced by the husband and khula once obtained from the
court of law is effective and binding.
 Talaq-i-Tafweez and Mubarat (Mutual Divorce):
In both of these forms of divorce, there is no need to approach the courts, meaning that the marriage
can be dissolved rapidly, cheaply and with few procedural problems. In this case both husband and
wife may sign a Mutual Divorce Deed and send a written notice under section 8 of the Muslim
Family Law Ordinance to the concerned government office, however the government office is
duty bound to follow the procedure of issuance of notices before issuance of dissolution of
marriage certificate.
CHAPTER II
KHULA PROCEDURE
 Definition:
Khula by definition is form of divorce according to which a husband denies to divorce wife and
wife seeks divorce through a prescribed law. If wife wants to obtain divorce then she will have to
file a suit of Dissolution of Marriage in Family court of her area and Family Court will issue a
decree of divorce after hearing the case. Khula is right given to the female in Islam as well so the
Pakistani Laws. However, there are very important questions:
 When And How A Wife Can File Khula Suit In Family Court?
Answer: When a wife feels that she cannot perform her matrimonial obligations due to any
reasons and she also do not have "delegated right of divorce" in the column 18 of her Nikahnama
then she will have to seek the khula decree from a family court. It is also called filling a suit for
dissolution of marriage in the court.
 Are Any Limits For Institution Of Divorce Suit?
Answer: As per Pakistani Family Laws a woman is entitled to seek a decree of marriage dissolution
on any or more of the following grounds: Husband is missing for four or more years, husband has
failed to maintain the wife, husband was involved in any crime and sentenced for 7 or more years,
husband is medically not able to perform marital obligations for a period of three years, husband was
impotent at the time of marriage, husband has any incurable disease etc. Beside these grounds, there
are some other grounds available to wife for the dissolution of marriages under Muslim Law.

It depends upon various factors such as in which province do you live, what are grounds for
the khula, how the case is being responded by the husband etc. Plus having a good and reliable
lawyer for your khula case is also very important.
Can a woman remarry the same husband without intervention of third person i.e (HALALA)
after khula decree? Divorce on the basis of Khula would be Talaq e bayen (single divorce).
Husband and wife would be at liberty for reunion (remarry) without intervention of third person
i.e. HALALA, even after the issuance of Talaq Muasar certificate by the union council and
even after lapse of 10 years.
 Wife’s Right of Divorce or Talaq:
A wife can dissolve her marriage unilaterally only if the right of divorce has been
unconditionally delegated to her by the husband in the marriage contract or the Nikahnama. If
such right of divorce is not delegated then in such circumstances wife can dissolve her marriage
by apply for Khula from the Family Courts of Law, which is also known as dissolution of
marriage by way of judicial divorce.
Therefore if the wife is not delegated the right of Divorce in her Nikahnama then she would need to
apply for Khula. Khula, which literally means ‘untying the knot’, is the dissolution of marriage
initiated by the wife and is granted by the court. To apply for Khula the wife would need to file a suit
for Khula in the Family Court under the West Pakistan Family Courts Ordinance, on the
grounds that she feels she can no long live with her husband “within the limits prescribed by
Allah’ and such a statement on oath made in her suit would be sufficient to establish her case for
Khula. Dissolution of Muslim Marriages Act 1939 Judicial khula may also be granted without
the husband's consent if the wife is willing to forgo her financial rights.
 Grounds For Judicial Divorce Grounds On Which A Woman May Seek Khula
Include:
 Desertion by husband for four years,

 Failure to maintain for two years
 Husband contracting a polygamous marriage in contravention of established legal
procedures,
 Husband's imprisonment for seven years,
 Husband's failure to perform marital obligations for three years,
 Husband's continued impotence from the time of the marriage
 Husband's insanity for two years or his serious illness
 Wife's exercise of her option of puberty if she was contracted into marriage by any guardian
before the age of 16 and repudiates the marriage before the age of 18 (as long as the
marriage was not consummated),
 Husband's cruelty (including physical or other mistreatment, unequal treatment of co-
wives),
 Any other ground recognised as valid for the dissolution of marriage under Muslim law.
The Family Court will issue decree and send notification to Union Council which proceeds as if
it received the notice of Talaq and once the Iddat period of over the khula becomes effective.
At the time of filing of Khula suit the wife usually has to return Haq Mehr and other benefits
received from husband as zar-ikhula, gifts received from husband’s family do not have to be
returned court decides how much & what is to be returned on the facts of the case wife’s failure
to pay zar-i-khula does not render khula ineffective; husband has to file separate suit for recovery
of zar-i-khula.
It is a common practice that the delegated right of divorce is deleted before the Nikahnama is
presented to the bride for signatures. The Law of Pakistan entitles a woman to exercise right of
divorce as oppose to file for Khula before the Family courts of Law but as a common practice, the
marriage contract is prepared in advance, in manner to defeat the purpose of the legislation.
Therefore it is hoped that this article and dissemination of legal information may educate many in our
society to change the practice and secure their legal rights. If Islamic scholars are of the opinion that
the said practice is valid and legal, then in such circumstance it is urged that it should be debated in
the parliament and necessary legislation should be enacted to remove such clauses from the
Nikahnama. Whereas as of now the Divorce Laws of Pakistan states that a woman has a delegated
right of divorce and hence her right should not be removed or deleted without her consent in the
Nikahnama prior to obtaining her signatures and therefore it is further urged that all the clauses
should be read and understood by the bride before signing the Nikahnama.
 Steps To Consider Before Divorce In Islam:
Narrated Abdullah ibn Umar: The Prophet (peace_be_upon_him) said: Of all the lawful
acts the most detestable to Allah is divorce.
Islam and Quran has stressed both partners to live in peace and harmony, however it is a natural
process of life that some disagreements between spouses arise during the course of marriage,
especially during early years of marriage. It is always encouraged in Islam to resolve such
disagreements by acting fairly and kindly, however if in the event such disagreements cannot be
resolved then in such circumstance the following procedure is prescribed in Islam before
termination of marriage.
1. The two parties must try to settle their differences on their own. It is understood by family
counselors commonly intervention of third parties, such as parents, siblings, friends or
cousins are common cause of non-settlement of disputes. As it is documents by many family
consultants all over the world that adults are capable of resolving their disputes amicably by
conversing and expressing their grievance. It is always a process of give and take. Therefore
it is recommended that couple should attempt to talk their difference with the intervention of
others in any form and should always keep in mind that happy life always means give and
take.
 Narrated Abu Hurayrah: The Prophet (peace_be_upon_him) said: Anyone who incites a
woman against her husband or a slave against his master is not one of us.
2. In the unlikely event of non-settlement between the couple, two impartial personalities/
arbitrators, one from the husband’s relatives, and one from the wife’s relatives, must be
appointed to try to make peace and to settle their differences.
3. If this attempt also fails, then the husband or the wife may seek a divorce.
4. In case divorce is notice served through the concerned government office, a reconciliation
period of ninety 90 days time or three months is available (except if the parties have divorced
each other for the third time), also known as Iddat period.
5. The two parties can reconsider their views and reunite during this waiting time. However, if
the above time limit expires and no reconciliation occurs, then the divorce becomes effective and
marriage is terminated.
6. If in the event the wife is pregnant then the waiting period is till delivery of her child plus
iddat period. Hence divorce is pronounced by the husband but the same will not become
effective during pregnancy.
 Revocation of Divorce by a Husband:
It is commonly noted by us that most families, especially husbands exercise their right of divorce
with proper thought process and thereafter approach various counselors and lawyers for revocation of
divorce. The common problem is that most lawyers or draftsmen prepare divorce deeds without
allowing the opportunity to revoke the divorce by causing the husband to pronounce triple divorce.
A divorce can be revoked by the husband without intervening marriage as long as the same is
done up till three pronouncements!
Therefore a Divorce Deed should always be prepared in the form and manner to suggest that it
shall be treated as one single divorce, if the divorce deed is prepared with a triple divorce then
the same cannot be revoked without intervening marriage and hence the said act should be
exercised with caution.
In most cases the client is not informed of his legal rights of triple divorce and their divorce deed
is prepared with triple divorce. Limited scholars believer that with full knowledge of triple
divorce is treated as single divorce, whereas majority are of the opinion that ignorance of basic
Islamic Law is no excuse and therefore pronouncement of triple divorce is final and binding until
intervening marriage.
CHAPTER III
LITERATURE REVIEW
 Grounds for Decree for Dissolution of Marriage.
According to section 2 of Muslim Marriages Act, 1939A woman married under Muslim Law
shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the
following grounds, namely:
(i) that the whereabouts of the husband have not been known for a period of four years;
(ii) that the husband has neglected or has filed to provide for her maintenance for a period of
two years;
(ii-a) that the husband has taken an additional wife in contravention of the provisions of the
Muslim Family Laws Ordinance, 1961;
(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;
(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a
period of three years;
(v) that the husband was impotent at the time of the marriage and continues to be so;
(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a
virulent venereal disease;
(vii) that she, having been given in marriage by her father or other guardian before she attained the
age of sixteen years, repudiated the marriage before attaining the age of eighteen years:
Provided that the marriage has not been consummated;
(viii) that the husband treats her with cruelty, that is to say,
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct
does not amount to physical ill-treatment, or
(b) associates with women of evil repute of leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her exercising her legal rights over it, or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions
of the Quran, Muslim Law, Provided that:
(a) no decree passed on ground (i) shall take effect for a period of six months from the date of
(ix) on any other ground which is recognized as valid for the dissolution of marriages under
such decree, and if the husband appears either in person or through an authorised agent within
that period and satisfies the Court he is prepared to perform his conjugal duties the Court shall
set aside the said decree; and
(b) before passing a decree on ground (v) the Court shall, on application by the husband, make
an order requiring the husband to satisfy the Court within a period of one year from the date of
such order that he has ceased to be impotent, and if the husband so satisfied the Court within
such period, no decree shall be passed on the said ground.
 Notice to Be Served on Heirs of the Husband When the Husband’s Whereabouts
Are Not Known.
According to section 3 of Muslim Marriages Act, 1939
In a suit to which clause (i) of section 2 applies:

(a) the names and addresses of the persons who would have been heirs of the husband under
Muslim Law if he had died on the date of the filing of the plaint shall be stated in the plaint.
(b) notice of the suit shall be served on such persons, and
(c) such persons shall have the right to be heard in the suit: Provided that paternal-uncle and
brother of the husband, if any, shall be cited as party even if he or they are not heirs.
 Effect of Conversion to another Faith:
According to section 4 of Muslim Marriages Act, 1939, the renunciation of Islam by a married
Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her
marriage: Provided that after such renunciation, or conversion, the woman shall be entitled to obtain
a decree for the dissolution of her marriage on any of the grounds mentioned in section 2;
provided further that the provisions of this section shall not apply to a woman converted to Islam
from some other faith who re-embraces her former faith.
 Right to Dower Not Be Affected:
According to section 5 of Muslim Marriages Act, 1939, nothing contained in this Act shall
affect any right which a married woman may have under Muslim law to her dower or any part
thereof on the dissolution of her marriage.
CHAPTER IV
THE LAW OF KHULA IN ISLAMIC LAW
 Khula and the Quran:
Literally, the term khula' means 'extracting oneself'. According to 'Alauddin Mas'ud al-Kasani,
'the khula is lexically, 'al-naz'' and 'al-naz'' is to pull out/extract something from something.
Thus, khula means that he has removed her from his marriage. In the technical sense, it is used
for marital 'extraction', and is the act of accepting compensation from the wife in exchange for
her release from the marital tie. Ibn hajr defines it as 'separation of the husband from his wife for
money consideration to be given to the husband. According to Ibn Rushd, 'the terms khula fidya,
sulh and mubara’a refer to the same meaning, which is a transaction in which wife pays
compensation for obtaining her divorce.'
Divorce can be pronounced twice: then, either Honourable retention or kindly release should
follow. (While dissolving the marriage tie) it is unlawful for you to take back anything of what
you have given to your wives unless both fear that they may not be able to keep within the
bounds set by Allah. Then, if they fear that they might not be able to keep within the bounds set
by Allah, there is no blame upon them for what the wife might give away of her property to
become released from the marriage tie.
The crucial question on which exegetes differ concerns who is being addressed in the verse through
the use of the term 'fa in khiftum': Is it addressed to the hukkam (state authority), which is represented
by the courts, or is it addressed to both the partners? In other words, who will determine whether the
two partners can or cannot live within the bounds set by God? Should the determination of that
important point be the responsibility of a court, acting on behalf of the state, or should it be
determined by the partners themselves? Moreover, what constitutes 'khawf' (fear),
mentioned in the verse? According to Imam al-Shafi, when one of them cannot keep within the
bounds set by God, so both [are considered] unable to keep within the bounds of God. According
to Abu Bakr al-Jassas, 'illa un yakhafa' means 'if both of them thought'. The fear that the 'two
may not be able to keep within the bounds set by God', arises when either of them violates their
marital duties and/or transgresses upon mutual rights, or the rights of one or both of the partners
are denied. The Qur'anic verse provides, 'Women have the same rights against their men as men
have against them. Ali b. Abi Talib (May Allah be pleased with him) is reported to have said,
'There are three phrases when uttered by the wife [to the man], it becomes legal for him to take
'al-fidya' the compensation. When she tells him that I will not obey you that I will not fulfil your
promise on oath, and I will not purify myself after sexual intercourse with you. It is reported
from 'Abdullah b. 'Abbas that 'her omission to keep within the bounds set by God is treated as
disdain for the husband and a bad nature on her part.
Thus, if she says, "I swear by God that I will not fulfill your oath, and I will not agree to your
request of sleeping with you in the bed, and I will not obey you. If she did this, it is allowed for
him to take from her 'al-fidya' but he should not take more than what he gave her (i.e., the dower)
and let her go provided she caused the harm." Then, he/Ibn 'Abbas recited, "but if they, of their
accord, give up unto you aught thereof, then enjoy it with pleasure and good cheer," and it is
said, that when there is no harm or cheating in obtaining it, then it is pleasure and good cheer as
God described it.
The Tunisian scholar Muhammad al-Tahir b. 'Ashur (1879-1973) argues that 'if the spouses
would be addressed by 'tum', then the wording would be: 'fa in khiftum aullatuqimu aw
ullatuqima' (if you feared that you cannot keep or you two partners cannot keep.
Abu Zahra argues that the addressees are either 'the group of Muslims because they cooperate
with each other, as they got discord between the spouses, or it is to the group of women and
men', and his preference is for the first meaning.
Jurists differ in their opinions on the matter of whether khula ought to be adjudicated or not; a
topic which will be elaborated upon later when the various schools of thought come under
discussion. In Pakistan, the Lahore High Court accepted the interpretation that the 'you' in the
phrase 'if you fear' must be addressed to the state and the judicial officers of the state in the
Balqis Fatima case. It clearly was not addressed to the two spouses, who are in this section
referred to in the third person as 'they' and 'them.'
In a nutshell, the Qur'anic concept of khula is: first, either of the partners may initiate it if he or she
thinks that marital rights cannot be upheld in the marriage. Second, according to the preferred
opinion of the majority of exegetes, the court has to determine the extent of discord, harm, aversion,
coercion, etc. Third, and this is very crucial, the court must ascertain whether it can grant khula,
especially when the discord or harm is attributed to the woman and she is ready to pay compensation
to her husband without the husband's consent, or is it conditional upon the consent of the husband? In
other words, is khula a consensual act or can the court put an end to the marriage by khula without
the husband's consent? The answer is not clear from the wording of the Qur'an in verse 2:229 and this
is why exegetes had to resort to ahadith regarding khula. Fourth, Maliki jurists also discuss khula
under the Qur'anic verse 4:35 and conclude that khula can be affected by the arbitrators and their
decision shall be binding without the consent of the husband and the wife. Fifth, in case khula is
consensual (or even if it is not consensual or the consent of the husband is not required), then the
court may put an end to the marriage and ask the wife to return the dower or what is agreed upon by
both the partners as compensation for her freedom. Finally, there is no
sin on the part of the spouses to receive such compensation. The apparent language of the verse
2:229 indicates that it is the wife who has to pay compensation to free herself, 'fima'fdatbehi'
(what the wife may give up to her husband. To answer the remaining questions, we have to resort
to ahadith of the Prophet (peace be upon him).
 Khula In Hadith Literature:
Many collections of hadith have referred to the case of habiba bint Sahl-wife of Thabit. The
incident is described in four of the six authoritative compendia of the Prophetic reports.
According to the report of Al-Bukhari in his al-jami' al-sahih (The Authentic Collection) section
on khula It is reported from Ibn 'Abbas that the wife of Thabit b. Qays came to the Prophet
(peace be upon him), and said: "I see no fault with Thabit's conduct or his religious demeanour,
but I dislike ingratitude in Islam." The Prophet (peace be upon him) said: "Will you return his
garden to him?" "Yes", she answered. The messenger of Allah said: (to Thabit): "Accept (iqbil)
your garden and divorce her Talliqha once.
In the second and third versions of the same incident, the Prophet (peace be upon him) is
reported to have ordered Thabit ('amarahu) to divorce her in return for his garden.
In the first version in Al-Bukhari, the words 'iqbil' (accept) and 'Talliqha' (divorce her) are used
in the imperative form by the Prophet, but in the second one the indirect speech is very clear that
Thabit's approval was not sought but the Prophet had ordered him. According to the report of
Imam Al-Nasa'i:
Thabit b. Qays b. Shamas hit his wife and broke her limb and she was Jamila bint 'Abdullah b.
Uby. She complained to her brother who took her to the Prophet (peace be upon him) and the
Prophet (peace be upon him) summoned Thabit and told him, "take (khudh) from her what you
have given her and let her go (free) (khalli sabilaha). He said: "Yes."
According to the collection of Abu Dawud, in which habiba's case is reported:
'A'isha (the Prophet's wife) relates that habiba bint Sahl was married to Thabit b. Qays b.
Shamas, who hit her and broke a limb of hers. She approached the Prophet (peace be upon him)
after dawn, and he summoned Thabit and told him: "Take (khudh) some of her money and
separate from her." Thabit said: "Is this permissible, Prophet of God?" The Prophet said: "Yes."
Thabit: "I gave her two gardens as dower and they are her property." The Prophet (peace be upon
him) said: "Take them and separate from her (fariqha)", which he did.
Ibn Maja, in his collection of ahadith, narrates on the authority of Ibn 'Abbas that this case is
similar to Al-Bukhari's first version of the case, with the difference that the Prophet (peace be
upon him) 'has ordered Thabit to take only the garden and not more (than the garden).' According
to the report of Ahmad b. hanbal:
Sahl b. Abi Hathma related that habiba bint Sahl was married to Thabit b. Qays Al-Ansari, who
was an ugly man. She said: "Messenger of Allah: O, by Allah, were I not to fear God, I would
spit in his face whenever he touches me." The Prophet (peace be upon him) said: "Would you
give him back his garden?" She said: "Yes", and she gave it back. Then the Prophet (peace be
upon him) separated them (farraqa baynahuma).
In the report of Ibn Maja, as well as Abu Dawud, Thabit - the husband - does not play any decisive
role (as assigned to him by the legists) as the Prophet never asked for his consent for the separation.
The crux of the matter is that according to the above reports, which are different versions of the same
incident, khula is not consensual and the consent of the husband is not essential. As will be explained
below, however, the majority of fuqaha of hanafi, Shafi'i, hanbali as well Shia schools of thought
purport that khula cannot be granted by the court without the consent of the husband. The four
compilers of ahadith collections who narrate habiba's episode 'neither mention nor allude
to her husband's approval as a condition for her divorce; on the contrary, what they all have in
common is the command aspect of the Prophet's order to Thabit to take the compensation and
separate from habiba. Despite this 'imposed' passivity on the part of Thabit, the majority jurists
have unanimously assigned a decisive role to the husband in khula. According to Jassas of the
Hanafi School, the fact that both Thabit and habiba were asked by the Prophet (peace be upon
him) implies that khula is consensual because the husband has been placed at the center point in
this episode, otherwise the Prophet could have dismissed him completely and divorced habiba
entirely on his own.
The conclusion that can be derived from this narrative is that the majority of legists differ from
the hadith, and to some extent from the Qur'an, regarding khula, especially regarding the
approval of the husband. There is no doubt that the Qur'anic verse was further explained by the
habiba's episode and that the Prophet's ruling has precedential value. Oussama argues that
Muslim legists seem to allow the Qur'anic implication of a consensual transaction to overrule the
Prophetic ruling in the habiba's khula separation case. However, Maliki jurists differ from most
Sunni scholars on the issue of the consent of the husband. In addition, as explained above, there
is no unanimity on the issue that the Qur'anic verse 2:229 only allowed a consensual bargaining-
based negotiated settlement as some exegetes have expressly mentioned that the word 'tum' (you)
is addressed to the state authority. The habiba incident stands on its own and has not been
overruled by the Qur'an. Moreover, one has to analyse the opinions of jurists regarding verse
4:35 to reach a clear conclusion. It is this precedent that provided the basis for the new law of
khul' in Pakistan, as well as in Egypt.
 Khula In The Hanafi School:
Hanafi jurists fully acknowledge the hadith of habiba but unanimously assign the husband a
decisive and controlling role in the process of khula. 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. Hanafi jurists insist that the consent of the husband is necessary for the validity
of khula. Abu Bakr al-Sarakhsi argues that khula is a transaction that requires the consent of the
parties like all other transactions. Kasani states that the basic element of khula is 'offer and
acceptance because it is Talaq for compensation, thus, there cannot be any separation without
acceptance. In other words, for Kasani, a court cannot force anyone to enter into contractual
relations, and therefore, it cannot grant khula without the husband's consent. There is no
disagreement among hanafi jurists on this issue, all of whom consider khula an irrevocable Talaq
and agree that adjudication is not necessary for affecting it as it can be concluded outside the
court. According to Abu hanifa, a man cannot retract his offer should he initiate khula, as he is
governed by the rules of oaths; he has to wait for his wife to accept or reject his offer. She has to
submit to the rules of compensation and is allowed to retract her offer before his response. Abu
hanifa bases his reasoning on the principle that khula is bay (sale transaction) on the part of the
wife, as she is buying back control over herself. If the discord emanates from the husband, 'then
it is not permissible for him to take any compensation in return for khula. The apparent wording
of the Qur'an presumes that the woman pays compensation to free herself (fimaaftadat behi), so
the discord is always assumed to be because of her. Kasani argues that:
If the matter is resolved by a stranger, then he is allowed to order her to pay the equivalent of the
dower, and if he ordered her to pay more or less than the amount of dower, then, in case of more
amount, it is not binding without the consent of the woman and in case it is less, then it is not
binding without the consent of the husband.
Thus, Kasani referred to as the king of 'ulama' (malak al-'ulama) within the hanafi school of
thought - considers the consent of the husband necessary even if the amount of compensation to
be given to him is less than the amount of dower. In other words, the husband according to the
hanafi school of thought, seems to have the equivalent of a veto regarding Talaq and khula.
 Khula In The Maliki School:
The linguistic formulations of the Maliki jurists on khul' are not easy to understand and need an
in-depth analysis to reach a clear conclusion on whether the consent of the husband is necessary
for khula. The confusion is mainly whether the Malikis consider the consent of the husband a
legal necessity by implication or not. Imam Malik has discussed the Qur'anic verse 4:35, habiba's
ruling, and two cases involving neglectful husbands, and his legal formulations suggest that he
gives the two arbitrators the main role in the dissolution of marriage, either by Talaq or khula. In
addition, he also presumes a negotiated settlement. Certain points within the Maliki School are
clear and these are mentioned below.
In circumstances where it is difficult for a woman to live with her husband and she approaches the
court, it must be clear that which one of the two is the cause of discord. When it is known to the court
that the husband or the wife has caused the discord, the court shall attempt to bring about
reconciliation. If this is not possible, then the court may dissolve the marriage. The court shall order
khul' if it finds that the husband was the cause of the discord. In this situation, the wife will be
ordered to return the dower given to her by the husband. However, if it comes to the conclusion that
the wife was the cause of the discord, it shall dissolve the marriage by divorce and shall order
the husband to pay the dower if not yet paid. The court under the Maliki School can issue a
decree of Talaq or khula without the consent of the husband and wife.
If the court does not know which one of the two is to blame for the dispute, it has to appoint two
arbitrators: one to represent each the husband and the wife. Maliki jurists have elaborated on the
role assigned to the arbitrators. In general, they agree that the arbitrators may dissolve the
marriage either by Talaq or khula depending upon who is to blame for the dispute. Some Maliki
jurists have even stated that the court or the arbitrators can dissolve the marriage through Talaq
or khula without the consent of both the husband and the wife. This is evident from many
classical Maliki texts (mutun), as well as commentaries on the main texts. While commenting on
Qur'anic verse 4:35, which reads 'If you fear a breach between the two, appoint an arbitrator
from his people and an arbitrator from her people. If they both want to set things right, Allah will
bring about reconciliation between them. Allah knows all, is well aware of everything', Ibn Juzi
al-Kalbi al-Garnati states:
Allah has mentioned what to do with a disobedient wife and how to deal with an obedient one,
then he mentioned another situation, that is, when there is discord between the two which they
cannot reconcile themselves and it is not known who caused it. So in this situation the court
should appoint two Muslim arbitrators to investigate the matter between the two. And their
decision has to be implemented whether it is the dissolution of marriage through Talaq or khula
without the consent of the husband.
Ibn 'Abdul Bar - another leading Maliki jurist - has said something similar. He argues:
The spouses may appoint one arbitrator each without the intervention of the State authority. If the
husband is the cause of discord they shall dissolve the marriage without anything. The arbitrators
should not take anything from the wife in this situation with the condition that she is divorced by
the husband and it is said that it is allowed to take something from the wife in this situation; and
if she was the cause of discord, they the arbitrators should take money or compensation from her
as they think appropriate and it the resultant separation will be khula and the two should be
separated their marriage be dissolved.
Maliki jurists have also explained the situation in which both the husband and the wife are
equally blameworthy for the discord. According to 'Abdari, 'the husband shall not be given
anything if both the husband and the wife were equally guilty of discord.
Imam Malik discusses three different versions of habiba's case and seems to introduce the
husband's consent in the third version, in which the Prophet (peace be upon him) invited Thabit
and told him about his wife and about her willingness to return him the garden to which Thabit
said: 'This is to my liking; Yes.' The Prophet said: 'Then she gives it back. Unfortunately, Imam
Malik is not very specific about whether the consent of the husband is necessary for khula.
Imam Malik is more specific in the chapter on 'Hakamayn' (the two arbitrators), where he gives
an interesting opinion. On the role of the two arbitrators, Malik states,
If the arbitrators could bring in reconciliation between the two, they should reconcile between
the two the husband and the wife; then, it is lawful for the two arbitrators if the two arbitrators
decided to dissolve the marriage between the two the husband and the wife without the
permission of the state authority. And if the two arbitrators decided to take compensation from
her and give it to the husband so that it becomes separation by khula.
Imam Malik's opinion gives the impression that the consent of the husband is not necessary for the
validity of khula. Above, we have given more precise opinions of other Maliki jurists to clarify this
issue. Since Imam Malik does not mention his opinion in precise words on whether the consent of the
husband is necessary for khula, this made the issue confusing. However, the assertion of
other Maliki jurists clarifies the issue that the consent of the husband is not necessary in khul' and
that it can be implemented without his consent.
According to 'Abdul Wahab Baghdadi:
In case of a dispute and eruption of a discord, if it is known that harm is caused by one of them it
should be eliminated. However, if it is unknown which one of the two have caused the discord
the State authority/court shall send in two arbitrators one from the husband's side and one from
the wife's side. The arbitrators should be jurists and fair and should investigate the matter and
should do whatever they think is better for the husband and wife ranging from reconciliation to
separation between the two regardless of the consent of the two husband and wife and whether
the State authority/court agrees or disagrees with their decision.
Ibn Rushd has an interesting opinion regarding khula. He states that, 'yet, the juristic reasoning is that
fida (ransom) granted to a woman is something equivalent to what is possessed by the man; namely,
(the right to) divorce. A man possesses repudiation when he pressurises a woman, while a woman
possesses khula when she wants to pressurise a man her husband. It can be construed from this
passage that Ibn Rushd treats khula as a right possessed by a woman that is the equivalent of a man's
right to divorce and that khula is not dependent upon the consent of the husband. This passage is not
clear about Ibn Rushd's opinion or the opinion of Maliki School on the issue of consent of the
husband. However, mentioning the crucial role of arbitrators, Ibn Rushd says:
They 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. Malik 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 hanifah and their disciples said that they have no right to
separate them, except when the husband delegates such authority to them.
th
Taqiuddin al-hilali, a leading 20 century Maliki scholar argues:
Jurists differ regarding the issue of arbitrators; are they appointed by the state authority so that
their ruling is binding without the consent of the spouses or are they proxies for the spouses?
There are two opinions regarding this issue: the majority of scholars prefer the first opinion [i.e.
their ruling is binding without the consent of the spouses] because of the Qur'anic verse, 'appoint
an arbitrator from his people and an arbitrator from her people', so they are named as 'hakamayn'
(arbitrators) and an arbitrator is allowed to rule without the consent of the disputant and this is
the apparent meaning of the Qur'anic verse 4:35.
It is very clear from the above that Maliki jurists have given a crucial role to arbitrators and they
may decide to dissolve the marriage by khula without the consent of the husband as well as the
wife. In addition, Maliki jurists consider khula as Talaq. As far as the amount of compensation is
concerned, Ibn Rushd argues that according to Imam Malik and a group of jurists, 'it is permitted
to a woman to secure freedom with more than what has come to her from the husband, by way of
dower.
 Khula In The Shafi School:
According to Imam al-Shafi'i, khul' just like Talaq, can only be affected by the husband. He
argues that:
Where a man wants to separate from his wife and he intends divorce but does not intend a
specific number, then the separation is a single irrevocable divorce (fa al-khul' Tatliqatan la
yamliku fihi al-ruju'); this is so because it is a sale (bay') like other sales and it is not allowed for
him to take possession of her money while continuing to possess her.
Al-Shafi'i has narrated two versions of habiba's incident: one from Imam Malik and the other one
from Ibn 'Uyayna. In the second version, habiba complains of some 'harm' done to her person,
which probably implies that the harm was of a physical nature. The Prophet (peace be upon him)
ordered her husband, Thabit, to take what she is giving you (khudh minha)', which is repeated in
both versions by al-Shafi'i. Imam al-Shafi treats khula as Talaq and allows for it to be settled in
or outside of a court 'as the paying of compensation and Talaq are permissible in the court as
well as outside it.
 Khula in the Hanbali School:
While discussing the Prophet's ruling in the case of habiba, Ibn al-Qaiyam of the hanbali school of
thought refers to the versions of Al-Bukhari, Al-Nasa'i, Abu Dawud, and Al-Dar Quoting, and
derives various rules pertaining to khula. He argues that khula is legal as stated in the Qur'an in verse
2:229, and that the verse allows it with or without the permission of the sultan (state authority). The
verse indicates that the resultant separation will be an irrevocable Talaq because God has named it
fidya (ransom) and if the (separation) would be revocable, as thought by some people, there would be
no ransoming for the woman after paying him. The Qur'anic verse fa la junaha 'alihima fima aftadat
bihi' (there shall be no sin upon either of them for what the wife may give up [to her husband] in
order to free herself), 'also indicates that taking more or less (than the amount of the dower) is
allowed and that he can take more than what he gave her.' Ibn al-Qaiyam produces a ruling given by
'Uthman b. 'Affan (d. 35/656) in which a woman paid as her khula settlement everything she owned
and 'Uthman ordered the husband to take even her hair-band (Iqas), and that 'Umar b. Al-KhaTTab
was reported by a man whose wife had violated her marital duties (nashiza) and 'Umar said (to him):
'separate from her (ikhla'ha) even if she gives (you) her earrings (qirat) in compensation. Ibn al-
Qaiyam discusses details of the difference of opinions of jurists and mentions that taking more than
the amount of dower is reprehensible (makruh)
according to Imam Ahmad b. hanbal. Ibn al-Qaiyam argues that khula is called fidya (ransom)
because it involves the paying of the compensation (al-mu'awaá¸ a) and therefore it is
consensual. According to Muhammad b. hazam (d. 456A.H.), if a woman thinks that she cannot
obey her husband and fulfill his demands, then she may free herself if he agrees. However, if he
refuses to divorce her, he cannot be forced to do so. He goes on to say that a woman cannot be
forced to free herself and the consent of both (the husband and wife) is essential for its legality
and if khula was affected without these two conditions (i.e., compensation from the wife and the
consent of the husband), then it is invalid.
The Ahl al-hadith in Pakistan also allow khula if the wife abhors the man and has a natural hatred for
him. 'Abdullah Ropri produces two versions of habiba's case and concludes that mere aversion or
abhorrence is enough for a woman to obtain khula. Although, Ropri does not explicitly mention
whether the consent of the husband is necessary for khula, he advises that 'in such a situation the wife
has the option of dissolving her marriage (faskh e nikah) through 'Panchayat', etc.
 Khula In The Shia School:
According to hilli of the Ithna 'asharia (twelver) Shi'a school of thought, the specific words used for
khula are: when the husband says, 'you are redeemed for so much (khala'tuki 'ala al-kaza). Khula is
also allowed if the husband used the word khula only without mentioning the word Talaq. But
according to another opinion, the word khula must be followed by the word Talaq to be valid. Khula
is defined by the editor of hilli's book as putting an end to marriage when the woman abhors her
husband only in return for compensation from the woman. This means that if she abhors him she has
to make an offer, which may be accepted or rejected by the husband. This makes the consent of the
husband mandatory. The preferred view is that separation through this way is irrevocable Talaq and
not faskh. If they agreed on khula then the husband cannot retract but she
can retract in paying fidya during her 'Iddat' (waiting period) and he can retract if she offers to do
it.
After discussing the opinions of the fuqaha' belonging to the various schools of thought, the
picture that emerges is as follows: 1) all of the schools of thought permit khula and cite verse
2:229 and habiba's incident; 2) according to the Maliki school, if the husband is the cause of the
discord then he should not take or be given any compensation, but if the wife is the cause of the
discord then she must pay compensation to the husband; 3) all the fuqaha agree that the resultant
separation will be irrevocable, that is, a Talaq, 4) the compensation to be paid may be the
equivalent of, or more or less, than the amount of dower; 5) if they settled on more than what he
gave her, it is morally reprehensible but legally binding; 6) the majority of schools disregard the
ruling in habiba's case and require the consent of the husband for khula, however, the Maliki
jurists have reached a different conclusion based on verse 4:35 by allowing the arbitrators
authority to put an end to marriage without the consent of the husband, even if the spouses have
not delegated them the authority to do so; 7) the majority agree that khula is consensual and the
consent of both spouses is necessary, whereas the Malikis allow the arbitrators to dissolve the
marriage by khula without the consent of the husband or wife; 8) khula can be settled between
the partners with or without the intervention of state authority; 9) fuqaha of all Sunni schools
have referred to the Prophet's ruling in the case of habiba, in which in some narrations, the
Prophet prohibited her from paying more than her dower but they (fuqaha) consider paying more
by the wife to be legally permissible.
The majority of jurists grant the husband an absolute right at the expense of his wife because of the
notion of qawama. However, resort to a court in case of khula seems unavoidable and the court must
have a role to determine the issue of harm to the wife or hatred between the two parties in
addition to determining the amount and extent of compensation. If a husband claims that they
can live within the boundaries fixed by Allah but the wife says that they cannot, then whose
claim should be accepted? It would require a third person to determine whether the wife cannot
live with the husband and whether the level of hatred and aversion has reached the point of no
return (irrevocable breakdown of marriage).
CHAPTER V
THE LAW OF KHULA IN THE LEGAL SYSTEM OF PAKISTAN

 Imam Malik concept:
According to the majority of Muslim jurists, a woman cannot obtain khula without the consent of
her husband. However, Imam Malik and his disciples are of the opinion that the decision of
arbitrators chosen by the state authority, court or the spouses for resolving dispute between the
husband and wife can decide separation or union and such outcome is valid without specific
delegation by the spouses and without their consent.
The decisions of the Superior Courts in Pakistan are partially based on the Maliki view and
legislation has endorsed the position adopted by the Courts. It is argued that both the legislation
as well as case law in Pakistan are based on the precedent set by the Prophet (peace be upon
him). The Federal Shariat Court has also endorsed the existing Pakistani law on khula. The
Recommendations of the Council of Islamic Ideology regarding khula are partially in conformity
with the Qur'an and the Sunnah.
 Overview of Khula in Muslim world:
Islamic law provides numerous remedies to a Muslim wife in cases where harm (darar) to her has
been established to the satisfaction of a judge. In the subcontinent, under section 2 of the Dissolution
of Muslim Marriages Act 1939 ('DMMA'), a Muslim woman can obtain a divorce in case of her
husband's disappearance for four years, her non-maintenance for two years, imprisonment of the
husband for seven years or more, failure of the husband to perform his marital obligations for a
period of three years, the husband's impotence, his insanity, and her maltreatment by the husband.
However, these grounds do not seem to have brought any positive change to the
affected women in India, Pakistan, and Bangladesh. The primary reason for this is that grounds
for divorce available under the DMMA are fault based. The complainant wife has to prove the
offence. Matrimonial offences such as ill treatment and cruelty by the husband or his family are
hard to prove, because such offences take place within the privacy of homes and those accused
of wrongdoing tend not to testify for the women. For these reasons, a no-fault based remedy was
badly needed in the subcontinent and elsewhere in the Muslim world. Khula seems to provide an
answer, but the issues surrounding khula in Islamic law are complicated, as shall be explained
below. As far as the judiciary is concerned the Lahore High Court ruled for the first time in the
Balqis Fatima case in 1959, that khula should be available to a woman as of right and without
the consent of the husband. This position was endorsed by the Supreme Court in the Khurshid
Bibi case of 1967. In Egypt, Law No. 1 of 2000 did exactly the same as was done by the Superior
Judiciary in Pakistan.
 Khula and the Superior Courts in Pakistan:
 The Traditional View:
The earliest reported case on khul' in the subcontinent- now India, Pakistan, and Bangladesh, is that
of Munshi Buzul-ul-Raheem case, in which the Judicial Committee of the Privy Council ruled that
khul' was not available without the consent of the husband under Islamic law. Unfortunately, this
case is applicable in India even today where it has not been overruled, however, the situation in
Pakistan and Bangladesh is different. Gangrade argues that in India, it is uncertain whether a wife
can ask for khul' against the wishes of the husband. In Umar Bibi v Mohammad Din, a Divisional
Bench of the Lahore High Court rejected appeals by two women who were seeking divorce on the
basis of khul' against the consents of their husbands and on the basis of incompatibility of
temperament as grounds for their divorces. This view was upheld by a full bench
of the same Court in Sayeeda Khanam v Muhammad Sami in 1952. The questions before the
Court were: 1) whether incompatibility of temperament constitutes a ground for divorce under
Islamic law; and 2) whether discord (shiqaq) constitutes a ground for divorce under Islamic law.
The Court answered both the questions in the negative. The Court held that the crucial role of the
Prophet (peace be upon him) in the Jamila episode discussed above, was that even the Prophet
(peace be upon him) did not take it upon himself to dissolve the marriage; he had only ordered
the husband to do so and the Prophet's role in this case was not that of a judge at all, but of a law-
giver. As explained above, the Court merely endorsed the traditional view of the hanafi jurists.
 Judicial Ijtihad:
In 1959, a Full Bench of the Lahore High Court revisited the established law of khula in Islam.
In Balqis Fatima v Najm-ul-Ikram Qureshi, the main question before the Court was '[whether]
the wife [was] entitled to dissolution of marriage on restoration of what she has received from
the husband in consideration of the marriage?' The Court answered the question in the
affirmative by giving a fresh interpretation to verse 2:229, and held:
This verse 2:229 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.
Justice Kaikaus argued that the 'you' in the phrase 'if you fear' khiftum must be addressed to the state
and the judicial officers of the state but it clearly was not addressed to the spouse. In his view, a
reference to the judge could possibly arise in circumstances where the wife wanted a divorce but the
husband had refused his assent. Thus, it was for the judge to determine whether the parties would
keep within the limits of Allah if the marriage were to continue. There is no point in
referring the matter to a judge and in requiring him to make a determination if, in the end, he is
powerless to do anything should he be convinced that the spouses could not remain within the
bounds set by God. The Court concluded that the reference to the judge under the verse can only
mean that he is entitled to pass an order dissolving the marriage even though the husband is not
ready to divorce.
In its understanding of verse 2:229, the Court deviated from the interpretation of this verse by
Muslim exegetes discussed above. In this case the judges themselves interpreted verse 2:229 by
directly relying on the Qur'an itself and ahadith of the Prophet (peace be upon him), and by
ignoring the opinions of the classical and the medieval jurists. In addition, the Court considered
khula, as Talaq (divorce) rather than fasakh (dissolution of marriage). Thus, in the Court's view
in khula, the wife has to redeem herself in return for some consideration and a Court can dissolve
the same if it was convinced that the spouses would not be able to live within the bounds set by
God, and that the consent of the husband for the validity of khula in such cases, was not
necessary. The Court also argued that in the Jamila's case discussed above the dissolution was
directly ordered by the Prophet (peace be upon him) acting as a judge (rather than as a social or a
political leader, as viewed by some authors), without commenting on the reasonableness of the
attitude of the wife, and without seeking the consent of the husband.
The Court relied upon the opinion of Maulana Mawdudi, who has deviated from the opinions of
the majority of fuqaha' and has explicitly given the opinion:
A Wife's right to khula is parallel to the man's right of Talaq. Like the latter the former too is
unconditional. It is indeed a mockery of the Shariat that we regard khula as something depending
either on the consent of the husband or on the verdict of the Qazi. The law of Islam is not
responsible for the way Muslim women are being denied their right in this respect.
The Supreme Court of Pakistan endorsed Balqis Fatima and rejected Sayeeda Khanam when it
decided the Khurshid Bibi case. Commenting on verse 2:229, the Court gave its own
interpretation while ignoring the opinions of the exegetes, and held:
Where the husband disputes the right of the wife to obtain separation by khula, it is obvious that
some third party will have to decide the matter and, consequently, the dispute will have to be
adjudicated upon by the Qazi, with or without assistance of the Hakams. Any other interpretation
of the Qur'anic verse regarding khula would deprive it of all efficacy as a charter granted to the
wife. It is significant that according to the Qur'an she can "ransom herself" or "get her release"
and it is plain that these words connote an independent right in her.
However, the Supreme Court put some limits on the wife's right to obtain khula. The Court
opined, The Qur'anic condition must be satisfied that it is no longer possible for the husband and
the wife to live together in harmony and in conformity with their obligations. The Lahore High
Court in Balqis Fatima case had already observed:
There is an important limitation on her right of khula. It is only if the judge apprehends that the
limits of God will not be observed, that is, in their relation towards one another, the spouses will
not obey God, that a harmonious married state, as envisaged by Islam, will not be possible that
he will grant a dissolution. The wife cannot have a divorce for every passing impulse.
Carroll argues that the 'apprehension' or 'satisfaction' of the judge is 'essentially a subjective
evaluation. It has to be supported by some material evidence. Justice Javed Iqbal of the Lahore
High Court, tried to clarify the law for the lower courts, when he observed:
If the Judge Family Court arrives at the conclusion that no reconciliation was possible, that the
wife was determined to get the marriage dissolved, and that not dissolving the marriage would
amount to forcing or compelling her to live in a hateful union with the husband, then he must
dissolve the marriage on the basis of khula.
The method used by the Courts in Pakistan to arrive at this new law of khul', which is not based
on the formulations of the various schools of thought in Islam, should be discussed here. In
Balqis Fatima, the Full Bench of the Lahore High Court ruled that the court can adopt a course
different from that laid down by the classical jurists. Further, the Court opined:
We are dealing with the interpretation of the Holy Qur'an and on a question of interpretation we
are not bound by the opinions of jurists. If we be clear as to what the meaning of a verse in the
Qur'an is, it will be our duty to give effect to that interpretation irrespective of what has been
stated by the jurists. Similar considerations apply to the interpretation of the traditions of the
Prophet. The Supreme Court affirmed this principle in the Khurshid Bibi case, when it observed:
The opinions of Jurists and Commentators stand on no higher footing than that of reasoning of
men falling in the category of secondary sources of Muslim law, and cannot, therefore, compare
in weight or authority with, nor alter the Qur'anic law or the Ahadith. If the opinions of the
jurists conflict with the Qur'an and the Sunnah, they are not binding on Courts, and it is our duty,
as true Muslims, to obey the word of God and the Holy Prophet (ati-ullah-waati-ur-Rasool).
In 2002, the legislature amended section 10(4) of the Family Courts Act 1964 to provide
summary dissolution of marriage in cases of khul' by requiring that 'the Family Court in a suit for
dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage
forthwith and also restore the husband the Haq Mehr dower received by the wife in consideration
of marriage at the time of marriage.' The Islamicity of the above section, especially the new
provision, was challenged in Saleem Ahmad v The Government of Pakistan in the Federal Shariat
Court. The Court observed:
With great regard and utmost respect for the scholarship, 'Taqwa' and deep insight of the eminent
Aimma Ezam and Ulema kiram this Court cannot declare any law or provision of law merely on
the basis of views, verdicts and Fatawa issued by the Honourable scholars whosoever they might
be. The Court held that the impugned provision of law i.e., S. 10(4)] was not found to be in
conflict with any specific injunction contained in the Holy Qur'an and Sunnah of the Holy
Prophet (peace be upon him).The Court further observed:
The courts are there to dissolve disputes that arise between the parties. They can decide all type
of matters including, admittedly, dissolution of marriage on certain grounds. One wonders why
they are not authorized to decide the case of Khula, if a husband does not at all agree to the
divorce of his wife and all the reconciliatory efforts fail.
After discussing the various arguments, verses of the Qur'an, ahadith, and opinions of
jurisprudents, the Court came to the conclusion that 'there is no specific verse or authentic
Ahadith that provides a bar to the exercise of jurisdiction by a competent Qazi to decree the case
of Khula agitated before him by a wife after reconciliation fail. This was indeed a very bold
decision and must be appreciated.
Under the above section, i.e., 10(4), obtaining khula has become easier for women, but the
problem is that khul' is availed as an alternative remedy. Usually, a complainant woman requests
dissolution of her marriage on the basis of cruelty of her husband or in-laws or non-maintenance
by her husband or any other remedy under the DMMA 1939, and requests khula only as an
alternative remedy. It is very unfortunate that in some cases, the judges only grant khula and
ignore all other remedies and order the wife to return her dower to the husband. However, there
are many cases in which the courts have corrected these aberrations and laid down the true
exposition of the law of khula.
The Superior Courts in Pakistan have not considered themselves bound by taqlid and, by
seemingly resorting to ijtihad, have asserted three rights: first, their right to independent
interpretation of the Qur'an and Sunnah, where necessary; second, their right to differ from the
doctrines of traditionally authoritative legal texts of the various schools of thought in Islam,
[115]
especially the hanafi; and third, their right to not follow the decisions of the Privy Council in
this regard. It is generally thought that the Superior Courts in Pakistan seem to have exercised
ijtihad rather than takhayur or talfiq and have mainly relied on the Qur'an and the Sunnah and
not on the opinions of jurisprudents. However, section 2 of the Enforcement of Shariah Act,
1991 seems to be have added another source that Courts may take into consideration. Section 2
of the Act states that 'Shariah' means the injunctions of Islam as laid down in the Qur'an and the
Sunnah. The explanation provided for section 2 states that:
While interpreting and explaining the Shariah the recognized principles of interpretation and
explanation of the Holy Qur'an and Sunnah shall be followed and the expositions and opinions of
recognized jurists of Islam belonging to prevalent Islamic schools of jurisprudence may be taken
into consideration.
It is noteworthy that the words 'may be taken into consideration' in section 2, are recommendatory
only and not mandatory. Moreover, it is unclear what is meant by the word 'prevalent'; it apparently
allows the judges to resort to takhayur or choosing the opinion of one school over that of the other(s),
and not to strictly adhere to the interpretation of only one school of thought.
A closer look, however, reveals that in the case of khula, the Courts in Pakistan did not resort to
ijtihad per se but rather applied the Sunnah of the Prophet (peace be upon him) in preference to the
interpretations of Muslim jurists. In other words, the Courts deviated from the opinions of the
majority of Muslim jurists only thinking that these opinions were not based on the Qur'an and more
specifically, the Sunnah of the Prophet. Since the topic of ijtihad and the modes of ijtihad are
complex, any statement to the effect that the Pakistani Courts resorted to ijtihad regarding khula
would be a sweeping one. Balqis Fatima and Khurshid Bibi are indeed very bold decisions, but
these have deviated from the settled opinions of the majority of fuqaha of hanafi, Shafi'i and
hanbali schools as well as the Shi'a school of thought. Moreover, in both cases, the judges have
given the opinions of some scholars to support the view that the consent of the husband is not
required in khula, but the Courts needed to mention the vast literature within the Maliki School
to support its stance. This is why the 'ulama in Pakistan have managed to level a scathing attack
on the precedent repeatedly upheld by the Superior Courts regarding khula. It is worth noting that
the Superior Courts in Pakistan have repeatedly granted khula to women summarily, especially
after the 2002 amendment in the Family Courts Act 1964.
CHAPTER VI
CASELAWS RELATING TO THE TOPIC

 Citation Name: 2015 SCMR 804 SUPREME-COURT
Side Appellant: MUHAMMAD ARIF
Side Opponent: SAIMA NOREEN.
S. 2(viii), West Pakistan Family Courts Act (XXXV of 1964), S. 5, Sched. Dissolution of marriage,
Grounds, Cruelty by husband. Cruelty by husband not proved. Decree for dissolution of marriage on
basis of cruelty converted into khula. Wife filed a suit for dissolution of her marriage under the
Dissolution of Muslim Marriages Act, 1939 on the basis of cruelty. Family Court found that wife had
failed to prove cruelty, but still decreed the suit on the basis that the relations between the parties had
become strained and there seemed no possibility of reunion, and if they were constrained to live
together, they may transgress the limits of Almighty Allah and their union may not last longer, hence,
their separation had become inevitable. Decree passed by Family Court was upheld both by the
Appellate Court as well as by the High Court. Validity, Family Court had reached the conclusion that
indeed no cruelty could be proved by the wife, hence in such circumstances the Family Court could
hardly grant a decree for dissolution of marriage on the basis of cruelty under the Dissolution of
Muslim Marriages Act, 1939, Only way out and the logical conclusion was that the marriage should
have been dissolved on the basis of khula in which event the wife would have to forego the Dower
amount. Supreme Court decreed the suit of the wife for dissolution of her marriage on the basis of
khula only, and directed that mutation for the plot given by the husband to his wife as Dower would
now revert back to the husband. Order accordingly.
 Citation Name: 2016 PLD 1 PESHAWAR-HIGH-COURT
Side Appellant: SAJED ULLAH

Side Opponent: Mst. SHAKEELA NAZ.
S. 5 & Schd. Muslim Family Laws Ordinance (VIII of 1961), Ss.7, 8, 9 & 10 Constitution of
Pakistan, Art. 199, Constitutional petition. Talaq/khula pronounced through Jirga/arbitration.
Respondent/wife filed suit for recovery of dower amount with fine, dowry articles, and maintenance
for herself and for minor and medical expenses against petitioner/husband claiming that petitioner
had ousted her out of his house forcibly taking gold ornaments and dowry articles from her.
Petitioner denied all the allegations. Trial Court, after recording evidence decreed the suit regarding
dower without fine and maintenance of respondent/wife till completion of Iddat, maintenance of
minor with ten per cent annual increase and medical allowance partially, and dismissed the suit
regarding dowry articles—Appellate court dismissed appeals filed by both parties except dismissing
the claim for recovery of medical expenses. Petitioner contended that Talaq was pronounced on basis
of khula ‘upon decision of Jirga/Arbitrators as agreed and desired by wife, and she was not entitled to
recovery of dower amount as she had given her consent to proceedings of Jirga for khula ‘which
were binding on her. Wife argued that Trial Court had rightly decreed medical charges spent during
delivery of minor and she had never demanded Talaq nor had she participated in any
Jirga/Arbitration proceedings or gave her consent for the same. Validity, Wife had a right to seek
divorce on basis of khula ‘in lieu of returning benefits which she had received from her husband.
Khula ‘could be granted through court and could not be decreed by force without consent of wife.
Decision of arbitrators had no sanctity in law, and divorce on basis of khula could not be pronounced
by arbitrators/Jirga nor could the decision be imposed upon wife. Divorce pronounced by husband, in
circumstances, was to be treated as Talaq not on basis
of khula. Free consent of wife was mandatory in case of divorce on basis of khula. Husband
pronounced Talaq on basis of khula, upon decision of arbitrators without consent of wife and the
same could not be treated divorce on basis of khula. Courts below rightly held that divorce
pronounced by husband was Talaq and not Talaq on basis of khula. Wife was entitled for recovery of
dower amount along with other reliefs. Husband admitted fixation of dower amount as claimed and
wife was entitled to recover the same. Trial court rightly appreciated facts, circumstances, evidence
and relevant law while holding the recovery of dower. Wife produced evidence in support of her.
 Citation Name: 2015 YLR 1547 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant: ASIF JAHANGIR

Side Opponent: Mst. ZAHEEN KAUSAR.
Ss. 5, Sched. & 14, Dissolution of Muslim Marriages Act (VIII of 1939), S.2 (ii), (iv), (viii), Suit for
dissolution of marriage and for restitution of conjugal rights. Wife filed suit for dissolution of
marriage before Family Court on the grounds of cruelty, non-payment of maintenance allowance,
non-performance of marital obligations and in the alternative on the ground of khula. Husband filed
suit for restitution of conjugal rights and moved contempt applications on the ground that wife had
contracted second marriage during pendency of appeal. Family Court passed decree for dissolution of
marriage on ground of khula , without return of dower amount as consideration for khula , and suit
by husband for restitution of conjugal rights was dismissed. Wife had averred in her plaint as well as
in her statement that ornaments were snatched away from her by the husband, and he did not rebut
the version of wife in cross-examination, which amounted that he had admitted
said fact. Witnesses had also supported the version of wife. Family Court, in circumstances had
rightly appreciated evidence of parties in its true perspective. Decree for dissolution of marriage
could be passed without consideration for khula; and it was not lawful for husband to take back
anything from his wife, particularly when khula was due to some fault on the part of husband—In the
present case, fault of husband was that he had snatched away ornaments, and turned her out from his
house, which fact was fully established by the evidence. Family Court had not committed any
illegality while passing decree for dissolution of marriage on the ground of khula without
consideration. Record had revealed that service upon wife was effected after contracting second
marriage by her. Appeal as well as contempt application were dismissed, in circumstances.
 Citation Name : 2016 YLR 371 SUPREME-COURT-AZAD-KASHMIR
Side Appellant: AZHAR BASHIR
Side Opponent: SADIA SHAFIQUE
S. 5, Sched—Suit for dissolution of marriage, recovery of maintenance charges and Dower

Cruelty. Scope, Cruel attitude was not confined only to the extent of physical violence but it
would include mental torture, hateful attitude of husband or other inmates of the house and also
included the circumstances in presence of which wife was forced to abandon the house of her
husband. Wife had failed to prove cruelty in the present case. Family Court had correctly passed
decree on the ground of ‘khula’. Husband was bound to pay maintenance charges to the wife till
she was faithful to him and lived with him and if she had voluntarily left the house of her
husband then she was not entitled to maintenance charges. Wife had voluntarily left the house of
her husband and she was not entitled to maintenance charges. Dower once paid could not be
demanded for second time. Appeal filed by the wife was partly accepted to the extent of
maintenance charges—Decree of maintenance charges passed by the Shariat Court was set aside.
CHAPTER VII
RESEARCH METHODOLGY
Sample investigation:
In the technique of sample investigation certain units from the whole

domain of survey are selected as being representative. Now these are studied to detail and the
conclusions arrived from there are extended to the entire field are domain. Unlike census
investigation, not all units are studied in the sample investigation, but only some of these are
selected for study on a certain definite basis. An example would make this clear. If we have to
study the monthly expenditure of the students of a university we may not study all the students.
We may collect figures of about 5% of them only. Supposing these are 10000 students: Then we
may collect expenditure figures of only 500 and extend our conclusions to all of them. If full
caution is taken in the selection of representative students and data is collected faith fully, the
applicability of these conclusions to the entire set will be of very high reliability.
Need for data collection:
Research is based upon various types of information. It is not possible without different kinds of
information. Just as a building requires bricks and mortar for its construction, similarly social
research successfully, information should be gathered from proper requires concerned information.
These information given knowledge concerning social phenomena. Now, in order to carry on social
research successfully, information should be gathered from proper sources the more valid is the
source of information, the more reliable or conclusions. Therefore, research presupposes a
knowledge of kinds and sources of information different types of researches require different types of
information. This requires a wide knowledge of kinds and sources of information.
Kinds of data: Different kinds of data are required in research. This can be classified into
the following two types of Information:
1- Primary Data:
Primary data are actual information which are received by researcher for study from the actual
field of research. These data are attend by means of questionnaires and schedules. In some fields
primary data are collected through interview and observation methods. The observation method,
for collecting primary data, may be both participant and non-participant. Such data are known as
primary because they are attend by researcher from the field of research directly and for the first
time. Primary data are generally attend through two sources. The primary source of primary data
are the facts of living person’s lives. The other source is the connected events known through
observation such as the life of the group, traditions and customs and different aspects of daily
life. Participant observation sometimes unravels such primary data which cannot be known by
another means.
2- Secondary Data:
Secondary data are the information which are attained indirectly. The researcher doesn’t attained
them himself or directly. Such data are attained generally from published and unpublished material.
Secondary data are gathered from information collected from the individuals and institutions through
personal diaries, letters and survey documents etc. The secondary data again, are gathered through
two types of sources. The first source are personal documents such as diaries letters, photographs,
etc. the other source are public documents such as books, manuscripts records
, census reports, reports of surveys by private institutions and various information published in
newspapers and magazines. According to Lundberg, the information achieved from inscriptions
on stones and objects of excavations may also be included in secondary data.
Methods of getting response:
1- Self-addressed envelope:
Having formulated the list of questions, the next problem is to get these filled up the properly in
due time by respondents. This depends, in turn, on how faithfully the methods of getting
response have been applied. Normally, the respondent has little incentive to return the
questionnaire, and he cannot be expected to suffer any monitory loss whatever. Therefore, the
questionnaire must be accompanied by self-addressed and prepaid envelope. Unless these
courtesies are observed the questionnaire may never be returned.
2- Reminders:
However the most popular method used to ensure response is the issue of reminders. The
reminders must be issued at adequate intervals. The adequacy of interval is determined by the
time taken in transit by latters and to two to three days are considered permissible for filling up
of the questionnaire. This means that adequate interval will be about 10 days. Moreover, the
interval between first and second reminders should be more than between the original letter and
the first reminder. For instance if the first reminder is sent after ten days, the first reminder
should be sent on the mere post card, the second should be registered post with the questionnaire
attached with it this is to ensure that questionnaire has reached the respondent. All steps have to
be taken neutralized the negative effect of postal vagaries. It has been learnt from experience that
about 90% after respondents send back the questionnaire by the third reminder.
3- Sufficient interval.
The interval allowed between the receipt and the return of the questionnaire should neither be too
long nor too short. If it is too short the respondent may feel by time he receives the questionnaire that
it is too late to send the reply. But if the interval is very long the respondent may feel the relax
and put off to a more convenient time. Meanwhile many things will happen and he may forget all
about it are misplace the questionnaire.
4- Retention:
To counter the postal vagaries and to allow for the absence of the respondent at the time of
receipt of the questionnaire, the reply should be patiently waited. And if, uncountable time has
elapsed, the questionnaire and reminder may be sent again by the registered post.
5- Good questions:
From the foregoing discussion it becomes quite clear that the successful return of the questionnaire
depends upon the fact as to how far the research worker succeeds Enlisting the cooperation of the
respondents. Some circumstances and conditions which determine the attitudes of the respondents
toward the questionnaire are: (1) In comparison with higher strata people, the respondent belonging
to the middle strata are more cooperative. (2) The amount and kind of cooperation received also
depends to a great extent on the prestige and reputation of the research worker or research
organization sponsoring the questionnaire. (3) The importance and worth of the problem involved is
very important factor in influencing the attitudes of the respondents. (4) The form and style of
questionnaire is very important. A simple, direct and brief questionnaire is better received than the
complicated and lengthy questionnaire. (5) An attractive appearance also facilitates the response. (6)
The use of unfamiliar, technical and abstruse terms baulks the response, whereas easy to understand
language facilitates it. (7) Lastly, in adequate and appropriate reward by way of advance payment or
lottery system greatly improves the chances of response. The forceful and convincing appeal attached
with the questionnaire enhances the chances of response.
Research design:
However, a further understanding of the components of a design elicit the following steps:
1- Selection and definition of problem :
The problem selected for study should be define clearly in operational terms so that the
researcher knows positively what facts he is looking for and what is relevant to the study. Since
human behavior as an interaction pattern, is the result of various forces it is based to delimit the
scope of one’s study which reaps ample benefit during the actual course of data collection. Now
besides the operational definition of the problem, the problems selected should be practicable in
costs of time and money. If the criteria of the validity and reliability of results are to be full
filled, such problems are unmanageable by the researcher should not be selected for the design.
2- Sources of data:
Once the problem is selected it is the duty of the researcher to state clearly the various sources of
information such as library, personal document, field work, a particular residential group etc.
3- Nature of study:
The research design should be expressed in relation to the nature of study to be undertaken. The
choice of statistical, experimental or comparative type of study should be made at this stage so
that the following steps in planning may have relevance to the proposed problem.
4- Object of study:
Whether the design aims at a theoretical understanding or presupposes a “Welfare” notion must
be explicit at this point. Stating the object of the study aids not only in clarity of the design but
also in a sincere response from the respondents.
5- Social cultural context:
As one would be right remember, a research design is always set to a context which has a social
and cultural bearing on the individuals. For example : In a study of fertility rate in a people “
Backward” class, the context of the so called backward class of people and the conceptual
reference must be made clear. Unless the meaning of term is clearly defined, there tends to be a
large variation in the study because a terms backward could have religious, economic and
political connotations.
6- Temporal context:
The geographical limit of design should also be referred to at this stage that the research related
to the hypothesis is applicable to a particular a social groups only.
7- Dimension:
It is physically impossible to analyze the data collected from a large universe. Hence the
collection of in adequate and representative sample is the byword in any research. Depending
upon the dimension of the proposed study, such a sample of the large population can be selected
to facilitate a practical design.
8- Basis of selection:
Now an adequate and representative sample can be selected. He mechanics of drawing a random,
stratified, purposes, double cluster or quota sample when followed carefully will produce a
scientifically a valid sample in an unbiased manner.
9- Techniques of data collection:
Relevant to the study design a suitable techniques has to be adopt for the collection of required
data the relative merits of “ Observation” , “ Interview” and “Questionnaire” When studied
together will help in the choice of suitable techniques. Once the collecting of data is complete,
analysis, coding and presentation of the report naturally follow.
Importance of the study of historical material:
Human society is an eternally dynamic structure. Its various aspects are constantly under
change. History is a record of theses changing processes. This a why in social sciences the
historical of social processes is so revealing and important, according to Hans Garth, “Every
model of social structure employs a model of socio historical change: History consist of
change which social structures undergo”.
In the historic study of social structure, causal relation between its various aspects becomes known.
The current structure, culture, folk ways and social mores and organization of any social group or
resultants of its past forces, that is, its history and evolution. The historical knowledge about these
processes enables us to anticipate their future structure. No social change takes place in the void: it is
a result of past forces and will give rise to future forces. Accordingly, in order to understand
efficiently any social group or institution it has to be studied in its historical perspective. According
to Arthur M.SCHLESINGER, “No Individual, least of all a social scientist, can wisely ignore the
long research of the past. History enlarges his range of observed phenomena, affords a sense of
mutuality of institutions and suggests the conditioning factors in contemporary life”.
In this way, a social scientist studies the past to gain a better understanding of the present state of the
affairs. Though the contemporary ethos and the culture of the any society is quite different from its
past character, yet the seeds of the present are in the past and the contemporary modes and mores of a
society a nothing but evolution of forces working in the past. For example, the present liberal labour
laws in India are result of almost a century of protest and agitation by the down trodden. Similarly,
prohibition, abolition of absentee landlordism, unlawful ness of traffic in women and children and
education for women on per with men have not come about in our country by mere drafting of Indian
constitution some 45 years back. They are the result of a long process of struggle and progressive
increase in the consciousness among Indians about decent human life. In past, women were regarded
merely chattels and servants were considered mere slaves. Today, however we are quite aware of the
moral fact that every human being has equal rights to happiness
and that no men may be used merely as a means to somebody else’s end. In order to understand
the bewildering the nature of contemporary social structures we must put them in a historical
perspective. The marriage in urban India of today is no longer a privilege of parents. Love
marriages are growing in number, so are inter caste marriage. Examine the efficacy of these
actual practice and to try to improve them in the light of practical experience.
Women are in the forefront of political and cultural life and possess equal rights. The joint
family is under great stress and will eventually break down together. The youth is unwilling and
unprepared to play a second fiddle “Itis in revolt. These interesting and important facts can be
dispassionately understood only in historical perspective.
Types of educational history:
Investigation of the documentary type include following areas of the study.
A- Biography
B- History of institutions and organizations
C- The history of ideas
D- Sources and influences
E- Legal
F- Bibliography and summarizing studies.
In the area of education, lives of educators, history of schools, schools systems and educational
institutions, various social, economic, geographical, and cultural influences on the educational
practices of a place or a time, the philosophical theories and ideologies affecting educational
theory and practice provide numerous problems for a significant historical research.
A- Legal research in education:
It is a special type of a historical research which utilizes
1- Statutory law and
2- Case or common law, as the relation between central and state governments with regard
to education. Educational organization in states and district, administration of local
schools, school finance and property, legal status of teacher and pupils, text books, and
curriculum and the legal aspects of higher education, etc.
B- Bibliographical and summarizing studies:

Bibliographical survey and summarizing of a type which is exhaustive, critical and analytical
covering a span of some length in the educational field in historical investigation. The collection
of material, its criticism, interpretation and synthesis of results from a number of related studies
thus surveyed.
Experiment:
According to Garret, an experiment is a question which has been asked systematically, i-e, it is a
query the answers for which is being consciously sought for. In each case of experimentation, the
experimenter has before him a problem whose solution he seeks by conducting an experiment. Marie
Jahoda and other social scientist have described experiment as a means of verifying the hypothesis.
An experiment is based on a hypothesis and this hypothesis is a product of rational thinking. The
hypothesis is either proved or disproved by an experiment. We can repeat the experiment at different
times and places to assure that our results are not due to some error in the experiment. According to
Greenwood an experiment is a means of proving the hypothesis whereby the casual relation between
the two facts is studied. To study this relation we create contradictory situation in which all but one
fact is controlled. The “Free” fact is either a supposed cause or an effect. Therefore, in an experiment
the free or independent factor is of most crucial importance. Explaining the fact that in an experiment
we study a subject matter under controlled situation, John
R.P French writes: We shall define a field experiment as a theoretically oriented research project
in which the experimenter manufacturers an independent variable in some real social setting in
order to test some hypothesis”.
Action research:
Very simply, action research is concerned primarily with active aspects of education, when the field
of research is education. In this way, the work of research concerns the day today problems that arise
for the institution as a whole, the student and a teacher, it aims at discovering scientific solutions for
their problems. Defining such research, P.M. Cook writes, “Research is an honest. Exhaustive,
intelligent searching for the facts and their meanings or implications with reference to a giving
problem. The product or findings of a given piece of research should be an authentic, verifiable
contribution to knowledge in the field studied.” Hence research is search for facts, a search which has
the qualities of the honesty, adequacy and intelligent the results of which research admit of
verification and authentication. This particular definition of research is applicable to both basic and
action research. Whatever subject of research, the later must be logical and objective, directed at a
well-defined goal. Research is a permanent and a scientific search, it requires a definite standard, as
well as properly trained research worker. In the field of education research is confined to problems of
teaching, and similar to other fields, it is scientific objective goal oriented and verifiable.
Evidentially, then, action research possess all the qualities delegated above to the research in general.
In the word of Stephen M.Corey, “ the process by which practioners attempt study their problems
scientifically in order to guide, correct and evaluate their decisions and action is what a number of
people have collected action research”. It is apparent from this definition that the following
characteristics are fundamental to action research.
1- Action research is carries out scientifically.
2- Action research is further carried out by workers who work in some specific field in their
own capacity, so that in the educational field the research work is to be done by teachers,
students, principals, etc.
3- Action Research is concerned with the solution of problems that comes to the normal
working day of a worker. Within the single field of education, there are many aspects –
curriculum, administration, communal life the problems of which require systematic
research.
4- The object of action research is the guidance of actions and decision, improvement and
evaluation.
Importance of action research:
The importance of action research becomes apparent to large extent from the above description. The
contribution that educational institution can make to the present and future progress of all democratic
nations is evident, and has been realize. And if this contribution is to be maintained or improved is
essential that research should be conducted in to its normal functioning and desirable solution for its
problems be found. In a normal routine day of a college, the teacher, principal and examiner have to
make certain decisions and to give practical form to such decision. What these decision should be,
how such decision are to be taken, and finally how are they to be given actual shape? Action research
can contribute useful information that can help in answering such questions. In modern colleges,
experiments are constantly being done and suggestions for solving problems are ever available.
Being a democratic nation, India too is seeing to it that the progress in the field of educational
research is made, particularly in the field of action research.
Applied research:
Applied research is concerned with the solution of particular problems. While basic research
discovers principals and laws, applied research discovers their application in order to solve some
social problems. Thus applied research is concerned with the applied aspect of life. In sociology,
it is generally carried out in the field of social, semi social, economic, socio physiological and
socio anthropological problems. Researches in the field of social planning, social legislation,
social hygiene, religion etc. are known as applied research. For example, research in the field of
family planning hence it certain applications some principles. Similarly, administrative plans
need applied research in order to find necessary theoretical basis. In fact, applied research gives
complete and valid information about the many facts of social problems. In order to solve socio
pathological problems, applied research is carried on together all sort of information about the
social maladies. Applied research is thus concerned with actual life. It discovers the what, how
and why of actual social life. Pointing out the importance of applied research Stouffer has rightly
pointed out that if sociology has to increase it importance, it should lay upon applied aspects. For
example; if the sociologist could point out as to how a guidance system may be useful in public
school, its social influence will increase and so also social sanction for its study. Thus applied
research is concerned with the research for amelioration of social problems. It removes so many
prejudices, preconceptions, and falls ideas. It suggests ways for solution of social problems.
Research proposal and synopsis:
Statement of problem.
Following are the different ways of stating the problems:
1- Posing a question:
(1) A single question
(2) Several questions,
(3) A single question followed by several sub-questions.
2- Making a declarative statement:
(1) A single declarative statement,
(2) A single statement with several phrases
(3) A series of complete statements
(4) A general statement followed sub-ordinate statements
(5) A statement followed by re statement in the form of question.
(6) A statement followed by series of thesis.
While choosing any of these ways one must remember that the question form has an advantage
in sharpening and focusing the issue. However, the declarative statements is more common. Both
the ways may be combined easily in an initial statement of the problem.
Hypothesis:
The word hypothesis is a compound of two words, “Hypo” and “thesis” and literally hypo means
under are below and thesis means a reasoned theory or rational view point. Accordingly
hypothesis would means a theory which is not fully reasoned. In other words, a hypothesis is a
theory entertained in order to study the facts and examine the validity of the theory.
Mill has defined hypothesis as “any supposition which we make (either without actual evidence, or
an evidence avowedly insufficient) In order to endeavor to deduce conclusions in accordance with
facts which are known to be real, under the idea that if the conclusions to which the hypothesis leads
or known truths, the hypothesis itself either must be or at least lily to be a true”. According to Coffey,
“a hypothesis is an attempt at explanation: A provisional supposition made in order to explain
scientifically some face or phenomenon”. And, according to Cohen and Nagel, “A
hypothesis directs our search for the order”. It is not essential for a hypothesis to be necessarily
true. In fact, hypothesis is a bridge in the process of inquiry or search which begins with some
felt difficulty or problem and ends without the resolution of the problem in other words of the
Cohen and Nagel, The function of the Hypothesis is to direct our search for the order among
facts. The suggestion formulated in the hypothesis may be solution to the problem. Whether they
are such is the task of enquiry. The truth of hypothesis involves observation, imaginative
thinking, anticipation and deductive verification.
Sources of hypothesis:
1- Observation:
Observation is a pre-condition of formulation of hypothesis. Unless we perceive a difficulty or
problem feel the inner goading for solving it, we do not reflect. Therefore, observation is the first
stage of hypothesis making.
2- Reflection:
Having felt a difficulty and need for a solution we consider the problem by perceiving the relevant
facts for example, we see a sea in the high tide and also find clear moon above. Now we anticipate a
relation which is based upon an experience, namely whenever there is full moon there is high tide
and never otherwise as far as our experience goes. Having established a relation between two facts
now we formulate an answer for the why this relation. This answer is hypothesis.
3- Deduction:
The third and last step in this process is examination of hypothesis for various deductions possible
from it and their mutual compatibilities and correspondences with already known facts. In other
words of Cohen and Negal, “from this analysis we may conclude that the deductive elaboration of a
hypothesis must follow its formulation. We can discover the full meaning of a hypothesis,
whether it’s a relevant and whether it offers a satisfactory solution of the problem, only by
discovering what it implies”.
4- Verification:
Actually, verification is post hypothesis formulation and, therefore , is not a step in its formulation
but in as much as our interest in making hypothesis is not purely academic or theoretical , we wish to
solve our difficulty; and this difficulty can be solved if we actually test our hypothesis.
Types of hypothesis:
1- Explanatory or descriptive hypothesis:
A hypothesis may be about the cause of a phenomenon our about the law of which it is an instance.
A Hypothesis is about cause is explanatory where as a hypothesis about law is descriptive.
2- Tentative hypothesis:
When a phenomenon cannot be fully understood because of technical difficulties we make

tentative hypothesis about it and see how far this is successful in enplaning. Sometimes we
simultaneously test to our more hypothesis the famous hypothesis about propagation of light,
namely, waive theory and corpuscular theory of light both explain the phenomenon of light but
none of them is final they are tentative.
3- Representative fictions:
According to Bain, “some Hypothesis consist of assumptions as to the minute structure and
operation of the bodies. Means. There only merit is there suitability to express the phenomenon”.
They are “Representative Fictions “. Einstein’s formula E=MC 2 is an instance of representative
fiction. The hypothesis is based upon imaginative reasoning and it primarily involves thinking
without the help of concrete instances. This is why hypothetical reasoning is abstract.
A hypothesis which proves to be correct becomes a theory or law. The law of gravitation was a
hypothesis in Newton’s mined, but when it proved to be true it became a law.
CHAPTER VIII
CONCLUSION
 Findings:
The jamhoor (majority) of schools of thought argue that khula is consensual between the husband
and the wife. In their view, a judge cannot dissolve a marriage by khula on the request of the wife
without the consent of the husband. On the other hand, Maliki jurists argue that the decree of the
arbitrators is valid whether they order separation or union between the two, and it neither requires the
consent of the husband nor of the wife. Maliki jurists and exegetes focus on verse 4:35 of the Quran
rather than verse 2:229. The Superior Courts in Pakistan have been more sympathetic towards
helpless women demanding khula as compared to courts in India. The Federal Shariat Court has
upheld section 10(4) of the Family Courts Act 1964 as not violative of the Injunctions of Islam. In
addition, it ruled that it is not bound by the opinions of Muslim jurists. The Council of Islamic
Ideology changed its views on the law of khula. The Council had a radical view in 2008-about khula
under Dr Khalid Masud, but it returned to the traditional view in 2015 under Mawlana Shirani. It is
surprising that neither the Superior Courts, nor the Federal Shariat Court have dug deeper into the
interpretation of verse 4:35 of the Qur'an as understood by numerous Maliki jurisprudents and
exegetes who do not give the husband any controlling power in khula.
There are two additional grounds available to a Muslim woman in Pakistan, i.e., that the husband has
taken an additional wife in contravention of the Provisions of the Muslim Family Laws Ordinance
1961. Another ground available to women in Pakistan is lian, when a husband accuses his wife of
Zina (adultery) the marriage is terminated by the court through a special procedure.
 Objectives:
 To prevent the end of justice and set limits according to the injunctions of Islam and
avoid challenges which women faces in granting khula.
 To provide justice according to necessity, maintaining marriage solutions according to
Islamic Law and legal system of Pakistan.
 To take out record of past cases which has bad impact and bring errors so as future usage
of the dissolution of marriage by Khula become remedial.
 References:
 Dissolution of Muslim Marriages Act, 1939.
 Articles relating to the topic.
 2015 SCMR 804 SUPREME-COURT
 2016 PLD 1 PESHAWAR-HIGH-COURT
 2015 YLR 1547 SHARIAT-COURT-AZAD-KASHMIR
 2016 YLR 371 SUPREME-COURT-AZAD-KASHMIR
 2015 YLR 2533 SHARIAT-COURT-AZAD-KASHMIR
 2015 YLR 1667 LAHORE-HIGH-COURT-LAHORE
 2015 PLD 216 LAHORE-HIGH-COURT-LAHORE
 2015 CLC 808 LAHORE-HIGH-COURT-LAHORE

Dissolution of Marriage & Its Effect in Society (SABA QADRI THESIS)

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Topic name Dissolution of Marriage & its effect in society

THE LAW OF KHULA IN ISLAMIC LAW

THE LAW OF KHULA IN THE LEGAL SYSTEM OF PAKISTAN

 Khula and the Superior Courts in Pakistan

CASELAWS RELATING TO THE TOPIC

2015 SCMR 804 SUPREME-COURT

2016 PLD 1 PESHAWAR-HIGH-COURT

2015 YLR 1547 SHARIAT-COURT-AZAD-KASHMIR

2016 YLR 371 SUPREME-COURT-AZAD-KASHMIR

Need for data collection

Methods of getting response

Selection and definition of problem

Social cultural context

Techniques of data collection

Importance of the study of historical material

Types of educational history

Legal research in education

Bibliographical and summarizing studies

Importance of action research

Research proposal and synopsis

Explanatory or descriptive hypothesis

 Pakistan Divorce Law:

 What are the ways marriage can be dissolved in Pakistan?

 What is meant by “Khula”?

Khula is a religious term for divorce at the instance of a woman.

distress who sought Khula.

 Husband’s Right Of Divorce Or Talaq And The Legal Procedure:

 Talaq-i-Tafweez and Mubarat (Mutual Divorce):

 Are Any Limits For Institution Of Divorce Suit?

 How Much Time Required For Getting Decree Of Dissolution Of Marriage?

 How Much Time Required For Getting Decree Of Dissolution Of Marriage?

 Wife’s Right of Divorce or Talaq:

 Desertion by husband for four years,

 Steps To Consider Before Divorce In Islam:

 Revocation of Divorce by a Husband:

Provided that the marriage has not been consummated;

(b) associates with women of evil repute of leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(e) obstructs her in the observance of her religious profession or practice, or

 Notice to Be Served on Heirs of the Husband When the Husband’s Whereabouts

Are Not Known.

According to section 3 of Muslim Marriages Act, 1939

In a suit to which clause (i) of section 2 applies:

(b) notice of the suit shall be served on such persons, and

 Effect of Conversion to another Faith:

 Right to Dower Not Be Affected:

THE LAW OF KHULA IN ISLAMIC LAW

 Khula and the Quran:

According to the collection of Abu Dawud, in which habiba's case is reported:

 Khula In The Hanafi School:

that it can be implemented without his consent.

According to 'Abdul Wahab Baghdadi:

 Khula In The Shafi School:

 Khula in the Hanbali School:

 Khula In The Shia School:

THE LAW OF KHULA IN THE LEGAL SYSTEM OF PAKISTAN

 Overview of Khula in Muslim world:

 Khula and the Superior Courts in Pakistan:

 The Traditional View:

CASELAWS RELATING TO THE TOPIC

 Citation Name: 2016 PLD 1 PESHAWAR-HIGH-COURT

Side Appellant: SAJED ULLAH