2009: (1) Khula form of divorce in: Hanafi law; Maliki law; Egyptian law; Pakistani law.

 Role of Khula in traditional law_consensual divorce

 Consensual role only role played in Hanafi law
 Consensual role only role played in Maliki law, but Malikis also recognize judicial Khula:
9.3 subject guide.
 Change effected in Egyptian law by Law 1 of 2000, which after certain formalities
allowed divorce by Khula.
 Pakistan: differentiate between grounds of divorce under DMMA 1939; changes through
case law, namely Khurshid Bibi case of Supreme Court; Recent developments of
Pakistani courts.

(2) Right of husband to repudiate wife by talaq been restricted by modern reforms?

 Traditional law of divorce by all schools and sects: husband has unfettered right to
repudiate wife at will without recourse to court.
 Countries of Muslim world have imposed restrictions upon husband’s right of
repudiation.
 Attitude of Islam if husband abuses right of divorce
 Differences between Sunni and Shia law on Talaq; tendency of legal reform to adopt
changes consonant with Shia theory
 Specific examples of measures to curtail right of husband to divorce.
 In more jurisdictions, Talaq becoming judicial matter.

2008:
No Examiner Report available:
(1) Right of husband to repudiate wife by Talaq in Sunni law; Shia law; Tunisian law; Pakistani
law.

(2) Right of Hanafi wife to obtain judicial dissolution of marriage extended by legislation in
Muslim world?

2007:

(1) Explain the role of Khula in Hanafi law; Maliki law; Egypt.
 Distinguish between judicial Khula in Maliki law and judicial divorce.

(2)Husband’s right to divorce by Talaq restricted by legislation in Tunisia and Pakistan.

 Traditional Rules of Talaq and MFLO in Pakistan and then Tunisia.

2006:

(1) Marriage in Islamic law not a sacrament but contract which can be terminated.
 Contractual nature of marriage; how it is concluded.
 Contract can be terminated unilaterally by husband without showing cause or by
consent of parties.
(2) Right of wife to obtain dissolution by judicial Khula under laws of Pakistan and Egypt.
 Discussion of judicial Khula and role in Maliki law
 Khursheed Bibi
 Law 1 0f 2000 of Egypt; MFLO in Pakistan; Comparison.

2005:

(1) Under contemporary legislation of many Muslim countries, husband’s right to divorce
restricted, not removed.
 Husband’s right under traditional law by Talaq.
 How in many jurisdictions right has been restricted and its effects.

2004:

(1) Khula concluded by mutual consent of husband and wife.

(2) Husband has unfettered right to divorce his wife. Aim of reformers to restrict this right.

2003:

(1) Right of Muslim wife to obtain divorce under Hanafi law; Maliki law and law of Egypt.

(2) Husband’s unfettered right to repudiate wife curtailed by legislation in Pakistan.

2002:

(1) Aim of law reform to increase wife’s right to terminate marriage.

(2) Husband’s right to repudiate wife at will according to traditional Islamic law; how has it been
restricted by legislation in Middle East.

2001:
(1)Contrast right of Maliki wife to obtain judicial dissolution with the law of other three schools.

(2) Prime target for reform is husband’s unfettered right to repudiate wife.
 Recent legislation and judicial reform must be mentioned.

Under Shariah law, marriage can be dissolved during the lifetime of the parties. Modern
legislation recognizes that divorce may be effected by one of the following methods:
 1. Talaq: A repudiation of the wife by the husband
2. Khula/Mubarat: By mutual consent
3. Faskh/Judicial dissolution: A decree of the court dissolving marriage.

Under traditional law/schools, three additional forms/methods of divorce are recognized but
which have now become virtually obsolete:

4. Zihar: Injurious assimilation: the husband compares his wife to a female relative
within the prohibited degrees of relationship.
5. Ila: Where the husband makes an oath of abstention from his wife for four months.
6. Lian: Where the husband affirms under oath of abstention that his wife has committed
adultery and that the children born of her are not his, and she affirms by oath to the
contrary.

(1) Talaq

 The most common method of dissolving a marriage is by the husband pronouncing

repudiation of the wife, known as talaq. According to 2: 237 ‘In his hand is the knot of
marriage.’ Men are in a capacity of responsibility and leadership, hence the right of
divorce lies primarily with them. Underlying ethical voice in law of divorce that men
should keep this responsibility in mind when exercising these rights.
 Divorce is discussed in Surah Talaq, Surah Baqra and Surah Ahzab of the Quran.
 All schools and sects give the husband the right to unilaterally terminate the marriage at
his will, without showing cause and without recourse to the court.
 He must be major, sane and in his senses.
 Sunni law does not require the presence of wife herself or witnesses for talaq to be
valid. Shia law requires talaq to be declared orally, in the presence of two witnesses,
with the exact terms being used, and a definite intention to repudiate the wife.
 According to Sunni law, talaq is classified into 2 categories: (1) Talaq in accordance
with the Sunnah, or Talaq al-sunnah (i.e. the Quranic verses on talaq) and (2) Talaq in
the bid’a form.
 (1) Talaq in accordance with the Sunnah will be considered first. It has two further
categories: (1) the most approved form or ahsan, (2) the good form or hasan.
 In an ahsan talaq, the husband pronounces a single talaq when the wife is in the so-
called period of purity (i.e. when she is not menstruating). Immediately after that the
wife begins the iddat period which continues for 3 months, or if pregnant, until the
delivery of the child. While the iddat is continuing, the husband may revoke the
repudiation either expressly or impliedly and take back his wife. If however, the iddat
expires and husband has not revoked his talaq, the repudiation becomes irrevocable to
the lesser degree, which means that the parties can choose to remarry by a new
contract if they may wish to. During the iddat period, the husband is obliged to maintain
his wife. If either spouse party dies while the wife is still in iddat, the other will inherit
his/her Quranic portion.
 The hasan talaq is also effected in accordance with the Sunnah and is good, but less
approved than the ahsan form. In this form, the husband pronounces three repudiations
during three successive periods of purity. The law allows a husband to repudiate his wife
 three times only. Once he has pronounced his 3 talaqs, his wife is irrevocably
repudiated to the greater extent. This means that she can only remarry her husband
after an intervening marriage to another man. If the husband elects to revoke his talaq,
he can do so unless it is the third of the 3 pronouncements. During the iddat following
the third talaq, neither party has inheritance from the other, and only Hanafis believe
that husband is still under duty to maintain his wife.
 Ithna’asahris sect:- They only recognize as valid, the talaq al-Sunnah, i.e. the approved
and good form. They also require that (1) a precise set of words be used and (2) 2 male
adult Muslim witnesses of good character are present when the pronouncement of
talaq is made.
 (2) Talaq al-bid’a: It is an effective and valid form of divorce recognized by Sunni law,
although it is considered to be morally reprehensible. The most prevalent form of talaq
al-bid’a is the (1) triple repudiation, whereby the husband pronounces three talaqs at
the same time, and irrevocably repudiates the wife; making the divorce effective
instantly. Other forms of talaq al-bid’a are (2) repudiations suspended on a condition,
that would be used as threats by husbands. For example, a condition could be that the
wife is forbidden from leaving the house otherwise the marriage is dissolved. Or (3) a
single irrevocable pronouncement generally given in writing. Such a bill of divorcement
comes into operation immediately and severs the marital tie. According to Tyabji, the
sinful or abominable forms have become the most common, for men have always
moulded the law of marriage so as to be most agreeable to themselves.
 In many countries of Muslim world today, reforms have been promulgated in the law of
personal status that provide that the triple talaq shall only take effect as one talaq. The
effect of these reforms is to make almost all repudiations except the third, revocable.
Tunisia alone requires the husband to go to the court to obtain a divorce. In India no
reforms have been effected in this area;
 In Pakistan and Bangladesh s7(1) MFLO 1961 provides that: (1) any man who wishes to
divorce his wife, after the pronouncement of the talaq, give the Chairman of the union
Council notice in writing and supply copy to his wife. (2)Whoever contravenes this
provision is liable for imprisonment up to 1 year or Rs. 5000 fine, or both. (3) A talaq
shall not be effective until expiration of 90 days from day of delivering notice to the
Chairman.
 Supreme Court of Pakistan decided in Ali Nawaz Gardezi v Mohammad Yusuf (1963)
that the notice to the chairman was mandatory and a divorce pronounced would be
without effect if the required notice was not given. This decision still binding in
Bangladesh. The SC has in Farah Naz v Judge Family Court (2006) upheld the earlier
decision, that as no notice had been sent to the arbitration council or the wife, an oral
declaration of talaq would not be valid and binding.
 However, the Federal Shariat Court decided in Allah Rakha v The Federation of
Pakistan (2000) that s 3 of the MFLO 1961 was repugnant to the principles of Islam and
declared it void. Accordingly from 31st March 2000 a divorce will be effective even if no
notice is given. However, it appears that the penal sanctions for failure to give notice
remain in force.
 However, a line of cases in the 80s also follow the argument that notice is not essential
for a valid talaq. With the birth of the Zina Ordinance in 1979, husbands who had
divorced their wives but not served notice to the Chairman would after some time
 allege that they had not divorced their wives and that they were thus, guilty of Zina
along with their new husbands.
 Delegated Divorce or Talaq-e-Tafwid: The husband may delegate his right of
repudiation to his wife so that she can divorce herself. If an option is given she must
exercise it immediately unless the husband specifically grants her extended period of
time in which to exercise it. He may also grant this option of divorcing herself upon the
happening of a specified event, e.g. upon his taking another wife without her consent.
Once this event occurs, the wife may choose to exercise her right of divorce or not as
she wishes. She has to clearly establish that the events entitling her to exercise her
option have occurred and she has exercised it. Such a stipulation has been held to be
valid and irrevocable. This form of delegated divorce is the most potent weapon in the
hands of a Muslim wife to obtain her freedom without the intervention of any court and
is beginning to be fairly common in India.

(2) Khula: Divorce by Consent ( V Imp. Sure Question)

 Prior to Islam the wife had practically no right to ask for divorce; it was the Quranic
legislation 2:229 which provided for this form of relief. The two essential conditions are
(1) consent of the husband and wife and (2) as a rule, Iwaz (return, consideration)
passing from the wife to the husband. If the desire to separate emanates from the wife,
it is called Khula; but if the divorce is effected by mutual aversion/hatred (and consent)
it is known as mubara’at.
 Khula is concluded by an offer usually made by the wife( although it could rarely be from
the husband), along with certain sum of money, usually part or whole of the dower, in
consideration of her husband releasing her from the marriage. The wife may retract the
offer at any time before acceptance is made. If the husband, very rarely, offers to
repudiate his wife, he will have to pay compensation which must be of value; according
to the Shafis compensation must be monetary. .One of the earliest instances raising a
case of khula is the Moonshee Buzulur case (1861) of the PC.
 Shia law requires presence of 2 male witnesses and it must be unconditional.
 A divorce effected by khula/mubara’at is immediately irrevocable but to a lesser
degree. Marital life cannot be resumed by mere reconciliation; a formal remarriage is
necessary. Iddat is incumbent on the wife and the wife and children are entitled to be
maintained by the husband during that period.
 In Maliki law, khula may also be effected by judicial decree. It has proved to be an
inspiration for many reforms with the result that judicial khula can be obtained in many
parts of the Muslim world.

(3) Judicial Divorce/Faskh: (This part will form a part of your Khula answer in the exam
because it is stressing constantly on increasing wife’s right of dissolution of marriage_
judicial khula and reforms along those lines! Keep reading to understand)

 Primary right to terminate marriage lies with husband at his will. The wife can only
terminate the marriage unilaterally if she is delegated the power to do so by her
husband. Other than this, a wife who wishes to end an unhappy marriage must seek
dissolution from the court. Authority for faskh in the Quran is 4: 35.
 Hanafi School: It is the most restrictive towards women in matters of divorce. It allows
a wife to obtain dissolution only if her husband proves unable to consummate the
marriage. Once consummated, a Hanafi marriage may not be dissolved at the instance
of the wife. It was the unfortunate position of Hanafi wives in the Ottoman empire
(whose official law was of the Hanafi school) which caused promulgation of first reforms
in the law of personal status.
 Other schools of law recognize the husband’s inability to consummate as a valid
ground, as well as a husband suffering from 1) insanity, 2) leprosy or 3) venereal disease.
 Malikis, Shafis and Hanbalis more favourable to women. Besides husband’s physical
defects they recognize other grounds for which divorce may be granted, such as 1)
failure to maintain and 2) desertation for prolonged period usually 60 days. (Hanbalis
don’t accept the last). Hanbalis also allows wife to obtain judicial divorce if her husband
is in breach of stipulation inserted in marriage contract.
 Malikis most liberal with regard to wife’s right to judicial divorce. However, when the
Maliki court grants the wife a decree it does so by pronouncing an irrevocable talaq on
behalf of the husband, thereby continuing the legal fiction that it is the right of the
husband alone to terminate the marriage.
 It gives the woman the right to obtain divorce on the ground of dharar (harm or
prejudice). If she is unable to prove her claim that continuing to live with him is causing
her harm but persists that there is discord/conflict between them, then the Maliki court
will reconstitute itself into an arbitration tribunal. Two arbitrators will be appointed: 1
from wife’s family and 1 from husband’s family. The arbitrators must first attempt with
the judge to bring about reconciliation between the parties. If their attempts fail, they
must then hear evidence of both parties and establish which of them is primarily
responsible for breakdown of the marriage. If it is found that the husband is primarily
responsible, the tribunal will pronounce an irrevocable talaq. If they find that it is the
wife who is at fault, they will pronounce a repudiation in return for the giving of
compensation by the wife to the husband. This is a judicial khula.
 Reforms have taken place in many countries of the Muslim world, extending the right
of a wife to divorce; their inspiration being the Maliki doctrine. In the largely Hanafi
Indian subcontinent, the DMMA 1939 Art 2 gave wives ten grounds based on Maliki law
to dissolve their marriages at their instigation. The Act also gives the wife the right to
petition for divorce on ‘any other ground which is recognized for the dissolution of
marriage under Muslim law.’
 The MFLO 1961 added a further ground, allowing a woman whose husband took a
second wife without complying with the provisions of the Ordinance to obtain
permission from the Union Council, to obtain divorce.
 The decision of the Supreme Court of Pakistan in Khurshid Bibi v Mohammed Amen
(1967) granted women a further ground for divorce by extending the role of khula. The
court referred to the wording of Quranic verse 2:229 and held that if the judge found
that the parties to marriage could ‘no longer live within the limits prescribed by Allah’
the court could dissolve the marriage by means of a judicial khula.; thus, requiring the
wife to return the dower to her husband and all other benefits which she received from
the marriage. Similar principles reiterated in Aurangzeb v Gulnaz (2006). The Khurshid
Bibi decision gave Pakistani women the right to petition the court for divorce if the
marriage had irretrievably broken down, although it was for the court to decide. If a
Pakistani wife was dissatisfied with her marriage, but unable to prove a matrimonial
 offence in accordance with the provisions of the DMMA 1939, a chance was given to her
to gain her freedom. Contrast from,
 In Naseem Akhtar v Mohammad Rafique (2006), a woman sought khula on the ground
that she developed such hatred for her husband that she ‘would prefer to die rather
than live with him.’ The mere fact that the wife filed a suit for dissolution showed her
degree of hatred and aversion. Now, the courts must grant a khula to a wife who seeks
it as the mere fact of asking for it is evidence of hatred, and according to Khurshid Bibi
the wife no longer has to prove it impossible for parties to live within limits of Allah.

 The law of Tunisia has conceded the most rights to women. A Tunisian wife has been
given the power of Talaq so that she may unilaterally terminate her marriage at will, but
the pronouncement of talaq must be made in a court of law. Just as the court may order
a divorcing husband to pay compensation, the court may similarly order a wife who is
divorcing her husband frivolously to pay him compensation, usually the return of the
dower.
 Significant change witnessed in the law of Egypt. Law 1 of 2000 provides that if the
husband and wife are unable to agree to a divorce by mutual consent, the wife may
petition the court to grant her judicial khula in return for relinquishing her financial
claims and returning dower to husband. Before divorce is granted, the court must
attempt to bring about reconciliation, but if after three months no hope, and the wife
formally declares that a life with her husband is repugnant to her and she cannot
continue to live with him within the limits prescribed by Islam, the court must grant her
a judicial khula.
 Comparison of Egypt and Pakistan: Thus, the law of Egypt is more favourable to
women seeking dissolution of her marriage by means of judicial khula than the law of
Pakistan. Under Egyptian law, it is the woman herself who declares before the judge
that she cannot live with her husband within the bounds of Allah, after which the judge
cannot refuse her the divorce. In Pakistan, it is for the court to decide if in the
circumstances of a particular case the parties can no longer continue to live together as
husband and wife without transgressing the bounds prescribed by Allah.
 In Iran in accordance with the provision 1130 of the Civil Code, the Court may grant a
wife divorce if she is able to prove that she is suffering harm from the continuation of
the marriage.
 Qatar: Amiri Decree 22 states that if the parties cannot agree on khula, the judge
appoints arbitrators to attempt reconciliation. If after 6 months no hope, and wife
renounces all financial rights and dower, court will grant divorce There is no provision
that judge must be satisfied that parties can no longer live within limits set by God.
 Morocco: Divorce firmly in hands of husband. New Code of 2004 allows divorce on
grounds of ‘discord’ between the parties. It benefits wives who plead discord which
cannot be resolved by reconciliation to be granted a divorce by the court. Court
considers conduct of both parties and orders appropriate compensation to injured
party.
 UAE: Federal law of Personal Status 2005: Stipulations may be inserted into a marriage
contract and either party may petition for divorce if the other has broken a stipulation.
Triple talaq is considered as a single talaq. Right of wife to divorce extended and
includes divorce on grounds of husband’s infertility, adultery or false representation.
 Obsolete/ virtually extinct methods of effecting divorce recognized by traditional law
and initiated by the husband. So you could mention them briefly at the end of your
answer concerning the husband’s right of divorce: Do v briefly!
 (1) Ila: husband takes oath that he will refrain from sexual intercourse with his wife for 4
months. If after 4 months, he fulfills his oath, marriage is dissolved in Hanafi law. Under
other schools and Shia law, wife may apply to court which will order the husband to
resume sexual relations or divorce wife otherwise court can pronounce talaq on his
behalf. Preserved in Morocco, Kuwait, Libya.
 Zihar: Husband compares wife to female kinswoman within the prohibited degrees of
relationship. The most usual practice is for husband to compare his wife to the back
(zihar) of his mother. Sexual relations between both spouses becomes unlawful until
husband makes expiation by fasting, providing food or freeing a slave. Malikis hold zihar
results in termination of marriage if no expiation made and sex not resumed.
 Lian: The husband accuses his wife of committing adultery and denies the paternity of
the child to whom she has given birth. He takes four oaths, the wife then takes four
oaths that husband is lying. According to Maliki, Shafi and Shia, this process
automatically terminates the marriage. Hanafi and Hanbali say judge will ask husband to
repudiate wife, and if he refuses then he himself dissolves marriage. Preserved in
Yemen.