In a significant judgment, the Kerala high court ruled last month that when a Muslim husband refuses to accept his wife’s demand for divorce, “the court can simply hold that khula [divorce initiated by the wife] can be invoked without the conjunction of the husband” because a woman’s right to unilateral divorce “is an absolute right, conferred on her by the holy Koran and is not subject to the acceptance or the will of her husband”. The All India Muslim Personal Law Board (AIMPLB) disagreed, saying, “Khula is dependent on both husband and wife agreeing to end marriage after a woman initiates the proposal.”
Courts in India, therefore, must make the gender-neutral Koranic procedure of divorce — endorsed by the Supreme Court in the Shamim Ara case (2002) and the Shayara Bano case (2017) — applicable to both Muslim men and women. (Getty Images/iStockphoto)
The problem with outfits such as AIMPLB is that they think Islam’s egalitarianism is subject to the fickleness of patriarchal jurisprudence (fiqh) which, in this case, differentiates between divorce proceedings initiated by the husband and wife, by terming them talaq and khula respectively, in violation of the Koranic idea of gender equality. The word khula finds no mention in the Koran, although the term was in use during the Prophet’s time. A couple of questionable narrations (in Kitab al talaq of Tirmizi and Nasaa’i), in fact, deny women even this conditional right by stating the Prophet as having said, “Women who seek khula are hypocrites (al-mukh’tali’aatu hunna al-munaafiqaatu).”
While the decision of the high court on khula was right, I believe its reasoning has gaps. In justifying the Koranic right to khula, the judgment incorrectly describes verse 2:229 (which lays down some guidelines for divorce) as “the Koranic verse relating to khula” (p.10), and includes the term Al -Khul in its translation (p.5) when this word is not found in the original Arabic text. As is widely believed, the clause “paying for her freedom” (feemaa aftadat bihi) in 2:229 is not an allusion to khula, for it would amount to formulating a separate law that selectively imposes a financial cost on women to get divorced. Verse 2:228 rules out such a gender-biased interpretation by stating that women and men enjoy legal parity: Wala hunna mislul lazi alai hinna bil ma’aroof.
In reality, the “payment for freedom” is optional and comes into play, as the context of 2:229 shows, only when the divorce is initiated by men as an inducement to prevent them from keeping their wives in an emotional limbo by neither resuming conjugal relations nor divorcing them completely. If at all, it shames male high-handedness rather than indicating the legal inferiority of women.
The verdict also erred in presuming that the Koranic case involving Jamila and her husband Thabit adjudicated by the Prophet constituted “substantial law as far as khula is concerned” because Jamila willingly returned the garden gifted by Thabit. First, the Prophet did not call this termination khula. Second, it was not a case of unilateral divorce by Jamila because the Prophet’s clear instruction to Thabit, as quoted in Kitab al talaq of Bukhari, was to initiate the divorce from his side: “Accept the garden and divorce her once (Iqbalil hadeeqata wa tal’liqha tatleeqatan).”
From an Islamic perspective, a woman’s right to unilateral divorce is rooted in the fact that the Koranic procedure of talaq is not gender-biased. It holds good for women because marriage in Islam is a contract (meesaaqan ghaleeza) between equal parties and both have the same right to revoke it.
This fact is reinforced by verse 33:28, which instructed the Prophet to inform his wives about their options in marriage and facilitate an honourable exit (usarrih’kunna saraahan jameela) for them if they desired “the worldly life and its adornment” over a simple life with him. One of the Prophet’s wives, Hazrat Aisha, narrates how after the revelation of 33:28, he advised her to not exercise in haste her right to unilateral divorce and consult her parents, knowing full well that “my parents would never allow me to seek separation from him” (Kitab al talaq, Muslim). Indeed, the Prophet generalised 33:28 and gave a woman named Bareerah the liberty (khaiyaraha) to unilaterally divorce her husband Mughees despite his unwillingness (Kitab al itq, Bukhari).
Courts in India, therefore, must make the gender-neutral Koranic procedure of divorce — endorsed by the Supreme Court in the Shamim Ara case (2002) and the Shayara Bano case (2017) — applicable to both Muslim men and women. This would not only give back Muslim women their right to unilateral divorce but eliminate the unnecessarily debate of definitions of terminologies such as khula used by patriarchal theologians to perpetuate male superiority.
A Faizur Rahman is an independent researcher and secretary-general of the Islamic Forum for the Promotion of Moderate Thought The views expressed are personal
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