By Davina Kanani
This question and its answers are much more complex than meets the eye. There are key principles that need to be understood from an Islamic perspective before answering this question. On the face of it, it seems as though the answer would be pretty simple, but in actual fact it is multifaceted. We will explore in detail each aspect that is relevant to provide a comprehensive article regarding this matter.
In order for this question to be answered properly, it must be stated that in a typical divorce it is obligatory for the husband to give the mahr (or the like) once the marriage has been consummated; in the case whereby the marriage has not been consummated but the couple have been in seclusion/isolation (Khalwa Sahiha) then again, the mahr is obligatory on the husband to be paid. Additionally, if the marriage has not been consummated, it is stipulated in the Qur’an that the husband is to give half of the mahr to the wife upon divorce. [Qur’an:2:237]
To begin, we must understand that when a divorce is initiated by a woman in Islam it is not treated the same as when a man initiates it. This does not mean that they are not equitably the same, however, it is judicially different. There are few types of divorce in Islam; Talaq, Khula, Faskh e Nikah and Tafweed e Talaq. In particular for this question, we are looking at Khula and Faskh e Nikah - both will be discussed in depth. However, it must be noted that throughout the entire process of separation and divorce, Islam has from the outset encouraged reconciliation and placed specific emphasis on the importance and strength of the family structure.
Khula is considered to be a no-fault divorce process in which both parties are appeased.
Firstly, we will look at Khula and apply this scenario to the question being asked to provide a reasonable solution. Khula is the legal process by which a woman seeks divorce from her husband, and she is willing to give back or forgo the mahr in order for the divorce to proceed. The husband in this instance would, upon return of the mahr or its reservation, agree to grant the divorce by means of Talaq. The particulars of this legal process are outlined in the authentic narration of the Prophet Muhammad ﷺ whereby the wife of Thabit ibn Qais came to seek separation from her husband when there was no fault upon either of them. The Prophet asked if she would return the mahr she was given and she agreed resulting in the Prophet requesting for Thabit to divorce her amicably. [Sahih al Bukhari:5273] Khula is considered to be a no-fault divorce process in which both parties are appeased. [Qur’an 2:229]
Next, the process of Faskh e Nikah must be explored as this would most likely be the development that has caused this question to arise. Faskh e Nikah is relatively modern in its concept and therefore the rulings are slightly more ambiguous. This divorce is granted through a third party, in the case of those seeking this course of action in the UK it would be brought forth before a Shariah Council. The reason for this is that the Islamic legal process for this situation would require there to be judgement on whether or not there has been some sort of breakdown of the marriage. The burden of proof falls on the one seeking divorce to show that Shiqaq (irretrievable breakdown of the marriage) has taken place. This can be done by showing that there has been ill treatment (including violence, abuse, and cruelty) on the part of the husband; the husbands disappearance; serious disharmony between the husband and wife; husbands’ failure to provide adequate maintenance despite capability; neglect of marital obligations by the husband; deception and the list can get quite extensive, but these are examples. Once this has been established, the judge (Qadhi) can dissolve the marriage, yet in light of the jurisprudence surrounding this particular area of Islamic law, it is imperative that the judge enlist arbitration for reconciliation. It must be noted that even though this is an obligation of the Shariah Council to engage in, it is still within the rights of the wife to refuse when serious discord has been proven and she does not wish to reconcile. The judge (Qadhi) will then be able to grant a dissolution of marriage based on the grounds of the husband not fulfilling the rights and responsibilities set forth in Islam of his role in marriage. It should be noted, however, that Shiqaq can take place on the part of the wife as well as this is not limited to the husband but the process of divorce for men is different.
. If need be, then a wife should know that the option of Faskh e Nikah is open to her...
For this question, it is clear that if the husband decides to follow the best way as illustrated in the Qur’an and Sunnah, he should grant his wife the divorce by way of Khula in order to reach a good-natured end to the marriage. If need be, then a wife should know that the option of Faskh e Nikah is open to her and that she is able to utilize this in the UK in front of the Shariah Council. It needs to be noted that as mentioned earlier in this article a Faskh e Nikah requires a Qadhi (judge) which many Shariah Councils do not have access to. A judge in Islam goes through a lot of due processes and there are many faculties that must be mastered not merely studied before one can become a Qadhi in the eyes of the Shariah. Due to this, there is a reluctance amongst these cases to label these types of divorce as Faskh e Nikah and instead they are generalised under Khula. This is incorrect in regard to the Shariah as the Law that has come from Allah is complete and perfect, however, it is us as Muslims who are not currently in a position to properly uphold the procedures of Shariah in countries that do not have access to such levels and forms of knowledge that are required for those who can carry out such rulings. In this regard, many divorces granted under Khula are then not provided with the correct understanding which should be that of Faskh e Nikah and situations to do with mahr are then not carried out correctly.
There are several experts in the legal industry here that specialize in Islamic Law and are able to handle queries and cases of this nature, and these should be used by those seeking to end marriages after having exhausted all other avenues.
Sahih al Bukhari
Al Mukhtasar al Quduri
Ghayat at Taqrib
Muslim Women’s Network UK have produced a resource for those who want further information on Muslim marriage and divorce, their rights and how to navigate the process.
You can also speak to someone on the Muslim Women’s Network Helpline
Raise your voice and get connected