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Saturday, July 6, 2024

The dynamics of Judicial Khula In Pakistan

Judicial Khula is one of the many options available to women in Pakistan; however, what exactly are its parameters and ambit? Does it have any proper case precedents?

The Judicial Khula is perhaps one of the most common methods of the dissolution of marriage, second only to the unilateral talaq in Pakistan. Yet, for women at the point of desperation in an abusive marriage, it is little more than a quick fix at the cost of their legitimate rights.

Continued application of Judicial Khula in Pakistan

Jurists derived the system of khula from the sources of sharia as a means by which a woman may be released from a relationship by returning to the man what he had given her (normally, the amount of mahr) in return for him divorcing her.

Evidently, a financially unsound woman is disadvantaged in this sense, for how does she purport to compensate her husband and release herself from the unhappy union?

Read more: Family Laws in Pakistan: Dissecting the Procedure

In addition, according to all schools of Islamic Law, aside from the Maliki, a judicial khula can only be generated out of mutual consent of both husband and wife. Of course, a good majority of Pakistanis are Hanafi, so here again appears a prominent dilemma; what is the woman to do if her husband refuses to let her go? Nonetheless, contemporary Pakistan allows more flexible grounds for dissolution of marriage.

Case law and statute on Judicial Khula in Pakistan

The court in Naseem Akhtar v Rafique, for instance, allowed judicial khula when the wife had “developed such hatred for her husband that she would prefer to die rather than live with him.”

In fact, in the case of Abdul Majid, the court held that judicial khula does not even require the proof of any specific or tangible grounds and that failure to prove the grounds alleged in a divorce petition does not preclude the granting of a judicial khula.

When khula was rejected on the same grounds, the High Court argued that she had been denied judicial khula on illegal parameters, and effectively allowed the khula

The Marriage and Divorce Laws of Pakistan – with specific reference to the judicial khula – can hence be seen to lean in favor of its women.

Why Pakistani women prefer Judicial Khula

A prominent reason why Pakistani women may prefer khula over other means of dissolution is that it demands no strict formalities, nor words or particulars. In fact, if the husband first offers to release his wife on the basis of khula, but later denies that he intended to divorce, the khula will be valid on the basis that the intention was expressed.

In both Balqis Fatima and Khurshid Bibi, the courts held; “what is required under law is that the court should satisfy its conscience as to whether or not the wife is genuinely determined to get her marriage dissolved by returning the benefits of the husband.”

Read more: India’s Supreme Court Strikes Down ‘Instant Divorce’ for Muslims

Justice Iqbal reiterated that grounds or causes for the wives’ aversion to their husbands were irrelevant in the context of judicial khula. He asserted how “it is not necessary on the part of the woman to produce evidence of facts and circumstances to show the extent of hatred to satisfy the conscience of the judge.”

There are provisions that allow a woman to seek divorce if she has suffered harm, yet this type of divorce may take upto five years. In such circumstances, women often make considerable financial and personal sacrifices in order to negotiate a release from a marriage.

They may give up money, property or even child custody rights in an out of court settlement in exchange for a divorce which will be registered as a unilateral divorce by the husband. The establishment of khula as a simply regulated procedure that allows a woman to seek divorce on the grounds that she does not wish to remain married to her husband is therefore, nothing short of revolutionary.

What is important is that the laws pertaining to marriage and divorce have been effectively codified within relevant statute

There have been Pakistani cases where the inability of a judicial divorce was mitigated by allowing the judicial khula, instead, eg. in the Abdul Majid case above, as well as in the Bashiram Bibi case where the suit for divorce was dismissed by the family court for lack of evidence.

When khula was rejected on the same grounds, the High Court argued that she had been denied judicial khula on illegal parameters, and effectively allowed the khula. In fact, there have also been cases where the nonpayment/return of dower or compensation to the husband has not invalidated the judicial khula (see Aurangzeb v Gulnaz), and this clearly makes matters easier for the woman.

The way forward

In essence, the quick and simple nature of the judicial khula in Pakistan allows its women to do away with an unhealthy marriage at their own terms. Of course, instances of delay prevail, yet these are entirely procedural matters.

Read more: Pakistan’s judicial mind thinks ‘justice rushed is justice crushed’

What is important is that the laws pertaining to marriage and divorce have been effectively codified within relevant statute, and their leverage in allowing the khula despite nonpayment only reflects how the system of Judicial Khula in Pakistan is pro-women.