Apr 21, 2018

Dissolution Of Marriage Contracted Under Islamic Law | Zeniath Abiri




There are two major ways through which a marriage contracted in line with Sharia or Islamic principles, can be dissolved, which are;

1.     Talaq and

2.     Khul’u.


In view of the fact that the second method of dissolution of marriage is less discussed and consequently, less known in this part of the world when compared to Talaq, focus shall be on Khul’u in a bid to shed more light on the subject..

The Khul’u System of Dissolution of Marriage.

Khul’u means the dissolution of a marriage, usually on the giving of  something of value, by the wife, to the husband. It is initiated at the instance of the wife, against her husband, where she is so unhappy in her marriage, or the relationship between her and her husband, is so strained, that a harmonious relationship between them, as spouses, is impracticable. Certain scholars take the position that for Khul’u to be effective, the dissatisfied wife may, as consideration for the divorce, surrender the dowry and other material gifts, where necessary, to her husband, to compensate him for his material losses. The husband on the other hand, may, if he likes, waive his right to compensation, and simply agree to divorce her. Once Khul’u occurs, it is an irrevocable form of divorce. This system of divorce is sometimes referred to as ‘Khula’.

The most well-known story that references khul'u and serves as the basis for legal interpretations, is the story of Jamilah, the wife of Thabit ibn Qays:

1.     Narrated Ibn 'Abbas: The wife of Thabit bin Qais came to the Prophet (PBUH) and said, "O Allah's Apostle! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner if I remain with him." On that Allah's Apostle (PBUH) said to her, "Will you give back the garden which your husband has given you as Mahr (dowry)?" She said, "Yes." Then the Prophet (PBUH) ordered to Thabit, "O Thabit! Accept your garden and divorce her once." See  http://www.searchtruth.com/book_display.php?book=63&translator=1&start=0&number=197

There are two principal ways for a wife to achieve divorce through Khul’u;

(i)                 She informs her husband that she no longer wishes to remain in marriage with him; and requests that he divorce  her.



(ii)               If her husband is not willing to grant her a divorce, the wife is well within her rights in Shariah, to approach a Sharia Court and present her divorce case to the Kadi (Shariah Court Judge) The Judge would then summon the husband and ask him to declare a divorce upon his wife and free her from the marriage. If the husband for any reason refuses, the Sharia Judge, irrespectively, may declare a divorce between the husband and the wife of the marriage, if he is satisfied that peaceful coexistence in matrimony, cannot be achieved by the parties.



Once the wife expresses her desire to exercise her right under Khul’u, two circumstances may arise,

1.     Both the husband and wife mutually decide to divorce or the wife wants it, and certain conditions are agreed upon, between the couple. In this case, the couple need not have recourse to law, as it is enough to meet these conditions, and then for the couple to pronounce that they are now divorced from each other.

2.     A wife wants it, but the husband is reluctant, and insists on the subsistence of the marriage, despite the wife’s resentment to it. In this latter case, the wife may proceed to the Sharia Court, and have her petition for the grant of khul’u, heard. The following questions must be resolved;

-         Can anything be done at all, to salvage the marriage?

-         Is the wife entitled to such separation? If so, under what circumstances?

-         Can the Khadi (a judge of the Sharia Court) dissolve the marriage, despite the husband’s insistence on its continuance?

·        Because the laws of khulΚΏu in particular cannot be found in the Qur'an directly, a Sharia court judge must discern from Hadith and Islamic jurisprudence historical cases what they believe to be valid reasons for this system of divorce. See Macfarlane, Julie Islamic Divorce in North America: A Shari'a Path in a Secular Society Oxford: Oxford University Press, 2012, p. 168-9.



In Usman v Usman (2003) 8 NWLR (Pt. 208) 253 CA @ pp 129 – 130 paragraphs H – D, the wife requested a divorce due to cruel conduct by the husband. The husband refused to agree to the divorce and the Kadi dissolved the marriage and ordered the wife to refund the estimated amount of the bridal gift and marriage expenses. The Court of Appeal affirmed the divorce.

 It must be noted that a kadi cannot compel a wife seeking divorce through khul’u, to explain her reasons. Though it is desired that she does, it is enough for her to state that she is discontented with her marriage and is no longer interested in continuing with the marriage relationship. The kadi will grant divorce, if he is satisfied that harmonious co-existence between the couple is no longer feasible or the continuance of the union is strongly resented by the wife, and/or that the couple would transgress the bounds of Allah, if the divorce is not granted.

Issues that are Usually Considered, Upon a Petition for Khul’u.

Compensation:

While many scholars agree that the man is not entitled to more than the initial amount of dowry (mahr/dower), given to the wife at the time of celebration of the marriage, others do not think he is entitled to any compensation at all while a few think he is entitled to more, especially where the wife has attained a certain higher social status or is in a better financial standing, by reason of the marriage. But what has been applicable in Nigeria, is that the woman returns the dowry along with other wedding gifts, given to her, by her husband. A considerable number  of scholars have said the principle of compensation is to apply, only when the husband is not at fault. They base this idea on the fact, that Islamic law does not help the transgressor or wrong doer, and that the law leans in favour of the party who is less at fault. I tend to agree more with this group of scholars.

Another scenario that occurs under this head, is where the unwilling husband to divorce, requests an unreasonable financial compensation, as in the case of Usman v Usman (supra), where the husband was requesting for half a million Naira as compensation.

Custody:

·        Usually, the issue of custody of the children of the marriage, is resolved in favour of the woman. The man is still expected to provide child care and support, unless the woman declines this and can afford to care for the children, without their father’s help. Once a child is old enough, he is given the choice of determining who has custody. See Welchman, Lynn (1998). Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy. Amsterdam: Amsterdam University Press p. 121.



Iddah:

When a woman is granted a divorce through khul’u, she is required to enter a waiting period, known as iddah. The waiting period (usually three months), is observed before she can remarry, to ascertain whether she is pregnant and where she is found to be pregnant, avoid controversy as to the paternity. If the wife who has successfully exercised her rights under the khul’u system, finds that she is pregnant, she must be delivered of the baby before she can be totally free to remarry. See Tucker, Judith E. (2008). Women, Family, and Gender in Islamic Law. Cambridge: Cambridge University Press, p. 100-101.

Another way through which a woman may divorce her husband, in islam, is known as tafwid. It is a less common system in Nigeria and involves the husband handing over the power of divorce, to his wife. He may use words like, “I permit you to divorce yourself from me” or “I hand over to you, the power of divorce”. The wife, where she accepts it, is expected to say immediately (or a short time thereafter, but no longer than the next day), “I divorce myself from you”. This option is usually exercised by the husband, where he does not want the society to look down on him, for divorcing his wife. It may also be exercised by him, when the wife requests for it. In the latter case, it becomes a form of khul’u.

In conclusion, though many may not know this, the khul’u system of divorce is the most common form of divorce in areas where the Sharia Law is applicable, in Northern Nigeria. See Nasir, Jamal J (2009). The Status of Women Under Islamic Law and Modern Islamic Legislation. Brill. p. 130 ISBN9789004172739.

Zeniath Abiri
Abiri & Mustafa LP
Source - LinkedIn
Photo Credit - www.muslimvillage.com 
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