FSC declares women's right to khula as absolute

The Federal Shariat Court (FSC) has held that the right of khula granted to women by the Holy Quran and Sunnah is an absolute and unique right, whereby a marriage can be dissolved through a court at her will.

In a 13-page detailed verdict, Justice Dr Syed Muhammad Anwer ruled that a wife can get this right by showing her willingness to return the mehar (dower) to her husband and in addition by simply stating in a court of law that she can no longer live with her husband as his wife “within the prescribed limits set by the Almighty Allah as a reason for dissolution of marriage”.

This right of women cannot be denied by the court of law, the order read.

Read More: Khula: A woman’s right to divorce with dignity

The FSC, headed by Chief Justice Iqbal Hameed ur Rehman, presided over two legal inquiries. One, determining if the right of khula is an unconditional entitlement for women in Islam and identifying the necessary prerequisites for obtaining it. Two, establishing if a judge can grant khula upon the request of a wife when her husband refuses to grant it to her.

The judgment noted that it is the fundamental right of a woman according to the injunctions of Islam as laid down in the Holy Quran and Sunnah to claim a decree for dissolution of marriage from the court of law, which cannot be denied.

"Secondly, to seek a decree of dissolution of marriage on the basis of Khula from the court of law, levelling of any allegation of maltreatment or mistreatment and misbehaviour is not at all necessary.”

The ruling highlighted that it was sufficient for a wife to state that she dislikes her husband to the extent that she cannot live with him as his wife within the limits prescribed by Allah for the court to proceed upon her demand.

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“The wordings of these Ahadith are also very relevant that any kind of subjective feeling regarding disliking of a husband is a valid ground for dissolution of marriage on the basis of khula, no additional ground or proof is required by the court to prolong the matter,” the judgement said.

The court further said that if a woman wants khula from her husband and she wilfully returns the full amount of mehar to her husband as “Badal-e-Khula” then the court should pass a decree of Khula without delay.

"We would like to highlight this important point regarding khula that it is not always necessary or binding on the woman to completely forego her dower for seeking dissolution of marriage on the basis of Khula. The amount of monetary compensation, which is to be paid by a woman, in the case of Khula cannot be greater than the dower amount received by her from her husband."

However, if a wife claims that she is forced to seek a decree of khula because of her husband's ill-treatment or mistreatment, the court may reduce the amount of compensation if it finds the husband at fault after recording of evidence so much so that in severe cases, the court may grant divorce in case of khula to a wife without paying back any amount of mehar at all.

The court referred it's 2022 judgment wherein it was held that under Islamic law, as laid down in the Holy Quran and Sunnah, no Badal-e-Khula can be fixed by a statute as a mandatory amount for claiming khula from the husband through a court.

"In case a woman voluntarily surrenders the entire amount of dower she received at the time of her marriage in lieu of claiming Khula or Badl-e-Khula through a court, then the court has no option but to grant the decree of dissolution of marriage in her favour, after providing a chance to the spouses for reconciliation before passing of any decree of khula.”

However, it stated that if a lady claims that she wants to seek Khula from her husband through a court due to any maltreatment, mistreatment or ill-treatment, then the court will decide the quantum of the amount to be returned by the lady to the husband for seeking khula based on the evidence and circumstances of the case after determining who is responsible for the breakdown of the marriage.