Kholaa, Divorce

Status of Women in Islam (8)

Kholaa, Divorce

Kholaa divorce is defined thus: When married parties disagree and are apprehensive that they cannot observe the bounds prescribed by the divine laws, -that is, they cannot perform the duties imposed on them by the conjugal relationship – the woman can release herself from the tie, by giving up some property in return, in consideration of which the husband is to give her a “Kholaa”, and when they have done this, an irreversible divorce would take place”.

“Kholaa” is therefore a repudiation with consent, and at the request of the wife, in which she agrees to give a compensation to the husband for her release from the marriage tie. But if the wife fails to pay the compensation, there is yet another means to dissolve the marriage, namely, “Mubarat,” according to which no compensation has to be paid, and a complete separation is effected, merely by mutual consent of the parties. If, however, the husband gives a “Kholaa” to his wife without any compensation, the respective claims of husband and wife are not cancelled immediately, and they are quite competent to sue each other for the payment of any debts which may be due.

Compensation is a matter of arrangement between the husband and wife. The wife may return the whole, or a portion of the dower, if it has been paid; or she may simply surrender her dower or other rights, such as the right to maintenance and lodging during the “iddat” period, or she may make any other agreement for the benefit of the husband such as for instance, to nurse their child during its two years of suckling, or to keep and maintain the child for a fixed period at her own expense after having weaned it.

It should be remembered that the distinction between “talaq” and “Kholaa” is real and not merely technical. If the cause of disagreement proceeds from the husband or if he alone wishes for a “talaq”, he must pay off the settlement debt to the wife. But, in case the proposal for a divorce comes from the wife because of her aversion to the husband, and her consequent failure to perform her duties as a wife, or if she alone wishes for a “Kholaa,” she has to surrender her dower or abandon some of her rights, as compensation.

If the wife be so unfortunate as to be subject to abuse by a brutal husband who may wish her either to sacrifice the whole of her dower, or live with him, she need not surrender the whole of her dower. Let her only go to the judge, prefer a complaint against her husband and demand a formal separation by the Court decree. If her allegations are true, the judge will call upon the husband to repudiate her. In case he refuses to do so, the judge himself pronounces a repudiation which will operate as a valid repudiation and the husband will be liable for the whole of the deferred dower. This procedure is known as “tafriq” or legal separation, in the Islamic law, and is based on the words of the Prophet: “If a woman be prejudiced by a marriage, let it be broken off.” [1]

The first “Kholaa” case in Islam is quoted by Bukhari in the following words: The wife of Thabit Ibn Qais came to the Prophet and said “O messenger of God, I am not angry with Thabet for his temper or religion; but I am afraid that something may happen to me contrary to Islam, on which account I wish to be separated from him. The Prophet said: “Will you give back to Thabit the garden which he gave to you as your settlement? She said, “Yes.” Then the Prophet said to Thabit. “Take your garden and divorce her at once”[2]

This tradition clearly tells us that Thabit was blameless, and that the proposal for separation originated from the wife who feared she would not be able to observe the bounds set by God namely not to perform her duties as a wife. The Prophet here permitted the woman to release herself by returning to husband the ante-nuptial settlement, as compensation for the release granted to her.

In the “Kholaa” from the basic principle of repudiation is, that the husband is lawfully entitled to compensation, only when he is not at all responsible for the breach –neither wholly nor in part- but when the wife is alone responsible, as in the tradition quoted above. Muslim jurists are all agreed that the compensation extorted from an innocent wife is unlawful. Compensation is absolutely unlawful for the husband, even when the wife happens to be partly responsible for the disagreement. The religion of Islam is the only one that can produce a set of laws which jealously protects the properly and person of a wife against her “husband’s” greed and tyranny.”

I now refer to a Qu’ran passage in which expressly forbids the husband to resort to cruelty or other violent means, with a view to compel a woman to enter into “Kholaa” and to give up her dowry. “O believers, it is not allowed you to be heirs of your wives against their will; nor to imprison them,[3] in order to take from them a part of the dowry you gave them, unless they have been guilty of manifest crime; but associate kindly with them; for, if you are estranged from them, haply you are estranged from that in which God has placed abundant good. And if you be desirous to ex-change one wife for another, and have given one of them a talent, make no deduction from it. Would you take it by slandering her and with manifest wrong? How, moreover, could you take it, when one of you has gone in unto the other, and they [the wives] have received from you a strict bond of union.” [4:18]

It is impossible to think of a more appealing and forcible exhortation to a husband, to deal kindly with his wife, even if she happens to be a woman of inappropriate manners. It is forbidden in the strongest terms, to lay hold on her property in the event of a separation.

Before these verses were revealed, brutal husbands used to maltreat their wives, and even to imprison and torture them until, unable to bear their sufferings, they were forced to give up the dowry settled upon them at marriage; and this property they used to endow their new wives with. This was expressly forbidden by the verses quoted above. According to the Malikite School of law, -if a husband has forced his wife to enter into a “kholaa,” the wife is entitled to get back the dowry, but the separation will be valid in law. I have already made mention of the procedure known as “Tafriq” which legally means dissolution of the status of marriage by a judicial decree. I give here some of the causes for which a wife can demand a divorce by authority of the Court. It must be remembered that, where the wife has the right to prefer a claim of “tafriq” the husband is entitled to no compensation, as he is so entitled in “kholaa”. A divorce may be granted by the Court for: -

1)    Wife habitual ill–treatment.

2)    Non–fulfilment of the terms of the marriage contract.

3)    Insanity.

4)   Incurable in competency.

5)   Quitting the conjugal domicile without making provision for the wife.

6)  Any other similar causes which in the opinion of the Court justify a divorce.

We have seen, then, the position of woman and her legal status in Islam. To sum up: “Her legal status is decidedly superior to that of European women. The social immunities she enjoys allow the fullest exercise, on her part, of the powers and privileges which the law gives to her. She acts independently in all matters which relate to herself and to her own property, in her own individual right, without the intervention of husband or father. She appoints her own attorney, and delegates to him all the powers she herself possesses. She enters into valid contracts with her husband and her male relations, on a footing of equality. If she is ill-treated, she has the right to have the marriage tie dissolved. She is entitled to pledge the credit of her husband for the maintenance of herself and her children. She is able, even if holding a creed different to that of her husband, to claim the free and unfettered exercise of her own religious observances. Her ante-nuptial settlement is her own by absolute right, and she can deal with it according to her own will and pleasure. To become entitled to its enjoyment, she requires no intermediates, trustees or next of kin. When she is aggrieved by her husband, she has the right to sue him in her individual capacity.”

It is both interesting and instructive to compare this extract with another, from the writings of J.S. Mill which gives us an idea of the corresponding position of women in Christianity: “We are continually told” says he, “that civilisation and Christianity have restored to woman her just rights. Meanwhile the wife is the actual bond- servant of her husband; no less so, as far as legal obligation goes, than slaves commonly so called. She vows a lifelong obedience to him at the altar, and is held to it all through her life by law. Casuists may say that the obligation of obedience stops short of participation in crime, but it certainly extends to everything else. She can do no act whatever, but by his permission, at least, tacit. She can acquire no property, but for him; the instant it becomes hers, even if by inheritance, it becomes ipso facto his. In this respect the wife’s position under the Common Law of England is worse than that of slaves in the laws of many countries; by the Roman Law for example, a slave might have speculum which to a certain extent, the law guaranteed him for his exclusive use.”[4]