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Equal Before Allah, Unequal Before Man: An Analysis of the Application of The

Right to Khul in Islamic Law

This paper will trace the evolution of the right of khul in Pakistan. In doing so, the
significant role that the judiciary has played in broadening the scope of this right will
be assessed and analyzed. With this as a background, the paper will attempt to predict
future evolutions in the right of khul in Pakistan.

The literal meaning of the word Khula is to put off. It traces the root of its
credibility from the Quran. The Quran states:
If you (the judge) do indeed fear that they would be unable to keep the limit ordained
by Allah, there is no blame on either of them if she gives something for her freedom.
These are the limits ordained by Allah, so do not transgress them.
Other than the Quran, there exists Ahadith which also warrants the exercise of Khula
by women. There have been reported cases during the time of the Holy Prophet
(PBUH). Habiba, the wife of Thabit, came to the Prophet (PBUH) and demanded
Khula from her husband; even though, the conduct of her husband towards her was
flawless. On her request, the Prophet granted her Khula and ordered her to return the
garden to her husband as she had gotten it as Mahr (dower). The Prophet(PBUH) did
not take the consent of Thabit, the husband, on the matter and directly ordered him to
dissolve the marriage with Habiba.1 This case marked the start of the exercise of the
right of Khul in Islamic History.
In Islamic Shariah Law, the right to exercise Khula is justified in circumstances when
the wife feels that she can no more live with her husband. Khula is a form of divorce
in which the wish to separate from the marriage contract emanates from the wife. This
process is usually completed in a form of barter; the wife offers consideration, usually
the dower, and in return the husband agrees to liberate the wife from the bounds of the
marriage. According to the Maliki school of thought, another term for khula is Al
talaq bin awad which means: 'a divorce by giving something in return. Contrastingly,
according to the Hanafi school of thought, the term Khula means, the end of a marital
relationship with consent either with the utterance of the word khul or some other
word of similar nature.2

1 Asgharali Engineer , The Rights of Women in Islam (1st, Sterling Publishers Pvt. Ltd,2008) 19
2 Doi, Abdur Rahman I. (1984). Shariah : The Islamic Law; Ta Ha Publishers, London, p. 192.

In the words of Fyzee, the two essential conditions for Khula are: 1) consent from the
husband and 2) a token or award in return (iwad). These conditions have been relied
upon in many cases, including the case Sayeeda Khanum v. Muhammad Sami where it
is quoted: A Khula divorce is affected by an offer from the wife to compensate the
husband if he releases her from his marital rights and acceptance by the husband of
the offer3 In olden times, before the judiciary advanced to incorporate certain laws
which eased the process of divorce, Khula was the only form of dissolution of
marriage within Hanafi law that women could exercise against their husbands for
emancipation. The primary reason for the husband to agree to divorce was the
compensation or award that he would get in return for it.
An earlier example of Khula and the right to relinquish Mahr can be sought from the
case, Moonshee Buzulur Raheem v. Luteefat-oon-Nissa4. In this case, which Fyzee
relied on in his book, Outlines of Muhammad Law, the court stated:
A divorce by Khoola is a divorce by the consent and at the instance of the wife, in
which she gives or agrees to give a consideration to the husband for her release from
the marriage tie. In such a case the terms of the bargain are a matter of arrangement
between the husband and the wife and the wife may, as the consideration, release her
dain-maher and other rights or make any agreement for the benefit of the husband.
Thus, compensation, mostly in the form of dower, has maintained its integrity
throughout history and continues to mark its significance even today.
Moreover, Khula can also be iterated as a consensual form of divorce; just like a man
is given the right to talaq, a woman is given the right to Khula thereby; both terms are
analogous to each other. According to Tahir Mehmood:
In talaq the man must pay the mahr if not yet paid and cannot demand its return if
already paid. In Khul the wife is to forego it in favour of the husband. If a husband
refuses to recognize the wife's action in effecting Khul she can seek a court order for
that purpose; just as a man can do so to give proper effect to talaq.5
Not only does Tahir Mehmood signify the importance of Mahr (Dower) used as a
form of compensation in both, Talaq and Khula; he also incorporates the part played
3 PLD 1952 Lah.113 (F.B)
4 (1861) 8 MIA 379
5 Mahmood, Tahir (1986 "The Grandeur of Womanhood in Islam" in VI Islamic CLQ (1986), pp. 1-26

by the judiciary in case the parties fail to reach a mutual consensus on matters
surrounding Khula, or Talaq (in case, the husband pursues divorce first).
In Pakistan the right to exercise Khula has been guaranteed by section 8 of the
Muslim Family Law Ordinance, 1961. This ordinance has provided a legal right as
well as systematized way of seeking divorce to women. Similarly, Section 2 of the
Dissolution of Muslim Marriages Act, 1939(DMMA) also lists down a number of
grounds for which a woman can seek judicial help for dissolving her marriage. The
DMMA, 1939 is one of the most significant pieces of legislation as it legalizes and
provides valid grounds for matters pertaining to dissolution of marriage in the case of
decree filed by the wife. In addition, the West Pakistan Family Courts Act, 1964, also
caters to the right of Khula; initially which was not a provision within the act
however, after the enactment of the amended Act, The Family Courts Act, 2002 under
Section 10(4) provides a gateway to women to exercise their right to untie the
marriage knot.
The Superior Courts of Pakistan must be commended for their groundbreaking
judgments that have furthered gender equality by allowing women to obtain a no-fault
divorce or khul. The amendments in the given legislation has terminated the
patriarchal nature of the society thereby, promoting free will of the women and taking
in context, their right to exercise self autonomy. In this regard, the Lahore High Court
pioneered judicial activism in the case of Balqis Fatima6 in 1959. This decision
revolutionized the right of khul for Muslim women in Pakistan as it allowed, for the
first time, a womans right to divorce without the consent of her husband.
Following this, in 1967, the Supreme Court furthered the right of khul through the
process of judicial law making in the Khurshid Bibi7 case. The precedents set by the
Superior Courts in the Balqis Fatima and Khurshid Bibi judgments have subsequently
been followed-and to some extent refined-by the courts in Pakistan. The system in
practice has started to negate misogynistic ideas of the society and became more
acceptable to the independence of women.

6Mst. Balqis Fatima v. Najm-ul-Iram Qureshi,PLD 1959 Lahore 566

7Mst. Khurshid Bibi v. Muhammad Amin, PLD 1967 SC 97

Part I of this paper will discuss the significant case law pertaining to the matter at
hand that has added to liberating the concept of Khula within Pakistan. In Part II of
the paper, the evolution of the right to khul in Pakistan will be discussed by analyzing
the significance of the aforementioned case law, focusing primarily on Bilquis Fatima
case. Part III will look at further case law on khul and highlight how the Superior
Courts have refined and polished the various issues regarding khul. The paper will
conclude by providing suggestions for improvement in Part IV.
Before we move on to discussing how the judicial status of this right has
revolutionized within Pakistan, we should also shed light on to the Islamic fiqh
literature present on the matter. This will help us in analyzing the legal standing of
this concept in the Islamic world in a more holistic manner thereby; gauging the
similarities and differences within each school if thought.
Comparison of various Fiqh Literature regarding Khul
Starting off with the Hanafi School, according to Al-Jassas, the husband holds an
important position and cannot be completely ignored under any circumstance. The
husband still needs to sign off the document in order to register Khula thereby,
according to the Hanafi school, the consent of the husband is necessary in the
registration and effectiveness of Khula. Jurists of the said school follow a strict and
rigid system in which the husband is even given preferential treatment in the sense
that he can make his consent necessary as soon as the wife registers for Khula8.
Moreover, Hanafi School regards the two fold process of Khula: the first step being
consent and the second step being, consideration in return for separation from the
marriage contract. The Hanafi jurist, Alaudin Masud Al-Kasani iterated that Khula can
only transgress if it follows the set standard of offer and acceptance.9 Therefore, the
consent of the husband is an essential condition for Khula in Hanafi School; without
which the wife cannot exercise her right.

8 Abu Bakr Ahmad al-Jassas (2001) Ahkamal-Quran, Beirut: Darelfikr, 1:1533.

9 Alauddin Masud al-Kasani, Badai al-sanai fi tartib al-sharai (1st, DarEhya al-turath al-arabi,
Beirut 2003) 3:227.

Moving on to the Maliki School, there is no clear distinction on the matter of Khula
and difference in opinion regarding the consent of the husband, given by Imam Malik,
however; in order to analyze the position of this school, we can systematically go
through the discussion presented by the jurists of the school on the matter. The
Quranic verse, 4:35 has been thoroughly discussed which states:
If you fear a breach between the two, appoint an arbitrator from his people and an
arbitrator from her people. If they both want to set things right, Allah will bring about
reconciliation between them. Allah knows all, is well aware of everything
The view of the Maliki Jurist, Qurtubi10, was that the arbitrators appointed, by the
State Authority, should see which side is the cause of discomfort in the relationship
and after careful evaluation, he should dissolve the marriage through Khul. He
further asserts that the arbitrator should make an effort to incline the parties towards
reconciliation but if they fail to reach consensus and the arbitrator feels necessary to
separate the husband and the wife, then separation should be decreed. In short, the
decision of the arbitrator is binding on both parties; whether it is separation, union or
Khula. Both the spouses do not have the right to consent to it and the matter is solely
decided by the arbitrator.11
Moreover, the Shafii school simply follows the principle that the consent of the
husband is necessary for Khula to progress; just like it is practiced in talaq. Imam
Shafii further adds that talaq and khula are similar concept and a court settlement is
not necessary to resolve the matter; both can be granted within or outside the
parameters of the court.12
The Hanbali School flourishes with the principles of one of the prominent jurist, Ibn
al-Qaiyam. According to him, khul can be categorized as a consensual agreement and
the consent of the sultan(state authority) is not a pre-requisite for it.13 Moreover,
Imam Ibn Qudaama also added his view on Khula. He iterated:
10 Qurtubi, Ahkam al-Quran, 3:115
11 Muhammad Munir, 'The Law of Khul' in Islamic Law and the Legal System of Pakistan: The
Sunnah of the Prophet or Judicial Ijtihad?' [2014] IIUI 1, 6
12 ibid
13 Shamsuddin Ibn al-Qaiyam al-Jawziyah, Zad al-Maad fi Hdyikhayr al-Ibad , ed. Ahmad Ali
Suliman (1st, Dar al-Ghad, Mansoora 2009), 4:86

For Khula` is a transaction, thus the absence of the need of the ruler, just as in sale
transactions (Bay`) and the marriage contract (Nikah) and because it stands for the
ending of a (marriage) contract by mutual agreement. For this reason it resembles the
mutually agreed cancellation of a sale contract (Iqalaah).14
Furthermore, in the words of Imam Ibn Taymiyya and his famous student ibn alQayyim al-Jawziyya, the concept of Khula has been discussed as follows:

That the Messenger of Allah termed Khula to be fidya (an amount given in

exchange for something) is proof that it has the meaning of a transaction and it is for
this reason that the agreement of both the husband and wife has been made a
condition in it.15
It is clear from this, that even in the Hanbali School, the consent of the husband has
been given utmost importance in order to progress with right to Khul.
Lastly, Shia Law strikingly differs from all other schools; though there are similarities
as well. The similarity lies in the fact that the consent of the husband in necessary to
put Khula in action. However, the word khul should be followed by the word talaq
in order to be legal.16 Moreover, the Shia school adds a bit of confusion when it states
that khula is irrevocable. However, it can be retracted by the wife if she offers fidya
during her iddat (waiting period). She can make the offer to revoke Khula to the
husband, who then has to decide whether to accept it or not.17
To sum it up, all schools support the right to Khula. Moreover, except for the Maliki
School, all other schools consider Khula to be consensual, where the consent of both
the spouses is required and in addition, the consent of the husband a compulsory
condition for Khula to be exercised. Another commonality between all schools was
the role of the judiciary. All schools refer the matter to courts in case; they cannot
resolve them on their own terms and in the case of Maliki School, the primary
function is served by the arbitrator. In addition, it is also pertinent to note that all
schools agree on the fact that if the husbands cruel behavior is the reason behind
wifes demand for Khula, then he should be barred from compensation. However, if
14 Al-Mughni, vol. 7 p. 52, Dar al-Manaar
15 (Zad al-Ma`aad, vol. 2 p.238)
16 Najmuddin al-Muhaqiq al-hilli, Sharai al-Islam fi Masail al-halalwa al-haram , ed., Al-Siyad
SadiqAl-Sherazi (1st, Daral-Qari, Beirut 2004), 2:42
17 ibid

the decision is made by the wife without any such pressure then she is ordered to
provide compensation in return for the grant to Khula.18 Even in Pakistan, the Ahl alHadith have granted permission to the woman to pursue khula if she abhors her
husband. Thus, it is evident that even though, the wife does have the right to liberate
herself from the marriage, the male spouse still has greater power, primarily due to the
concept of qawama (mans superiority of the wife) and due to the nature of the
Nikahnama(marriage contract).
PART I: Analyzing the Case Law
In Mst. Balqis Fatima v. Najam-ul-Ikram Qureshi case19, the court ascertained
whether the wife is entitled, as of right, to claim khula, despite the unwillingness of
the husband to release her from the matrimonial tie, if she satisfies the Court that there
is no possibility of their living together, consistently with their conjugal duties and
The case unraveled on 2nd January, 1952 when the appellant, Bilquis Fatima brought a
suit for dissolution of marriage to the court. The appellant and the respondent, Najamul-Ikram were bound in a nikah on 7th October, but no rukhsati had taken place. The
marriage soon disintegrated and within two years of the nikah, the appellant wife
demanded to be separated from the marriage contract. She filed the case on two
grounds: 1) the husband failed to provide maintenance for two years 2) the husband
was associated with women of ill- repute. The husband, in response brought forth a
suit against restitution of conjugal rights. The court dismissed the claim for
maintenance on the fact that rukhsati had not taken place and similarly, the
respondents case was also dismissed because the wife had already filed for
dissolution. The appellant filed an appeal on dismissal of her case of dissolution on
account of the fact that she had the right to Khula; a wife could exercise the right at
any time and in return she only had to restore any benefits she received from the

18 Muhammad Munir, 'The Law of Khul' in Islamic Law and the Legal System of Pakistan: The
Sunnah of the Prophet or Judicial Ijtihad?' [2014] IIUI 1, 6
19Mst. Balqis Fatima v. Najm-ul-Iram Qureshi, PLD 1959 Lahore 566

In this case, the court recognized the wifes right of khul without the consent of the
husband for the first time. Justice Kaikaus observed:
if the husband did not like the wife, he could divorce her at his will even though
there was no blame on her. Yet the wife though she could not pull on with the husband
without any fault in her, must be forced to live with him. Why should there be such a
disparity between the rights of the spouses?20
The court elaborated upon the wifes right to khula and opined that, ...if the judge
apprehends that the limits of God will not be observed, that is, in their relation
towards one another, the spouses will not obey God, that a harmonious married state,
as envisaged by Islam, will not be possible then he will grant a dissolution.
In addition, the Supreme Court further deliberated upon this matter by trying to
ascertain whether Islam allows a husband and a wife who cannot live together in
peace and harmony to separate or whether it forces them to continue living in such a
marriage? The court tried to answer this question in light of the relevant Quranic verse
(2: 229)21 and held that the verse gave the court authority to enforce a khul, even
against the will of the husband, on the ground that the word you refers to judges
whose duty it is to determine whether the spouses can keep within the bounds set by
God. In other words, where the judge apprehends that a harmonious married state, as
envisaged by Islam, will not be possible, the wife has the right to enforce khul in
court even if the husband does not consent to this.22 In addition to Quranic verses,
some Ahadith literature was also discussed; which referred to the case of Sabit IbnQais, and his two wives, Jamila and Habiba. In both instances, the wife came to the
Holy Prophet and exclaimed that did not want to live with Sabit. On account of their
demand, the Prophet ordered Sabit to take back whatever he had awarded both of
them and divorce them.
20Mst. Balqis Fatima v. Najm-ul-Iram Qureshi, PLD 1959 Lahore 566, 592
21 Divorce may be (pronounced) twice; then keep (them) in good fellowship or let (them) go with
kindness, and it is not lawful for you to take any part or what you have given them, unless both fear
that they cannot keep within the limits of Allah; then if you fear that they cannot keep within limits of
Allah, there is no blame on them for what she gives up to become free thereby. These are the limits of
Allah, so do not exceed them, and whoever exceeds the limits of Allah, these it is that are the unjust.
22 D. Hinchcliffe, Islamic Law of Marriage and Divorce in India and Pakistan (Ph.D. diss. London
University, School of Oriental and African Studies, 1971)

The Court heavily relied on the teachings of the Quran and Sunnah and it further
reached the conclusion that,
(n)either the Quran nor the Hadith enumerate the grounds on which (a suit for)
dissolution can be brought. The only limitation on the power of the Qazi to dissolve
the marriage is his own conscience -his judgment that the marriage should not under
the circumstances be continued. If the parties cannot live together as Islam intends
they should live, they should be separated...his (the Qazis) jurisdiction is based on the
simple fact that Islam regards the marriage contract as being capable of termination23
Therefore, on a close analysis it can be seen that since Nikah in Islam is a contract and
Islam does not force the spouses a life devoid of harmony and happiness, if the parties
cannot live together as they should, Islam permits a separation. The court not only
recognized a right given to women by Allah but also took it one step forward by
providing an effective remedy by holding that even if the husband does not consent to
the khul the judge holds the right to enforce khul in the absence of the husbands
Another corollary issue that the court looked into was the question of whether a wife
was entitled to dissolution of marriage only after the restoration of what she has
received from her husband in the form of dower or otherwise. In this regard, the court
came up with a two-pronged test: if dissolution is due to some default on the part of
the husband, there is no need of any restitution. On the other hand, if the husband is
not in any way at fault, there has to be restoration of property received by the wife.
Although ordinarily the restoration of property included the whole of the property
given by the husband, the Judge was entitled to take into consideration any reciprocal
benefits received by the husband which not only included any monetary benefit
received but also included domestic tasks like maintaining the house. The Supreme
Court most prominently relied on the writing of Maulana Maududi, and emphasized
that a Muslim wife was entitled to relief on payment of a kind of compensation to the
23 Mst. Balqis Fatima v. Najm-ul-Iram Qureshi, PLD 1959 Lahore 566, 581
24Lucy Carrol , 'Quran 2: 229: A Charter Granted to the Wife? : Judicial Khul in Pakistan' [1996]
Islamic Law and Society 3(1) 91, 108

An interesting point to note in this judgment is that the court-in extending to women
the right to divorce which Hanafi jurists and commentators had denied for centuriesfelt that it was not bound by the interpretations of classic jurists25 and exercised
independent judgment in interpreting the original sources of Quran and Hadith26. With
this as a background, the Balqis Fatima decision can be seen as a ray of light in a
country notorious for its brutal violations of women rights. While the constitutional
framework mandates a dual commitment to both egalitarian gender relations along
with adherence to the spirit of Islam, the court in Balqis Fatima case has successfully
managed to synthesize these dual constitutional narratives. If we critically reflect
upon the decision, it can be seen that the court employed a liberal interpretation of
Islamic law to minimize the glaring gender inequalities in the right to divorce. Thus,
this decision stands as a hallmark to the fact that Islam does not stand in stark
opposition to gender justice. This entails that Islamic principles when interpreted in
line with fundamental rights not only uphold but to some extent bolster gender

The womens right to khul was further broadened in 1967 when the Supreme Court, in
the case of Khurshid Bibi v. Baboo Muhammad Amin 27 in which the appellant brought
an appeal after her case for dissolution of marriage was dismissed. She pleaded that
the relationship between her and her husband was strained and she could not live with
him anymore. She also contended that the respondent had pronounced talaq to her
once. In order to attain separation from the marriage contract, she was also willing to
pay back the dower given to her on marriage. The respondent refuted all allegations
made against him and also obstructed to the granting of Khula to his wife.
The decision of the court in the aforementioned case not only upheld the decision of
Balquis Fatima28 but rather further elaborated it in light of the Islamic principles
25If we be clear as to what the meaning of a verse in the Quran is, it will be our duty to give effect
to that interpretation irrespective of what has been stated by jurists,Mst. Balqis Fatima v. Najm-ulIram Qureshi, PLD 1959 Lahore 566, 584
26 Lucy Carrol, 'Quran 2: 229: A Charter Granted to the Wife? : Judicial Khul in Pakistan' [1996]
Islamic Law and Society 3(1) 91, 108
27Mst. Khurshid Bibi v. Baboo Muhammad Amin, PLD 1967 SC 97
28 The court agreed with the ruling of Balqis Fatima and stated that Verse 2.229 of the Quran
virtually adds a ground for dissolution of marriage, and thus authorizes the Qazi to dissolve the

which promoted judicial intervention in cases of khul where there was

incompatibility, aversion, or marriage breakdown.29 The doctrine of Taqlid was also
discussed within this case. It was contended that according to this doctrine, the
followers of a particular school should restrict themselves to the opinions of the jurists
within that particular school only. However, the court argued that those teachings that
are closer to interpreting the Islamic injunctions must be relied upon, irrespective of
which school they belong to as long as they all deal with the Sunni sect.
In this case, the court further ruled that since the Quran contained all the fundamental
laws of Islam, it was the primary source of law for Muslim. Owing to this, the court
emphasized that it was imperative to adjudicate within such a framework of
interpretation that provided consistency with the spirit of the Quran. To determine the
scope of the right of khul, Justice S.A. Rehman quoted a verse from the Quran, And
women shall have rights similar to the rights against them, according to what is
equitable30 He ruled that in light of this verse, it could be seen that the Quran
places the wife on an equal footing with the husband in respect of rights of one
against the other. Building upon this, the court referred to a hadith which stated that,
let no harm be done, nor harm be suffered in Islam, to reiterate the rationale behind
the Balqis Fatima case. The court read the Quran verse with the hadith and observed
that Islam vested in the Qazi the power to order separation by Khul regardless of the
husbands consent provided that the Quranic condition must be satisfied that it is no
longer possible for the husband and the wife to live together in harmony and in
conformity with their obligations. Though the right to khul was recognized and
reiterated by the court, it is pertinent to mention that the court prescribed limits to this
right. The right to khul was held to be a controlled right, the success of which
depended upon the court reaching the conclusion that the spouses cannot live within
the limits of God.31 The court in this case awarded Khula, also considering the basis
marriage in appropriate cases, even without or against the will of the husband. if the court is
convinced that the parties might not remain within the limits prescribed by Allah. Thus, dissolution is
by the order of the Qazi and is not dependent on the consent of the husband or on his pronouncing a
Talaq. There are no words in the verse indicating that the consent of or Talaq by the husband is
necessary for khula (Mst. Khurshid Bibi v. Baboo Muhammad Amin, PLD 1967 SC 97, 137).
29 Leslie Scarman, 'Law Reform in the Muslim World by Norman Anderson' [July 1976] The
International and Comparative Law Quarterly Vol. 25, No. 3 697, 698.
30 Al Quran 2:228
31 In this regard, S.A. Mahmood, J. observed as follows: Thus, khul was decreed by the Holy
Prophet on the ground that the wives having developed intense hatred for their husband, it had become
impossible for them to live with him and to perform their marital obligations Mst. Khurshid Bibi v.

that the relationship between the spouses had already been strained due to various
litigation processes between the families and the wifes unwillingness to live with the
husband. Therefore, in such a case, to awards separation from the marriage contract
seems like the perfect decision to settle the dispute.
A following discussion within the case amounted to the compensation to be paid in
return for the grant of Khula. The pleading from the side of the appellant was that she
was not paid any dower at the time of her marriage or even during her marriage but
she was still willing to relinquish it as long as she could be freed from the bounds of
the marriage. The respondent rebutted by stating that no amount of dower or
compensation could make him consent in favor of the Khula; it is pertinent to note
that he did not emphasize on the fact that he had paid the dower. With regards to the
payment made to the husband, the court takes Hedaya into perspective, in which it is
it is abominable on part of the husband to have more than the dower itself, in case of
separation by Khula, yet if he insists, it is legally permissible for him to demand
something more than the dower, and to the extent that it might have been out of his
pocket, in respect of gifts, given to the wife on marriage, he may, in law, demand
The court in this case, however, did not pass any final verdict on the settled payment
of compensation to be given to the husband as the relevant facts and evidence were
missing which could decide how much dower and other benefits had been awarded to
the husband by the wife.

PART II: Significance of the Case Law

In order to highlight the significance of the Balqis Fatima case, it is important to
compare the Balqis Fatima judgment with the judgment of the case Sayeeda Khanam
v. Muhammad Sami32. In the case of Sayeeda Khanam, the wife sued the husband for
dissolution of marriage on a number of grounds: the husband failed to provide
Baboo Muhammad Amin, PLD 1967 SC 97, 136, 138-139
32Sayeeda Khanam v. Muhammad Sami, PLD 1952 Lahore 113

maintenance for a period exceeding two years, he failed to discharge marital

obligations for a period exceeding three years; he accused the wife of immorality, was
also cruel; did not pay dower and stopped the wife from offering her prayers. In
addition, the husband was also of an irritable nature and his changing moods led to
greater hostility towards the wife. Due to these reasons, the relationship between the
spouses was strained and the wife had started hating the husband thereby; she filed for
Khula. The court dismissed all charges and built its argument solely on the statement
by the plaintiff that both the spouses had a clashing temperament; making them
incompatible for each other.
The Court, in this case, did not recognize personal aversion or incompatibility as a
valid ground for dissolution of marriage. It is pertinent to note that in the Balqis
Fatima case however, the Court by relying on Quran and Sunnah accepted that
contrary to the finding in the Sayeeda Khanam case, aversion or incompatibility was a
valid ground for dissolution of marriage.
Moreover, in the Sayeeda Khanum case, there has been a detailed discussion
regarding the role of hakama; the arbitrator or the Qazi appointed to settle the
dispute between the spouses. But the case maintained its stance that the hakama
cannot grant divorce or Khul without the consent of the husband. This helps in
avoiding all the confusion relating to power and jurisdiction; the husband passing the
final verdict in the case of Khul. In addition to this, the court passed another
important rule regarding the issue of granting khul without the consent of the
husband. The Court equated a wifes right to khul with the unfettered right to divorce
of the husband and observed that if owing to hatred or aversion a blissful marriage as
espoused by Islam was not possible then it was the duty of the Qazi to grant the khul
to the wife regardless of whether the husband gave consent or not.
Moreover, the Court had limited itself to the views and interpretations of Fuqaha in
the Sayeeda Khanam case. In the Balqis Fatima judgment however, the Court did not
resort to the views of Fuqaha but looked at the Quran and Hadith directly. In this way,
the Court bestowed upon itself the power to directly interpret the primary sources of
Islamic law. In this regard, in the case of Khurshid Bibi, the Supreme Court ruled that
the subordinate Courts, the District Judges and the Judges of the High Courts, in

Pakistan, occupy a position akin to that of a Qazi, since they could affect a divorce on
any ground on which it could be granted under the Muslim Law33
In addition to the Sayeeda Khanum case, the court can also compare Bilquis Fatima
case with the Umar Bibi case. The Bilquis Fatima case acts as a landmark judgment as
it was the first time that the courts declared that Khula can be granted without the
consent of the husband, on account that there has been a recorded breach within the
marriage contract and the court used the power of the arbitrator to settle the dispute
within the parties. Previously, as was seen from the case, Mst. Umar Bibi v.
Muhammad Din34, the incompatibility of temperament was not considered good
enough reason for the dissolution of marriage through Khula and the said case also
reiterated and emphasized strongly on the consent of the husband being a prerequisite
in case the wife wants to exercise her right to Khula; just like the case in Sayeeda
Khanum case.
Keeping all of this in view, it must be noted that the most significant finding in
Balquis Fatima case was that the Court did not limit itself to the established principles
of any school of thought. Thus, in promoting egalitarian gender relations by
broadening the right to khul for women, the Court deviated from the opinions of
Fuqaha and directly interpreted Islamic Law.

PART III: Further Developments in the Right to Khul in Pakistan

This part will be divided in two sections: Part (A) will list down the amendments
made in the legislation relating to the right of Khul; that has increased the rights and
status of women in the society. Part (B) is will trace the developments in the right to
khul on three main issues: the issue of whether the consent of the husband is
necessary for khul, the issue of whether hate and aversion towards the husband is a
valid ground for khul and if so then what constitutes hate and aversion, the issue of
payment of dower or compensation to the husband in lieu of the khul.

33Munir, Muhammad. Judicial Law-Making: An Analysis of Case Law on Khul in Pakistan

34 Mst. Umar Bibi v. Muhammad Din, A.I.R 1945 Lah. 51

(A) Amendments to the present legislation

The primary amendment made in West Pakistan Family Courts Act, 1964 was the
introduction of Khula under section 9(1)(b). It states:
A defendant wife may, in the written statement to a suit for restitution of conjugal
rights, make a claim for dissolution of marriage including khula which shall be
deemed as a plaint and no separate suit shall lie for it: Provided that the proviso to
sub-section (4) of Section 10 shall apply where the decree for dissolution of marriage
is to be passed on the ground of khula.
Moreover, according to the organization, Shirkat Gah35, some of the major
amendments to the legislation relating to khula are:
(1) In a wifes suit for khula divorce no trial is required and the wife does not have
to produce any evidence in support of her suit. If reconciliation fails, court
shall pass decree of khula. This amendment has been brought forth under
section 10(4) of the Family Courts Act, 1964.
(2) The wife is to return to husband only that mehr which she received at the time
of marriage, if any.
(3) If the wife received mehr or any part of it subsequently, she is not required to
return that if she seeks khula.
Moreover, the courts have now held that a woman is entitled to file multiple times for
the dissolution of marriage on the basis of Khula and it will not be prohibited using
the principle of res judicata as the basis for the suit may be different each time.36
Furthermore, the new amended law also multiple claims to be added to the suit for
dissolution of marriage. This can include claims for maintenance, dower, personal
property and custody of children.37 An example of such of this can be taken from the
case Saleem Ahmed v. Mst. Khadija Begum38. The suit involved the issue of
maintenance along with the dissolution of marriage. The respondent had failed to pay
35 Jurisdiction Extending to Spousal Violence Cases, Shirkat Gah
36 Ellahi, Naheeda. Family Law and Judicial Protection, Supreme Court
37 Jurisdiction Extending to Spousal Violence Cases, Shirkat Gah
38 PLD 1977 Karachi 469

the maintenance demanded by Khadija Begum for her three children thereby; she filed
a case in order to recover the maintenance that the respondent owed to her. The main
issue within the case was that the appellant had registered the case under section 5
read with section 7 of the Family Courts Act, 1964 but had further made an additional
complaint under Section 488(3) of the Cr.P.C. This complaint, being of a criminal
nature, stated that if the husband failed to make the payment, he would imprisoned.
However, the court in this case held that the Family Court Act and the Cr.P.C dealt
with two different branches of the law; the former is of civil nature and the latter of
criminal nature. Hence, the court can only uphold one of them. Moreover, the court
also ruled that since the case was not registered under Section 488(1) of the Cr.P.C,
hence, it could not be determined from that perspective. The final verdict passed
protected the respondent and he was not convicted, since he had filed a case for ex
parte proceedings, he was protected from both the penalizations and maintenance was
not awarded.
It is pertinent to note that the two proceedings given within the case; dissolution and
maintenance, were upheld by the courts even though, the appellant party could not
win due to ex parte proceedings carried out in the absence of husband. Therefore, the
law has evolved to grant not just the right to Khula but also aims at guarantying
additional protection with it to women.
According to Yefet39, the judges have increasingly negated misogynistic views and
expanded divorce rights awarded to women on the basis of Khula. The standard to
exercise Khula has become minimal; mere hatred for the husband is sufficient to form
the basis of Khul40. In addition, the wife does not have to give any reasons for this
hatred towards her spouse; the statement proclaiming hatred suffices. According to
latest case law, the mere act of filing the case of Khula and stating hate and aversion
as a factor, means that the relationship between the spouses has reached a breaking
point where they cannot happily live together. This implication forms the ground for
the grant of Khula.41
39 Yefet, Karin The Constitutional and Female-initiated Divorce in Pakistan: Western Liberalism in
Islamic Garb Harvard Law
40 Shakila Bibi v. Muhammad Farooq, 1994 CLC 231 ([A] wife is not supposed to justify the
reasons on account of which she had developed hatred for her husband.)
41 Munir, Muhammad Judicial Law-Making: An Analysis of Case Law on Khul in Pakistan

Moreover, a commendable practice of the court is that it places greater burden of

proof on the husband to prove the amount of dower or benefit he bestowed upon the
wife, which is required to decide the amount of compensation in return for Khula.
Yefet believes that this compensation is not to imply that women are inferior to men,
rather it creates equality between the right to talaq and the right to khula. He further
adds that the approach taken by the courts is a way to promote judicial sensitivity
towards the rights of the women in Pakistani society. As opposed to the rigid system
followed by Egyptians court on the matter, the Pakistani approach takes in
consideration the marital plight of women in a patriarchal culture and strives to
safeguard the wishes and domestic happiness of married women.
(B) Further developments in the right to Khul

Consent of Husband

In the case of Shah Begum v. District Judge Sialkot42, the Court divided the plea of
Khul into two ways: one is by mutual consent when the parties coming to the
conclusion that they will transgress the limits of God by their hateful union in view of
their remote chances of living in peace, affection and harmony. If there is a mutual
consent in respect of khul` then no one is needed, the spouses can exercise the same
without interruption of a Qazi or a Judge. The second is where the wife does not find
any fault in her husband but otherwise due to certain hatred or aversion or extreme
incompatibility of mind it is proved that they will not be able to lead a life within the
limits of God, then this right is fallen to the wife to claim khul on the basis of aversion
against her husband.
The court held that all the fundamental laws concerning matrimonial life are laid
down in the Holy Quran where a man or a woman are at equal footing in respect of a
right of one against the other. This entails that when a husband is possessed of a right
to divorce, the wife is entitled to Talaq by means of khul. The court viewed the verses
of the Holy Qur'an and asserted that it is expressly stated that women have a right
42 Shah Begum v. District Judge Sialkot, PLD 1995 Lahore 19

against the men; similar to those men have right against the women. Thus, if a
husband does not give consent for dissolution of marriage ties he is not allowed to
cling to the woman to cause injury to her honor for the rest of her life and let her lead
a miserable life devoid of love, affection and harmony. In this regard, the husband has
not been given the right to release the woman from matrimonial bond; it is the Qazi
who will intervene and enforce Quranic Injunctions. Moreover, even while
interpreting verse 2:229 in the Fatima Bilquis case, the word you was interpreted as
the state authority or the arbitrator rather than the husband. Therefore, after the said
case, the law has revolutionized and the consent of the husband; which was once
given utmost importance (Sayeeda Khanum case), has now been removed as a
prerequisite for Khula. It is up to the family courts to decide the matter whether Khula
should be awarded or not.


Hate and Aversion towards the Husband

In the case of Naseem Akhtar v Muhammad Rafique43,it was held that it is worth
mentioning that no yardstick can be fixed to define or determine the factum of hatred
which can be inferred on the basis of circumstances of each case specially the
statement of wife got recorded by the Court. The Court held that it hardly needs any
elaboration that emotion of love and hatred cannot be adjudged on rational basis and
the only aspect which requires consideration in such-like would be as to whether
husband and wife can live together in order to perform their matrimonial obligations
and not the solid proof qua hatred or aversion.
This was also discussed in the case of Amanullah v. District Judge, Jaranwala44. The
court in this case held that when the wife states that she has developed hatred towards
her husband, the Court could not reject such assertion summarily. In this regard, it
must be noticed that the relationship between the husband and wife is of a very
intimate nature. It may also be too embarrassing for either of them to disclose to the
Court what has transpired between them in the privacy of their home. That being so

43 Naseem Akhtar v Muhammad Rafique PLD2005 Supreme Court 293

44 Amanullah v. District Judge, Jaranwala, 1996 SCMR 411

there can hardly be any standard for assessing the substance in the wife's assertion
that she has developed hatred for her husband.

Thus, the Court in the Naseem Akhtar case held that it can be safely inferred that the
hatred and aversion asserted by the wife can neither be prescribed nor confined within
the limited sphere and no mechanism has been evolved so far to express "hatred or
aversion" precisely and in a definite manner. Thus, the fact that the wife has instituted
a suit for the dissolution of marriage is in itself demonstrative of the fact that the
petitioner does not want to live with her husband and this is the best indicator of the
degree of hatred and aversion she feels towards the husband.


Return of Dower by the Wife

According to Muslim Law, if the wife asks for dissolution of marriage, she must pay
compensation to the husband. This compensation is generally equal to the amount of
dower the husband paid. In this regard, if the grounds for dissolution can be traced
back to the conduct of the husband, however, the wife is not liable to pay any
compensation. Under Classical Islamic Law, however, a wife could only be granted
khul when she agreed to provide compensation to the husband by returning the dower.
In Pakistan, the Superior Courts went against this traditional view and held that where
the marital ties were broken due to the conduct of the husband, the same could not
claim compensation from his wife if she asked for khul.
In the case of Razia Begum v. Sagir Ahmad,45 the court laid down the factors to be
considered when ascertaining the amount of compensation to be granted to the
husband. The court ruled that it is not correct to assume that in cases of Khul the wife
should return all benefits as a default rule. Thus, the return of benefits has to be
determined in light of the facts and circumstances of each case and a balance has to be
maintained. This means that if a wife seeks Khul without pointing out to any fault of
the husband and the Court considers it proper to grant a decree for Khul nonetheless,
then the wife should be ordered to return all the benefits received by her and also
45 Razia Begum v. Sagir Ahmad, 1982 CLC (Karachi) 1586

forego such rights under which she can claim any benefit. The court further held that
there is a consensus of judicial opinion that restitution of dower is not an
indispensable condition for the grant of Khula' and non-restoration of dower and other
benefits will not have any effect upon the validity of the decree.
This means that once the Family Court comes to conclusion that a wife was entitled
for Khula' it must pass such decree in her favor. The decision regarding the restoration
of mutual benefits will have to be taken in the light of facts of each case and it will
have the effect of only creating a civil liability. The court observed that if the
contention of the petitioner that Khula' cannot be granted without restitution of dower
and other benefits is accepted, then a destitute wife, who is found otherwise entitled to
Khula, will stand deprived of the right simply because of her incapacity to return the
benefits, which will be highly unfair and against the spirit of law and justice.
In the case of Syed Haroon Sultan Bokhari v Syeda Mubarak Fatima Syed46 it was
held that under Islamic Law, if dissolution of marriage is made on the basis of khula,
the wife is under an obligation to return the dower amount and the benefits derived
from the husband but the Court emphasized that this principle is applicable only when
the khula is claimed by the wife without any fault of the husband. The court ruled that
if the aversion or hatred is a result of the conduct of the husband in the form of mental
or physical torture, non-payment of maintenance allowance etc., then the return of
dower amount is not essential

Moreover, in the case of Dr. Fakhr ud Din v. Kausar Takreein47, it was held that the
Holy Quran does not command in express words and clear terms that the entire
benefits received by the wife has to be repaid. The court thus, noted that in peculiar
and exceptional circumstances, the Judge has the authority to determine that the
consideration as a whole is not to be repaid by the wife but a part of it. In this regard,
the court laid down a few determinable factors that included (i) whether the wife was
disobedient and therefore, a major contributor in straining marital relations or was this
attributable to the husband, (ii) whether the husband has contracted a 2nd marriage
46 Syed Haroon Sultan Bokhari v Syeda Mubarak Fatima Syed 2014 CLC 1270Lahore
47 Dr. Fakhr ud Din v. Kausar Takreein PLD 2009 Peshawar 92

and could not sustain the limits of Allah as far as the first wife is concerned, (iii)
whether the wife thereafter divorced, would become a destitute, without appropriate
income of her to live a graceful life?
In addition, in the case of Bibi Feroza v Abdul Hadi 2014 CLC 60, the court looked at
section 10 of the Family Courts Act 1964 the proviso to which reads as follows:
"Provided that notwithstanding any decision or judgment of any court or tribunal, the
Family Court in a suit for dissolution of marriage, if conciliation fails, shall pass
decree for dissolution of marriage forthwith and shall also restore to the husband the
Haq Mehr received by the wife in consideration of marriage at the time of marriage."
The court ruled that this provisions clearly demonstrates that divorce on the basis of
khula by wife is a right at par with the right of pronouncement of Talaq by husband,
with one difference that husband can pronounce "Talaq" himself, but the wife has to
file a suit in that behalf. Therefore, the right of khula is not contingent upon the
consent of the husband, but is dependent upon reaching a conclusion on the part of
Court that the spouses could no longer live within the limits of Almighty Allah. It is
true that the wife would be bound to return the benefits, which she had received on
account of marriage from husband, but it is equally true that the Family Court would
determine as to what benefits had been received by wife and also to direct their return.
It must be noted that the return of benefits, however, is not a condition precedent to
the dissolution of marriage. Thus, the decree of dissolution of marriage, on the basis
of khula, even though made conditional upon return of the benefits, would operate to
dissolve the marriage, when it is passed and effect thereof would not be postponed till
the benefits were returned. The failure on the part of wife to return the benefits
received by her from her husband within the stipulated period would not adversely
affect the factum of the dissolution. This is because the return of benefits by wife to
husband remains a liability of a civil nature, which could be enforced by the husband
through appropriate means. Similarly, dissolution of marriage affected through khula
is neither revocable, nor appealable and only decision qua dower is appealable.

In the case of Syed Dilshad Ahmed v. Mst. Serwat Bi48, the court observed that khul is
permissible when there is no possibility for happy union between the couple and there
is apprehension that due to their extreme differences they shall not be able to live in
accordance with the dictates of Shariah. It was ruled that if the fault lies with the
husband, in the fulfillment of his obligations towards his wife, the acceptance of
compensation for khul by him is forbidden in Sharia.
The court also relied on Ibn Rushds Bidayat Al-Mujtahid and stated that philosophy
of Khul is that it is a right within the powers of wife similar to the husbands right of
divorce. Thus when life became troublesome for the wife she may make use of her
right of getting khul, affected likewise, when some trouble arises for the husband due
to the wife, he may make use of his right of divorce.
The ruling of the Syed Dilshad case was subsequently used in Abdul Rashid v
Shahida Parveen49. The Court held that a wife could buy her freedom upon payment
of compensation. In the event of mutual agreement, parties can agree upon any figure.
However, once the Court is approached, the command of Shariah is very clear about
the extent of compensation money. It cannot be fixed at a figure higher than the dower
amount and return of benefits received by wife from her husband. However, in case
fault is found on the part of husband, the Court can reduce the amount of
compensation and may even grant divorce for Khul without any compensation at all.
In this regard, the judgments of Parveen Begum v Muhammad Ali50, Mst. Zahida Bi v
Muhammad Maqsood 51, Shagufta Jabeen v. Sarwat Bi52 and Dilshad v. Musarrat
Nisar53 supported the ruling of the Court
It should also be noted that in the case of non-payment of compensation, the
dissolution is not immediately invalidated rather, a civil right is created in favor of the

48 Syed Dilshad Ahmed v. Mst. Serwat Bi PLD 1990 Karachi 239

49 Abdul Rashid v Shahida Parveen 2013 YLR 2616
50 Parveen Begum v Muhammad Ali PLD 1981 Lahore 116
51 Mst. Zahida Bi v Muhammad Maqsood 1987 CLC 57
52 Shagufta Jabeen v. Sarwat Bi PLD 1990 Karachi 239
53 Dilshad v. Musarrat Nisar PLD 1991 SC 779

husband which the wife needs to fulfill54. It was held in Dr. Akhlaq Ahmed v. Kishwar
[N]on-payment of stipulated consideration for Khula [khul]did not invalidate the
dissolution of marriage by Khula [khul].Once the Family Court came to the
conclusion that the parties cannot remain within the limits of God and the dissolution
of marriage by Khula must take place, the inquiry into the terms on which such
dissolution shall take place, does not affect the conclusion but only creates civil
liabilities with regard to the benefits to be returned by the wife to the husband and
does not affect the dissolution itself.
Furthermore, in cases where it proved that the husband displayed cruel and inhumane
behavior towards the wife, she can retain the dower that she had to be returned to the
husband as compensation for Khula. This concept was upheld in the case, Haseeb
Ahmad v. Mst. Shaista56 where it was stated that if the other grounds, like cruelty, are
proved that account for dissolution of marriage, then the process becomes
mechanical and does not leave the court with any other choice but to grant Khula; in
addition to which the wife also gets to keep the dower.
Moreover, in cases where the wife did not receive any mehr at the time of marriage,
the husband was not entitled to its restoration in case of Khula. An example is of the
case Haris bin Hassan v. Judge Family Court57which puts forth conditions required
for a claim for restoration of haq mehr by the husband on account of khula. In this
case it was held that an order for haq mehr was contingent upon the condition whether
it was received by the wife or not. The receipt of the haq mehr was a predicator for the
restoration of haq mehr in case of dissolution of marriage.
Thus, the compensation given to the husband is derived from the benefits or awards
given by him to the wife; only if any such benefits were bestowed by him in the first
PART IV: Predicting Further Developments in Right to Khul
54 Munir, Muhammad Judicial Law-Making: An Analysis of Case Law on Khul in Pakistan
55 Dr. Akhlaq Ahmed v. Kishwar Sultana 1982 CLC (Karachi) 1586 at 1591
56 Haseeb Ahmad v. Mst. Shaista PLJ 2008 Peshawar 205
57 Haris bin Hassan v. Judge Family Court2013 CLC 94

If we view the gender-sensitive approach taken by the courts in Pakistan holistically,

it can be predicted that the judiciary will soon take the developments in the area of
joint property regime into account. This means that the compensation or forgoing of
dower in lieu of khul should be weighed against the reciprocal benefits the husband
has received owing to the domestic chores taken care of by the wife throughout the
marital union. In this regard, the Superior Courts should design effective tests to
ascertain the economic value of the work done by the wife.
The concept of joint marital property has not been expressly addressed by the
Superior Courts in Pakistan and thus, is not available as a relief for women yet. In
contrast to this, in Iran, courts require a divorcing husband to pay compensation to the
wife for the housework she has contributed during the marriage. Therefore, it is
mandatory for husbands to pay compensation to their wives for the economic muscle
they have spent in household chores in order to get a divorce. In Tanzania, in the
famous case of Bi Hawa Mohamed v Ally Sefu Civil Appeal no. 9 of 1983, Dar es
Salaam Registry (unreported)58 it was held that the domestic contribution of the wife
played a key role in the acquisition of any further property by the husband59.
In a country like Pakistan where there is great social stigma attached with getting a
khul coupled with the fact that women generally have to leave their marital house
(which the husband owns in most circumstances), forcing women to pay
compensation for khul is problematic. This is because women who are economically
dependent on their husband are-to a great extent-discouraged from seeking khul.
Although the Superior Courts have taken the plea of such women into account and
ruled that failure to pay dower does not vitiate a khul, more development in this area
is needed.
Thus, in cases of khul the Superior judiciary must take into account the economic
muscle spent by women in taking care of the household chores. By balancing this
58 Bi Hawa Mohamed v Ally Sefu Civil Appeal no. 9 of 1983, Dar es Salaam Registry (unreported)
59Zubaan, Knowing Our Rights: Women, Family, Laws, and Customs in the Muslim World: Women
Living Under Muslim Laws. 2003

against the dower paid by the husband, the Court should ensure that the party that has
outstanding dues is under a civil liability to pay the other.
To conclude, the law relating to Khula has come a long way and developed in favor of
women in Pakistan. The oppressed female has been liberated and given freedom to
exercise her right; a right that has been granted to her in the Quran. The courts in
Pakistan have distanced themselves from only relying on fiqh literature from one
school; that is Hanafi, and have expanded their horizons to other Sunni schools of
thought in order to capture and gauge the actual interpretation of the term Khula and
how it helps in safeguarding women who no more want to be captivated within the
bounds of their marriage contract. The courts have expanded the right so much that it
neither requires the consent of the husband nor does it require much justification on
part of the woman who demands Khula. These changes in the law have come forth in
the form of amendments in the Dissolution of Muslim Marriages Act, 1939 and also
in The West Pakistan Family Courts Act, 1964. Hence, it can be said that the rigid
patriarchal nature of the society has started to melt and is recognizing the
independence of women in the society.