While a Muslim woman’s right to seek divorce is enshrined in the Quran, social stigma and pressure from clerics has meant that it is rarely used.
New Delhi: Amid the raging debate over the issue of instant triple talaq and the Bill that the government wants passed to criminalise it, the erosion of a Muslim woman’s right to unilaterally divorce her husband – khula, according to the Quran – has not received the attention that it deserves.
For, a woman’s rights are equally infringed upon by not being able to leave a husband she doesn’t want to live with, as these are by instant triple talaq – through which a husband can abandon her instantaneously.
Though permitted by the Quran, Muslim women find going through with khula to be a Herculean task as the society and the maulvis (clerics) pool their might to thwart her efforts.
In theory, clerics admit that women can choose khula. However, they say that she must have the consent of her husband and the marriage needs to be annulled by a maulvi, after he is satisfied with her reasons for doing so. This renders a Muslim women’s right to divorce meaningless.
But this is not as it should be, according to eminent jurist Tahir Mahmood. “Here the decisive voice is that of a woman. The husband or the qazi cannot decide on khula.”
Mahmood cites a case believed to have come before Prophet Mohammad. The prophet suggested that a woman wanting khula should reconsider her move. She asked him if this was an instruction or a suggestion. When he said it was a suggestion, she refused to accept it and got divorced.
So, when a woman goes to a qazi for khula, “The qazi cannot play any role, he only has to solemnise it. It is instant and irrevocable,” says Mahmood.
The Pakistan Supreme Court has already ruled that when it comes to khula, the woman’s choice is what counts.
In other Muslim countries, such as Egypt, Nigeria, Saudi Arabia and Iran, too, the right of a woman to seek unilateral divorce is recognised. But, in most cases, she has to pay a heavy financial cost if she is not able to satisfy the courts on the stipulated grounds for divorce under sharia law.
In Saudi Arabia, women who obtain khula have to give up child custody rights in addition to paying large sums as compensation to their husbands.
In Iran and a few other Muslim countries, khula comes with social stigma, which is a very strong deterrent, says Sheeba Aslam Fehmi, a scholar of Islamic studies who works on feminism within the framework of Islam.
That is also the case in India. Sehba Farooqui, a member of the Communist Party of India (Marxist)’s Delhi secretariat, who has worked for decades among Muslim women, says women wanting khula are harassed by clerics and others around them to the extent that most give up the idea.
“In most cases, women would not go for khula because of the social stigma attached with a divorced woman, and in cases where they finally gather the courage to go for it, they find themselves pitted against insurmountable odds”, she says.
As Mahmood puts it, “While the law on divorce by men is facing misuse, the one on divorce by women is in disuse.”
Though women unable to get a divorce through a qazi can go to court, this is not an economically viable option for a large majority, given the costs involved.
Zakia Soman of the Bharatiya Muslim Mahila Andolan (BMMA), one of the five petitioners in the instant triple talaq case, says that in most cases of khula, women are forced to give up their claims on mehr (money or gifts given to the bride by the groom’s family at the time of marriage). In her experience, 45% women are happy to forgo their claims in order to get away from a marriage they do not want to be in, Soman adds.
According to Soman, there has been a long-standing demand for the codification of Muslim family law and a draft Bill on it has been sent to the government.
While the BMMA is in favour of a legislation against triple talaq, they want some amendments to the Bill presented by the government in parliament – including that it recognise khula and mubarah (divorce by mutual consent). Along with triple talaq, the BMMS also wants practices like nikah halala (in which a divorced wife has to consummate her marriage with another man before being allowed to re-marry her former husband) and mutah (a temporary marriage which can be dissolved at a predetermined time), which, they say, are also leading to the exploitation of women.
”Nikah halala is most absurd practice and against the dignity of a woman, and so is mutah,” say Farooqui and another social activist, Naheed Taban.
The problem is that all Quranic laws have been interpreted by clerics and they represent nothing but a patriarchal mindset, Taban adds.
Naz Asghar is a Delhi-based journalist.