Marriage Termination by Islamic Centres at the Wife’s Request
A Muslim woman in a non-Muslim country can terminate her marriage at her request “Khul’” through Islamic centers, as they have a judicial status. But the arbiters must follow all the required procedures.
Marriage Termination by Islamic Centres at the Wife’s Request
- How can a Muslim woman terminate her marriage in non-Muslim countries?
When conflict persists between a couple living in a non-Muslim country and the woman needs to terminate the marriage through khul', how can she achieve this?
Fiqh councils allow Islamic centres to assume the status of a Muslim judge and carry out some Islamic procedures that lead to the termination of marriage at the wife’s request, i.e. khul'. Hence an Islamic centre in a Western country may have the authority of a judge. Among the authorities endorsing this ruling are:
1. The Assembly of Muslim Jurists of America
The concluding statement of the Assembly’s second convention held in 2004 stated that Islamic centres in non-Muslim countries have a judicial status. If the Director of an Islamic centre has the status of arbiter, either by the free consent of the two parties or because the Muslim community has given him this status, then his decision of termination of the marriage on the basis of harm suffered or ill-treatment is valid, but all necessary legal steps should be taken that are necessary to spare him any legal liability. The decision stresses that arbiters must follow all the required procedures in such cases, such as allowing ample time for both parties to put their cases, setting a time for the absent party to come to them, ensuring that their decision is not a hasty one and making every effort to rule fairly between the parties.
2. The European Council for Fatwa and Research
Having studied the issue of khul', and the papers submitted about it, the Council adopted decision 3/15 at its fifteenth regular session held in Istanbul, 22–26 Jumada I 1426 AH, 29 June–3 July 2005. The decision says:
Khul' means the agreement between a married couple to terminate their marriage in lieu of compensation. Its legality is confirmed in the Qur’an and the authentic Sunnah. Its purpose is the removal of harm suffered by the wife when she finds it hard to stay with her husband either because she dislikes him or because he fails to give her her rights. One of the essentials of khul' is the compensation the wife pays to her husband in return for her divorce. It is lawful for the husband to take compensation unless he resorts to harming his wife so that she is compelled to relinquish her dowry or part of it.
‘Believers, it is unlawful for you to inherit women against their will, or to bar them from remarrying so that you may make off with part of what you have given them, except when they are guilty of a flagrant indecency.’
Whether khul' is considered a divorce or a dissolution of the marriage, the termination of the marriage is final which means that her husband can only remarry her with a new marriage contract and paying her a new dowry. If khul' is granted, the woman needs to observe her regular waiting period. Khul' does not need a permit by a judge or a ruler. It is enforced, with its relevant regulations, on both parties once they agree to it, but it must be registered with the authorities.
In non-Muslim countries where khul' is unknown, it is necessary for a couple whose marriage was conducted according to the law of the country to go through formal divorce procedures. The woman who has completed her waiting period may not marry another husband until all the formal procedures of divorce have been completed in accordance with the law that applies to her terminated marriage.
3. The Permanent Fatwa Committee at the Assembly of Muslim Jurists of America
The normal custom for khul' is that it should be done by the husband and no one may take away this right of his. He holds the marriage bond and he has the right to keep his wife or to part with her. However, in some cases a court may need to interfere, as in the case of a husband who denies his wife some of her rights, or persists in denying her request to part with him. In such a case a judge needs to interfere to achieve either reconciliation or termination. When the judge is unable to reconcile the two parties he orders the husband to accept the dissolution. If the husband refuses, the judge takes over and effects the dissolution. The same applies in a case when the husband, faced with such a request for termination, disappears and his place of abode becomes unknown and there is no way to contact him. The judge should know that his intervention is not the normal way and, therefore, he should make every effort to contact the husband and inform him of his wife’s request for dissolution and order him to accept it. He should repeat this two or three times, each time giving him a reasonable period to consider, ensuring that he is informed of all this and that the period of time given is suitable. All this should come after all efforts to bring about reconciliation between the couple have failed. In this case, the judge’s interference is to remove harm caused to the wife. Unfortunately, some Islamic centres effect the khul' as soon as they have heard the wife’s complaint, making no serious effort to contact the husband and hear his side of the story, or to enable him to do his part in granting his wife her request of termination. Such precipitous action by some Islamic centres is wrong and incurs a sin. Perhaps it is possible to say that in such cases the khul' may not be valid.
In his paper presented before the European Council for Fatwa and Research on the dissolution of marriage through the channels of the Islamic Shari'ah Council in Britain, Dr Suhaib Hasan referred to judicial rulings on personal and family affairs. He said that the late Shaikh Ashraf Ali Tahanooni, a prominent scholar from India, published a book more than three quarters of a century ago entitled Al-Hilah al-Najizah lil-Halilah al-'Ajizah, in which he tried to find a solution to really complex situations that are difficult to settle according to the Hanafi school by resorting to some rulings issued by Maliki scholars. These are questions like the status of the wife of a lost husband, or one who is insane or absent and nothing has been heard from him for a long time. He discussed the suggestion that in a town where there is no Muslim judge, the local Muslim community may appoint an arbitration committee. Tahanooni said that the matter was not difficult in Indian states with a Muslim judge, but in areas under the Indian government where there is no Islamic court, a judge appointed by the government could deal with family matters if he is a Muslim and his ruling is in agreement with Islamic law. Such judgement is acceptable as clearly mentioned in Al-Durr al-Mukhtar. A judge may be appointed by any ruler, whether fair or not, and even if he is an unbeliever, as mentioned by Miskin and others.
A judgement issued by a non-Muslim judge is totally unacceptable and no dissolution of the marriage is valid on such a basis, This is because no unbeliever has jurisdiction over a Muslim, as clearly stated in all books of Islamic law.
If judgement is collective, as happens when a problem is considered by a number of judges, an arbitration committee or a group of people, all of the participants must be Muslims. If even one is not a Muslim, then their judgement is unacceptable and the marriage cannot be dissolved by them. In any area where there is no Muslim ruler and reference cannot be made to a court with a Muslim judge, or where judgement is given by a Muslim judge but not on the basis of Islamic law, the woman who is seeking dissolution does not have, according to the Hanafi school, any way open to her other than that her husband agrees to divorce her or give her khul'. If the man refuses to grant his wife a divorce, or if he cannot be contacted and his whereabouts are unknown, or if he is insane and the woman cannot tolerate this situation, there is a way out according to the Maliki school of Islamic law. She can put her case to a Muslim committee of arbitration, a procedure which the Malikis consider valid where there is no Muslim judge. Al-Salih al-Tunisi, an eminent Maliki scholar who taught at the Prophet’s mosque in Madinah, said: ‘The well-known view of the majority of scholars which is also put in practice is that dissolution of the marriage, its procedures and all that relates to it is up to the judge. If none is available then three or more individuals from the Muslim community can replace the judge. One person is not sufficient in such cases. The view that one person may be sufficient is said to have been approved by al-Ajhuri in one of two reports attributed to him. Some Egyptian scholars follow this view, but the first view is the upheld one. Therefore, there is no need to speak about this single arbiter or the tasks assigned to him, as this is very clear: he should be an Islamic scholar and a wise man who is consulted by people in his community regarding their problems.’
A good example to follow is the Islamic Emirate at Bihar, which was set up by the Muslim community during the period of British colonialism for the task of settling their disputes. This institution continued to work after India gained independence and its function was considered supplementary to Indian courts, which were under immense pressure and with huge backlog of cases.
The Islamic Shari'ah Council’s work is not limited to issuing fatwas and looking into cases of khul[, divorce and marriage dissolution. It also includes:
- Performing marriage contracts.
- Settling disputes, in addition to what has been said of working out reconciliation between quarrelling couples.
- Stating the legal Islamic view on questions it receives from lawyers or British courts.
- A member of the Council attends, when necessary, a British court to explain the Islamic view on a particular question put to the Council.
- The website of the Assembly of Muslim Jurists of America (AMJA):www.amjaonline.org.
- The website of the European Council for Fatwa and Research: www.e-cfr.org.
- Home page for IslamWeb.net website: www.islamweb.net.
- Suhaib Hasan, Al-Tafriq al-Qada’i min Khilal Qanawat Majlis al-Shari'ah al-Islamiyyah’ (Marriage Dissolution through the Channels of the Islamic Shari'ah Council).
- The European Council for Fatwa and Research.
- The title of the book may be translated as ‘A ready ploy for a desperate woman’.