Role of Court in Khulaa and Cancellation of Nikkah

305 ROLE OF COURT IN KHULAA AND CANCELLATION OF NIKKAH Prof. Dr. M. Shakil Auj, Department of Islamic Learning, University of Karachi Published in: All Pakistan Legal Decisions Year of Publication: 2011 Suggested Citation: 2011 PLD Journal Section p.68 The concept of Khulaa is based on the following verse: "Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khula (divorce)." (2:229) In this verse the words of 'Fala Junaha Alaihuma' (there is no sin on either of them) related to forthcoming words, i.e. 'Fima-ftadat Bihi' (she gives back and (the Mahr or a part of it) for her Al-Khula (divorce)) but people have related it to Khulaa, although Khulaa itself is something else than the sum of redemption (fidya). At this point people are confused in the subject of discussion that is why they comprehend the sum of redemption as a condition for Khula. However, there is no way that the word `Junah' (sin) becomes a condition, this word is used in the meaning of consequence, confinement or sin. Putras Bustani has Arabicized it to sin in Muheet-ul-Muheet. In short Khulaa can happen without the money of redemption and with the sum of redemption but it is more admirable without it. Imam Kasani stated two types of Khulaa in his book Badaie-as-Sanae. One is Khulaa without exchange and the other is with exchange. Therefore he writes if husband in the case of Khulaa without exchange has intention of divorce with the word of Khulaa, then divorce will take place without nay exchange. However in the case of Khulaa with exchange, Khulaa will not occur without exchange.1 Therefore we see the structure of 'Fala Junaha Alaihuma' alleged on the suspension of the conception of significance or confinement, not on the conception of condition. If the cause and the initiation of separation between spouses are from husband, then it is absolutely obligated on husband that he cannot take any thing back from his wife. "But if you intend to replace a wife by another and you have given one of them a Qintar (of gold i.e. a great amount as Mahr) take not the least bit of it back" (4:20) (Cit. p.69) But if the cause of separation of woman then the husband can take back his granted wealth and property wholly or partially, as stated in Al-Baqra verse 229. Qazi Ibn Rushd Malki Undlusi writes: "The Philosophy of Khulaa is that woman has been given the right of Khulaa, since the man has the option of divorce. Therefore if the soman has any difficulty with her husband, so she has the right of Khulaa and if the man has any difficulty with his wife then the legislator (i.e. Allah) has given the right of divorce to him."2 In our view, the process of Khulaa can be possible at home elegantly. So, there is not any condition, neither it is necessary to pursue court. Although in general people believe that it is necessary or a condition. In our opinion woman pursue court when she is forced to live with her husband against her desire and when any woman goes in the court, it is obvious and clear that she seriously wants to be separated from her husband. Otherwise why would any Muslim woman incline to confront the court and want to destroy her blissful home and family unit? The Quran has therefore given the right to the court to listen to the essence of problem, call the defendant party and after a true satisfaction implement the necessary procedure in the form of decision. Therefore that decision from the aspect of its consequence could be implemented in the form of divorce with Khulaa, and on the denial of husband, in the form of cancellation of Nikkah. But all of this could only be possible if the husband and his wife could come before court. If the husband does not come in court and he is not keen on coming wither, then on his non- serious attitude, in our view, the court attains the full right of cancellation of Nikkah. Allama Ibn-e-Haman states: "When the judge sees the interests of his decision in the favour of absent or against him and decides accordingly, then judge's decision will be validly functional, because it is an Ijtihadi problem."3 Moreover, for such husbands any penalty could be proposed separately, so that the piety of court could not be trodden. As there is the reign of indiscipline, lawlessness and confusion in the society in which people do not have the sense of the importance and essentiality of Court. In our humble opinion, declining the appropriate and based on reasons decisions of the court or releasing decrees against them, is nothing but an insult to the Court. Because the right of hearing a lawsuit and the decision of the judge is not only the need of society, in addition its establishment is in the exigencies of the law of Islam. (Cit. p.70) On no account, is not necessary for Khulaa that when the woman would be a plaintiff in the Court, she would give details of her reasons against husband on the basis of which she wanted to be separated since there are several matters in between spouses which could be explainable and there are various matters that are unexplainable and the law of Islam recognize the value of keeping private issues concealed. Thus, the judge does not look for the reasons behind the loathness, rather the coming of the chaste woman to the court should be enough for the judge. A word may suffice for a wise man Those who seek, search and detection and depends on investigation and research, should take lesson from the approach of Hazrat Umar, which he had taken in a similar matter. One woman came to Hazrat Umar and appealed for Khulaa. Initially he suggested going back to her husband but she refused then he imprisoned her in a filthy and stinky place. After three days of imprisonment he gave her the same advise. Just then she replied: "By God only these three days gave me comfort, which I spent without my husband." By hearing this Hazrat Umar understood the need of Khulaa. Therefore, he did not look for the reasons behind taking Khulaa, because in this one sentence there is immeasurable amount of complaint and oppressed behaviour of her husband. So, he called her husband and ordered him for Khulaa.4 Indeed after the failure of the objective of nikkah. while the verdict of separation is a sign of the acknowledgement of free-will of woman, it also provides society matrimonial happiness fully. This tradition also makes it obvious that if the judge of court decides any kind of other condition in place of investigation, which could give a kind of satisfaction that the woman is legitimately rightful in her demand of Khulaa, then he could adopt likewise or any other similar condition. However, he could not carry out investigation, seeking and cross-questioning in every respect. So that the privacy between man and his wife could not spread out and no one will suffer ignominy in society. In this manner the natural shyness and modesty of a woman will be saved. But it is remorseful that our approach is inconsistent to it. In some cases both the parties do not spare each other or one of them to the opposite one, consequently through the cross-questioning in the court make other one exposed. (Cit. p.71) In our view on woman's demand of Khulaa, no Mufti has the right in the name of Sharie (lawful) to expose the private matters and relationship of both parties and not even for the court it is appropriate to spray a lot of questions, so that both of them or at least one of them necessarily would be exposed. Likewise when the wife of Hazrat Thabit bin Qais came to the Prophet (S.A.W.) and demanded separation from her husband then He (S.A.W.) asked her that why she wanted to be separated? She replied: "O messenger of God! I do not see any defect in Qais's religion; it is only that I do not like him and I do not want to fall into infidelity after living in Islam."5 According to the tradition, the inquiring of the Prophet (S.A.W.) for the reason of separation from her husband was on habitual moral reason not for investigative purpose otherwise the Prophet (S.A.W.) must have made some unsatisfactory remark or would have investigated more on her answer. This incident provides evidence that whenever a woman requires Khulaa, the judge should absolutely not insist on the reasons behind Khulaa, rather on the objective of Khulaa. The personal dislike of a woman has got its own importance that simply on the basis of it the separation is lawful between them. It is narrated by Ibn-i-Abbas (R.A.) that the husband of Barira (R.A.) was a slave, whose name was Mugis. (Narrator reports) as if I am seeing him wandering crying after his woman and tears are falling on his beard, on this circumstance the Prophet (S.A.W.) said to Hazrat Abbas (R.A.): "O Abbas! Don't you surprise on the love that Mugis has for Barira, and the hatred that Barira has for Mugis?" Then the Prophet (S.A.W.) said to Barira would that be better if you return to your husband. She replied: O messenger of God! Is it an order? He said: No, I am only suggesting it. She replied: Then I am not in need of him.6 This tradition has made the substance of the issue more obvious and clear. The word of "Khulaa" has been emphasized in our society greatly, if this word is used as the proclamation and conveying the conception that the separation is not from the husband rather from the (Cit. p.72) wife, then obviously it is a clear and decisive terminology and we and our courts should use this word in Khulaa's circumstance, so that it can be differentiated that the husband has not taken out the wife from his life, rather the wife has taken out the husband from her life. However, if the separation of spouses occurs by the decisive factor the court then we and the court should use the terminology of nullifying or cancellation of Nikkah so that the essence of the fact will be understood through one word. But this fact should be obvious that whether it is Khulaa or Cancellation of Nikkah or divorce, the end result of all of them is same that is the parting of spouses. Therefore, we have doubts on the validity of the decrees which are given out without considering the objective of law and which do not accept the decision of court only because why they have used the word of Khulaa in place of nullifying or Cancellation of Nikkah? When the result of all three of them is same then the differentiation like this (such as) not acknowledging Khulaa as the cancellation of Nikkah is in fact equal to not understanding the essence of the problem. This reality should be in mind that the decision of court can not be annihilated by the wordy tricks because in the acknowledgement of decisions only words are not significant, rather its spirit, wisdom and objective are important. In the matter of spouses the role of authorities/court is decisive which is obvious from the words of Quran. The way of reconciliation in between spouses in the circumstance of breach is described in the 35 verse of Sura-e-Nisa: "If you fear a breach between them (the man and his wife), appoint (two) arbitrators, one from his family and the other from her." The ulama have two viewpoints in the meaning of the word "hakam" (arbitrator). One view is that the word "hakam" (arbitrator) is in the meaning of lawyer or representative and according to other view the word "hakam" (arbitrator) is in the meaning of decision make that is judge of court. In the light of second view, it is important that the arbitrators would be declared as decisive authority in the circumstance of breach in between. Ibn-e-Saeed, Saeed bin Jubair, Ibrahim Nakhei, Shaoubi, Muhammad bin Sirin and other have shown this point of view. Our view is that is the matter of breach could not be settled in home then the court should be involved. As per Quran the court should appoint one arbitrator from husband's family and one arbitrator from wife's family and this court appointment itself will be a validation of the fact that the arbitrators are authorized to take the absolute decision. This fact is obvious with the words of "appoint" and "arbitrators". It is finely evident that for the matters of breach in between spouses which could end up in separation, for any Islamic society the (Cit. p.73) ground court could set up an especial court comprising two judges from the relatives of both parties, in our view this appointment is nothing but an endeavor to keep the secrecy of two families. It means that principally, the law of Islam (Sharia) is more interested to settle the disputes of both parties in a familiar environment, rather than in a strange environment. So that the private and concealed matters would be limited to concerned person's family, and not turn into publicized, as well as the environment of society do not become contaminated. Amin Ahsan Islahi has written "after reaching any matter in court then from the court will be handed over to the panchayat (a native court of arbitration consisting of five or more members) and the court will also authorize the right of making decision to the Panchayat."7 As per Islahi's writing "authorize the right of making decision" indicates that the arbitrators will not be authorized to make decision until they are empowered by the court. Yet they are sanctioned after court's permission. Hence from one aspect this might be correct to adjudge but in our view the court appointment of arbitrators is itself logical to enable them for the authorization of making decision. Since the word 'arbitrator' has the meaning of authorization which is obvious in itself. In this affair the decision of arbitrators is actually the decision of court. Imam Malik and Imam Shafai have the similar view on it. Imam Ragib Asfahani has described 'arbitrator' in this manner: "(Arbitrator) or judge is called Hakam, and arbitrator is more eloquent than judge and in the verse instead of Haakiman (Judge), Hakman (arbitrator) is used, this indicates that the two arbitrators are appointed on condition that both of them will decide on their own insight without going in details, whether that decision is acceptable to the spouses or undesirable to them."8 And Muth Ahmed Yar Khan Naeemi writes: "Haakim (Judge) is the person who evaluates ordinary cases and Hakam (arbitrator) is the one who evaluates extraordinary cases which is called in Urdu as "Panch" (a council: an assembly of five men)."9 The word Hakam (arbitrator) is illustrated by our Urdu translators through different terms. Most of the translators have used (Cit. p.74) munif (judge) and panch (a council: an assembly of five men), however Ghulam Ahmad Pervaiz has translated Hakam as Saalis (mediator) and Waris Sirhindi has regarded these three as synonyms by giving the meaning of Saalis (mediator) as munsif (judge) and panch (a council: an assembly of five men). Muhammad Ali has translated it as the one who judges. Whereas Ashraf Ali Thanvi has regarded him as hakam who has the ability of making decision and few of our translators have left hakam as it is and did not try to describe it with other words for example: Abdul Majid Darya Abadi, Abual Ala Mawdudi, and Zeeshan Haider Jawadi etc. so, the outcome of this discussion is that the word "Hakam" is giving the same reality of its different translations and that is Hakam is the name of legal authorization of complete power of decision. Rather Imam Abu Al Fardh Abdur Rehman bin Ali bin Muhammad Jauzi Hanbali (D. 597H) writes: "Imam Malik and Imam Shafae state that the inclination of the spouses are not necessary for the decision of arbitrators." 10 And Justice Tanzeel-ur-Rahman writes: "If both of the spouses have disagreements then the decision that they won't be able to keep the limits ordained by Allah, and should do Khulaa, will only be a third person who can do and in this condition Khulaa will perform through court." Further on he writes: "One famous case of Bilqees Fatima for Najm-ul-Ikram (PLD 1959, Lahore, 566) Learned Judges Justice Shabbir Ahmad, Justice B.Z. Kaikaus and Justice Masud Ahmad had declared that if the court reach on the decision that the spouses cannot keep the limits ordained by Allah then the court can perform Khulaa (on the reasonable amount taken out from wife) without the willingness of husband. This opinion is on appropriate judgment and this viewpoint was adopted by the Supreme Court in the case of Khursheed Begum (PLD 1967 Supreme Court. p:97)."11 Briefly our objective is that if any woman appealing court for Khulaa then it is the responsibility of the court to provide her right, means ensure to release her from her husband. There is not a single tradition in our abundant traditions in which the woman was not got (Cit. p.75) released after her demand of Khulaa, since the law of Khulaa has been made for the reason which led to separation, parting. Those who know the objective of nikkah duly, they cannot do the foolishness to leave the woman on the mercy and pity of husband. Therefore in the matters of Khulaa it is important that the court should call the husband and order him to give divorce to his wife. If the husband releases his wife on court order then it is good enough, otherwise court should use its right of making decision and perform separation in between them. Here it is important to restate that Khulaa could happen in exchange and without exchange. This exchange is depicted in Quran with the words of "if she gives back (the Mahr or a part of it) for her Al-Khulaa (divorce)." (2:229) and the reciprocal of exchange as "then there is no sin on either of them". This is the exchange, due to which the willingness of husband in Khulaa is acknowledged and if Khulaa is happening without exchange on the court orders then there is absolutely no need of the willingness of husband. Rather the non-appearance of husband in the court is enough to order Khulaa without exchange. And the same is the case in Cancellation of Nikkah, since this is that authority of court which is used after the failure of getting husband's acknowledgement. And this is the authorization, through which the oppressed woman is guaranteed separation from her husband. If the court is forbidden this right then one can think how possibly the woman will get justice? Obviously in this way she will never get freedom from her husband's violence and tyrant behavior. Therefore in our view, it is quite rational from the Sharia's aspect, rather highly important to acknowledge the decisive role of court in Khulaa and in Cancellation of Nikkah. 1 Albahr-ul-Araeq, Vol.3, p.151, Allama Ibn-e-Najeem, Published in Egypt 1328 H, Vol.4, p.77. 2 Badayat-ul-Mujtahid, Vol.2, p.68, Published in Egypt, 1379H.` 3 Fath-ul-Qadeer, Vol.5, p.368-369, Published Muktaba Nooria Riazvia Sukkur 4 Kashf-ul-Ghama, Vol.2, as referred in The Rights of Spouses, P.66, Sayyed Abual Ala Mawdudi. 5 As-Sahi Al Bukhari, Vol.2, Chapter AlKhulla and how divorce will happen in it. 6 As-Sahi Al Bukhari, Chapter, Recommendation of the Prophet for Barira's husband. 7 Tadabbur Quran, Vol.2, p.294, Tafseer Surat-un-Nisa Verse 35. 8 Almufradat Fi Gharib-ul-Quran, Kitab-ul-Ha, Noor Muhammad Tijarat Kutub, Karachi. 9 Ashraf-ut-Tafaseer, Al-Maruf Bihi (famous as) Tafseer-i-Naemi, Vol.5, p.64, Maktaba-i-Islamia, Lahore. 10 Zaad-ul-Munir, Vol, 2, p.77-78, Published Maktab Islami, Bairut 140H. 11 Majmua Quaneen Islam, Vol.2, p.592-597, Idara Tahqiqat-i-Islamic, Islamabad, 3rd Edn.1984.