SC validates right of women to dissolve ‘Nikah’ on grounds of mistreatment

[muhammadhafeezmalik]

SC validates right of women to dissolve ‘Nikah’ on grounds of mistreatment ​

The Supreme Court of Pakistan on Thursday validated the right of women for dissolving their Nikah (marriage) on the grounds of mistreatment by their husbands.


The top court issued this order on a writ petition of a woman regarding the dissolution of marriage on the basis of ill-treatment by her husband. The court upheld the decision of a family court to dissolve the Nikah of woman petitioner Tayyaba Ambreen on the basis of mistreatment by her husband Shafqat Kayani.


Turning down the decision of the appellant court and Peshawar High Court, the apex court said the marital relationship between a husband and wife was based on trust. The wife was authorized to file a writ petition to dissolve her Nikah on the basis of mental and physical torture by her husband, the court said.


The court said that husband’s stance against his wife for not fulfilling the marital rights could be an attempt to avoid payment of Haq-e-Mahr (dower given as a mark of respect to wife).

SC validates right of women to dissolve ‘Nikah’ on grounds of mistreatment

ISLAMABAD: The Supreme Court of Pakistan on Thursday validated the right of women for dissolving their Nikah...

www.brecorder.com

 

[NooriNuth]

Its against Shariah.
SC cannot change Islam.

 

[muhammadhafeezmalik]

Its against Shariah.
SC cannot change Islam.

No, it is not:

Muslim women have the right to divorce their husbands if the marriage has proven incompatible or the husband is guilty of serious misconduct. Islam provides women with this legal recourse to end a broken marriage or to escape an abusive partner.


There are two avenues for a Muslim women to divorce her husband: 1) Mutual-agreement upon her request (al-khula’), and 2) divorce imposed by a judge (tallaq al-qadi). The first method is preferred as it facilitates an amicable separation, which is especially important if there are children involved. The second method, on the other hand, is a rather blunt instrument that should only be used when a husband egregiously violates the terms of the marriage contract.


As for mutual divorce, a woman may request such a divorce from her husband if she finds herself incompatible with him. She must repay the dowry (al-mahr) that she was given at the beginning of the marriage.


Allah said:

فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ ۗ تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَا
If you both fear you will not uphold the limits of Allah, there is no blame upon either of you in regards to what she repays him. These are the limits of Allah, so do not transgress them.
Surat al-Baqarah 2:229

Al-Nawawi writes:

إذا كرهت المرأة زوجها لقبح منظر أو سوء عشرة وخافت أن لا تؤدى حقه جاز أن تخالعه على عوض
If the wife dislikes her husband because of his ugly appearance, or bad companionship, and she fears she will not fulfill his rights, it is permissible to request a divorce from him on condition of compensation (‘iwad).
Source: al-Majmū’ Sharḥ al-Muhadhab 3/17

And Ibn Qudamah writes:

وَجُمْلَةُ الْأَمْرِ أَنَّ الْمَرْأَةَ إذَا كَرِهَتْ زَوْجَهَا لِخَلْقِهِ أَوْ خُلُقِهِ أَوْ دِينِهِ أَوْ كِبَرِهِ أَوْ ضَعْفِهِ أَوْ نَحْوِ ذَلِكَ وَخَشِيَتْ أَنْ لَا تُؤَدِّيَ حَقَّ اللَّهَ تَعَالَى فِي طَاعَتِهِ جَازَ لَهَا أَنْ تُخَالِعَهُ بِعِوَضٍ تَفْتَدِي بِهِ نَفْسَهَا مِنْهُ
The summary of the matter is that the wife, if she dislikes her husband because of his appearance, his character, his religion, his old age, or his weakness and so on, and she is afraid she will not fulfill the right of Allah Almighty in obedience to him, it is permissible for her to request a divorce from him with compensation by which she frees herself of him.
Source: al-Mughnī 7/323

It is not permissible for a husband who wishes to divorce his wife to impose hardship upon her in order to compel such compensation. Islam does not allow such a loophole for men to take advantage of their wives.

Allah said:

وَلَا تَعْضُلُوهُنَّ لِتَذْهَبُوا بِبَعْضِ مَا آتَيْتُمُوهُنَّ إِلَّا أَن يَأْتِينَ بِفَاحِشَةٍ مُّبَيِّنَةٍ ۚ وَعَاشِرُوهُنَّ بِالْمَعْرُوفِ
Do not make difficulties for them in order to take back what you have given them, unless they behave in a clearly immoral manner. Live with them honorably.
Surat al-Nisa’ 4:19

Al-Nawawi comments on this verse, writing:

وإن ضربها أو منعها حقها طمعا في أن تخالعه على شئ من مالها لم يجز … فإن طلقها في هذه الحال على عوض لم يستحق العوض
If he hits her or obstructs her rights in anticipation of her request to divorce on condition of repaying something from her property, it is not permissible… If he divorces her in this manner on condition of compensation, he does not deserve compensation.
Source: al-Majmū’ Sharḥ al-Muhadhab 3/17

شوہر بیوی سے خلع کا مطالبہ کرنا اور بدل خلع لینے کا حکم | جامعہ علوم اسلامیہ علامہ محمد یوسف بنوری ٹاؤن

اگر شوہر پہلی بیوی سے اس لیے خلع مانگے کہ بعد میں دوسری بیوی کا حق مہر دے سکےتو اس کا کیا حکم ہے؟

www.banuri.edu.pk

 

[NooriNuth]

No, it is not:

Muslim women have the right to divorce their husbands if the marriage has proven incompatible or the husband is guilty of serious misconduct. Islam provides women with this legal recourse to end a broken marriage or to escape an abusive partner.


There are two avenues for a Muslim women to divorce her husband: 1) Mutual-agreement upon her request (al-khula’), and 2) divorce imposed by a judge (tallaq al-qadi). The first method is preferred as it facilitates an amicable separation, which is especially important if there are children involved. The second method, on the other hand, is a rather blunt instrument that should only be used when a husband egregiously violates the terms of the marriage contract.


As for mutual divorce, a woman may request such a divorce from her husband if she finds herself incompatible with him. She must repay the dowry (al-mahr) that she was given at the beginning of the marriage.


Allah said:




Al-Nawawi writes:




And Ibn Qudamah writes:




It is not permissible for a husband who wishes to divorce his wife to impose hardship upon her in order to compel such compensation. Islam does not allow such a loophole for men to take advantage of their wives.

Allah said:


Al-Nawawi comments on this verse, writing:

شوہر بیوی سے خلع کا مطالبہ کرنا اور بدل خلع لینے کا حکم | جامعہ علوم اسلامیہ علامہ محمد یوسف بنوری ٹاؤن

اگر شوہر پہلی بیوی سے اس لیے خلع مانگے کہ بعد میں دوسری بیوی کا حق مہر دے سکےتو اس کا کیا حکم ہے؟

www.banuri.edu.pk

She can request a divorce which is called "Khulaa" .
But cannot unilaterally end the "Nikaah" as SC ruled.

 

[villageidiot]

Its against Shariah.
SC cannot change Islam.

You know what else is against Shariah? Being an animal to one's wife.
In fact, that's the very reason there is a provision for divorce in Islam when you has things like satti in Hinduism and other horrible treatments for women in other major religions.

 

[Dalit]

Isn't divorce valid when both sides agree to divorce in Islam? How will the wife get a valid divorce if the husband refuses to divorce?

This ruling sounds more like all other rulings we are used to hearing in Pakistani courts.

 

[bababho]

Its against Shariah.
SC cannot change Islam.

Entire constitution of Pakistan is against sharia,
Do you chop hands for the theft , do you follow "zana ki saza rajam"

 

[Bouncer]

No, it is not:

Muslim women have the right to divorce their husbands if the marriage has proven incompatible or the husband is guilty of serious misconduct. Islam provides women with this legal recourse to end a broken marriage or to escape an abusive partner.


There are two avenues for a Muslim women to divorce her husband: 1) Mutual-agreement upon her request (al-khula’), and 2) divorce imposed by a judge (tallaq al-qadi). The first method is preferred as it facilitates an amicable separation, which is especially important if there are children involved. The second method, on the other hand, is a rather blunt instrument that should only be used when a husband egregiously violates the terms of the marriage contract.


As for mutual divorce, a woman may request such a divorce from her husband if she finds herself incompatible with him. She must repay the dowry (al-mahr) that she was given at the beginning of the marriage.


Allah said:




Al-Nawawi writes:




And Ibn Qudamah writes:




It is not permissible for a husband who wishes to divorce his wife to impose hardship upon her in order to compel such compensation. Islam does not allow such a loophole for men to take advantage of their wives.

Allah said:


Al-Nawawi comments on this verse, writing:

شوہر بیوی سے خلع کا مطالبہ کرنا اور بدل خلع لینے کا حکم | جامعہ علوم اسلامیہ علامہ محمد یوسف بنوری ٹاؤن

اگر شوہر پہلی بیوی سے اس لیے خلع مانگے کہ بعد میں دوسری بیوی کا حق مہر دے سکےتو اس کا کیا حکم ہے؟

www.banuri.edu.pk

Refreshing to see a detailed response with proper references.

 

[muhammadhafeezmalik]

She can request a divorce which is called "Khulaa" .
But cannot unilaterally end the "Nikaah" as SC ruled.

She have to prove "grounds" before a judge, in case her husband does not agree with her request (Khulla), then she has the right of divorce imposed by a judge (tallaq al-qadi).

Isn't divorce valid when both sides agree to divorce in Islam? How will the wife get a valid divorce if the husband refuses to divorce?

This ruling sounds more like all other rulings we are used to hearing in Pakistani courts.

Separation with Mutual understanding is called Talaq-i-Tafweez and Mubarat, while talaq on request of woman is called Khula, separation without mutual understanding is called tallaq al-qadi

Dissolution of Muslim Marriages Act 1939
Judicial khula may also be granted without the husband's consent if the wife is willing to forgo her financial rights.


Grounds for Judicial Divorce
Grounds on which a woman may seek khula include:

• Desertion by husband for four years,
• Failure to maintain for two years
• Husband contracting a polygamous marriage in contravention of established legal procedures,
• Husband's imprisonment for seven years,
• Husband's failure to perform marital obligations for three years,
• Husband's continued impotence from the time of the marriage
• Husband's insanity for two years or his serious illness
• Wife's exercise of her option of puberty if she was contracted into marriage by any guardian before the age of 16 and repudiates the marriage before the age of 18 (as long as the marriage was not consummated),
• Husband's cruelty (including physical or other mistreatment, unequal treatment of co-wives),
• Any other ground recognised as valid for the dissolution of marriage under Muslim law

The Family Court will issue decree and send notification to Union Council which proceeds as if it received the notice of Talaq and once the iddat period of over the khula becomes effective.


At the time of filing of Khula suit the wife usually has to return haq mehr and other benefits received from husband as zar-ikhula, gifts received from husband’s family do not have to be returned court decides how much & what is to be returned on the facts of the case wife’s failure to pay zar-i-khula does not render khula ineffective; husband has to file separate suit for recovery of zar-i-khula

 

[Dalit]

She have to prove "grounds" before a judge, in case her husband does not agree with her request (Khulla), then she has the right of divorce imposed by a judge (tallaq al-qadi).


Separation with Mutual understanding is called Talaq-i-Tafweez and Mubarat, while talaq on request of woman is called Khula, separation without mutual understanding is called tallaq al-qadi

Dissolution of Muslim Marriages Act 1939
Judicial khula may also be granted without the husband's consent if the wife is willing to forgo her financial rights.


Grounds for Judicial Divorce
Grounds on which a woman may seek khula include:

• Desertion by husband for four years,
• Failure to maintain for two years
• Husband contracting a polygamous marriage in contravention of established legal procedures,
• Husband's imprisonment for seven years,
• Husband's failure to perform marital obligations for three years,
• Husband's continued impotence from the time of the marriage
• Husband's insanity for two years or his serious illness
• Wife's exercise of her option of puberty if she was contracted into marriage by any guardian before the age of 16 and repudiates the marriage before the age of 18 (as long as the marriage was not consummated),
• Husband's cruelty (including physical or other mistreatment, unequal treatment of co-wives),
• Any other ground recognised as valid for the dissolution of marriage under Muslim law

The Family Court will issue decree and send notification to Union Council which proceeds as if it received the notice of Talaq and once the iddat period of over the khula becomes effective.


At the time of filing of Khula suit the wife usually has to return haq mehr and other benefits received from husband as zar-ikhula, gifts received from husband’s family do not have to be returned court decides how much & what is to be returned on the facts of the case wife’s failure to pay zar-i-khula does not render khula ineffective; husband has to file separate suit for recovery of zar-i-khula

So judge will be playing husband?

 

[Mentee]

Its against Shariah.
SC cannot change Islam.

No it isnt against sharia but against fiqah hanfia. This way she won't be forced to give up the dower ( haq Mehar) in case khula is taken on grounds of mistreatment but the onus of proving such mistreatment shall lie on her . Otherwise she'd only be entitled to the 50% unpaid dower while has to return the 25% from the already paid one . @jamahir

 

[Trango Towers]

Pakistani society is a mess.
They become extra Islamic when it suits them and dump Islam when it doesn't.

1. 1stly...how many men and women have a say in who they marry. Forced marriage is haram. This is standard in villages and often in cities. "You will marry your fat ugly cousin with a big mouth and no education because I promised your khala b4 you were born." Lol

2. They live with the outlaws...yes outlaws. No privacy no independence and the outlaws dictate how they live. Sometime the girl doesn't even have money for sanitary towels. The mother in law controls even that.

3. Often in villages the boy marrying has no job and he is a loser or has mental health issues. Let's get him married he will be ok. The marriage will fix him...get him a hoover for a night let's see if that fixes him (sarcasm...I know the molvis will scream haram)

4. Some husbands are vile cruel and evil. They abuse their wives. Equally some wives have disgusting mouths and cause trouble. Both are equally wrong.

5. The pressure to produce babies. Even before they know each other often the girl becomes pregnant and then the issues start for if she isn't pregnant in the 1st year the outlaws start to talk about divorce .

6. Let assume the marriage for whatever reason or whoever's fault doesn't work - the two families get involved and cause hell. There is zero and I mean zero chance of return of mahr. Pakistani love money and wealth more than God (subhanallah). The will lie upon the quran simply not to return the mahr.

So in conclusion we all talk about Islam and what's right and wrong but fundamentally we are not practicing muslims and use islam when it suits us. No point dancing about the SC decision because if we practiced islam the SC would not be involved.


I wonder how many people will see the truth I what I wrote above

Pakistani society is a mess.
They become extra Islamic when it suits them and dump Islam when it doesn't.

1. 1stly...how many men and women have a say in who they marry. Forced marriage is haram. This is standard in villages and often in cities. "You will marry your fat ugly cousin with a big mouth and no education because I promised your khala b4 you were born." Lol

2. They live with the outlaws...yes outlaws. No privacy no independence and the outlaws dictate how they live. Sometime the girl doesn't even have money for sanitary towels. The mother in law controls even that.

3. Often in villages the boy marrying has no job and he is a loser or has mental health issues. Let's get him married he will be ok. The marriage will fix him...get him a hoover for a night let's see if that fixes him (sarcasm...I know the molvis will scream haram)

4. Some husbands are vile cruel and evil. They abuse their wives. Equally some wives have disgusting mouths and cause trouble. Both are equally wrong.

5. The pressure to produce babies. Even before they know each other often the girl becomes pregnant and then the issues start for if she isn't pregnant in the 1st year the outlaws start to talk about divorce .

6. Let assume the marriage for whatever reason or whoever's fault doesn't work - the two families get involved and cause hell. There is zero and I mean zero chance of return of mahr. Pakistani love money and wealth more than God (subhanallah). The will lie upon the quran simply not to return the mahr.

So in conclusion we all talk about Islam and what's right and wrong but fundamentally we are not practicing muslims and use islam when it suits us. No point dancing about the SC decision because if we practiced islam the SC would not be involved.


I wonder how many people will see the truth I what I wrote above

 

[Mentee]

Anyone contracting marriage especially men better use their rationale and keep their financial status in mind when tendering both prompt, deferred dower and even monthly maintenance money to their about to become better half. Ive witnessed strong men imploring their families to arrange haq-Mehar coz nobody likes to be thrown into jail and properties auctioned.

So judge will be playing husband?

No dear he's just gonna facilitate the annulment of a contract .

 

[Darth Vader]

Entire constitution of Pakistan is against sharia,
Do you chop hands for the theft , do you follow "zana ki saza rajam"

Well this happens when the blind lead the blind, and in Pakistan, People are blind, deaf, greedy, incompetent
While what can I about the leaders, itself is another story.

Unfortunately, After independence Pakistan systematically was made into this, Whomever thinks IK is the cure, and Pakistan will be fixed in few years are dead wrong.
This nation itself is corrupt, and wont see much change in at least 20 years to 40 years.

Pakistan is going through now what India and other countries went through in the 80s. so they are behind few decades


TBH many of the punishments which Islam did might be harder by modern standards but they did make sure, the Crime rate is low and those punishments weren't just for the Lower call, All is equal, and Leaders are accountable if the lower call is suffering.

 

[jamahir]

No it isnt against sharia but against fiqah hanfia. This way she won't be forced to give up the dower ( haq Mehar) in case khula is taken on grounds of mistreatment but the onus of proving such mistreatment shall lie on her . Otherwise she'd only be entitled to the 50% unpaid dower while has to return the 25% from the already paid one . @jamahir

Thank you, Mentee bhai for tagging. I came to this thread some hours ago and was angry with @NooriNuth's unthinking non-Islamic, pre-Islamic approach to life which is filled with misogyny. Please allow me a few hours to compose a reply here about how an Indian Christian lady found it socio-economically better to marry under Islamic law when marrying an Indian Muslim instead of marrying under Indian civil law. It is sad that non-Muslims know about Islam's progressiveness but Noori mian being a Muslim brings in inherent family-inherited misogyny under the garb of something called Sharia.