Sania went for khula divorce, but it’s easier said than done

Parting ways with her husband, Pakistan cricketer Shoaib Malik, tennis star Sania Mirza opted for ‘khula’, sparking in the process a fresh conversation around this mode of dissolving marriages in the Islamic canon. What has added to the chatter – at least in Hyderabad – is a reported spike in women opting for khula.

Khula denotes divorce proceedings initiated by a Muslim woman and is based on her agreeing to forgo her mehr (money paid by the groom to the bride at the time of marriage) and subsequent maintenance in the form of financial aid.

Reliable data is missing, but the practice is believed to have become more prevalent among both the upwardly mobile as well as the less-privileged sections of the city’s Muslim community. Qazis and social activists TOI spoke to said that at least 20 to 25 cases of khula are now brought to their notice every month. This was limited to single digits until recently.

WHAT IS FASKH-E-NIKAH?

This is another mode of dissolution of marriage in Islamic law. It’s resorted to when the husband is ‘unavailable’ to give either talaq or khula to his wife. In case of a faskh, the woman can approach a court of law seeking termination of the nikah, and it is granted to her without much hassle. Senior members of the community say that many do not opt for faskh for two reasons – because families often do not wish to take the legal route, and, secondly, due to lack of awareness among people about this provision.

An Indian Problem?

While it’s speculated that the spike in khula has to do with the ban on triple talaq in 2019 (there are instances of Muslim men simply walking out of their marriage as they wanted to avoid the legal route of obtaining divorce, leaving the women to opt for khula), what continues to be a matter of debate is how taking recourse to khula is far from being the unilateral decision of the woman even though it’s a right conferred upon her by the Quran. According to many members of the Muslim community, a woman in India needs the approval of her husband to obtain khula. That isn’t the case in any other country, they claim.

The peculiar scenario governing the khula in India means that going for it can involve a long-drawn battle spanning years, or even decades.

Saheeda Ali*, a lawyer by profession, said she had to wait six years before getting her khula in 2023. Her husband was involved in an extra-marital affair. “On learning of it, I decided to separate and move on. But each time I approached the maulvi he sent me back, asking me to get my husband’s consent. Since the latter wasn’t ready to give his consent, I had to wait it out and even make attempts at reconciliation. Finally, when my husband decided to start living with the other woman last year, he gave his consent,” said the young mother of two. “This is the reality that almost all women seeking khula have to face,” she added.

Husband’s Nod Needed

Getting khula was relatively easier for Hameeda Bano* since her bruises from years of domestic violence were tough to mask. But she recalls how the qazi still made that call to her husband to confirm that she had his consent. “Only after he (my husband) agreed did the khula come through. I also had to repeatedly stress that I needed nothing from him,” said the 45-year-old medical practitioner.

But the struggle is still on for Rehana*, a resident of Hyderabad’s Old City. After 25 years of marriage, the primary school teacher decided that she would no longer put up with her husband’s infidelity. “We have been fighting her case for a while now,” said Jameela Nishat, who runs the Shaheen Women’s Resource and Welfare Association and deals with three to five cases of khula every day. “There are many like her who are forced to face these hurdles. In some rare cases, we help the women seek a faskh-e-nikah (see box) through the courts since the husbands are set against agreeing to a khula,” added Nishat.

Activist Sarah Mathews points out that being made to wait for the husband’s consent amounts to an “infringement of the rights of the woman”. “Also, this often forces the hapless woman to stagnate in an unhappy marriage. And even while she is kept dangling, the man has the option to get married again while the woman’s right is hijacked in the name of interpretation,” she said.

Qazis Beg To Differ

The qazis though see things differently. “We contact the husband so that we can counsel the couple together and see if they can reach a compromise instead of ending their marriage. When there is no resolution in sight, we proceed with the khula,” said qazi Mir Mohd Kader Ali.

Ali, however, did not deny that a go-ahead from the husband was a must. Neither did mufti Anwar Ahmed from Jamia Nizamia. But he did not think that khula was on the rise although he said “separations have increased due to a change in lifestyles and increased interference by families”. He said only 7% to 8% of all marriages within the community ended in termination. “Also, only in five out of 100 cases do women face a challenge while seeking khula. It is usually a smooth process. In fact, many divorces are also shown as khula due to the insistence of the woman and her family as that can help her remarry subsequently,” the mufti said.

(*Names changed on request)

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