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Woman's right of divorce (Khul)

March 31, 2010

‘Hence is you have reason to fear that the two may not be able to keep within the bounds set by God, there shall be no sin upon either of them for what the wife may give up to the husband in order to redeem herself.’ Quran (2:229)

 

Supporting/Opposing Hadiths

  • Bukhari has a sub chapter in his Book of Divorce which is called the section of khul, and in the introduction he cites the Quranic verse above. He states that ‘Umar allowed khul without the permission of the authorities, whereas Uthman allowed the husband, in case of khul, to take back every gift except the ribbon of her hair. (M.M. Khan 1985 vol. VII: 149; al-Bukhari, Chapter of khul). After the introduction Bukhari records the hadith which is used as evidence of women’s right to divorce. 

  • The wife of Thabit ibn Qais came to the Messenger of God and said: Oh Messenger of God! I do not blame Thabit for any defects in his character or his religion, but I cannot endure to live with him. The Messenger of God then asked her: ‘Will you return his garden?’ [given as dowry]. She said: ‘Yes’ Then Muhammad said to Thabit: ‘Accept the garden and divorce with one divorce pronouncement’[al-Bukhari, Book of Divorce, no. 4867; an-Nisa, Book of Divorce no. 3409; Ibn Majah, Book of Divorce, no. 2046; Musnad Ahmad, musnad mandaniin, no. 15513] 


It is important to note that the Prophet does not use the term khul and it is probably used as a legal term by later jurists. This is confirmed by Ahmad’s transmission of this hadith in which Ahmad Ibn Hanbal himself adds that this was ‘the first khul’ in Islam (Musnad Ahmad, musnad madaniin, no. 15513). In the Prophet’s terminology however, according to the hadith, the man is ordered to divorce (talaq) the woman, i.e. to release her.

 

Two other hadiths which have been encountered and quoted many times by Muslim conservatives is by Ibn Kathir (Ibn Kathir 1989 vol. I:280)

  • The woman who asks her husband to divorce her where there is no harm done, the smell of Paradise is forbidden for her (Musnad Ahmad, baqi musnad al-ansar, no. 21404; Sunan Ibn Majah, Book of Divorce, no. 2045; Sunan Abi Dawud, Book of Divorce no. 1889; Sunan at-Tirmidhi, Book of Divorce and Oath of Condemnation, no. 1108).

  • The women who make khul are hypocrites. (at-Tirmidhi, Book of Divorce and Oath of Condemnation, no. 1107; Sunan an-Nisa, Book of Divorce, no. 3407; Musnad Ahmad, baqi musnad al-mukhtirin, no. 8990).

 

Neither of these hadiths are regarded as sahih. With regard to the first, it is hasan only. As for the second, its narrator chain is not sahih. Moreover according to Ibn Kathir, at-Tirmidhi claims the latter hadith to be gharib i.e. with only one first narrator and one narrator chain. In addition its narrator chain is weak (Ibn Kathir 1989 vol. I:280). It is interesting that these two weak hadiths have been used disregarding stronger legal evidence such as the Koranic verse 2:229 and the hadith about the wife of Thabit ibn Qais. This shows that certain hadiths have been preferred over others not according to their strength in narrator chains but according to their content. 

 

Historical reasons (from the biography of early Muslim community)

Other reasons to suggest that khul remains a wife’s right: 

 

  • The Prophet considered a wife’s disinclination to be his wife as tantamount to breaking the marriage contract, as happened with Amrah bint Yazid al-Kilabiyyah on their wedding night.

  • Moreover the Prophet’s acceptance of Khadija’s proposal implies that if a woman can initiate a marriage by her independent will then as a corollary, it may be argued that a woman can end the marriage on her own initiative.

  • The fact that Sukainah the Prophet’s great-granddaughter, stipulated in her marriage contract that she retain the titular right of divorce, together with the precedent of Khadijah and Amrah offers Muslim society enough leeway to revise existing family law (Hamadeh in Yamani 1996: 335-6).

 

Source: D. Pearl & Menski, Muslim Family Law (1998) 3rd Edition, London: Sweet and Maxwell

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