Re: My wife has asked for a Divorce, what if I dont want to give?
Sehrysh: Please see the ‘blue highlighted’ part of the article (within section: PROCEDURE FOR KHULA) I am posting and you will get your answer … regarding re-marriage after Khula without intermediary marriage.
Amarbail:
I found an article that tells about Khula (rather tells about everything related to Family law in Pakistan). Since this article is from Supreme Court, government of Pakistan site, I believe what is in the article is present day ‘family law’ situation in Pakistan. It is close to what I wrote above regarding Khula, after ordinance that came out in Oct 2002.
I think you should go through the article as it would help you know exactly what would happen if your wife decides to go ahead with Khula. You should at least read section: PROCEDURE FOR KHULA of the article as that is more relevant to your case. I am putting down whole section regarding divorce by wife (including Khula).
http://www.supremecourt.gov.pk/ijc/Articles/21/3.pdf
DIVORCE BY WIFE
There was a misconception that Muslim women had no rights to obtain a divorce through the courts. As a remedy to this situation, the Dissolution of Muslim Marriages Act of 1939 brought sweeping changes in the law. Section 2 of the Act specified a number of grounds on which a woman married under Muslim Law could sue for divorce, including cruelty, non-maintenance and impotence as well as any other ground that could be recognized as valid for the dissolution of marriage under Muslim Law.
KHULA
One of the recognized forms under the Muslim Law for Dissolution of Marriage through which a woman can obtain divorce is that of ‘Khula’. In pre-partition India, Khula was only accepted as a ground for divorce by the British Indian Courts subject to the husband’s agreement to the dissolution of marriage via Khula.
The law has undergone considerable change thereafter. The first case bringing in changes in the concept of Khula was that of Bilqis Fatima, in which it was argued before the High Court that Khula is a right of the wife. The judge ought to grant Khula if he finds that the husband and wife will not observe the limits of God otherwise.
In a leading case decided by the Honourable Supreme Court of Pakistan, Khurshid Bibi versus Baboo Mohammad Amin (PLD 1967, SC 97, P 112), it was held that:
“The Husband is given the right of divorce to his wife, though, of course, arbitrary divorces are discountenanced. Similarly, wife is given the right to ask for Khula in case of extreme incompatibility ……”
This ruling changed the concept of the right of Khula by the wife. In a large number of cases concerning dissolution of marriage, Khula is the main ground and often resorted to as an alternate plea.
A large number of Ulema even today, refuse to recognize Khula granted by courts without the consent of the husband as a valid divorce. Confusion is caused by two parallel and conflicting interpretations of the Islamic Law. On one hand, there is the statutory law and interpretation by the Superior Courts of Pakistan and on the other, is the archaic interpretation as preached by the Ulema and supported by their fatwas (opinion).
PROCEDURE FOR KHULA
Formerly in the case of Khula, women had to face the same stress delay and difficulties as in cases for dissolution of marriage on other grounds such as cruelty or non-maintenance. The husband usually refused to grant Khula to the wife and in order to defeat this right, the husband claimed huge compensation for Khula, often making false allegations of having given the wife huge sums in the shape of jewellery and property and even claiming the property in the name of the wife as belonging to him. This placed a lot of strain on the judges for such cases required heavy sifting of evidence thus leading to lengthy procedures.
President General Musharraf has tried to curb this through amendments to the Family Law Courts Act dated 1st of October, 2002. Presently in cases of Khula, the procedure has been shortened and simplified. When the wife files a case for dissolution of marriage, the court issues notice to the opposite party being the husband. If he fails to appear after the due process of posting and publication, the court can proceed with the case ex-parte. In case where the husband or his representative appears, he is required to file a written statement following which the court has to fix a date for pre-trial proceedings for reconciliation.
The amendments require that “the family court in a suit for dissolution of marriage, if reconciliation fails, shall pass Decree for dissolution of marriage forthwith and shall restore to the husband the mehr received by the wife in consideration of the marriage at the time of marriage.” This change in the procedural law has brought much needed relief to suffering wives who had to bear insurmountable delays or long drawn out legal battles for the enforcement of their right of Khula.
The consequences of Khula differ from that of Talaq by the husband since following a Khula, the ex-husband and the ex-wife can remarry without the necessity of any intervening marriage to another person by the wife, as required for under the doctrine of Halala which is recognized by most jurists.
Khula has become an easy and a quick form of relief to many women suffering from miseries of violence in circumstances where they were unable to sustain a happy marriage within the limits prescribed by God.
