The Concept of Khula’ in Fiqh and the Status of Husband's Consent (Shariah analysis of contemporary scholars’ views)

Abstract

Islamic teachings always encourage reconciliation, through negotiated settlements between the spouses themselves or the use of arbitrators from their families in case of disagreement between them. However, when it is not possible “to retain in honor إمساك بمعروف”, there must be “a peaceful parting /تسريح بإحسان (released in kindness)”. Accordingly, the Qur’an deals with divorce as something lawful and not worthy of praise. Sometimes the situation gets very critical and bad   when the husband is not agree to divorce the wife at her request. In that case mostly in Pakistan the wife or his family sues the husband and thus the court issues the degree for separation between husband and wife e on basis of Khula’ خلع ) ).  The contemporary Muslim scholars have two opinions in this regard: According to majority of four famous schools of thought (Hanafi, Malki, Shafa’i and Hanbali), the husband’s consent is obligatory and compulsory in the implementation of   this Khula’. But few modern scholars are of the opinion that Khula’ occurs even without the husband's consent when the woman requests separation. This study analyses the opinions of scholars who emphasized that husband's consent for Khula’ is not compulsory and statutory. This analysis examines the comprehensiveness and accuracy of the justifications given by these scholars, and a second opinion may be obtained in this regard.