Methods of divorce and procedure: khula, faskh, tafweedh
The information published here should be interpreted together with article "Marriage contract in Islam".
Separation by way of consent between the parties – Khula
Khula or Al-Khul is simply a situation where the husband and wife come to an agreement between themselves that the husband will grant Talaq (Islamic divorce) upon the wife repaying the Mehr (Islamic dowry payable to the wife upon marriage) to the husband. There is no allegation of fault. In some instances, if they both agree, it can also be agreed that the wife does not even need to repay her Mehr to the husband and the husband will grant the Talaq anyway.
Dissolution of Marriage – Faskh-e-Nikah
The Faskh-e-Nikah is the dissolution of an Islamic marriage pronounced by a third party (Qadhi) upon application by the wife. Furthermore, the effect of a pronouncement of Faskh-e-Nikah is the same as a Talaq-e-Ba'in - the marriage comes to an irrevocable end.
The reason why a woman may seek dissolution of marriage by way of Faskh-e-Nikah is when the husband refuses to give Talaq and is thereby not fulfilling the rights of the wife. This refusal to give Talaq, when there are clear grounds for doing so, is in itself prohibited for the husband from an Islamic standpoint.The Quran is very clear in its guidance of this point in exhorting Muslim men to retain/treat women 'in kindness or let them go in kindness'. However, as with many things in life, whilst the theory is sound, its practical application is less so - Talaq is either unreasonably refused or used as a threat by some Muslim men.
The Qadhi can dissolve the marriage on the following grounds:
- dowry to the wife being excessively low;
- husband's failure to fulfil marital obligation;
- husband's whereabouts unknown;
- husband's failure to provide maintenance despite capacity to do so;
- cruelty to the wife;
- serious discord between the parties; and
- husband having married the wife by deception regarding his condition (medical or other).
The above list is not complete.
What may not be immediately clear, but is a divisive point commonly raised by husbands when they find that a Shariah council is going to dissolve the marriage, is the point that a Qadhi can dissolve the marriage simply on the point that the wife does not wish to stay in the marriage as there is serious discord between the parties. The jurisprudence here is that the Qadhi must first appoint arbitrators to try and effect reconciliation but, if that is not successful, the Qadhi can, on the wife's demand, effect separation on the ground of mutual discord.
When the power of Talaq is transferred to the Wife – Tafweedh-e-Talaq
If the husband says to the wife "I give you the right to issue a Talaq" then since he did not specify the amount of Talaq the wife can issue, the wife will have the right to issue one Talaq as long as she is in the same gathering. If she does not issue the Talaq in the same gathering and the gathering ends, she will lose the right of Talaq.
However, if the husband says "I give you the right to issue Talaq whenever you wish," then in this case the wife will have the right to issue the Talaq whenever she wishes whether in the same gathering or later on. Since the husband did not specify the amount of Talaqs the wife can issue, the wife will only have the right to issue one Talaq.