The Law of Khul' in Islamic Law and the Legal System of Pakistan
LUMS Law Journal (LLJ), vol. 2 (2015), pp. 33-63
31 Pages Posted: 3 Jun 2014 Last revised: 10 Dec 2015
Date Written: May 24, 2014
Abstract
This article argues that according to the majority of Muslim jurists, a woman cannot obtain khul' without the consent of her husband. However, Imām Mālik and his disciples are of the opinion that the decision of arbitrators chosen by the state authority, court or the spouses for resolving dispute between the husband and wife can decide separation or union and such outcome is valid without specific delegation by the spouses and without their consent. Decisions of the Superior Courts in Pakistan are partially based on the Māliki view and legislation has endorsed the position adopted by the Courts. It is argued that both, the legislation, as well as case law in Pakistan, are based on the precedent set by the Prophet (SAW). Additionally, the Federal Shariat Court has endorsed the existing Pakistani law on khul'. The Recommendations of the Council of Islamic Ideology regarding khul' are partially in conformity with the Qur'an and the Sunnah.
Keywords: Khul' in Islamic law, Hanafi school, Maliki school, Shafi'i school, Hanbali school, Shi'a school, Abu Hanifa, Malik, Shafi'i, Ahamd ibn Hanbal, Hanafi jurists, Maliki jurists, Shafi'i jurists, Hanbali jurists, Pakistani law, Supreme Court, Lahore High Court, Balqis Fatima case, Khur
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