The Different Methods of Islamic Separation – Part 3: Khula & Faskh-e-Nikah

In this article we will discuss the following methods of Islamic separation:

• Separation by way of consent between the parties – Khula
• Dissolution of Marriage – Faskh-e-Nikah

Unfortunately, this area of Islamic Fiqh (Jurisprudence) still confuses many lay Muslims as well as qualified Islamic scholars.

In my previous article, I mentioned that most people tend to think that any other form of Islamic separation that is not Talaq automatically falls into the category of Khula.  That could not be further from the truth.  Hopefully, by the time you get to this article you will have read Parts 1 & 2 and so will be aware of the different methods of Talaq and the fact that it is a completely different method of separation to Khula and Faskh.

Khula

The issue of Khula will be covered in my forthcoming article, ‘Khula – The Islamic Non-Fault Divorce’.

Faskh-e-Nikah

As has already been mentioned, if the husband refuses to give his wife Islamic Talaq, then that would mean that the wife would effectively be stuck in the marriage.  However, Islamic jurisprudence then provides for the woman in that the marriage may be dissolved by a Qadhi (a Judge who sits in a Shariah court) upon her application to the same.

In short, therefore, the Faskh-e-Nikah is the dissolution of an Islamic marriage pronounced by a third party upon application by the wife.  Furthermore, the effect of a pronouncement of Faskh-e-Nikah is the same as a ­Talaq-e-Ba’in and the marriage comes to an irrevocable end.

This is the type of dissolution effected by a Shariah court in a country where Shariah law is the law of the land and also when a Muslim woman applies to a Shariah Council in the UK.  What must be remembered here is that the dissolution of an Islamic Nikah by a Shariah Council has absolutely no effect on the civil marriage (if there is one) and furthermore, has no jurisdiction in this country.  It simply dissolves the Islamic religious marriage and nothing else.

The reason why a woman seeks dissolution of marriage by way of Faskh-e-Nikah is when the husband is refusing to give Talaq and is 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.  However, due to lack of education and the influence of a negative, patriarchal Asian sub-continental culture, a lot of Muslim men in this country continue to refuse to give Talaq and attempt to use it to exercise an element of control over the wife. 

The Qur’an is very clear in its guidance of this point in exhorting Muslim men to retain 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 and Talaq is either unreasonably refused or used as a threat by some Muslim men.

Upon application to a Shariah court or Council, the Qadhi can dissolve the marriage on the following non-exhaustive grounds:

• Dowry to the wife being excessively low.
• Husband’s failure to fulfil marital obligations.
• Husband’s whereabouts unknown.
• Husband’s failure to provide maintenance despite capacity to do so.
• Cruelty to the wife.
• Serious discord between the parties.
• Husband having married the wife by deception regarding his condition (medical or other).

The above list is not complete but I have listed the above to give readers an idea of what sort of things Islamic scholars in England look at when Muslim women apply to Shariah Councils to dissolve marriages. 

What may not be immediately clear but 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.

In my humble opinion, this goes to the heart of the issue of the control which Muslim men think they have over women and goes some way to balancing the unilateral right of Talaq that only the men have.