Saquib Salim

Khula (Muslim women’s right to seek divorce) seems like an ever-existent law in Muslim society. The reality is that this right of Muslim women is a result of 20th-century ijtihad (reasoning and logic) by Ulema associated with the Deoband School of Islamic thought.

Muslims are not a monolithic people and Sunni Muslims follow their religion through four prominent fiqh (schools of jurisprudence). Most of the Sunnis across the world follow one of the four fiqh viz. Hanafi, Malaki, Shafi’i and Hanbali. In South Asia, for historical reasons, most of the Sunnis adhere to Hanafi fiqh.

Hanafi fiqh, though somewhat less stringent in other practices, according to Prof. Sabiha Hussain, “is the strictest in matters of divorce, and gives the wife almost no grounds for initiating the dissolution of her marriage”. In the early 20th century with the awareness among women, a demand of extending the right to divorce emerged among women's rights advocates. Hanafi Ulema were unequivocal in rejecting this demand.

Women rights activists like Rashid ul-Khairi, Begum Jahanara Shahnawaz, and others started a campaign to build public opinion in support of securing the right to Khula.

Maulana Ashraf Ali Thanvi, one of the most respected Ulema from Deoband school, intervened in the matter. He understood the changes in society well and had already written a book for women, Bahishti Zevar. Thanvi met several Islamic scholars and wrote letters to others to consult them on their opinion.

In 1931, Thanvi published a lengthy fatwa titled al-Hilat al-Najiza li'l-Halilat al-'Ajiza (A Successful Legal Device for the Helpless Wife). In this 201-page fatwa, he wrote that in these changing times women can be granted further rights. The fatwa said that if a woman didn’t want to live with a man because of abuse or some other reason she could seek divorce. Though, originally Hanafi fiqh doesn’t allow women this right but Maliki fiqh does. Thanvi gave a verdict that Khula, which was not allowed until then in India because of Hanafi fiqh, could be employed by Muslim women in India as well.

Jamiat Ulama-i-Hind seconded this fatwa and started popularising it in the form of articles, books, pamphlets, and public meetings. In 1936, a bill was introduced in the Central Assembly based on this fatwa.

Husain Imam during a debate on the bill in 1939 said, “There is no provision in the Hanafi Code of Muslim Law enabling a married Muslim woman to obtain a decree from the Court dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her, or absconds, leaving her unprovided for and under certain other circumstances. The absence of such a provision has entailed unspeakable misery to innumerable Muslim women in British India.

The Hanafi jurists, however, have clearly laid down that in cases in which the application of Hanafi law causes hardship, it is permissible to apply the provision of the Maliki, Shafi, or Hanbali law. Acting on this principle, the Ulama had issued a fatwa to the effect that in cases enumerated in clause 3, part A of this Bill, a married Muslim woman may obtain a decree dissolving her marriage. As the courts are sure to hesitate to apply the Maliki law to the case of Muslim women, legislation recognizing and enforcing the above-mentioned principle is called for to relieve the suffering of countless Muslim women.”

The law was enacted in 1939 and came to be known as ‘The Dissolution of Muslim Marriage Act’. Ahmad Kazmi, who was also from Jamiat Ulama-i-Hind, said while proposing the bill for a vote in the assembly, “The demand from educated Muslim women is becoming more and more insistent, that their rights be conceded to them according to Islamic law – I think a Muslim woman must be given full liberty, full right to exercise her choice in matrimonial matters.”

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Almost 80 years later, Indian Muslims don’t even realize that the right of Khula is not originally there in Hanafi fiqh, which governs Deobandis, Barelvis, and Sufis. The right is a result of ijtihad by scholars of Deoband in general and Maulana Ashraf Ali Thanvi in particular.