Judicial Separation at the Wife’s Initiative: A Study of Redemption (Khul‘)in Islamic Law and Contemporary Legislation in Pakistan and Malaysia

Abstract

Under Islamic Law it is the general perception that the right of Divorce belongs only to the husband. This concept has been administered in Islamic countries due to the opinion that there is no such kind of right for a woman to get divorced from her spouse. Muslim women living in British India before the independence of Pakistan had no legal right to divorce. When Pakistan became an independent state in 1947, it retained the law. For a woman who suffers and has an unhappy life, the Dissolution of Muslim Marriages Act 1939 (DMMA) was initiated where by the law of Redemption (khul‘) was introduced in section 2(ix) of Dissolution of Marriage (fasakh-e-nikah). This enactment created confusion over whether Redemption (khul‘) is Dissolution of Marriage (fasakh-e-nikah) or Divorce (talaq), that is, whether the court can grant Redemption (khul‘) to a married woman without the consent of her husband. While in Malaysia the law of Redemption is administered under section 49 of the Islamic Family Law (Federal Territories) 1984, Dissolution of Marriage (fasakh-e-nikah) is put in a separate section, section 52 of the Islamic Family Law (Federal territories)1984. This paper discusses the Islamic perspective of Redemption (khul‘) and the relevance of the Malaysian enactment for Muslim Family Law in Pakistan is recommended, where separate sections for Dissolution of Marriages and Redemption (khul‘) should be demarcated.