By Arman Kazmi
Talaq or Khula is not the only way for the dissolution of marriage in Islamic Jurisprudence. Talaq often translated as divorce is one among the many ways/process in Islamic jurisprudence(fiqh) through which divorce is made possible.
In the past decade, the rationale behind Talaq has undergone heavy criticism because of its unjust and gender-biased nature, where the husband (man) has an upper hand in the dissolution of marriage. The word ‘Talaq’ literally doesn’t stand for divorce. The literal translation goes as, “setting free”, “letting off a tie or restrain”. If one goes by the concept of marriage in early Islamic times, then this authority of “setting free” lied with the man, the husband.
It was the husband only who was capable of giving Talaq as authority rested with him in marriage. The one common aspect that all forms of Talaqs like Talaq al Bida, Talaq e Hasan etc share is bestowing of authority to the husband for the consummation of marriage. Talaq may be the dominant way of divorce among Muslims even today
but it’s not the only option available for marriage dissolution in Jurisprudence .
The reason it gained such dominance to becoming synonymous with divorce was the hegemonic masculinity and
patriarchal nature of the society.
Marriage (Nikah) as per Islamic understanding is a strong civil contract between two consenting adults (Heterosexual as per popular understanding). This concept of marriage was formalized in a highly patriarchal society. Men dominated most of the social sphere and women were dependent on men for their maintenance and identity. One of the reasons for men to provide Mahr for their bride was because of this very fact that among the two only he had the social privilege and capacity to provide. Therefore, men were referred to as guardians(Wali) and protectors (Qawaam) of their wives.
There is no doubt that Islam did buy a change in the way marriage was perceived concerning the rights of wife and the position of women in the Arab society. But this change marked just the beginning of that process of change and not the end. Unfortunately, this beginning was taken as an end by most of the followers of Islam.
The status and role of women in the contemporary society are not the same as it was during the advent of Islam. Women through their persistent struggle against patriarchy have redefined their places in society. All concepts and ideas are being revisited and feministic interpretations became an important aspect for historicizing, deconstructing, and proper understanding of various discourses.
Many Islamic jurists and theologians keeping in view this rising concern of gender equality in the Islamic Shariah have tried to break away with the hegemony of Talaq as being the only way of divorce. Efforts have been made to lay equal stress on Khula as an alternative and balance of power. AlKhula although acts as empowering tool but conceptually shares a similar problem as that of Talaq.
Khula translates as “shedding” or “removal of authority”. This concept like Talaq shares the same problem of addressing men as having higher authority over wife in marriage from which she needs to free herself. As power relations are still far from being balanced, Khula provides some form of immunity and restricts the abuse of authority by men to some extent.
Besides Talaq and Khula, there is another way of divorce that has received far less attention than
it deserved. Mubarat, a divorce through mutual consent, an egalitarian alternative, giving equal status
to both the partners. The literal meaning of the word “Mubarat” is obtaining release from each other.
The meaning in itself gives equal status to both partners. Mubarat as divorce is said to take
place when the husband and wife, with mutual consent and desire, obtain release and freedom from
their married state. The outstanding feature of this way of divorce is that both the parties share an
equal weightage. Thus, the proposal may emanate from either side.
This understanding of divorce is a better replacement than the popular perception of divorce as Talaq.
Mubarat conveys a sense that dissolution of marriage should be based on the same principle as its
annulment, that is realizing the importance of giving equal weightage to the consent of both the partners.
Author has completed his Masters in Philosophy from the University Of Hyderabad. His area
of interest are Religion, Mysticism, Poetry, Politics, and Philosophy of Science.