Fiqh Arguments for the Palestinian khulʿ Divorce (before Consummation)

In: Hawwa
Turid Smith Polfus University of Oslo; University of Trondheim (NTNU)

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The present article analyses a Decree issued by the Chief Islamic Justice in Ramallah, in September 2012, legalising khulʿ divorce for women without the consent of the fiancé/husband, but only before the consummation of the marriage. The 2008 draft family law intended the same right for women also after consummation. Discussing the term ‘khulʿ’, the article shows that it is used as a generic term in these legal texts. The Decree presents a juristic construction that takes as its starting point that the general shariʿa norm is that divorce is in the hands of the husband, and that khulʿ is an exception, allowed by necessity (haja). The khulʿ may only be claimed when the petitioner harbours such a severe abhorrence of her husband that she fears she will not be able to serve him to his satisfaction and thus not live within the hudud Allah, in which case she might not enter Paradise. It is therefore not woman as citizen that petitions for khulʿ, but woman as homo religiosus. Thus, the existing and proposed rules regulating khulʿ are construed, not to empower women as equal citizens with men, but rather to cement women’s asymmetric legal position in shariʿa-based law.

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