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A Muslim Woman's Right to a Khulʿ in Pakistan

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A Muslim Woman's Right to a Khulʿ in Pakistan A MUSLIM WOMAN’S RIGHT TO A KHULʿ IN PAKISTAN: MARITAL RELIEF OR MARITAL PAIN? By Ghazala Hassan Qadri A thesis submitted to the University of Birmingham for the degree of DOCTOR OF PHILOSOPHY Department of Theology and Religion School of Philosophy, Theology and Religion College of Arts and Law University of Birmingham November 2016 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. ABSTRACT This study examines the female-initiated divorce right of khulʿ in Ḥanafī jurisprudence and its practical implementation in Pakistan. Previous research presents Ḥanafī jurisprudence as only allowing a khulʿ with the consent of the husband coupled with a financial liability placed upon the wife. This thesis argues that there has been a fundamental misunderstanding of the khulʿ under Ḥanafī fiqh, which is capable of providing divorce rights to women without the husband’s consent and financial recompense. This research also illustrates the judicial activism exhibited by the Pakistani courts, which has created a no-fault khulʿ surpassing existing statutory provisions. To date, there have been no studies on the efficacy of these developments, so this research assesses the extent to which these new liberal divorce laws have filtered down into Pakistani society. Through qualitative interviews and participant observations, this study examines married Muslim women’s perceptions of the khulʿ and the obstacles that female litigants face whilst trying to utilise the khulʿ in the Lahore courts. The findings reveal that whilst the khulʿ has empowered some women within the marital domain, religious and cultural norms as well as practical problems within the courts have curtailed the potential of the khulʿ as a liberating tool in marriage. DEDICATION Through the Blessings of Almighty Allah and the waslia of His Beloved Prophet (s.a.w.). I dedicate this work to his eminence Shaykh-ul-Islam Dr Muhammad Tahir ul Qadri and his tireless efforts to promote Islam as a religion of peace, moderation and tolerance. ACKNOWLEDGEMENTS In the name of Allah, Most Compassionate, Ever-Merciful. It is with immense humility that I thank Almighty Allah for His Mercy in enabling me to complete this long journey, along with the blessings of His Blessed Prophet (s.a.w.). I would like to take this opportunity to express my gratitude to a multitude of people who have provided me with so much help and assistance during this research project. My heartfelt gratitude goes to my spiritual guide Shaykh-ul-Islam Dr Muhammad Tahir-ul-Qadri, whose love, guidance and encouragement have never wavered. His empathy and du‘ās, even before the inception of this study and then throughout these years of research, have been the greatest motivation behind my work. I would like to thank my supervisor Dr. Haifaa Jawad for her generosity and time in making possible the completion of this thesis. Her insightful critique of my work, suggestions and recommendations are an integral part of this thesis and I am very grateful for her assistance. I am also grateful to Professor Jorgen Nielsen and Dr. Yafa Shanneik for an enlightening viva voce and their contribution to my work as a result. I owe a great deal of thanks to my parents, who have been role models throughout my life and inspired me with their own hard works and efforts. They have nurtured my aspirations from birth to adulthood and still continue to do so. My wholehearted thanks to my beloved husband, Dr. Hassan Mohiuddin Qadri, who has always encouraged me to pursue my goals and who has been patient with the ups and downs of my student life. He has always given me constant care, cooperation and understanding and provided unwavering love and support. I would like to give massive thanks to my three wonderful children, Roohi Sultan (Hammad), Bosa Rani (Basima) and Sultan Shams Tabrez (Ahmad). They have literally lived with a part- time mother for many years and have borne the trials and tribulations of my student life with me. They have never complained about the sacrifices they have made to give me the time to do my research and are a constant joy in my life. It is a privilege to be your mother. Let me at this juncture thank all my family and friends for their moral support and for having faith in me. I feel deep gratitude to Khadija Qurrat-ul-Ain and Rabia Malik for facilitating my library research. Without their assistance in literally bringing so many books to my home, I would not have been able to complete my work. Special thanks are due to Mufti Sohail Ahmad Siddqui for his untiring help in sifting through and translating difficult Arabic literature and for being an invaluable source of knowledge. I would also like to thank the head of the Farid-e-Millat Research Institute in Pakistan, Muhammad Farooq Rana, for his assistance in providing legal research materials and case law for the judicial aspect of this study, as well as for his assistance in Arabic transliteration. Special appreciation is also due to Zia-ul-Haq Razi and Basir Ahmad for their technical assistance in the multiple print-outs of my chapters over so many years as well as for their overall help at home. My thanks to Nasir Iqbal (Advocate), Someera Rafaqat (Advocate) and Advocate Homeira for facilitating my field work in the District Courts of Lahore and for providing much- needed help during the court visits. I would also like to thank Farah Naz, Sana Waheed, Rafia Ali and the Minhaj-ul-Qurʾān Women’s League and Minhaj College for Girls for their assistance during my many months of fieldwork in Lahore. Finally I would like to thank all of the participants who let me into their homes and allowed me a special glimpse into their lives. Without their kindness, hospitality and generosity, this project could never have taken place. TABLE Of CONTENTS Abbreviations……………………………………………………………………………………………………. i Transliteration Keys………………………………………………………………………………………….. ii List of Figures…………………………………………………………………………………………………… iii List of Tables ……………………………………………………………………………………………………. iv Chapter One: Introduction: A Woman’s Right To A Khulʿ And Marital Emancipation In Pakistan .................................................................................................................................................... 1 1.1 The Rationale For The Research ............................................................................................. 4 1.2 Theoretical Basis Of This Study ............................................................................................ 13 1.3 Third World Feminism And ‘Adaptive Preferences’ .................................................... 16 1.4 Women As Agents Of Change ................................................................................................. 19 1.5 Islamic Feminist Perspective ................................................................................................. 24 1.6 Literature Review ....................................................................................................................... 30 1.7 Aims And Objectives Of The Study ...................................................................................... 49 1.8 Structure Of The Work .............................................................................................................. 52 Chapter Two: An Interpretation Of The Khulʿ In Light Of The Qurʾān And Hadith And Ḥanafī Jurisprudence ............................................................................................................................ 56 2.0 Introduction .................................................................................................................................. 56 2.1 Literal And Lexical Meaning Of The Khulʿ ......................................................................... 64 2.2 Khulʿ In The Qurʾān And Hadith ............................................................................................ 65 2.3 Khulʿ And The Husband’s Consent ....................................................................................... 70 2.4 Al-Mubāraʾa ................................................................................................................................... 77 2.5 Khulʿ And Compensation .......................................................................................................... 82 2.6 Conclusion ...................................................................................................................................... 97 Chapter Three: The Development Of Women’s Right To Divorce In Pakistan: A Historical And Theological Examination .................................................................................... 103 3.1 Introduction ............................................................................................................................... 103 3.2 British Colonial Impact On Muslim Law ......................................................................... 105 3.3 Apostasy And The Impetus For Legal Reform Of The Divorce
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