According to Islamic law, it is the general perception that the right to divorce belongs only to the husband. This concept has been managed in Islamic countries on the basis of the belief that there is no such right for a woman to divorce her spouse. Muslim women living in British India before Pakistan`s independence had no legal right to divorce. When Pakistan became an independent state in 1947, it retained the law. For a woman who suffers and leads an unhappy life, the Muslim Marriage Dissolution Act of 1939 (DMMA) was initiated, where the Law of Salvation (khul`) introduced the dissolution of marriage (fasakh-e-nikah) in Section 2(ix). This decree has led to confusion as to whether salvation (khul`) is the dissolution of marriage (fasakh-e-nikah) or divorce (talaq), i.e. whether the court can grant salvation (khul`) to a married woman without her husband`s consent. While in Malaysia the Law of Salvation is administered under Section 49 of the Islamic Family (Federal Territories) Act 1984, the dissolution of marriage (fasakh-e-nikah) is included in a separate section, Section 52 of the Islamic Family (Federal Territories) Act 1984. This article deals with the Islamic perspective of salvation (khul`) and the relevance of the Malaysian decree to Muslim family law in Pakistan is recommended, where separate sections for the dissolution and redemption of marriage (khul`) should be demarcated. In this article, I examine how Muslim women who are religiously married in Germany can initiate a no-fault divorce on their part if there is no registered civil marriage in Germany. Since there is no Authority of the Muslim State that can be consulted, local imams and Islamic leaders can resort to a communal practice known as khulʿ (divorce initiated by the woman) to dissolve an Islamic marriage (nikāḥ) that is not recognized by civil authorities. In this article, which is the culmination of three years of fieldwork in Germany, I analyze and interpret the views and practices of two groups of religious actors – conservative and pragmatic – towards khulʿ in cases of nikāḥ.
I find that conservatives only allow a woman to divorce Khulʿ with her husband`s consent, while pragmatists use muslim minority jurisprudence (fiqh al-aqalliyyāt al-Muslima) to argue that the husband`s consent is not essential to legitimize a statement by Khulʿ. This article argues that, according to the majority of Muslim jurists, a woman cannot obtain Khul` without her husband`s consent. However, Imām Mālik and his students believe that the decision of the arbitrators chosen by the state authority, court or spouse to settle disputes between husband and wife can decide separation or union and that such an outcome is valid without specific delegation of the spouses and without their consent. The decisions of the Supreme Courts of Pakistan are based in part on the view of the Mālikī, and the legislation has endorsed the position of the courts. It is argued that legislation and jurisprudence in Pakistan are based on the precedent set by the Prophet (peace be upon him). The Federal Sharia Court has also approved Pakistan`s existing Law on Khul`. The recommendations of the Council of Islamic Ideology regarding khul` are partly in line with the Qur`an and the Sunnah.