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4. "Al-Khol’a" is a Right, and Traveling is "possible"!

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Article title: 
4. "Al-Khol’a" is a Right, and Traveling is "possible"!
Publishers: 
Year: 
1999
Week: 
52
Article number: 
4
Date of source: 
December 25-31, 1999
Author: 
‘Atif Kilani
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Article summary: 

While there are many opposed to the inclusion in the draft of the new Personal Status law of the sections on Al-Khol’a [a wife’s right to a divorce in return for renouncing all her rights in the marriage], and a wife’s right to travel without her husband’s permission in certain circumstances, there are knowledgeable and respected voices who argue for their inclusion. Here the opinions of Dr. Mohammed Anwar Raslan, dean of the Faculty of Law at Cairo University, and those of Dr. Abdel Mo’ti Bayoumi, dean of the Faculty of Islamic Theology at Al-Azhar University are given.

Article full text: 

If some opinions reject the law [the Personal Status Law] for personal reasons, knowledgeable people have other opinions that need be listened to. We monitored the opinions of the dean of Faculty of Law, Cairo University, as well as those of the dean of the Faculty of Islamic Theology [at Al-Azhar University].


"Al-Khol’a [a wife’s request for divorce in return for renouncing all her rights in the marriage] is a system with origins in Islamic Shari’a [Islamic canonical and religious law]. If a legal text for it was put with sufficient guarantees and regulations, it would certainly resemble a good means for the wife to end an unsuccessful marriage. Al-Khol’a and divorce indicate an unstable relationship between a couple, which should not be." explains Dr. Mohammed Anwar Raslan, dean of the Faculty of Law, Cairo University. "We encourage any measures that would save the woman’s dignity as long as the law meets Shari’a standards. Some men agree to force their wives to live with him. Where is the family is such cases?"


"The point of the wife’s travel without her husband’s permission requires further clarification," continues Dr. Raslan. "First of all, marriage means a settled family of a couple living together, one person’s absence for a long period is contradictory to the concept of family, and if it was for a short period of time, the Islamic Shari’a granted the woman the right to ask for complete freedom of travel before signing the marriage contract. We must take this point in the light of a basic goal, there is no such thing as "pen-marriage" if the wife’s travel harms the family, in this case, the wife should choose between the two things for the family’s benefit."


"As for the point of civil marriage," continues Dr. Raslan "we must accept it if all the conditions of marriage are available in it. We did not know the Ma’dhoon [the legal officer who has the authority to conduct marriages and divorces] until very recently. However, secret marriage opposes Shari’a. If civil marriage is condemned to failure, why do not we let the wife get rid of this relationship and start another legal one?"


Comments Dr. Raslan, "Regarding the point of the unnecessary of the attorney’s signature in Personal Status lawsuits, this article lifts a cost burden, however, the involvement of a lawyer is essential in some cases. I welcome this article to ease things for the woman, but we should not forget that legal expertise is sometimes needed."


Concludes Dr. Raslan "The point of the court’s hiring a social worker to try to preserve the marriage is a good one too, it may succeed, but we are doubtful that peace would come from a third party. I hope it will be a sincere attempt."


Dr. Abdel Mo’ti Bayoumi comments on the subject: "The wife’s travel without her husband’s permission is not allowed by Shari’a, and it is not subject to opinions. However, there are points that need attention, the principle of the husband’s right should be applied only when a real marriage is going on, with the couple living together and forming a settled family. Only then the wife would have no right to travel without permission from her husband. On the other hand, if married life was not going as it should be, with the couple living separately, or in the case of the wife’s demand for divorce, does the husband have any right to prevent his wife from traveling? What right does he have other than marriage papers? He is only a husband on paper. In this case, the matter should be heard by a judge especially if the reason for travel was receiving treatment, undertaking a national duty, or for a respectful job to earn her living after the husband had deprived her from marriage life and left her suspended between being married and single. He did not follow the words of God: "You do not be altogether partial so that you leave her as it were suspended." [4:129, The Koran Interpreted, Arthur J. Arberry, Oxford University Press, 1964]

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