حق المرأة في الخلع : دراسة مقارنة بين قانون الأحوال الشخصية العماني والفقه الإسلامي

Abstract

This Research aims to exemplify the right of a women to unilaterally dissolve the marriage contract if she no longer is comfortable to stay with the husband، and also fear the infringement of Allah's boundaries if she were to remain as such، by means of al-Khul (Judicial termination). This is a right that Islamic law grants to women asoppose to divorce which is the right granted to men (husband). Also to verify whether this right is contingent on the agreement of the husband or not. The thesis adopts a descriptive، expository and analytical approach of the Shariah text، juristic views on the khulu and the rules involved therein likewise، a comparative studies on the views of the Muslim jurist with an objective of showcasing the preferred view. Thereafter، the thesis thoroughly examines the legal provisions on personal affairs in the Sultanate of Oman regarding Khulu. The research concludes that، khulu is a valid Shari‘ah right allocated to aggrieved women in consideration of divorce which is also the right allocated to men. This right is exercised in order to end the marital relationship between married couples when the woman due to one reason or the other hates to stay in the marriage، and when she fears infringing the boundaries of Allah if the relationship should continue. The right may come to force by either the consent of the husband، or through arbitration or by the judgment of a competent court. It is worth pointing out here that، the woman may be sinful if she inappropriately utilize this right. The thesis also found that، the Omani legislature did recognize this right and duly codify it under the provisions of necessary divorce or un-repairable relationship instead of Khulu itself. As a result، this gave rise to some challenges for the judges and sometime cause error in their application of the provision accordingly based on the samples that are studied in the cause of this research which are taken from different courts. The study was suggested a number of proposals to remedy the situation that includes; to create a comprehensive legal text that suitably defines khul، and it is suggested that، the text will be as follows "Khul is a means of untying the marriage between couples at the request of the wife in return for a sum of money whether by means of any expression that refers to khulu either by mutual agreement of the spouse or a judicial decision. Therefore، the following two articles need to be revised (107) and (108) that are found in either divorce based on hardship or un-repairable relationship and to incorporate them under khul as it is appropriate to be because of the connection between the two