What is Khula under Muslim Law?
November 19, 2023 हिंदी में पढ़ेंTable of Contents
- What is the meaning of Khula in Islam?
- Talaq-E-Tafweez
- Tafweez is of 3 kinds Khula in Islam
- What is Khula in Muslim Law in India?
- Valid Conditions of Khula in Islam Are
- What is the procedure for Khula divorce in India?
- What are the legal consequences of Khula talaq in India?
- Divorce By Wife in Islam
- Types of Divorce in Islam
- Top Tips to Obtain a Khula in Islam
- What is the difference between Khula and Mubarat?
- Various Grounds on Which a Muslim Wife Can Claim Dissolution of Her Marriage
- Dissolution Of Muslim Marriage Act, 1939(Khula in Islam)
- Important Case Laws related to Muslim Divorce
- Why do you need a lawyer for a Khula divorce case in India?
- Talaq-Ahsan/ Khula in Islam
- Talaq Hasan (Proper):
- Talaq-ul-Bidaat (Irrevocable):
- Shia Law:
- Cooling Off Before Divorce:
- Exception for Observing Interim Period:
- You Shall Observe the Pre-Marriage Interims:
Different religions define marriage differently, such as:-
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According to Hindu law, marriage is a religious sacrament.
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Under Muslim Law, Marriage is a contractual relationship between two parties. All the essentials that are required for a contract are present under Muslim Marriage. There is an offer, acceptance, consent, consideration, the capacity of parties, etc. The purpose of such a form of marriage is:-
- Formation of a Family
- Procreation of children
In the case of Shoharat Singh v Jafri Begum, the privy council held that marriage under Muslim law is a religious ceremony. Under Islam, marriage is recognized as a basis of society and an institution that leads to the upliftment of man and is also a means for the continuance of the human race.
Under Muslim law, if a person seeks “divorce”, he will be governed by the provisions of the Dissolution of Muslim Marriage Act, 1939. Whereas, “Talaq” proceedings are governed by Muslim Personal Laws. Under Muslim Personal Laws, the dissolution of marriage with mutual consent is governed by two concepts known as Khula and Mubarat. In this article, we will discuss the concept of khula talaq, its essentials, and the legal consequences.
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What is the meaning of Khula in Islam?
The literal meaning of khula or ???? in Arabic is "to take off" or "to undo." In the context of Islamic marriage and divorce, khula refers to the process through which a wife seeks to undo the marriage bond and obtain a divorce from her husband.
In Islam, khula is a procedure through which a woman seeks a divorce from her husband by returning the dower (mahr) or giving up some of her rights. Khula is the right of a Muslim woman to seek a divorce from her husband through a judicial process.
The procedure of khula varies in different schools of Islamic jurisprudence, but generally, it involves the wife initiating the divorce by requesting it from the court, and providing a valid reason for seeking it, such as incompatibility, abuse, or neglect. The husband may accept or reject the request, and the court may also attempt to reconcile the couple before granting the divorce.
Once the divorce is granted, the wife is required to return the dower or give up some of her rights as compensation for the dissolution of the marriage. The process of khula provides an option for Muslim women who are unhappy in their marriages to seek a divorce in a respectful and dignified manner.
Consult: Top Divorce Lawyers in India
Talaq-E-Tafweez
Talaq-e-tafweez, is a significant feature of Muslim law, it is also known as Delegated Divorce. It involves the handing over of the right to dissolve a marriage, also known as "tafweez."
This delegation gives one the ability to carry out a task that is ordinarily the responsibility of the person giving the authority. Talaq-E-Tafweez is extremely significant, especially for Muslim women, as it gives them the ability to start a divorce without going through a legal process.
The provision in the marriage contract termed as the talaq-e-Tafweez permits the husband to give his wife the right to divorce him. In this agreement, the husband voluntarily gives his wife the right to declare divorce on her own without seeking his permission or involvement.
In accordance with this clause, the husband gives the wife the authority to start and finish the divorce without his consent or involvement. If the woman decides that using this power is necessary for the welfare and best interests of both parties, she is free to do so.
Not all Muslim communities or legal systems recognise or regularly practise talaq-e-tafweez as a type of divorce. Depending on cultural customs and interpretations, it may not be accepted or used everywhere.
Tafweez is of 3 kinds Khula in Islam
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Ikhtiyar (Choice): Under this form of Talaq-E-Tafweez, the woman has the discretion to start the divorce process. She is given the freedom by the spouse to use this authority whenever she sees fit.
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Amr-bi-ya: In this case, the husband gives his wife complete discretion over the choice. She now has the exclusive authority to decide whether or not to dissolve the marriage.
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Mashiyat (Pleasure): Under this type of Talaq-E-Tafweez, the husband gives his wife the freedom to make her own decisions. She is given the discretion to take a decision based on her choice.
What is Khula in Muslim Law in India?
Khula signifies an arrangement entered into to dissolve a connubial or conjugal connection in lieu of compensation paid by the wife to her husband out of her property, everything that can be given as a dower.
Khula is a divorce with mutual consent and at the instance of a wife in which she agrees to give some consideration to her husband. It is basically a “redemption” of the contract of marriage. Khula or redemption literally means to lay down. In law, it means laying down by a husband his right and authority over his wife.
Khula has been aptly defined by their Lordships of the Judicial Committee in Moonshee-Buzlu-ul-Raheem v. Lateefutoonissa. A divorce by khula is a divorce with the consent and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. It signifies an arrangement entered into for the purpose of dissolving a connubial or conjugal connection in lieu of compensation paid by the wife to her husband out of her property. Khula talaq, in fact, is thus a right of divorce purchased by the wife from her husband.
Essentials of Khula:
There must be an offer from the wife and the offer must be accepted with the consideration for the release by the husband,
Consideration:
As regards the consideration, all agree that it can be everything and anything that can be given as a dower. Cases occur in which the wife agrees to pay something by way of consideration for her release but after being divorced by her husband fails to fulfill her promise. In such a case, the divorce doesn’t become invalid and the husband has a right to claim the consideration because as soon as the offer for khula is accepted, it becomes an irrevocable divorce and the wife is bound to observe iddat.
Consult: Top Divorce Lawyers in India
Capacity:
Under Shia law, the conditions necessary for the effectuation of a valid talaq are also requisites for the performance of khula accordingly; that is, the husband must be:
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adult,
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of sound mind,
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free agent, and
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have the intention to divorce her.
Under Sunni law, only two requisites are essential, i.e., the husband must be:
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adult, and
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of sound mind.
In Mst. Bilquis Ikram v. Najmal Ikram, it was said that under Muslim Personal Law the wife is entitled to Khula as of right if she satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union.
Valid Conditions of Khula in Islam Are
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Irreconcilable disagreements: If the husband and wife are unable to work out their disagreements and the marriage has irreparably broken down, this could be regarded as a legitimate requirement for Khula.
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Incompatibility: If there are fundamental differences between the husband and wife that prevent them from maintaining their marriage, it can be a legitimate requirement for Khula.
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Cruelty or Abuse: If the husband is abusing the wife physically, emotionally, or verbally and the wife can show that continuing to live with the husband is harming her, it may be seen as a legitimate condition for Khula.
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Failure to fulfil basic requirements: If the husband does not meet his financial responsibilities to the wife, such as failing to meet her basic requirements, it could be regarded as a legitimate condition for Khula.
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Desertion or Neglect: If the husband has neglected or abandoned the wife without a good explanation, and the wife can show that her rights and well-being are being jeopardised, it may be seen as a legitimate condition for Khula.
What is the procedure for Khula divorce in India?
In India, the procedure for Khula in Islam varies depending on the personal laws of the parties involved. Generally, the procedure for Khula involves the following steps:
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The wife initiates the Khula process by sending a notice to her husband stating her desire to dissolve the marriage.
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The husband may agree or disagree with the notice. If he agrees, the Khula is granted, and the wife is required to return the dower or give up some of her rights.
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If the husband disagrees, the wife may file a petition for Khula in the family court. The petition must state the grounds for seeking the Khula and provide evidence to support the grounds.
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The court will attempt to reconcile the couple through counselling or mediation. If reconciliation is not possible, the court will grant the Khula and specify the terms and conditions of the divorce, including the amount of compensation to be paid to the wife.
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Once the Khula is granted, the wife must return the dower or give up some of her rights as compensation for the dissolution of the marriage.
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What are the legal consequences of Khula talaq in India?
The legal effects of a valid Khula are the same as that of divorce by any other method, i.e., iddat, maintenance during the period of iddat, and after completion of Khula or Mubarat, the marriage dissolves and cohabitation becomes unlawful.
Divorce By Wife in Islam
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Khula: As previously stated, in Islam the woman can file for divorce. Since the wife is dissolving the marriage, the wife often returns her dowry or pays the husband a cash settlement.
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Talaq-e-Tafweez: Grants the wife the right to divorce the husband. In other words, the wife doesn't need the husband's permission to exercise her right to divorce.
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Faskh: Faskh is a type of divorce that is authorised by a religious figurehead, like a judge or an Islamic court. If there are legitimate grounds, such as cruelty, abuse, neglect, or a failure to provide the wife's fundamental necessities, the wife may be able to get it.
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Legal systems: If the country provides civil laws which govern divorce proceedings, there may be some additional grounds provided for a divorce, which may include adultery, irreconcilable differences. In some countries, the civil laws governing divorce may provide additional grounds for a wife to seek a divorce, such as irreconcilable differences, adultery, or abandonment.
Types of Divorce in Islam
Talaq-Ahsan/ Khula in Islam
The Talaq-Ahsan divorce: It is regarded as the best type of divorce. The husband must declare talaq (divorce) during the wife's purification period (tuhr). Following that, the pair observes the iddah period (waiting period) without engaging in sexual activity. The divorce becomes irrevocable if it is not revoked during this time.
Talaq Hasan (Proper):
Talaq Hasan: The husband must declare talaq three times during the wife's period of purity (tuhr), with a one menstrual cycle interval between each pronouncement, in order for it to be considered a legal form of divorce. In Islam, it is said to be the proper divorce.
Talaq-ul-Bidaat (Irrevocable):
This type of divorce is viewed as the most immoral and is considered sin in Islamic law. The divorce is finalised by the husband saying the word talaq three times in a row or in a single statement. This has developed over time and is misused by people
Shia Law:
A woman may file for divorce under Shia Islamic law using the Khula in Islam or mubarat. Khula entails a consensual dissolution of the marital contract or returning the dower (mahr).
Cooling Off Before Divorce:
Sometimes a husband would demand talaq, but the parties may decide to get back together during the iddah period. If the husband decides to stay married during this time, the divorce is revoked.
Exception for Observing Interim Period:
The iddah period has exceptions, such as when the wife is pregnant or when the husband passes away during the iddah time.
You Shall Observe the Pre-Marriage Interims:
Islam places a strong emphasis on pre-marriage interims, which call for couples to get to know one another before being married. To improve the marital relationship, this includes talking about expectations and developing compatibility.
Consult: Top Divorce Lawyers in India
Top Tips to Obtain a Khula in Islam
There are numerous measures to take in order to obtain a khula in Islam, and if you are planning to obtain it, there are a few things you should ensure and know before taking the drastic step-
Understanding Khula: To begin with, it's critical to understand what Khula is and how it functions. By returning the mahr, or dowry, received during the marriage, the khula permits a Muslim woman to file for divorce without the approval of her husband. The wife is the only one who may start this process.
Seeking Legal Advice: Khula is a legally complex process, so it is strongly advised that you speak with an experienced Islamic family law practitioner. They will guarantee that your rights are upheld, provide helpful advice, and support you as you move through the process.
Gathering Required paperwork: Before starting the khula process, you must gather all required paperwork. This normally includes your marriage licence, your mahr certificate, and any other relevant documentation. The paperwork needed for your case will be specified by your lawyer.
Khula Petition Filing: Once you have all the required paperwork in order, your lawyer will file a Khula petition with the relevant court. This petition defines the mahr amount being refunded and lists the grounds for requesting khula. The court will then inform your husband, and if he doesn't reply within the allotted time, the khula procedure continues.
Negotiation of terms: Negotiations over many kinds of separation-related issues, such as child custody, child support, and asset division, are allowed throughout the Khula procedure. The lawyer can write a settlement agreement that guarantees fairness and protects the wife's rights throughout this process if the spouses are able to reconcile.
What is the difference between Khula and Mubarat?
Khula and Mubarat are two different forms of divorce in Islam.
Khula talaq is initiated by the wife, where she seeks a divorce from her husband by returning the dower (mahr) or giving up some of her rights. The husband may accept or reject the request, and the court may also attempt to reconcile the couple before granting the divorce. Khula is a process where the wife seeks to dissolve the marriage on valid grounds, such as incompatibility or mistreatment, and is willing to give up some of her rights or pay compensation to obtain the divorce.
Mubarat, on the other hand, is initiated by mutual consent of both husband and wife, where they both agree to end the marriage without specifying any reason or fault. Unlike Khula, where the wife is the initiator, Mubarat is a process that can be initiated by either party, and both parties must be in agreement to end the marriage.
The main difference between Khula and Mubarat is that Khula is a form of divorce initiated by the wife, where she seeks to dissolve the marriage on valid grounds and is willing to give up some of her rights to obtain the divorce. Mubarat, on the other hand, is a form of divorce initiated by mutual consent of both husband and wife, without any specified reason or fault.
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Various Grounds on Which a Muslim Wife Can Claim Dissolution of Her Marriage
A Muslim wife may request the dissolution of her marriage on a number of grounds under the Dissolution of Muslim Marriages Act of 1939. Please be aware that these reasons are based on the Act and could change depending on where you are. Following are a few of the Act's recognised grounds for annulling a Muslim marriage:
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Cruelty: If the husband has treated the woman cruelly on both a physical and mental level, making it impossible for her to maintain the marriage, the wife may file for divorce.
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Desertion: The wife may seek the dissolution of the marriage if the husband abandoned her for a continuous period of at least two years without justification or with her consent.
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Failure to Pay Maintenance: If the husband doesn't pay the wife's maintenance for two years or longer, the wife may file for divorce.
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Impotence: The wife may seek the dissolution of the marriage if her partner is infertile and fails to fulfil his marital obligations.
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Insanity: The wife may seek the dissolution of their marriage if the husband has been pronounced insane by an appropriate court. It is necessary that she provides evidence regarding the same
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Communicable Illness: The wife may seek dissolution of the marriage if the husband has a severe case of a communicable illness that is likely to spread to her.
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Renunciation of the World: The woman may seek the dissolution of the marriage if the husband chooses to abandon the world by joining a monastic order, such as becoming a monk or a hermit, and stays in that state for a continuous period of at least two years.
It's crucial to remember that these grounds are just a few instances and might not cover all scenarios. Also, it is crucial to remember that the procedure and grounds may differ in different legal system.
Dissolution Of Muslim Marriage Act, 1939(Khula in Islam)
In the Indian Legal system, the law that provides provisions for the dissolution of Muslim marriages is the Dissolution of Muslim Marriages Act of 1939. The Act lays out guidelines and processes for Muslim men and women seeking divorce in a variety of ways. The Act's main characteristics are as follows:
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Provides grounds for divorce: The Act stipulates a number of grounds, such as cruelty, desertion, failure to pay support, impotence of the husband, absence of the husband for a predetermined duration, and more, on which a Muslim woman may seek the dissolution of her marriage.
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Judicial Intervention: Under the Act, Muslim women may petition the court for an order of divorce. The woman may submit a petition to the relevant court outlining her reasons for wanting a divorce.
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Talaq: The Act accepts the legality of talaq (a divorce that the husband initiates) under specific circumstances and offers instructions for its execution.
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Khula: According to the Act, a Muslim woman may obtain a divorce by giving her husband some sort of consideration (such as returning the dower or consenting to a financial settlement).
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Maintenance and Custody: It addresses the issues regarding the upkeep and custody of children following a divorce, offering procedures to protect the rights and welfare of all parties.
It's essential to remember that Muslim marriages in India are subject to the special rules and regulations set forth in the Dissolution of Muslim Marriages Act of 1939. Different countries have different laws and rules set forth regarding the dissolution of Muslim marriage
Important Case Laws related to Muslim Divorce
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In Saiyad Rashid Ahmad v. Anisa Khatun, the Privy Council recognized triple divorce pronounced at one time validly effective. In this case, husband triple talaq in absence of her but in presence of witnesses after 4 days of executed talaqnama later started living together without any proof of compliance of the doctrine of Halala five children were born and the husband treated them as the legitimate privy council agreed with the observation of the lower court that triple talaq broke the marriage then and there
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In Rahmatullah v. State of UP, Justice H. N. Tilhari of Allahabad HC (Lucknow Bench) observed:
Talaq ul-Biddat is, giving an irrevocable divorce at once or at one sitting or pronouncing it in a tuhr once in an irrevocable manner without allowing the period of waiting for reconciliation or without allowing the will of Allah to bring about a reunion, by removing differences or cause of differences and helping the two in solving their differences, runs counter to the mandate of holy Quran and has been regarded as, by all under Islam-Sunnat, to be sinful only an Obiter dicta of the judgment therefore not binding. -
In Yousuf v. Swaramma, Justice Krishna Iyer pointed out:
The view that the Muslim husband enjoys an arbitrary unilateral power to inflict instant divorce does not accord with Islamic injunctions. It is a popular fallacy that a Muslim male enjoys under the Quranic law unbridled authority to liquidate the marriage. The whole Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him. -
?The Gauhati High Court in Rukia Khatun v. Abdul Laskar, wherein Justice Baharul Islam speaking for the Division Bench observed that the correct law of talaq as ordained by the Holy Quran is:
that 'talaq' must be for a reasonable cause; and
that it must be preceded by an attempt of a reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, 'talaq' may be affected. -
The Supreme Court in its landmark judgment in Shamim Ara v. the State of UP, has derecognized the husband's dictate to divorce in any manner, from any date past or future, and without any proof. The Apex Court approving the views taken by Justice Baharul Islam further observed that the condition precedent for the effectiveness of divorce was the pronouncement of divorce which has to be proved on evidence. When the husband failed to prove the pronouncement of talaq, the order of the Court negativing plea of divorce would be proper.
Why do you need a lawyer for a Khula divorce case in India?
The procedure for Khula in India can be complex and may vary depending on the personal laws applicable to the parties involved. It is advisable to seek the guidance of a qualified divorce lawyer with experience in family law to ensure that the Khula procedure is carried out properly and in compliance with the law. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert divorce lawyers.
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