What is Khula under Muslim Law?

हिंदी में पढ़ें
August 18, 2021
By Advocate Chikirsha Mohanty



Different religions define marriage differently, such as:-

  1. According to the Hindu lawmarriage is a religious sacrament.

  2. 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 recognised as a basis of society and an institution which leads to 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 Dissolution of Muslim Marriage Act, 1939. Whereas, “Talaq” proceedings are governed by Muslim Personal Laws. Under the Muslim personal laws, dissolution of marriage with mutual consentis governed by two concepts known as Khula and Mubarat. In this article we will discusss the concept of khula, its essentials and the legal consequences.

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What is Khula?

The literal meaning of khula is “to lay down” before the law. The husband lays down his right over his wife. It signifies an arrangement entered into to dissolve a connubial connection in lieu of compensation paid by the wife to her husband out of her property, everything that can be given as 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 of his right and authority of 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 connection in lieu of compensation paid by the wife to her husband out of her property. Khula, 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 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.

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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:

  • adult,

  • of sound mind,

  • free agent, and

  • have intention to divorce her.


Under the Sunni law, only two requisites are essential, i.e., the husband must be:

  • adult, and

  • of sound mind.

In Mst. Bilquis Ikram v. Najmal Ikram, it was said that under the Muslim 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.



Legal Consequences of Khula

The legal effects of a valid Khula are the same as that of a 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.



Important Case Laws related to Muslim Divorce

1. 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 executed talaqnama later started living together without any proof of compliance of the doctrine of Halala five children born and husband treated them as legitimate privy council agreed with the observation of the lower court that triple talaq broke the marriage then and there

2. 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 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.

3. 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.

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4. 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 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 effected.

5. The Supreme Court in its landmark judgment in Shamim Ara v. 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 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, order of Court negativing plea of divorce would be proper.



 

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