This article has been written by Yashika Patel. In this article, the author has discussed Khula divorce in Muslim law in great detail. Further, the article also gives an overview of the procedure to initiate Khula in India. Furthermore, the difference between Khula and Talaq has also been discussed.
It has been published by Rachit Garg.
Table of Contents
A recent judgement given by two judges of the Kerala High Court recognising a Muslim woman’s right to Khula is being celebrated extensively in the media and is being perceived as a progressive judgement advancing the cause of gender justice in Islamic law. The controversy came to light after a single bench judgement of the Kerala HC in K.C. Moyin v. Nafeesa (1972). The right of Muslim women to extra-judicial divorce was negated, and it was held that a Muslim marriage cannot be dissolved at the instance of women under any circumstances. As a result, the judgement foreclosed the modes of divorce available to women under Muslim law. Under Islamic law, the relationship between husband and wife is considered to be sacrosanct and must be protected. However, in some cases, the relationship may not be a blissful one and might even be troublesome for both of them. In such circumstances, the Quran provides an option for divorce. In India,divorce for Muslims is not governed by any statute but by Sharia law derived from the Quran and Hadith. There are four kinds of divorce under Islamic law, as recognised under The Shariat Act of 1937:
- Talaq: It is the divorce at the instance of the husband that takes effect by pronouncing the word ‘Talaq’ to the wife in the presence of the witnesses.
- Khula: The divorce at the instance of the wife upon the return of Mahr or any other conditions as may be prescribed.
- Mubarat: The divorce by mutual consent of husband and wife.
- Faskh: Divorce declared through court when approached by either of the parties.
The law of Khula has been gravely misunderstood and distorted over the years. The 1976 judgement rendered the option of extrajudicial divorce available to the woman through Khula and Mubarat under the Act illegal, which has now been overruled. The present judgement of the Kerala High Court has restored the correct position under Islamic law.
The principle behind Khula is to provide women with a way to dissolve marriage in case of an irreconcilable breakdown. Its aim is to safeguard women’s rights and protect them within the framework of Islamic law.
Muslim law gives women an opportunity to get their marriage dissolved both privately by Khula or Talaq-e-Tafweez and also by means of Faskh. In India, divorce through court is now regulated by the Dissolution of Muslim Marriages Act 1939, but this Act does not affect the principles of Muslim law on Khula and Talaq-e-Tafweez, which are wholly beyond its scope and object.
The Fatwi Alamgiri puts it thus : “When married parties disagree and are apprehensive that they cannot observe the bounds prescribed by the divine law and that they cannot perform the duties imposed on them by conjugal relationships, the woman can release herself from the tie by giving some property in return, in consideration of which the husband is to give her a Khula, and when they have done this, a talaq-ul-bain would take place.”
What is Khula
Under Muslim law, the right to divorce or dissolve the marriage exists for both parties in a marriage, but it has to be exercised in extreme necessity, i.e., when the marriage is beyond any scope of reconciliation. The Quran has given equal rights to both men and women to repudiate their marriage. It does not insist that a relationship that makes it impossible to live a peaceful and harmonious life be continued indefinitely, and spouses are therefore allowed to separate from each other. The right of the wife to pronounce the divorce is known as “Khula,” and it is expressly mentioned in the Quran.
The word “Khula” is derived from the Arabic term “Khal’un,” which means extracting one thing out of another. The word Khula means taking out or taking off. According to Fatwa-I-Qazikhan, Khula means to take off your clothes. The spouses are garments to each other, and when they make Khula, each of them takes off his or her clothes. In Shariah, it signifies the relinquishment of rights and authority over the wife by her husband, dissolving the marital relationship at the desire of the wife in lieu of compensation paid by her to the husband out of her property.
In Muslim law, Khula is a way of divorce available to Muslim women through which she can get a divorce from her husband by returning the Mahr (Dower), which is the sum of money or property given to the wife by the husband in consideration of marriage. Khula is divorce at the instance of the wife, just as talaq is divorce at the instance of the husband. The court may advise reconciliation, but the last word is that of the wife.
Khula is also sometimes referred to as “Khul’”. Marriage can be dissolved by an agreement between the husband and wife for a consideration paid or to be paid by the wife to her husband. The same agreement if the wife alone is desirous is called Khula, and if both husband and wife are desirous, it is called Mubarat.
In Moonshee-Buzlu-ul-Raheem v. Lateefutoonissa (1861), the judicial committee defined Khula as a divorce at the instance and with the consent of the wife, wherein she agrees to give consideration to the husband to get ‘Khul’’ i.e., release from marriage. It can be called ‘the right of divorce gained by the wife from her husband in lieu of compensation.’
In the Pakistan Supreme Court case of Mst. Sakina v. Uman Bukhsh (PLD 1964 SC 465), it was held that a Khula marriage is dissolved by an agreement between the parties for the consideration paid or to be paid by the wife to the husband. One of the necessities is that the desire to divorce should come from the wife.
Essentials of Khula under Muslim Law in India
The concept of consideration is a mandatory precondition for divorce through Khula. For Khula to take place, it is mandatory for the wife to give some return consideration to her husband. A consideration can be anything that can be given as a dower, i.e., it need not be a sum of money; it can be anything that has value. The actual release of the dower or the property in consideration is not mandatory for the Khul’ to be valid. Once the husband gives his consent, the divorce becomes irrevocable. In cases where the wife agrees to pay something as a consideration but after divorce denies or fails to do so, the divorce does not become invalid on the ground that the consideration has not been paid. However, the husband can sue the wife for non-payment as a remedy.
Since Khula is initiated by the wife, it is her duty to pay consideration to her husband, which can also mean returning her mahr. However, if the wife fails to pay consideration, the husband can demand restitution of conjugal rights.
The husband and wife must be people of sound mind and must have attained the age of puberty. A minor or a person of unsound mind cannot enter into a Khul’. According to Shafis or under Shia law, a minor or insane person cannot enter a Khul’. However, under Hanafi Law, the guardian of a minor wife may enter into Khul’ and pay consideration on her behalf, but the same is not applicable to the husband.
Under Shia law, the prerequisites for the performance of Khula are:
- The person should be an adult.
- He/she should be of sane mind.
- Free agent
- Husband has the intention to divorce the wife.
Under Sunni law, the prerequisites are as follows:
- The person should be an adult.
- They should be of sound mind.
Difference between Talaq and Khula
In Muslim law, dissolution of marriage takes place either on the death of either party to the marriage or at the instance of one of the parties or both parties.
Under Muslim law, divorce can be categorised into three categories:
- Divorce by mutual consent.
- Judicial divorce.
- Unilateral divorce:
- At the instance of the Husband:Talaq
- At the instance of the wife:Khula
Talaq is divorce at the instance of the husband. It happens when a husband exercises his right to pronounce divorce on his wife. Talaq is used to end a marriage or a nikah under Islamic law. All schools of Muslim law, i.e., the Shias and the Sunnis, although differing in some details, recognise it. A divorce by Talaq can only be initiated by the husband at his own pleasure. After giving talaq, the husband is bound to repay the wife’s dower and any property belonging to her.
Under Sunni law, it may be pronounced by the husband orally or in writing (talaqnama), and under Shia law, Talaq can be pronounced only orally by using prescribed words in Arabic called Seegha in the presence of two male adults.
Talaq and Khula ultimately lead to the dissolution of marriage, but they differ in their proceedings and initiation. Both of these procedures have their own specific rules. The main differences between Talaq and Khula are as follows:
|Point of difference
|Right of divorce
|The right to divorce is exercised by the husband.
|The right to divorce is exercised by the wife.
|The wife is entitled to a dower.
|The wife is not entitled to the payment of the dower.
|There is no offer to the wife by the husband.
|There is an offer by the wife as a form of consideration.
|The husband does not have to follow any procedure.
|The wife has to file a suit in court.
|The husband does not have to give back any benefits received by the wife.
|The wife has to give back the mahr or agreed amount/property as a consideration.
|It is not completed by a single declaration by the husband.
|Khula is at once complete and irrevocable from the moment separation takes place.
|The wife cannot remarry her husband until she marries another man and obtains a divorce from him.
|The wife can remarry her husband if they mutually agree to reconcile their differences.
Procedure to initiate Khula
The procedure of Khula varies according to different schools of Islamic jurisprudence.
- In order to get a Khula, one must download the Talaq form and, after filling it, send it with a brief explanation of the application to the Islamic Sharia Council.
- After reviewing the filled-out application for all relevant information, the application will be registered by the council. If any information or document is missing from the application form, it will not be registered.
- The notification of Khula will be given to the wife through media such as phone, email, etc. She will be questioned on whether she wants mediation or if she has any final claims against the Mahr. The husband would then be informed of the wife’s response, and the appropriate actions would be taken.
- There shall be a combined discussion with both sides as Quran-mandated mediation. Finally, in case of unsuccessful mediation and payment of Mahr, the office will issue a Talaq document to the husband, and the wife will be made aware of the signing date so she can observe iddat.
A Khula may take place orally or through written Khulanama. The general practice is to reduce the transaction to writing signed by the parties, the witnesses, and the arbiters if they have played a role in it. It is, however, not necessary to use the word Khula; the word Talaq may also be used, and if, in such a case, the divorce is initiated by the wife, it will remain a case of Khula.
Moonshe Buzul-ul-Raheem v. Luteefut-oon-Nisha (1861)
In this case, the respondent brought up a suit against the plaintiff, to whom she had been married, to recover her “dyn-mohr” that was payable by him in the event of the dissolution of marriage. The appellant denied having divorced the respondent by talaq, that she had executed an “ikrarnamah” and had thereby released him from all claims in respect of her dower, and that she had given him a “khoola” and executed a “kaboolnamah.” The respondent alleged that two instruments by which she was alleged to have given up her dyn-mohr, had been obtained from her by force and stressed that the appellant had admitted the existence of divorce. It was held that “ikrarnamah” and “kaboolnamah” are special pleas taken by the defence and, as such, are of no avail and have no effect unless proved, and talaq is said to have been proved, and thereby, she is entitled to her dower.
Saiyid Rashid Ahmad v. Mussammat Anisa Khatun (1931)
In this case, a Sunni husband divorced his wife by pronouncing three talaqs under the undue influence of his parents in their presence when the wife was not there. Later, he continued to live with his wife without remarrying her. He had five children with her after this resumed cohabitation, and he treated them as his legitimate children. After his death, the children and his widowed wife claimed a share in his property, which was challenged before the court. The Privy Council held that there was no proof of any remarriage, and their union was void, making the children illegitimate; therefore, they had no right in the property of the deceased father.
Yousuf Rawther v. Sowramma (1970)
In this case, after the plaintiff’s marriage, the couple started living in the husband’s house, immediately after which the husband had to leave for Coimbatore to run his business. After a month of living in his house, the wife went back to her parents for a period of two years, during which he failed to maintain her. The issue before the court was whether the dissolution of marriage can be claimed by the wife on the grounds of the failure of her husband to maintain it for two years, to which the court held that a Muslim woman can sue for dissolution if she is not given maintenance by her husband, even if there is a good determination at which instance the talaq took effect upon the first utterance, in front of the witnesses, but in the absence of the wife, or when he informed her in writing in 1990, or whether it was even a valid divorce. The Court held that the written statement lacked evidence, and there were no reasons given in justification of the talaq and no proof that the effort of reconciliation was made preceding the talaq. As mentioned in the Quran, the talaq must be for reasonable cause and must be led by attempts of reconciliation. The respondent failed to provide evidence of the same and, hence,was liable to pay maintenance.
Shamim Ara v. State of UP & Anr (2002)
In this case, Shamim Ara, the appellant, and Abrar Ahmed were married and had four children together. In 1979, she filed a suit against her husband on the grounds that he deserted her and failed to support her, to which he responded in 1990 that he was under no obligation to maintain her as he had divorced her in 1987 via triple talaq but, this was done nor her presence and was neither communicated to her, there was just a filing of a written sattement. The court held that a mere plea taken in the written statement of divorce having been pronounced sometime in thepast cannot be considered a talaq.
Alungaparambil Abdul Khader Shud v. State of Kerala (2007)
In this case, the petitioner initially married a Muslim woman named Tahira, which took place according to the procedure defined under the personal law of the petitioner. Later on, he wanted to get married to another divorced Muslim woman through Khula and get it registered under the provisions of the Special Marriage Act, 1954. Under SPA, a marriage cannot be registered if another spouse is living. As a result, the marriage registrar insisted on a court decree dissolving the earlier marriage. The court held that for the registration of a divorced Muslim woman’s second marriage, Kazi’s certificate that the divorce had taken effect as per Muslim law should be accepted, and a court decree of divorce cannot be the reason for it. Hence, the appeal by the husband was dismissed.
Khul’ in India comes under the ambit of the extra judicial form of divorce, which makes it considerably more accessible for women to get a divorce if conditions are reasonable, but the process of obtaining Khul’ is not always simple and straightforward. Many complications arise while negotiating with the husband. The whole process is very stressful and may even fail sometimes. Along with offering consideration to the husband for releasing her from marriage, the wife also has to convince him to accept it. Some men refuse to enter into negotiations over such matters, while others take advantage of the woman’s lack of power in the marriage and ignorance of the law and coerce them into signing a Khul’ agreement with strenuous conditions.
We live in a kind of patriarchal society where women are considered inferior and are given few rights compared to men. A man is able to repudiate his wife at his own pleasure by pronouncing Talaq, while a woman faces an indefinite number of legal, financial, and societal hurdles to divorce her husband. Divorce is still considered a taboo in India and it’s considered even more shameful if a woman initiates the divorce due to the patriarchal nature of the society. There is a large segment of women whose marital status has deteriorated to the point where they have no other choice but to cut all ties with their husband. But only a few of them are able to take action on their own and take the necessary steps. They usually have little choice but to comply with their family’s wishes. However, this trend is changing, and women are now being provided with equal rights to divorce their husbands, as can be seen in the recent High Court judgement.
Now, it is clear that Khula is the right given to Muslim women by the Quran itself, and the permission or consent of the husband is not necessary for the dissolution of marriage through Khula. Where the wife demands Khula and the husband either refuses or fails to grant it, the court can make it happen after inquiring into the matter of dispute leading to this decision and after observing that the parties will not be able to observe the limits prescribed by Allah.
A veteran religious scholar of the subcontinent, Abul Ala Maudadi, has observed in Huqooq-uz-Zaujain-
“The wife’s right to Khula is parallel to the man’s right of Talaq. Like the latter, the former too is unconditional. It is indeed a mockery of the Shariat that we regard Khula as something depending either on the consent of the husband or the verdict of the kazi. The law of Islam is not responsible for the way Muslim women are being denied their right in this respect.”
What are the rules for divorce under Islamic law?
Under Islam, divorce is recognised as a lawful way of ending a marriage, but marriage is considered a very sacred activity, and hence, divorce is seen as only a last resort, which should be considered only after failed efforts at reconciliation.
Is it haram to divorce your wife?
Divorce is not haram in Islam but is discouraged unless all attempts of reconciliation have failed. The Quran does recognise the necessity of divorce under certain conditions to avoid harm and encourage a new start, but this decision must be reached with wisdom and compassion.
What are the halal reasons for divorce?
In Islam, some reasons are considered halal or permissible. These may include adultery, physical or emotional abuse, and irreconcilable differences that are unresolvable.
Can I remarry my wife after Khula?
No, after Khula, the woman regains her independent status, and the man cannot reinstate the marriage in any way, even if he gives back her consideration.
Is Khula a permanent divorce?
Yes, once the Khula is finalised, the marriage is considered dissolved.
Can a husband deny Khula?
No, the husband cannot unreasonably deny the wife’s request to Khula.
Is Khula mentioned in the Quran?
Yes, the sources of the rights of Khula are the Quran and Hadis.
Does Khula need witnesses?
It depends on the jurisdiction and the school of Islamic law.
How long is the waiting period after Khula?
It is sufficient for a woman divorced under Khula to wait for one menstrual cycle.
Can a wife take Khula without her husband’s permission?
The right to terminate the marriage through Khula is an absolute right conferred on her by the Quran and is not subject to the acceptance or the will of her husband.
Can a woman remarry after Khula?
Yes, a woman can remarry after obtaining Khula.
- Ker HC| Muslim women’s right to Khula (extra-judicial divorce) revived; Patriarchal decision in K. C. Moyin overruled | SCC Blog (scconline.com)
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