Thursday, January 12, 2012

Khula & Mubarat in ISLAM


KHULA
Khula is the right of a woman in Islam to seek a divorce or separation from her husband. More accurately, it is merely the right of a wife to seek a release from the marriage bond, similar to the Get in Judaic law, but unlike the latter where the husband has unilateral right to refuse, a Muslim woman may petition a Qazi to grant her divorce - over ruling the husbands refusal. This authority of the Qazi is subject to certain criteria which differ amongst the jurisprudential schools (fiqh), and subsequent to attempting reconciliation between the parties, failing which further arbitration to seek an amicable solution and voluntary proclamation of triple talaq by the husband.

Ultimately the Qazi has authority to grant the divorce subject to the wife fulfilling requirements to return the mahr and compensate the husband by reimbursing him for what he provided during marriage, unless the husband is willing to forgo it, (which the Qazi usually encourages) unless the woman's action or behaviour has been such not to warrant it.

After divorce, the husband is responsible for the education and maintenance of the children. The children live with the mother for seven years. After seven years, the children have the right to live with the father or the mother, as they decide. There is differences between scholars in regards to the number of years a husband is obliged to provide for the welfare of the children of the marriage, and who is to reside with whom.

A woman seeks a khula while a man gives a talaq. The iddah period (waiting time after a divorce) of a woman who seeks a khula, is one menstrual cycle or one month if she is post-menopause i.e. ceased menstruating. This is to ensure she is not pregnant. This differs from when a man gives a talaq; the iddah period is three cycles or three months. The iddah period also allows for reconciliation between the husband and wife. If the woman is pregnant, then the waiting period is until she gives birth. There is still the need for witnesses when seeking a khula as in a talaq.

There are differing opinions regarding the iddah (waiting period) for a woman after the khula has been granted, the support of a one month waiting period is taken from the following hadith and Qur'anic verses.

".. When Rabia bint Masood obtained Khula from Thabit, the prophet asked her to wait until one menstrual cycle before she could go to her home". (An-Nissai, Abu Daud, Tirmidhi)

"...And for those who are pregnant (whether they are divorced or their husbands are dead), their iddah (prescribed period) is until they deliver (their burdens)..." (Qur'an 65:4)

Also the mahr does not have to be surrendered in full if the husband does not request the entire amount. The basic principle concerning this is the following verse from the Qur'an (interpretation of the meaning) stating:

"..Divorce must be pronounced twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that ye take (back from wives) aught of that which ye have given them; except (in the case) when both fear that they may not be able to keep within the limits (imposed by) Allah. And if ye fear that they may not be able to keep the limits of Allah (to deal with each other fairly), in that case it is no sin for either of them if the woman ransom herself (by returning what the husband provided). These are the limits (imposed by) Allah. Transgress them not.

What is khula and what is the correct procedure?
Praise be to Allaah.

Khula’ means the separation of the wife in return for a payment; the husband takes the payment and lets his wife go, whether this payment is the mahr which he gave to her, or more or less than that.

The basic principle concerning this is the verse in which Allaah says (interpretation of the meaning):

“And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal-money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allaah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allaah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul‘ (divorce)”
[al-Baqarah 2:229]

The evidence for that from the Sunnah is that the wife of Thaabit ibn Qays ibn Shammaas (may Allaah be pleased with him) came to the Prophet (peace and blessings of Allaah be upon him) and said, “O Messenger of Allaah, I do not find any fault with Thaabit ibn Qays in his character or his religious commitment, but I do not want to commit any act of kufr after becoming a Muslim.” The Prophet (peace and blessings of Allaah be upon him) said to her, “Will you give back his garden?” Because he had given her a garden as her mahr. She said, “Yes.” The Prophet (peace and blessings of Allaah be upon him) said to Thaabit: “Take back your garden, and divorce her.”

(Narrated by al-Bukhaari, 5273).

From this case the scholars understood that if a woman cannot stay with her husband, then the judge should ask him to divorce her by khula’; indeed he should order him to do so.

With regard to the way in which it is done, the husband should take his payment or they should agree upon it, then he should say to her “faaraqtuki” (I separate from you) or “khaala’tuki (I let you go), or other such words.

Talaaq (i.e., divorce) is the right of the husband, and does not take place unless it is done by him, because the Prophet (peace and blessings of Allaah be upon him) said: “Talaaq is the right of the one who seizes the leg (i.e., consummates the marriage)” i.e., the husband. (Narrated by Ibn Maajah, 2081; classed as hasan by al-Albaani in Irwa’ al-Ghaleel, 2041).

Hence the scholars said that whoever is forced to divorce his wife by talaaq wrongfully, and divorces her under pressure, then his divorce is not valid. See al-Mughni, 10/352.

With regard to what you mention, that a woman in your country might arrange her own divorce through the man-made laws, if this is for a reason for which it is permissible to seek a divorce, such as disliking her husband, not being able to stay with him or disliking him because of his immoral ways and indulgence in haraam actions, etc., there is nothing wrong with her seeking divorce, but in this case she should divorce him by khula’ and return to him the mahr that he gave to her.

But if she is seeking divorce for no reason, then that is not permissible and the court ruling on divorce in this case does not count for anything in terms of sharee’ah. The woman still remains the wife of the man. This gives rise to a new problem, which is that this woman is regarded as a divorcee in the eyes of the (man-made) law, and can re-marry after her ‘iddah ends, but in fact she is still a wife and not a divorcee.
Shaykh Muhammad ibn Saalih al-‘Uthaymeen (may Allaah have mercy on him) was asked about a similar matter and said:
Now we have a problem. The fact that she is still married to him means that she cannot marry anyone else, but according to the court ruling she is apparently divorced from him, and when her ‘iddah ends she can re-marry. I think that the only way out of this problem is that good and righteous people should get involved in this matter, to bring about reconciliation between the man and his wife. Otherwise she has to give him some payment, so that it will be a proper shar’i khula’.

Khula’ is not regarded as a talaaq even if the word talaaq is used, according to the more correct opinion.

This may be explained as follows:

1. If khula’ takes place without using the word talaaq, and is not intended as a talaaq, then it is an 
annulment (of the marriage contract) according to a number of scholars. This is the view of al-Shaafa’i in his old madhhab, and it is the view of the Hanbalis. The fact that it is an annulment means that it is not counted as a talaaq. The one who separated from his wife by khula’ twice may go back to her with a new marriage contract, and it is not counted as a talaaq at all.

An example of that is if the husband said, “I separated from my wife by khula’ in return for such-and-such an amount of money” or “I annulled her marriage in return for such and such.”

2. But if the khula’ involved the word talaaq, such as saying “I divorce (talaqtu) my wife in return for such-and-such an amount of money”, then it is a talaaq according to the majority of scholars. See al-Mawsoo'ah al-Fiqhiyyah (19/237).

Some of the scholars are of the view that this is also an annulment and is not counted as a talaaq, even if the word talaaq is used. This was narrated from Ibn ‘Abbaas (may Allaah be pleased with him) and was the view favoured by Shaykh al-Islam Ibn Taymiyah, who said: It is the stated view of Imam Ahmad and his oldest companions.

See: al-Insaaf (8/393).

Shaykh Ibn ‘Uthaymeen (may Allaah have mercy on him) said: But the more correct view is that khula’ is not talaaq, even if the actual word talaaq is used. This is indicated by the Holy Qur’aan. Allaah, may He be glorified and exalted, said (interpretation of the meaning):

“The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness”
(Al-Baqarah 2:229)

i.e., within the first two times, either keep her or let her go, it is up to you.

“And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal-money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allaah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allaah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul‘ (divorce)”
[al-Baqarah 2:229]

So this is a separation on the basis of giving back (all or part of the mahr). Then Allaah, may He be glorified and exalted, says:

“And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband”

[al-Baqarah 2:230].

If we count khula’ as a talaaq, then these words “And if he has divorced her” would refer to a fourth talaaq, and this is contrary to scholarly consensus. The words “If he has divorced her” mean a third divorce, “then she is not lawful unto him thereafter until she has married another husband”
The evidence in the verse is clear. Hence Ibn ‘Abbaas (may Allah be pleased with him) was of the view that any separation in which compensation is paid is khula’ and not talaaq, even if the word talaaq is used. This is the correct view. End quote from al-Sharh al-Mumti’ (12/467-470).

And he (may Allah have mercy on him) said:

Every wording that points to a separation in return for compensation is khula’, even if the word talaaq is used, such as saying for example, “I divorce (talaqtu) my wife in return for compensation of one thousand riyals.” We say: this is khula’, and this is what was narrated from Ibn ‘Abbaas (may Allaah have mercy on him), that everything in which compensation is involved is not talaaq. ‘Abd-Allaah ibn al-Imam Ahmad said: My father thought the same about khula’ as Ibn ‘Abbaas (may Allaah be pleased with him) did, i.e., it is an annulment, no matter what wording is used, and it does not count as a talaaq.
An important issue stems from this: if a man divorces his wife (talaaq) on two separate occasions, then khula’ takes place using the word talaaq, then according to the view of those who say that khula’ using the word talaaq counts as talaaq, she is irrevocably divorced from him, and she is not permissible for him until she has been married to someone else. According to the view of those who say that khula’ is an annulment even if the word talaaq is used, she becomes permissible for him with a new marriage contract even during the ‘iddah. This view is more correct. But nevertheless we advise those who write down the khula’ not to use the word talaaq when recording it, rather they should say “he separated from his wife by khula’ in return for compensation of such and such value”, because most judges in our country, and I think even in other countries, believe that if khula’ occurs using the word talaaq, it is counted as talaaq, and this may be detrimental to the woman, because if it is a final talaaq she will become irrevocably divorced, and if it is not the final talaaq it will still be counted against him. End quote from al-Sharh al-Mumti’ (12/450).

Based on this, if you want to go back to your husband, then it is essential to have a new marriage contract and no talaaq is counted against you.

MUBARAT

The literal meaning of the word Mubarat is ‘obtaining release from each other.’ It is said to take place when the husband and wife, with mutual consent and desire, obtain release and freedom from their married state. The offer for separation in Mubarat may proceed either from the wife or from the husband and as soon as it is accepted dissolution is complete. It takes effect as one irrevocable divorce without the aid of the court. Under Hanafi law, Mubarat is equivalent to one irrevocable pronouncement of talaq, making it necessary for the parties to contract a fresh marriage with each other if they wish to resume a marital relationship.

 

i.      The husband or the wife, either of them can make the offer.

  1. The other spouse must need to accept the divorce proposal.
  2. Once it is accepted by the other partner, it becomes irremediable.
  3. Iddat period is mandatory before the divorce is approved.

If we talk about Sunnis, when the husband and the wife opt for mubarat then all of their mutual rights and obligations becomes meaningless and comes to an end. In case of Shias, they insist on a proper documental form. The Shias believe that the word mubarat must be followed by the word Talaq, otherwise the divorce is meaningless.

In both, Shias and Sunnis, mubarat (mutual consent divorce) is irreparable. Other requirements are as same as what are in khula and the wife must have to follow the period of iddat and in both these ways, a divorce is basically an act of both the partners and thus, no intervention by the court is entertained.

Thanks
Dr. Zulfiqar Ali Khan, M.L,M.Phil(Law),Ph.D
Advocate
Supreme Court of India
No. 244, H-Block, Beta-II, Gr Noida 
G.B Nagar (Distt), India
Pin code: 201310 
MB: 9884102961

10 comments:

  1. Really this is very helpful and valuable information.

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  2. If husband is noncooperative and absconding for 2/3 years , whether Khula can be granted by the sharia court , exparte/

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  3. Salaam, can someone please inform me how to file for khula? Do we need to hire any lawyer or we need to visit any Muslim personal law office or waqf office in our area? As we do not go by Indian law and follow Muslim personal law for such marital issues. please advise. Thanks

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    Replies
    1. I recently took khula, plz contact for more details @ 8446643941

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  4. You dont need a lawyer. Visit the muslim personal law office in ur area and write the grievances. The maulana will help you then onwards

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    Replies
    1. But I am not able to locate any Muslim personal law office in Mumbai..could you please advice would be grateful.

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  5. am in need of legal advice on kulah kindly help please

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  6. My wife wants khula after 1 year of marriage. But her family is asking me to give all expenses of marriage as compensation.and even they are not returning mahr which I gave her at the time of marriage. I don't have correct information about this khula. Please let me know your suggestions as per Muslim law

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  7. Hi Team, My wife is asking for Khula please let me know the procedure and please advice if khula is given by her and i have accepted it can my wife again approach for legal divorce so that during the course of time she may demand for maintenance.

    Please assist.

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  8. dear Sir, thank you for this article. But how to find the registererd kazi for the khula in mumbai or bangalore ?

    ReplyDelete