Indian Kanoon - Search engine for Indian Law

20. That takes us to consider "Khula". In Moonshee Buzu -

Ul-Rahem Vs Luttee Fatoonisa (1961) 8 MIA 399, Khula is defined as "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.

21. Section 319, Chapter XVI in Mulla Mahomedan Law deals with "Khula and Mubara'at". In this section, it is stated that a marriage may be dissolved not only by talak, which is the arbitrary act of the husband, but also by agreement between the husband and wife. A dissolution of marriage by agreement may take the form of Khula or Mubara'at. 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. In such a case, the terms of the bargain are matters of arrangement between the husband and wife, and the wife may, as the consideration, release her dower and other rights, or make any other agreement for the benefit of the husband. A Khula divorce is effected by an offer from the wife to compensate the husband if he releases her from her marital rights, and acceptance by the husband of the offer.

i-bain as in the case of Khula. As a talak, so in khula and mubara'at, the wife is bound to observe the iddat.

23. Khula is a form of divorce recognised by the Muslim Law.

It is virtually a right of divorce purchased by the wife from her husband. It is complete from the moment when the husband repudiates the wife. There is no period during which such a divorce can be revoked at the instance of the husband. Thus, a divorce by Khula is complete if the following conditions are satisfied : (i) if it is at the instance of the wife or there must be an offer from the wife; (ii) she gives or agrees to give a consideration to the husband for her release; and (iii) acceptance by the husband of the offer. Over and above this, under Sunni law, the husband must be adult and of sound mind.

A proposal by Khula made by the wife may be retracted by her at any time before the acceptance by the husband and the proposal stands revoked if the wife rises from the meeting where the proposal is made. Abu Hanifa has provided three days of options for wife to accept or revoke Khula but does not allow this option to husband but his disciples are of the opinion that the option is for the both sides. (See: Principles of Muslim Law by Yawer Qazalbash, page 135) Under Hanafi law, no form is necessary but only intention must be proved besides the proposal, acceptance and consideration. In case of a divorce by Mubara'at, offer may be either from the side of wife or from the side of husband. When an offer for mubara'at is accepted it becomes irrevocable divorce. (Talak-Ul-bain). No particular form is required under Sunni law but mutual agreement must be made at the same time and the word Mubara'at must be clearly expressed in the proposal and if ambiguous expressions are used intention must be proved. Under Sunni law, when the parties enter into a mubara'at all mutual rights or obligations came to an end. Thus, Khula is redemption of the contract of marriage while Mubara'at is a mutual release from the marriage tie. In Khula the offer is made by the wife and its acceptance is made by the husband, whereas in Mubara'at any of the two may make an offer and other accepts it. In Khula, a consideration passes from wife to husband, whereas in Mubara'at the question of consideration does not arise.