Mutual Divorce Procedure under Muslim Law

Law
18-Jun-2024
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In India, under Muslim law, mutual divorce is permissible and is known as "Khula" or "Mubarat." Khula alludes to the wife's right to look for a separation from her husband by mutual arrangement, frequently by surrendering some or every last bit of her financial rights. On the other hand, Mubarat is a mutual divorce initiated by both spouses. In both cases, consent assumes a crucial part, featuring Islam's emphasis on the significance of mutual agreement in marriage and divorce. The cycle typically includes the husband articulating talaq (divorce) or the couple consenting to a composed arrangement recognizing the disintegration of their marriage. Following this, the husband might be expected to give the wife the settled upon monetary repayment or Mehr (dower). Divorce mutual assent gives a system for couples to end their marriage genially, recognizing the rights and responsibilities of the two parties as per Islamic standards and Indian legal provisions.

Mutual Consent Divorce (Khula)

Khula is a divorce with mutual assent and at the occurrence of a spouse where she consents to give thought to her better half. 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.

Grounds for Mutual Divorce

The Dissolution of Muslim Marriages Act, 1939 provides additional grounds for Muslim women to seek divorce. Although it primarily deals with judicial divorce (Faskh), the principles can overlap with Khula in terms of justifiable reasons for seeking the dissolution of marriage. Some of the relevant sections include:

Section 2 of the Act lists specific grounds on which a woman can seek divorce, which align with the grounds for Khula, such as:

  • Incompatibility and Irreconcilable Differences

  • Cruelty

  • Failure to Provide Maintenance

  • Impotence

  • Imprisonment or Absence

  • Mental Illness

Incompatibility and irreconcilable differences 

 occur when there is a steady absence of understanding and similarity between the companions, prompting ceaseless clashes and an inability to keep an agreeable conjugal relationship, the wife might seek Khula. This includes distinctions for values, objectives, or characters that make cohabitation painful.

Mistreatment and Abuse

 In the event that the wife is exposed to physical, emotional, or mental abuse by her husband, Khula can be sought for the purpose of safeguarding her security and prosperity. Islam puts a high worth on the nobility and regard of people, and abuse in any structure is justification for looking for a divorce.

Neglect and Failure to Provide

 A husband has the obligation to accommodate the essential necessities of his wife, including financial help, shelter, and food. If he neglects to satisfy these commitments, the wife has a genuine motivation to seek Khula.

Impotence or Infertility

 In the event that the spouse is impotent or infertile and the wife wants children, this can be a substantial justification to seek Khula. Islamic law perceives the right of people to have children, and a failure to satisfy this want can be justification for divorce.

Imprisonment or Absence

 In the event that the husband is detained for a significant stretch or is generally missing without a legitimate explanation, the wife might look for Khula. Delayed absence can prompt disregard of conjugal obligations and the wife’s needs.

Mental Illness or Disability 

Assuming the husband experiences a dysfunctional behavior or inability that seriously influences the conjugal relationship and the wife's personal satisfaction, she might look for Khula. This incorporates circumstances where the disease or inability makes living together difficult or dangerous.

Eligibility and Conditions

For spouses to initiate Khula, the following conditions must be met:

 

Consent: While the consent of both parties is preferred, the wife can seek Khula even without the husband's consent. In any case, she might have to give legitimate motivations to be looking for divorce, like cruelty or disregard.

 

Dower (Mehr): In Khula proceedings, the wife may be required to provide financial compensation to the husband as part of the divorce settlement. This pay could incorporate returning the mahr (dowry) or assets obtained during the marriage.

 

Legal Procedures: Khula procedures might be started by the wife by filing a petition in a Sharia court or a family court, contingent upon the jurisdiction. The wife may need to provide evidence to support her grounds for seeking Khula.

 

Witnesses: Witnesses might be expected to vouch for the arrangement between the parties and the legitimacy of the Khula process. Their testimony can help establish the grounds for Khula and the terms of the divorce settlement.

 

Iddah Period: After the Khula is conceded, there is an iddah period during which the woman should observe a holding-up period before she can remarry. The length of the iddah is not entirely settled by Islamic law and may change. However, it is generally for three menstrual cycles or three lunar months.

Requirements for spouses to initiate Khula 

Consideration

The concept of consideration is a mandatory precondition for divorce through Khula. For Khula to happen, it is compulsory for the wife to return some consideration to her husband. A consideration can be whatever can be given as a dower, i.e., it need not be an amount of cash; it very well may be anything of 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, assuming the wife neglects to pay consideration, the husband can demand restitution of conjugal rights.

Capacity

The couple should be individuals of sound mind and have achieved the age of puberty. A minor or an individual of unsound mind can't enter a Khul. 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

  • The 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.

Procedure for initiating and completing Khula divorce proceedings

In India, the Khula procedure starts with the wife notifying her husband of her wish to dissolve the marriage. If the husband agrees, the Khula is granted, and the wife returns the dower or forfeits some rights. In the event that reconciliation endeavors fail, the Khula is officially pronounced by a religious authority or qazi (Islamic adjudicator) or the wife can file a petition in family court, providing reasons and evidence for seeking Khula. The court will attempt reconciliation through counseling, but if it fails, the court grants Khula and determines the terms, including any compensation for the wife. Upon granting Khula, the wife must return the dower or surrender some rights as part of the dissolution.

Mutual Consent Divorce (Mubarat)

Mubarat is a mutual divorce, where both parties agree to separate amicably. Once the proposal is accepted, the divorce is considered final. 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.

In ‘Mubarat’, the feature is that both parties desire a divorce. The offer for separation in ‘Mubarat’ may proceed either from the wife or from the husband. 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.

Grounds for Mutual Divorce

Although there is no need to give any reason for mutual divorce, the grounds for seeking Mubarat include:

  • Mutual Agreement

  • Incompatibility

  • Mutual Dissatisfaction

  • Lack of Affection

Mutual agreement 

in divorce implies the spouses autonomously and willingly consent to the separation with no coercion. They should share a comprehension of the purposes behind the separation and settle on terms like monetary repayments, child care, and asset division. This understanding is documented as a hard copy, endorsed by both parties and witnessed to guarantee it was made voluntarily.

Incompatibility 

is a common reason for seeking Mubarat. It refers to conflicts in character, values, or way of life that make proceeding with the marriage untenable. These can incorporate personality conflicts, varying communication styles, or individual habits causing continuous struggle and dissatisfaction. The spouses perceive and concur that these distinctions are beyond reconciliation, making the marriage unfeasible to proceed. This shared affirmation empowers them to look for separation through Mubarat consciously and amicably.

Mutual dissatisfaction

 In a marriage, it emerges when the two life partners feel the relationship is satisfying due to unmet emotional requirements, absence of support, or unfulfilled individual objectives. At the point when both partners perceive that remaining together prompts misery, they might concur that separation is the best game plan. This shared understanding often leads to an amicable decision to pursue Mubarat.

Lack of affection

 A marriage is just a reduced emotional connection over the long run. At the point when the love and affection that once existed between companions blurs, the two partners could feel the relationship has become empty and unfulfilling. Perceiving this shared absence of fondness, they might conclude that finishing the marriage through Mubarat is the ideal way to recover individual happiness and emotional fulfillment.

Eligibility and Conditions

1. Validity of Marriage

Marriage should be legitimately perceived under Islamic law, which is appropriate to Muslims in India, according to the Muslim Personal Law (Shariat) Application Act, 1937. The spouses ought to have entered into the marriage as per Islamic legal necessities, which incorporate a valid nikah (marriage contract).

 

2. Mutual Consent

Both spouses should readily consent to the divorce with no coercion or tension. The mutual assent should be certifiable and free from any type of coercion. Every partner ought to have the chance to freely end the marriage and agree to the terms of the divorce. Section 2 of the Disintegration of Dissolution of Muslim Marriages Act, 1939, underscores the requirement for clear and unequivocal consent from both parties.
 

3. Iddah Period

After the Mubarat is finalized, the wife must observe the iddah period, a waiting period that typically lasts three menstrual cycles or three lunar months. This period allows for the possibility of reconciliation and ensures clarity regarding any potential pregnancy. The iddah period is established in Islamic law and is perceived with regard to personal law in India.

 

4. Registration

Enlisting the mutual divorce with a Sharia court or local authorities gives official acknowledgment of the divorce and guarantees it is legally binding. This step is crucial for the legitimate divorce's validity. The Registration Act, of 1908, frames the procedures for enrolling documents, including those connected with marriage and divorce.

 

5. Financial Settlement

The agreement should include details of any financial settlements. This could involve the return of the mahr, division of marital assets, or any other financial considerations agreed upon by both parties. The settlement ought to be fair and mirror the shared assent of the partners. The Muslim Personal Law (Shariat) Application Act, of 1937, considers the use of personal laws in issues of marriage and divorce, including monetary repayments.

Requirements for spouses to initiate Mubarat

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

  • The other spouse must accept the divorce proposal.

  • Once it is accepted by the other partner, it becomes irremediable.

  • The iddat period is mandatory before the divorce is approved.

  • No consideration should be given to either of the spouses. Also, the period of iddat has to be observed by the wife before getting separated.

Procedure for initiating and completing Mubarat divorce proceedings

In India, the Mubarat process for mutual divorce begins with both partners agreeing to end the marriage, ensuring their decision is intentional and free from coercion, in accordance with Islamic law and the Dissolution of Muslim Marriages Act, of 1939. They jointly draft a petition through their lawyers, detailing reasons for the divorce, monetary arrangements, custody plans, and the return of the mahr (dowry). The petition is filed in family court, which ensures the agreement is fair and consensual. Following the court's affirmation, the wife perceives the iddat period, enduring three feminine cycles or lunar months, to guarantee no pregnancy and consider conceivable compromise and must also surrender her mehr (dower) or other monetary rights that might have been settled upon at the time of marriage. After this period, the separation is finished, and the spouses are allowed to remarry or live freely. Mubarat is an extrajudicial form of divorce with minimal court involvement, emphasizing mutual consent and community recognition.

Settlements and Agreements

Asset Division

Guidelines for dividing assets and properties between spouses

Under Indian Muslim law, the guidelines for asset division primarily stem from Islamic principles and personal agreements between spouses.

 

Mahr (Dower): Mahr, a mandatory payment from the husband to the wife at the time of marriage, must be settled. Upon divorce, the unpaid piece of the Mahr becomes promptly payable.

 

Mutual Agreement: The spouses can mutually settle on the division of their common assets. This agreement can include properties, savings, and other financial resources.

 

Equal Division Principle: Although Islamic regulation doesn't mandate an equivalent division of resources, mutual consent divorce permits spouses to settle on a fair division. This might reflect commitments made by every spouse during the marriage.

 

Legal Documentation: Any agreement arrived at should be documented and endorsed by the spouses to guarantee legal enforceability. This document is submitted to the court for endorsement as a part of the divorce procedures.

Child Custody

The right to custody is known as “Hizanat” in Muslim law and can be asserted against the father or any additional individual. The mother of the child possesses the first-degree right of custody under Muslim law, and she shall not be barred from exercising her right of custody and care in compliance with the laws until she becomes disqualified for any reason that is set forth by Muslim law.

It is especially essential to note that in Muslim law, the mother's right to authority exists just for the "prosperity and care" of the child and is certainly not an absolute right.

If any activity or conduct of a mother is viewed as disadvantageous for the prosperity of the child, then she can be denied her right of custody. Further, the right of the authority of a mother over her kids keeps on working independently of the reality of whether her children are legitimate or illegitimate.

Factors considered in deciding youngster guardianship and appearance privileges

1. Guardianship and Custody:

  • Guardianship alludes to the heap of rights and powers vested in an adult concerning the individual and property of a minor.

  • Custody relates to the everyday care, childhood, and control of the child.

  • While the expression "custody" isn't unequivocally characterized in Hindu or Muslim laws, it assumes an essential part in the prosperity of the child.

 

2. Mother’s Right of Custody (Hizanat):

As indicated by the Shariat Act, the natural guardian of a child is the father, however, the guardianship of the kid ordinarily vests with the mother until explicit circumstances are met:

  • Sons: The mother's right to care for her son ends when he arrives at the age of seven years.

  • Daughters: The mother's right of guardianship over her daughter goes on until she accomplishes puberty.

The mother's right to Hizanat isn't absolute, it tends to be denied if she is disqualified because of heresy or wrongdoing, or if the child's welfare is unfavorably impacted.

 

3. Visitation Rights: In any event, when the child is in one parent's care, the other parent has the right, as per Islamic regulation, to visit the child, even consistently whenever wanted.

Maintenance

Determining the amount and terms of maintenance payments post-divorce.

Under Indian Muslim Law, maintenance payments post-divorce are resolved fundamentally through the translation and utilization of Islamic standards as classified in Indian regulation and deciphered by courts. The essential sources of regulation in this setting are the Quran, Hadith, and standard practices, alongside legal regulations like the Muslim Personal Law (Shariat) Application Act, 1937, and judicial precedents. Key elements include:

 

1. Iddat Period Maintenance:

Iddat is the period a divorced woman should observe after her marriage dissolution. For a divorced woman, this period is typically three menstrual cycles or three lunar months in the event that she isn't pregnant, or until the delivery of the child if she is pregnant. During the iddat period, the husband is committed to giving maintenance to his wife. This includes lodging, clothing, and sustenance.

 

2. Mahr (Dower):

Mahr is a compulsory payment, as cash or assets, paid by the man to the woman at the time of marriage, which legitimately turns into her property. Upon divorce, any unpaid piece of the mahr becomes immediately due and payable to the wife.

 

3. Maintenance Beyond Iddat:

The landmark case of Mohd. Ahmed Khan v. Shah Bano Begum (1985) at first considered maintenance past the iddat period under Section 125 of the CrPC, which is a secular provision relevant to all citizens. Because of the Shah Bano case, the Indian Parliament established the Muslim Women (Protection of Rights on Divorce) Act, 1986, which intended to determine the maintenance rights of Muslim women after divorce.

 

4. Mutual Agreement and Customary Practices:

In many cases, the terms of maintenance may be settled through mutual agreement between the divorced parties, often facilitated by community elders or family. Local customs and practices can also influence the amount and terms of maintenance, provided they do not contradict Islamic principles or statutory provisions.

Conclusion

In conclusion, divorce by mutual consent under Indian Muslim law is designed to provide a structured and amicable resolution to marital disputes. Khula and Mubarat, the two primary forms of mutual consent divorce, offer distinct yet similar pathways based on the circumstances and agreements of the spouses involved. Critical to both Khula and Mubarat are the settlements and agreements made during the divorce process. Asset division, child care, and maintenance are fundamental contemplations, requiring fair and equitable courses of action to guarantee the welfare of all parties, particularly children. By understanding and complying with the circumstances and cycles of mutual consent divorce under Muslim law, spouses can accomplish a dissolution of marriage that regards their rights and obligations, guaranteeing a noble and just goal for the spouses.