What Is Khula In Islam?

Khula is an important feature of Islamic family law whereby a woman is given the right to seek divorce from her husband. While Talaq is a husband-initiated divorce, Khula is initiated by a wife. Khula is rooted in Shariah law with legitimacy drawn from Quranic verses and Hadiths. In India, where Muslim law is enforced together with civil law, Khula becomes essential in the protection of Muslim women's rights.

Based on the Act of Dissolution of Muslim Marriages Act 1939, Khula has been accepted with a legal framework for its enforcement under the law. Khula is mentioned in the Quran (2:229), describing its permissibility for a woman to return what she received from her husband when there is fear that they will not be able to remain within the limits prescribed by Allah. There were several traditions according to which women have sought and even obtained Khula in the days of the Prophet Muhammad. This gives Khula precedent.

This article delves into the intricacies of Khula, exploring its definition, conditions, process, and legal implications.

What is Khula in Islam?

Khula, within Islamic jurisprudence (Fiqh), is a specific form of dissolution of marriage initiated by the wife.

Definition of Khula under Islamic jurisprudence (Fiqh)

Khula is a contractual dissolution of marriage whereby the wife compensates her husband for his consent to terminate the marital union. The compensation is typically the return of the mahr (dowry) or another mutually agreed-upon amount. It is a legal recourse available to the woman who cannot stand to remain with her husband, even though he is innocent.

Comparison of Khula vs Talaq

Role of Quran and Hadith in defining Khula

• Quran: The primary verse related to Khula is Quran 2:229, which states, "...And it is not lawful for you (men) to take back (from your wives) any of your Mahr (dowry) which you have given them, except that both fear that they would be unable to keep the limits ordained by Allah (i.e. to live together on friendly terms). Then if you (judges) fear that they would be unable to keep the limits ordained by Allah, no sin is on them both if she ransoms herself." This verse provides the legal basis for Khula, indicating its permissibility when marital harmony is unattainable.
• Hadith: Several Hadiths describe instances where women sought and were granted Khula during the Prophet Muhammad's time. These narrations serve as precedents for the practice. For example, the case of Habibah bint Sahl, who sought Khula due to her dislike of her husband, is often cited.

Opinion of Islamic scholars (Ulema) on women’s right to seek divorce

• In the consensus of Islamic scholars, women can opt for Khula or divorce from the husband in those matters which are valid grounds for divorce, such as differences in temper, cruelty, or abandonment; however, most of them insist on an attempt at reconciliation before Khula.
• Some Muslim women utilise Khula as the last resort, while others say that it is important to protect women's rights and not force them into an unhappy marriage.
• There are some differences in the schools of Islamic jurisprudence with respect to the level of required proof, and other minor details.
• There is a general consensus that a woman has the right to seek Khula when necessary.

Conditions & Requirements For Khula In Islam

A woman is permitted to seek Khula if she provides some reasonable grounds for her action, such as:

• The husband was cruel or abusive.
• He has refused to provide maintenance.
• Such differences have arisen between the husband and wife that living together has become almost unbearable.
• An absence of the husband that has extended for a considerable period will become grounds.
  Impotency or prolonged, severe illness of the husband.

Does a husband’s consent matter in Khula? Indian vs Islamic perspectives

Role of the Qazi (Islamic judge) and the Islamic court’s role

The role of Qazi (Islamic judge) is as follows:

• In Islamic law, the role of the Qazi is important for the Khula. The Qazi, being the facilitator, makes both parties aware of their rights and obligations.
• The Qazi will try his best to reconcile the couple.
• If reconciliation works out or fails, based on the grounds of Khula, the Qazi guarantees compensation amount is fair.
• The primary role of the Qazi is to administer justice and fairness per the teachings of Shariah law.

The role of the Islamic court includes the following:

• In India, the Dissolution of Muslim Marriages Act, 1939 governs Khula cases in civil courts under Muslim personal law.
• In accordance with the prevailing grounds for Khula, the courts shall assess the evidence.
• The courts are concerned with the Indian legal process over Muslim personal law within eh confines of the enactment.
• They are not adverse to consulting Islamic scholars in a specific case of the Indian judiciary in such cases.

How Khula Process Work?

The procedure of Khula is as follows:

Woman's Intention and Offer

A woman initiates the process when she decides to end her marriage and seeks Khula.She makes it known to her husband that she intends to divorce him and states her reasons for desiring the divorce.She offers compensation, generally the return of the mahr (dowry) or an amount agreed upon between the parties.

Husband's Consent

Ideally, the consent of the husband is required for the Khula process. Upon his agreement, the Khula becomes valid, and thus the marriage is dissolved. At this point, the compensation is settled.

Reconciliation Efforts (Optional but Recommended)

There is always encouragement for reconciliation before initiating the Khula, and the family members, as well as a Qazi, may intervene to mediate and seek solutions to issues. The aim is to reconcile and save the marriage, if possible, instead of going through an unnecessary divorce.

Judicial Intervention (If Husband Disagrees)

If the husband keeps on refusing his consent, then the wife becomes entitled to approach the court for intervention. In cases where there are Islamic courts or where Muslim personal law is recognized, the case will be filed before a Qazi. Whereas in India, the regular civil courts will try the case under the Dissolution of Muslim Marriages Act 1939. The court would examine the reasons given by a woman for seeking Khula and assess the justification of her claims. In case sufficient grounds are established, the court may still grant the dissolution of marriage even against the husband's wish. It will also have to determine the amount of compensation in the event.

Court Ruling and Dissolution

Khula is granted if the court rules in favor of the woman. The marriage is dissolved along with provisions for compensation. The court will draw up the official legal document for the dissolution of marriage.

Iddah Period

A waiting period, known as iddah, is required for the woman after Khula. This waiting period lasts three menstrual cycles to ascertain the absence of pregnancy. It is only after the expiration of the waiting period that the dissolution of marriage granted by Khula is considered final.

Also Read : What Is Iddat Period Under Muslim Law?

Khula Under Different Islamic Schools of Thought

To understand Khula in various schools of Islamic thought and practices, it must be seen as being applied differently in diverse geographic locales.

Khula as per Hanafi, Shafi’i, Maliki, and Hanbali Concepts

• Hanafi: Consent of the husband is generally emphasized for Khula in the Hanafi school. Compensation being the core issue here, hence the contract between the two should be mutually acceptable. It is only then that the court's help is sought when the husband refuses to give consent without a valid reason.
• Shafi’i: The Shafi'i school maintains that the husband's consent should be a prerequisite. Compensation is considered by them paramount, and hence, Khula is viewed as an agreement. More stress is laid by them on the grounds given by the wife; should those grounds be proven invalid, then she can be denied the Khula.
• Maliki: The Maliki school provides more flexibility in allowing such judicial intervention, even if there is unreasonable withholding of consent on the part of the husband. They indeed emphasize the prevention of harm and injustice to the concerned parties in marriage. They, however, greatly emphasize the wife's reasoning, as well as the harm that comes from a continuation of that marriage.
• Hanbali: The Hanbali school, just as the Shafi'i school, generally requires the husband's consent. They emphasize the concept of Quran and Sunnah. Evidence would likely be more stringent, and the arguments would be presented by the wife.

Khula in Indian Muslim Law vs. Middle Eastern Countries

Khula, as per Indian Muslim Law, is as follows:

The Dissolution of Muslim Marriages Act, 1939 governs the legal grounds for Khula (judicial intervention under certain circumstances, even without the husband's consent). Courts keep statutory law in mind but also consider Islamic principles. The Indian legal system provides more legal protections for the wife than most Middle Eastern countries.

Khula as per Middle Eastern Countries (e.g., Saudi Arabia, UAE, Pakistan) is as follows:

Different countries have various interpretations of Shariah, which accounts for the differences from one another in the extent of physical separation in marriage. Some countries can be strict about the husband's consent for divorce, while in other countries, there are broader judicial procedures covering divorce. For example, while there is a provision for judicial Khula under the laws of Pakistan, its interpretations and implementations may vary widely. In some Middle Eastern countries, the consent of the husband is still strongly enforced. Legal systems of Middle Eastern countries are quite heavily shaped by the "traditional" interpretations of Sharia law.

Darul Qazas (Islamic Courts) in India

Darul Qazas serve as private Islamic courts operating parallel to the Indian legal system. It deals mainly with personal law disputes: marriage and divorce-being their primary focus. Their judgments are advisory and have no enforceability unless recognized by the civil courts. The emphasis is on reconciliation and mediation, earlier than Khula. The aim is to apply Islamic principles while taking into account the Indian legal framework. The decisions of these Darul Qazas are accepted as evidence in the Indian civil court system.

Khula In Different Countries

Landmark Khula Cases in India

The landmark cases are as follows:

Moonshe Buzul-ul-Raheem v. Luteefut-oon-Nisha

In this case, the Privy Council ruled on the legality of khula under Muslim law. It stated that khula is a valid divorce initiated by the wife, where she has some duty of compensation towards the husband. According to this ruling, khula, conducted in the proper process, dissolves a marriage irrespective of the husband's express consent, provided the conditions for the wife's reasons and compensation are accepted. This case plays a major role in establishing the legal validity of khula in the Indian legal scenario.

Yousuf Rawther v. Sowramma

The Kerala High Court heard a case concerning a Muslim wife's right to dissolution of a marriage due to failure of the husband to pay maintenance. The court ruled that a wife can petition for dissolution under the Dissolution of Muslim Marriages Act, 1939 if her husband has failed to maintain her for two years, even if her conduct was contributing to that state of affairs. The judgment, thus, emphasises the legal entitlement of women in such instances.

Related Articles

Difference Between Khula And Talaq

What If Husband Does Not Agree To Khula?

Difference Between Khula And Mubarat

Mutual Divorce Procedure under Muslim Law

Maintenance Under Muslim Law

Conclusion

Khula is a most integral mechanism within Islamic jurisprudence that enables women to effect a divorce under prescribed conditions. It is much distinct from Talaq and does not involve any initiation or compensatory aspects; instead, these fall entirely within the realm of women's prerogatives. In the context of Indian Muslim Family Law, as found more especially in the Dissolution of Muslim Marriages Act, 1939, then khula gains greater importance in this country, ruled essentially by personal laws.

FAQs

A few FAQs are:

Q1. What is Khula, and how does it differ from Talaq?

Khula is a way in which a woman is allowed to initiate the dissolution of the marriage by paying a kind of compensation to her husband for this act. The husband, however, initiates Talaq with none of these compensatory issues arising for the wife. Hence, the initiator, consent, and compensation are the key distinguishing features.

Q2. Under what circumstances can a Muslim woman in India seek Khula, and what role does the court play?

As conferred by the Dissolution of Muslim Marriages Act, 1939, Khula may be sought by a woman if the husband is guilty of some wrongdoing, such as cruelty, desertion, or maintenance failure. The Indian courts are then called upon to analyze evidence to determine whether these grounds have been established. The courts can themselves dissolve the marriage, which doesn't depend for validation on the husband's consent.

Q3. Does the husband's consent matter in Khula, and how does this vary between Islamic jurisprudence and Indian law?

In Islamic jurisprudence, it is ideally required, drawing more from the notion of compensation, with this key element being stressed; however, the Indian law under the Dissolution of Muslim Marriages Act permits an intervention by the courts without necessarily obtaining the husband's consent, as long as the grounds are proven as valid.