Divorce, Khula & Mubaraat in Islamic Law

Family law, Islamic law, and divorce.
                             Divorce and its various forms

     Khula, Illa, Zihar, and Mubara'at are the different forms of divorce

Introduction

There are various forms of divorce.

Divorce: A common and famous divorce is one when the husband uses certain words that carry the meaning of the expulsion of the woman from his life.

Khula: When a woman divorces her husband, and there is no other way to continue matrimonial life, she seeks a Khula.

Details of these two and other forms of dissolution of marriage ties are as follows.

·       Divorce means the breakup of the marriage tie. It is the dismission and rejection of the matrimonial relation forever. According to Islamic law, the release from marriage bonds is immediate or later on. This legal act dissolves the marriage tie of wife and husband. They separate their lives from each other and now live according to their free will. The bond of living together is broken up forever, with some exceptions.

Islamic law gives the husband full authority and equips him with the discretionary power that he may divorce his wife. At any time if he is of sound mind and attains puberty.

Yes, it should be kept in mind without assigning any reason. He can break the marriage tie at his free will. He is not answerable to anyone. There is no restriction to forbid his whim and desires. He can exercise this power and use it to finish the marriage tie. It takes effect whenever the husband desires without showing any cause. This is his free whim. Islamic law recognizes this act, and it is happening in our societies. The most important and recognized form of divorce in our society, which is exercised, is as follows.

Oral divorce is spoken with words, with the intention of dissolution of the marriage ties. Matrimonial life comes to an end. 

• Must also read "A woman can divorce her husband"

·       Written divorce:-

It is in the form of a written document. Both are acceptable and irrevocable once they are announced. There are no certain words that are prescribed; the expression of the words matters. Once spoken, no need to prove the intention. Once the words are spoken, the divorce is complete. If the ambiguous words or words used carry different meanings, then the intention needs to be proven. Here it should also be noted that the presence of a wife is not essential or mandatory. Or it may be spoken on her face.

Here is another important postulate that needs to be addressed properly: the husband uses the word "divorce" and does not use the name of his wife. It is invalid.

A valid divorce is when the husband speaks the words "divorce" and uses his wife's name, though his wife is not present at the moment.

Divorce in writing:

It is a record of the oral or spoken divorce, or it may be a deed by which the divorce is effected. It requires the presence of the wife’s father or another witness in the presence of the Qazi. This deed must be in customary form; it apparently shows the writer’s name properly described. Mention the address and the person addressed. Otherwise, it is in an unusual form. If it is converted to a customary form, then it is called manifest. The requirement is that it should be understood, readable, and comprehensive. Now it is clear and obvious that the deed is in customary form and also manifest; the intention of the divorce is presumed.

If it is not as such, the intention to divorce must be proved. These are the common forms of divorce known to everyone. But there are other forms of divorce too. Now to mention and discuss that too. One of them is Illa.

·       Illa:

A kind of divorce when misunderstanding about some issues or no harmony with the wife at all, and the husband wants to tease her.

This act leads to divorce, as it is constructive; in this, the husband abstains and restrains himself from sexual intercourse. And teases the wife; it is not a real divorce, but it gives a right to the wife to demand a judicial divorce.

·       Zihar:- 

Anger sometimes made the husband mad, and he spoke some words, which are useless against the man's personality for his wife. These words have a great negative effect. These words lead to Zihar.

This inchoate divorce happens when the husband compares his wife to his mother or other women in prohibited degrees. On the occurrence of this act or event, it is the responsibility of the wife to refuse herself to him until the husband shows shyness and performs penance.

It is an Islamic obligation. Muslims should know it and be void of such words. These are the most unlike words, but in our society, they are spoken. Like Illa, the wife too gets the right to demand a judicial divorce if penance is not offered in time. There are doubts in textbooks about whether the wife’s right to divorce under Zihar is accepted and can be enforced by courts. The forms of dissolution of marriage are not finished here. 

As divorce is the arbitrary act of the husband. A woman can also go for dissolution of the marriage tie. She can, with mutual agreement with her husband, demand divorce, which is called "Khula."

 Khula:-

This form of divorce takes place with the consent of the wife, in which the wife gives some consideration to the husband for her release to dissolve the marriage. We can use the word "bargain," as this action matters here. The wife will leave her dower or other things for the benefit of the husband. When the couple reached an agreement, she may be released from matrimonial life. Here, the most important thing is the consideration or other benefit for the husband. It should be noted that if the wife is unable to pay what is agreed upon, the Khula divorce is not invalidated. He may sue or not, but the Khula divorce remains intact. So we can say that a Khula divorce is completed when the wife offers consideration and the husband accepts that offer. Once this offer was accepted, a single irrevocable divorce, Talak-i-bain, now existed and was effected.

There are two more kinds of divorce. They are called Mubara’at. But there is a great difference between the origin of the two.

As we discussed, when the aversion is on the wife's side, she wants separation and does not want to live together; such a transaction and divorce is called Khula. But when the aversion is on both sides. Both want separation; the divorce is called Mubara’at.

Mubara’at

In Mubara’at, the offer may be from the wife's side and the acceptance from the husband's. Or the offer may be from the husband's side and the acceptance from the wife. Once the offer is accepted, the dissolution of the marriage is considered complete. It is worth mentioning that it operates a talak-i-bain in the case of a Khula divorce.