Family Law || Islamic Law || Divorce And Its Forms

                 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:- 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 the woman averts her husband and there is no other way to continue matrimonial life, she goes for divorce the 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, immediately 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, restrict to some exceptions.

Islamic law gives the husband full authority and equipped him with the discretionary power that he may divorce his wife. 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 whim. 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 exercise is as follows.

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

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·       Written divorce:-

It is in the form of a written document. Both are acceptable and irrevocable, once it is announced. There are no certain words are prescribed, the expression of the words matters. Once spoken no need to prove the intention. Well understood the words the divorce is complete. The ambiguous words or words used carry different meanings, and 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 speak on her face.

Here is another important postulate that needs to address properly, that is the husband uses the words divorce and does not use the name of his wife. It is invalid.

A valid divorce is when the husband spoke the words divorce and used 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 and 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 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 tease the wife, it is not a real divorce, but it gives a right to the wife to demand a judicial divorce.

·       Zihar:- 

Anger sometimes, mad the husband 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 female women in prohibited degrees. On occurring 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. The Muslims should know it and be void of such kind words. These are the most unlike words, but in our society, it is spoken. Like Illa, the wife too gets the right to demand a judicial divorce if penance is not obliged in time. There are doubts in textbooks, about whether the wife’s right is accepted for divorce under Zihar and 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. This 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 accept that offer. Once this offer is accepted a single irrevocable divorce Talak-i-bain now existed and was affected.

There are more two 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 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 side. 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 Khula divorce.