In Islam,
Divorce is permitted as a last resort, if it is not possible for the husband
and wife to continue the marriage.
Prophet
Muhammad (SAW) declared that “Of all the lawful things, Divorce is the most
hated by Allah"
You must
remember that Holy Quran in Surah Al-Baqarah 2:229 narrates:
“The parties should either hold together on
equitable terms or separate with kindness”
Further in
Surah An-Nisa 4:35 narrates:
“And if you fear a breach between the two, appoint an arbiter from his relatives and an Arbiter from her relatives. If they both desire reconciliation Allah will effect harmony between them. Verily Allah has full knowledge, and is aware of everything."
Hence in the light of the Holy Quran, it is clear that even before 14 years, Islam had allowed ending a meaningless marriage by Mutual consent of spouses, but we should not take the decision of divorce easily and try to reconcile with the help of a neutral Islamic Counselor.
Allah has
given us the option of Divorce, only in case you think that further living with
spouse will causes distress, pain and sufferings, and there is no other option
except to divorce.
“Allah curses those men and woman who seek separation without any reasonable cause”
The Holy Quran recognizes the right to divorce equally for both men and women.
Section 319 of the Mohomedan Law provides for Mutual divorce by Khula and Mubarat.
Under Sub-Section (1) of the Section 319, a marriage may be dissolved by an agreement in the form of Khula or Mubarat.
Hence under Mohomedan Law, there are two ways to get the Mutual divorce:
➨Khula ➨MubaratKHULA:
Sub-Section 2 of Section 319 of the Mohomedan Law provides that a divorce by Khula is a divorce with the mutual consent, where Wife gives or agrees to give a consideration to the husband for her release from the marriage tie.
Khula came from an Arabic word Khul and its literally means "untying the knot" and it is a procedure through which a Muslim wife can give divorce to her husband by returning the Dower ( Dyn-Mahr) or something else that she has received from her husband or without returning anything , as agreed by them or Qazi(Court) decree depending on the circumstances.
Since wife wanted to break the marriage contract, then she may choose to return the dowry to end the marriage.
Holy Quran in the Sureh 2:229 narrates:
“It is not lawful for you (men) to take back any of your gifts except when both parties fear that they would be unable to keep the, limits ordained by Allah. There is not blame on either of them if she gives something for her freedom. These are the limits ordained by Allah so do not transgress them”.
Conditions
of Khula:
👉There must be an offer from the side of wife
👉The offer must be accepted by the husband with the consideration for it.
👉 The Iddat period is mandatory before the divorce is approved.
👉Khula is a right of a woman in Islam to seek a divorce or separation from her husband, and if the husband refuses the offer of divorce then she can file a petition before the Qazi (Judge) or to an Islamic community panel for grant of divorce.
👉When divorce by way of Khula is accepted by the husband and affected, then the husband has not power to cancel it on the ground that the consideration has not been paid by the wife, but the husband has his right to sue the wife for it.
👉Wife cannot compel her husband to give her divorce under Khula, and even a suit is not maintainable before the Court of law on this ground.
Under Sub-Section (3) of Section 319 of the Mohomedan Law, Mubarat is a form of Mutual consent divorce, where husband or wife can offer for divorce, and when one of them offers for divorce, and other accepted that offer of divorce, then the Divorce become final and irrevocable.
Mubarat is another form of mutual consent of divorce, and the word Mubarat literally means "free one another mutually". The offer may come from husband or the wife. When both the parties enter into Mubarat, all mutual rights and obligations come to an end.
A Mubarat divorce like Khula is dissolution of marriage by agreement. The difference between the Khula and Mubarat is that, if wife desires a separation then it termed as Khula, whereas if the desires of separation is mutual then it termed as Mubarat.
Khula is a
form of divorce proposed by the wife to the husband, whereas Mubarat is a form
of divorce proposed by both the parties and they decide mutually to put an end
to their tie.
Conditions of
Mubarat:
➤The husband
or the wife, either of them can make offer for divorce
➤Acceptance of
other spouse is mandatory
➤When accepted
by the other party, it becomes irrevocable.
➤ period is mandatory before the divorce is approved.
The Iddat Period (waiting period) of a woman who seeks divorce is three menstrual cycle or three months if she is post menopausal i.e. ceased menstruating. If the woman is pregnant then the waiting period is until she gives birth.
In case of Sunni Muslim, when the parties to marriage enter into a Mubarat , then all mutual rights and obligations come to an end , but Shia Muslim insists that the word Mubarat must be followed by the word Talaq , otherwise the divorce is meaningless.
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