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
➨Mubarat
KHULA:
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.
MUBARAT
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.
In the form of Mubarat,
there is no need for specifying any reasons for getting a divorce.
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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