Difference

Difference between a Khula divorce and a Mubara’at divorce

Khula literally translates to ‘extinguishment’ in Arabic. See Radd-ul-Muhtar, Vol. II, p. 916. Khula is mentioned in the Quran in Chapter II, verse 229, and in Chapter IV, verse 127. For a detailed explanation of khula, see Muhammadan Law, Vol. II, Syed Ameer Ali, Kitab Bhavan: New Delhi: 1996, p. 466 – 477; Muslim Law of Marriage, Divorce and Maintenance, M.A. Qureshi, Deep & Deep Publications: New Delhi (1992), p. 266; Fyzee, p. 163-66; Mulla’s Principles of Mahomedan Law, 19th ed., M. Hidayatullah and Arshad Hidayatullah, N.M. Tripathi Private Ltd.: Bombay (1999), p. 265-67.

The difference between a khula divorce and a mubara’at divorce is that in khula the wife desires the divorce and initiates it, while in mubara’at both spouses desire the separation. Mulla, p. 265. The Hanafi school believes that all adult females have the exclusive right to enter into a khula. Ameer Ali, p. 469. ‘Wife’s right to khula is parallel to the man’s right of talaq. Like the latter the former too is unconditional. It is indeed a mockery of the Shariat that we regard khula as something depending either on the consent of the husband or on the verdict of the qazi. The law of Islam is not responsible for the way Muslim women are being denied their right in this respect.’ Syed Abdul A’la Maududi, in Huquq-uz-Zaujain, 9th ed., Lahore 1964 pp 61, 77-79, translated from Urdu in The Muslim Law of India, 3rd ed., Tahir Mahmood, Lexis Nexis Butterworths: New Delhi (2002), p. 99.

Although a khula is effective once the spouses agree to the amount that will be given to the husband, usually the amount of the mahr (dower) that he gave her at the time of their nikah (marriage), iwaz (return) is not compulsory for the khula to take effect. Mahmood, p. 98; Fyzee, p. 164-65, Ameer Ali, p. 468. The consideration in the khula is usually part of or the whole mahr. Fyzee, p. 163.

 Ila’ is mentioned in the Shariat Act of 1937. In ila’ the husband swears not to have sexual intercourse with his wife and must abstain for at least four months, after which the marriage is automatically dissolved, according to Hanafi law. Ithna Asharis and Shafi’is require a legal proceeding, however. Fyzee, p. 162.

 Zihar is also mentioned in the Shariat Act of 1937. In zihar the husband swears that his wife is like ‘the back of his mother’ to him. After the husband has said this on oath, the wife has the right to go to court and obtain a divorce decree or restitution of conjugal rights. Fyzee, p. 162.