Difference between a Khula divorce and a Mubara’at divorce

Khula: Khula is the form of divorce conferred upon wife similar to talaq conferred upon the husband. The recognition of Khula as a form of divorce is directly available from the Holy Quran. In Chapter II Verses 228-229, Quran confers rights on both husband and wife to unilaterally divorce the spouse. It is apposite to refer to verses 228-229.

C.II V.228: Women who are divorced shall wait, keeping themselves apart, three (monthly) courses. And it is not lawful for them that they should conceal that which Allah hath created in their wombs if  they are believers in Allah and the Last Day. And their husbands would do better to take them back in that case if they desire a reconciliation. And they (Women) have rights similar to those (of men) over them in kindness, and men are a degree above them. Allah is Mighty, Wise.

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.

Mubaraat: Mubaraat is a form of separation by mutual consent. Dr.Justice Kauser Edappagath(12) after referring to many authorities refers to ‘mubaraat’ as dissolution of marriage by common consent of the spouses. The learned author further states thus: The word mubaraat indicates freeing of each other (from the marriage tie) by mutual agreement. No formal form is insisted upon for mubaraat by the Sunnis. The offer may come from either side. When both the parties enter into mubaraat, all mutual rights and obligations come to an end. Both Shia and Sunni laws hold it an irrevocable divorce. Iddat is compulsory after mubaraat as after khula. Under Sunni law, when both the parties enter into mubaraat, all matrimonial rights which they possess against each other fall to the ground. 12’Divorce and Gender Equity in Muslim Personal Law of India’

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.