Under Muslim personal law, a divorce may take place between husband and wife through the concept of mutual consent. Existence of any prior agreement or delegation of authority by the husband is not necessary or a divorce by common consent. It may take place any time whenever the husband and wife feel that is now impossible for them to live with mutual love and affection as is desired by God. There are law colleges in Cooch Behar that had discusses under their law curriculum the concept of divorce by mutual consent through class deliberation, debates, group discussion as a topic under their modules. A divorce by mutual consent of the parties is a peculiar feature of Muslims Law. The are two forms of divorce by mutual consent
- Khula
- Mubarat
Khula: The Khula is basically a form of mutual consent divorce where the wife initiates the separation from her husband, which is deeply rooted and grounded in the concept of Islamic teachings through equity and justice. It allows an aggrieved woman to seek a divorce by offering compensation to the husband. This compensation is usually the return of the mahr (dower) received at the time of marriage, but it can also involve other forms of consideration agreed upon by both parties. The husband’s acceptance of this offer by the wife leads to the dissolution of the marriage among the parties. The basis for Khula can be found in the Quran and Hadiths, where it is emphasized that a woman should not be forced to remain in a marriage that she finds unbearable. In the leading case Munshree Buzlul Raheem v. Luteeutoon Nissa, the Privy Council describes a Khula form of divorce in the following words: “A divorce by Khula is a divorce with the consent and at the instance of the wife in which she gives or agrees to give a consideration to the husband for her release from the marriage tie…”
Essential of a Valid Khula
- Competence of the Parties: The husband and wife must be of sound mind and have attained the age of puberty (15 years). The concept of Khula mutual divorce cannot be lawfully effected by a minor or an insane husband or wife. The guardian of a minor husband may not validly effect Khula on his behalf.
- Ree Consent: In valid Khula, the oer and acceptance must be made with the ree consent. But it has been seen, that under Hanai law, a Khula under compulsion or in the state o intoxication is also valid, but under all other school including Shia law, without ree consent o the parties, the Khula is not valid.
- Ormalities: There is an oer by the wie to release her rom the matrimonial tie. The oer is made to the husband. The oer or Khula must also be accepted by the husband. Until and unless the oer is accepted by the concerned parties, the divorce is not completed and it may be revoked by the wie. But once the oer has been accepted, the divorce is complete and become irrevocable. In Khula the, oer and acceptance is either be oral or in writing under Muslim personal law and it must be made at one sitting.
- Consideration: or her release under Khula mutual divorce, the wie who wants a divorce must has to pay something to the husband as compensation, which may be any sum o money or property as consideration or realizing Khula mutual divorce. There is no maximum or minimum limit as is in the case o dower. But once this consideration has been settled it cannot be increased.
Mubarat: A Mubarat is also a divorce by mutual consent o the husband and wie. It can be seen, that under Khulaconcept o mutual divorce the wie alone is desirous o separation and makes the oer, whereas in Mubaratconcept o mutual divorce both the parties i.e. husband and wie are equally willing to dissolve their marriage though mutual consent. Thereore in Mubaratthe oer or separation may come wither rom husband or rom wie to be accepted by the other. The essential eature o a divorce by Mutal is the wiling o both parties to get rid o each other, thereore it not very relevant as to who take the initiate. In this case no party is legally required to compensate the other by giving some consideration.
Both Khula and Mubarat are divorce by common consent but in Mubarat no consideration passes rom wie to the husband. It may be noted that divorce by Mubaratis very near to the provision o divorce by mutual agreement under Section 24 o the Special Marriage Act, 1954 or under Section 13B o the Hindu Marriage Act, 1955 as amended in 1976.
Conclusion: Mutual divorce under Muslim Law promotes peaceul settlement and avoids unnecessary litigation, ensuring dignity, airness, and mutual respect between spouses while complying with personal law principles.The law colleges in Cooch Behar discusses and explore its varied orm and spread awareness among the citizens about the necessity to understand legal aspect o mutual divorce under Muslim Law. The legal provisions or divorce, including the Dissolution o Muslim Marriage Act, 1939, urther enhance these rights by providing judicial oversight and protection to women seeking divorce.
