What is khula and how does it work?

Khula is a form of divorce in Islamic law initiated by the wife. Unlike talaq, where the husband has the unilateral right to divorce, khula allows a woman to seek divorce from her husband, but it typically requires the husband's consent. If the husband refuses to grant the divorce, the woman can approach the court for a faskh (annulment) of the marriage. Khula is grounded in Sharia law and is seen as a woman’s right to seek separation when the marriage has become untenable, though it involves the return of the mahr (dower) or another agreed-upon compensation to the husband.

How Does Khula Work?

Initiation of Khula by the Wife:

• Khula can be initiated by the wife if she is unhappy in the marriage or if she wishes to terminate the relationship. The wife may approach her husband and request a divorce.
• In most cases, the wife must return the mahr (dower) to her husband as a part of the divorce agreement. The amount is negotiable and is generally mutually decided between the two parties.

Agreement Between Husband and Wife:

• If the husband agrees to the divorce, khula is granted, and the woman can leave the marriage. The husband may or may not provide maintenance after the divorce, though iddat (waiting period) must be observed, during which the wife may not remarry.
• The husband is typically not required to provide maintenance after the divorce if khula is the result of the wife seeking separation, unless a court decides otherwise based on the woman's needs and circumstances.

Khula in Court:

• If the husband refuses to grant the khula or if there are disputes, the wife can file for faskh (annulment) of the marriage in a family court. The court will then evaluate the circumstances and issue a decree of annulment, provided that the wife proves reasonable grounds for divorce.
• The Family Court may also order alimony or compensation to be paid to the wife, depending on the case specifics.

Role of Iddat:

• After the divorce is granted, the wife must observe a waiting period called iddat. This period lasts for three menstrual cycles or three months, depending on the woman’s circumstances (e.g., pregnancy). During this time, the wife is not allowed to remarry.

Rights of the Wife Post-Khula:

• If khula is granted, the wife is entitled to compensation, which may include the return of the mahr (dower). If the divorce takes place through the court (faskh), the court may also order the husband to provide maintenance for the wife during the iddat period.
• The wife can also claim custody of the children if she is the primary caregiver, though this will depend on the children’s age and welfare.

Khula vs. Talaq:

Talaq:

• Talaq is the process where a husband unilaterally pronounces divorce to his wife. In traditional talaq, the husband has the right to divorce his wife at any time, and the process may or may not involve the wife's consent. The husband may divorce the wife immediately or after a waiting period, depending on the form of talaq.

Khula:

• Khula is initiated by the wife who requests a divorce from her husband. It is a mutual process where the wife must offer compensation (usually the mahr) to the husband in exchange for divorce. Khula is seen as more of a female-initiated divorce, whereas talaq is male-initiated.
• If the husband refuses to grant khula, the wife can seek a court order for annulment through faskh, unlike talaq, where the husband has the final say.

Legal Framework for Khula in India:

Sharia Law and Personal Laws:

• Khula is governed by Muslim personal law in India, which is based on Sharia principles. Muslim women have the right to seek khula, and this is recognized under personal law.

Court Intervention in Khula:

• If there is a dispute between the husband and wife regarding khula, or if the husband refuses to grant the divorce, the wife can approach the family court or Sharia court for judicial intervention. The court will assess the situation and may grant a faskh (annulment) if the woman’s claim is valid.
• The Muslim Women Protection of Rights on Marriage Act, 2019, which criminalizes triple talaq, does not directly apply to khula since khula is initiated by the wife. However, if the divorce is contested, the family court may intervene to ensure fair division of assets, maintenance, and child custody.

Right to Maintenance After Khula:

• The wife may not have a right to permanent maintenance after khula, unless specified by the court. However, she is entitled to maintenance during the iddat period (waiting period after divorce). The court may also award compensation in cases of hardship or injustice.

Example:

Scenario:

• Fatima wants to get divorced from her husband, Ali, due to ongoing marital issues. After trying to reconcile, Fatima decides to initiate khula.

Steps Fatima Should Take:

• Initiate Khula: Fatima approaches Ali and requests a khula. She agrees to return the mahr (dower) she received at the time of marriage.
• Agreement or Dispute: If Ali agrees, the divorce takes place, and they proceed with the iddat period. If Ali refuses, Fatima can approach the family court for faskh (annulment).
• Court Process: If Fatima files for faskh in court, the court will assess whether the marriage has irretrievably broken down and whether the divorce is justified. The court may order maintenance for Fatima during the iddat period and grant her custody of children, if applicable.
• Post-Divorce: Fatima must observe the iddat period. During this time, she can receive maintenance as per the court’s order. After the iddat period, Fatima is free to remarry.