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vustudents
09-03-2012, 05:50 AM
Q. Can the right of divorce be delegated to a third person. (1998)(2000)
1. Introduction:
Khula is a form of divorce which is based on mutual consent of the parties. prior to Islam to Islam the wife had no right to seek dissolution of marriage. in Khula the wife gives or agrees to give a consideration to the husband for her release from the marriage tie.
2. Meaning of Khula:
Khula means put off.
3. Definition:
I. General:
Khula is separation by putting and end to matrimonial bond and rights.
II. Case law definition:
Monshee Bazul-ul-Reheem
Vs.
Luteef untoon Nisa- - (1861) 8 M. I. A
A diverse of Khula is a divorce with the consent, and at 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.
4. Divorce:
Divorce is dissolution of the marriage tie of the husband and wife.
Case law
Human Hafeez V/S Shaukat Javid 1993 CLC 855
It was held that Talaq is to be pronounced by husband at his own initiative but Khula is given at the instance of wife when husband and wife can not maintain limits of God.
5. Difference between Khula and Divorce:
I. As to right:
The right of divorce is exercised by the husband.
The right of khula is exercised by the wife.
II. As to dower:
The wife is entitled for dower in case of divorce.
The wife is not entitled for the payment of downer in case of khula.
III. As to reason:
The husband can divorce without any reason.
IV. As to offer:
There is no offer to wife by the husband.
There is an offer by the wife to husband for some consideration.
V. As to procedure:
For pronouncement of divorce, the husband has not to follow any procedure.
For khula, the wife has to file a suit in the court.
VI. As to scope:
The scope of the divorce is unlimited.
The scope of khula is limited.
VII. As to return of remuneration:
In divorce husband has not to give back benefits which he has received by his wife.
6. Delegation of divorce:
A husband can delegate his right of pronouncing divorce.
(a) any other person.
(b) his own wife.
7. Effect of delegation:
Delegation of right of divorce does not divorce does not deprive the husband of his own right to give divorce.
8. Conditions:
(a) Husband should be sound minded.
(b) He should have attained puberty.
9. When delegation can be made:
Delegation of right of pronouncing divorce can be made.
(i) at the time of marriage.
(ii) It can be made after the marriage.
10. Forms of delegation:
It may be
(a) absolute
(b) conditional
11. Nature of delegation:
The delegation of right to pronounce divorce to the wife is irrevocable but to any other person is revocable.
12. Distinction between Sunni and Shia law of divorce:
(i) As to form:
(i) Under Sunni law Talaq Biddat and Sunnah are acceptable.
(ii) Under Shia law Talaq Biddat has no existance.
(ii) As to Witnesses:
Under Sunni laws at the time of divorce the presence of witnesses are not essential.
Under Shia law presence of two witnesses are essential.
(iii) As to intention:
Under Sunni law mere the words of divorce are enough to effect the divorce.
Under Shia law there must be intention for divorce.
(iv) As to time:
Under Sunni law divorce can be pronounced at once.
Under Shai law until husband is not capable to pronounce divorce, the documentary divorce shall not acceptable.
(v) As to compulsion:
Under Sunni law divorce under compulsion is valid.
Under Shia law divorce under compulsion is in valid.
(vi) As to intoxiction:
Under Sunni law divorce under intoxication is valid.
Under Shai law divorce and intoxication is in valid.
13. Conclusion:
To conclude I can say that, the divorce is dissolution of marriage tie of the husband and wife. the Khula is the recognized form of divorce affected by the act of the parties. the power of pronouncing divorce can be delegated by the husband.