By Mohammaden law divorce may be made in either of two forms- talaq or khula. A divorce which is given by husband is called ‘talaq’ in muslim law and divorce by woman is called ‘khula’.
A divorce by talaq is the mere arbitrary act of the husband, who may repudiate his wife at his own pleasure, with or without cause. But if he adopts that course he is liable to repay her dowry or dyn-mahr, and as it seems, to give up any jewels or paraphernalia belonging to her.
A divorce by khula is a divorce with the consent and at the instance of the wife, in which she gives or agrees to given a consideration to the husband for her release from the marriage tie. In this case the terms of the bargain are matter of arrangement between the husband and wife, and the wife may, as the consideration, release her deyn-mahr and other rights, or make any other agreement for the benefit or the husband.
Difference between Khula and Talaq
A divorce by talaq is not complete and irrevocable by a single declaration of the husband: but a divorce by khula is at once complete and irrevocable from the moment when the husband repudiates the wife and the separation takes place. In these particulars the two modes of divorce differ.
But, there is one condition which attends every divorce, in whichever way it takes place, viz., that the wife is to remain in seclusion for a period of some months after the divorce, in order that it may be seen whether she is pregnant by her husband, and she is entitled to a sum of money from her husband, called her ‘iddat’, for her maintenance during his period.
The divorce is the sole act of the husband, though granted at the instance of the wife, and purchased by her. The khulanama is a deed securing to the husband the stipulated consideration, but it does not constitute the divorce. It assumes it and is founded upon it. The divorce is created by the husband’s repudiation of the wife, and the consequent separation. The law might have provided that non-payment of the consideration should invalidate the divorce, but it is clear, as well from the opinion of the law officers of the Indian courts as from the authorities cited at out Bar, that the law is otherwise.