FAMILY LAW II, UNIT II NOTES

Subject teacher: Mrs Yasmeen

Tabassum
(Vice Principal)

CONVERSION

A Muslim is a person whose religion is Islam .Islam, means submission

to the will of God. Islam is a religion where it is believed that God (Allah)
is one & only one & Prophet Mohammed (PBUH) is the messenger of
God. The court looks into the belief, i.e. in the oness of God as a
requirement for a person to be called as a Muslim. According to the
court a person may be a Muslim either by birth or by conversion.
Different modes of Conversion,
Two types, 1. Declaration in public, 2.through ceremonies (reciting
kalmia & giving him a Muslim name).
They is no objective test for testing a person’s sincerity in a faith.
Conversion to legalize an act under the Muslim law such conversions are
not deemed to be lawful.
In Skinner V/S Orde (1871, 14, MIA 309), the Christian widow living with
a Christian man who had already a wife living . cohabitation with a
person other than his wife is illegal .To legalise their cohabitation both of
them converted to Islam & became Muslims as under te Muslim law a
male can have four wives at a time . It was held by the privy council that
the conversion was illegal & not bonafide because it was to commit
fraud upon people .
In Sarala Mudagal V/S Union of India (1995, 3, SCC, 635), hindu
husband converted to Islam & thereafter converted to Islam & thereafter
contracted marriage with a muslim girl without divorcing the hindu wife.
The SC held that the conversion was malafide. declared the second
marriage as void. In Lily Thomas V/S Union of India(AIR [2000], SC
1650), the SC confirming its earlier view in Sarala Mudagals case, held
that conversion to Islam only for the purpose of legalizing the second
marriage as void.
Islam does not differentiate b/w a born Muslim & a converted Muslim,
religion is a matter of faith. Person who mockingly adopts a religion just
for enjoying the benefits under the mohammaden law is not legal
conversion. There is no problem if a Child is born out of marriage
performed according to Muslim law.
They are considered to be legitimate. It is said a child born is presumed
to belong to the religion of father. If a Hindu lady converts to Islam her
previous marriage with Hindu husband is not dissolved. Before legally
dissolving the marriage if she marries a Muslim after converting to Islam
she commits an offence if bigamy u/sec 494 IPC. Applicability of law,
Muslim law is applied to a non-muslim in certain cases, the policy of the
courts is that where the parties to the case are of different religion the
law of defendant applies.
A women renouncing Islam to Hinduism is not a Muslim, But for divorce
on any grounds mentioned u/sec2 of the Indian Divorce Act. Laws
relating to right of pre-emption (right to choose neighbourhood) is
applicable to non Muslims , in some parts of India .
Yet separate law for pre-emption is applied to both Muslims & Hindus in
certain places in India Muslim Marriage Act 1939 even after converting
to other religion may obtain decree.

GUARDIANSHIP

Minority is a privilege/disability which every human being undergoes at

one point of time. Minors are those persons who have not attained
certain age as fixed by their personal laws or as by the statutory laws. In
order to protect the interest of a minor, any adult person is appointed or
designated as a care taker of that minor up to a certain age. These care
takers of minor are called as GUARDIANS’.Both is personal law as well
as general law, guardians are appointed to take care of minors and his
interest.
Muslim law recognizes 4 kinds of guardians:
1. Natural or legal guardian or dejure guardian.
2. testamentary guardian
3. Guardian appointed by the Court or statutory guardian.
4. defacto guardian.
Natural guardian is a person who has a legal right to control and
supervise the activities of a child.
Father is recognized as the first natural guardian of his child under all
schools of Muslim law.
In absence of father, others who can act as legal guardian are as follows;

Sunni law:
Father
Executor of father
Paternal grand father
Executor of Paternal grandfather.
Shia law
Father
Paternal grand father

Imambandi v/s. Mutsaddi, (1918) 45 Cal 887, in this case it was held,
The father has the right to control the education, religion of minor
children, their upbringing and their movement. So long as the father is
alive, he is the sole and supreme guardian of his minor children.
Gohar Begum v Suggi, (1960) 1 SCR 597
In this case it was held, that In Muslim law the mother is not a natural
guardian even for her minor illegitimate children, but she is entitled to
their custody.
Testamentary guardian is a person who is appointed as guardian of a
minor under a will .

SUNNI LAW:

Father in his absence, through his will can appoint paternal grandfather
as a testamentary guardian.
Testamentary guardian should be major and competent enough to act
as guardian.
Competency
Age of Majority
Soundness of mind &
Must not be disqualified by law.
Testamentary guardian is called as “wali” or “amin” i.e., a trustee as per
Muslim law.

GUARDIANS APPOINTED BY THE COURT.

Also called as statutory guardian.

In the absence of natural guardian and testamentary guardian, the court
has powers to appoint a guardian in order to protect that minor’s interest.
Such guardians are called as Statutory Guardians.
These guardians are appointed as per the provisions of Guardians and
Wards Act, 1890.
Statutory guardians are appointed for fulfilling two duties,
To take care of minor or
To take care of minor’s property or both.
District judge has power to appoint guardian. If there is conflict between
provisions of Muslim law and Wards Act, then Wards Act will prevail over
the Muslim law. District court appoints guardian on an application made
by a persons
 The following can be appointed as guardians.
Any person desirous of being or claiming to be the guardian of the minor
or Any relative or friend of the minor or the collector of the district where
the minor resides. On an application made, if the court thinks fit in the
interest of the minor may appoint any one of the applicant as
guardian.The court may appoint guardian for minor or for his property or
both.
As per Section 17 (2) of the Guardians and Wards Act, 1890, courts shall
consider certain points in appointing guardian for a minor such as;
personal qualifications of a person: age, sex, religion, character,
capacity to maintain. his relation with the minor, the last wish of the
deceased parents, if any opinion of the minor (if minor has the capacity
of rational reasoning)
Personal law to which minor belongs.
After considering all these points, court appoints a person as the uardian.

DEFACTO GUARDIAN

A person who assumes or takes custody of a child on his own is called

as the defacto guardian.
This person is neither a legal guardian nor a testamentary guardian.
This person takes responsibility under the circumstances prevailing at
that moment when the minor child has no one to take care of.
A de-facto guardian is a person who takes continuous interest in the
welfare of the minor’s person or in the management and administration
of his property without any authority of law.

Power of natural & testamentary Guardian,

Both guardians have the same powers. Contracting the minor Childs
marriage.
Receiving of any presents & keeping for the minor. Sale of property
(movable & immovable) Movable rt to sale is vide Immovable is in
exceptional cases,
Sale is valid only in certain cases.
1. When the property fetches double value.
2. Sale is advantageous.
3. Caring out the payment of legacies which cannot be paid without
the sale.
4. Where there are debts of the testator.
5. Where there is immediate danger of the property of being lost or
destroyed.
 6. When the property is in the hands of the usurper & cannot be
recovered.
7. For maintenance of the minor.
8. Power to grant lease.
9. Power to carry on business.
10. Where there are debts of the testator.
11. Where there is immediate danger of the property of being
lost or destroyed.
12. When the property is in the hands of the usurper & cannot be
recovered.
13. For maintenance of the minor.
14. Power to grant lease.
15. Power to carry on business.

Sec 29, powers limited in alienation of minor’sproperty.No rights to sell,

mortgage, gift exchange or other transfers. Right to Lease, mortgage,
the property, for period of 5yrs only subjected to renewal for every one
year. In cases of emergencies it can be done only wt the permission of
court. Sec 33, restrictions on the power of the guardian from time to
time ,& at the time of appointments.

PARENTAGE & LEGITIMACY

Parentage and legitimacy are two important factors which are co-related
to a child born out of wedlock. These factors help in establishing an
identity with regard to that child.
Parentage is the legal relation between a child and his/her parents.
PARENTAGE
Father& mother Parentage involves certain rights and obligations in
respect of maintenance, guardianship and inheritance.
METERNITY
It is the legal relation between a child and his or her mother. Maternity is
a matter of fact which is established in a woman the moment she gives
birth to that child.
No better evidence is required than this fact truth .Giving birth to a child
is important proof to establish that the woman is the mother of that
child. After establishing maternity, the child enjoys certain benefits under
SUNNI law,
Like, inherit property of the mother whether child is from lawful marriage
or unlawful one (valid/ void).
Shia law: recognizes maternity of a child only if marriage is legal and
he/she is born out of legal wedlock.
Hence child born out of unlawful relationship can’t inherit property of
mother.
PETERNITY
It is the legal relationship between a child and his/her father. Paternity of
a child can’t be established by fact, it is a legal presumption. Legal
presumption means it has to be proved that, child was conceived during
the lawful union between that man (father) and the woman (mother).
That woman gave birth to that child. Then paternity can be established.
Child should have been conceived under existence of a marriage (valid
or irregular but not void).After establishing paternity of a child, it is
proved that child is legitimate.

LEGITIMACY
Legitimacy of the child is entirely based on the lawfulness of relationship
b/w the father & mother & their lawful marriage.
In Hobibur Rehman V/S Altaf Ali (1921) 48 IA114; the Privy Council
observed, ‘By Mohammedan law a son to be legitimate must be the
offspring of a man & his wife or a man & his slave, any offspring is the
offspring of zina that is illicit connection & cannot be legitimate.
Legitimacy, direct proof of marriage when a valid marriage b/w the
parents of the child born out of such marriage will be presumed to be
legitimate. The Muslim law givers laid down the three rules of
presumption of paternity, when direct proof of marriage b/w the man &
the mother of child is available.
1. A child born after 6 months of marriage is legitimate, unless the
father disclaims it.
2. A child born within 6 months of marriage is illegitimate unless
father acknowledges it.
3. A child born after termination of marriage is termed to be
legitimate
- Within 10 lunar months under the Shia law
- Within 2 lunar years under the Hanafi law
- Within 4 lunar years under the Maliki Law & the Shafi law.
The reasons as to why the Muslim law givers considered the
period of gestation to be as short as 6 months , & as long as
four years it seems to be the outcome of lack of knowledge of
 gestation & pregnancy during those days .
Sec112 of evidence act of 1872 lays down the rule for
presumption , according to this section a child born within 280
days of the transmission of marriage is legitimate , the mother
remaining unmarried , unless the parents have no access to
each other at all times during which the child would have been
begotten . Under the Muslim law this will between subject to
lian (adultery), but according to sec 112 the child born is still
considered to be as legitimate.
ACKNOWLEDGEMENT OF PETERNITY (IKRAR-E-NISAB)
If the paternity of child is in question, uncertain because of failure to
establish valid marriage at the time of conception or birth; then the man
(husband) can declare / acknowledge / accept that he is the father of
that child.
If husband certifies his relationship with the wife as legal and valid and
child is conceived or born during legal marriage, then paternity is
established.
Hence acknowledgement of paternity is done by the husband (father).
Doctrine of acknowledgement of paternity is limited, illegitimate child
cannot be made legitimate by mere declaration.
Muhammad Allahadad v/s Muhammad Ismail (1880)10 ALL. 289 (FB)
Facts: Moti begum was married to Ghulam Ghaus.But the exact date of
their marriage with reference to their first child (Muhammad Allahadad….
Petitioner) was not certain. Lateron Moti begum gave birth to four
children including Muhammad Ismail (respondent) and others. After
death of Ghulam Ghaus, the petitioner claimed his share through
inheritance (eldest son).
The respondent and other children argued that the petitioner was born
before marriage of Moti begum with Ghulam Ghaus. Therefore paternity
with regard to the petitioner is in question. Respondent contended that ,
the petitioner was a step-son of his father and had no right to inherit.
Held: full bench of Allahabad High Court held that there was no proof
that petitioner was a child born out of Zina. Though no proof of marriage
between Ghulam Ghaus was their but the fact that both (Ghulam Ghaus
and moti begum) lived as husband and wife for a very long period and
the fact that Ghulam Ghaus used to address petitioner as his son in
public and consider moti begum as his legally wedded wife… is enough
to establish valid marriage between Ghulam Ghaus and moti begum.
Further paternity of petitioner is established as son of Ghulam Ghaus
.Therefore, petitioner was considered to be the legitimate son of
Ghulam Ghaus and he had legal right to inherit property of Ghulam
Ghaus (father).
Paternity was established on implied (conduct) acknowledgement.
They are two ways of acknowledging:
a. By express declaration.
b. By implied action ( establishment of & confirmation of marriage by
the statement by the husband) .
CONDITIONS FOR VALID ACKNOWLEDGEMENT
1. The child acknowledged must not be born out of illegal intercourse
(zina). Relationship between a man and woman at that time must be
legal / valid.
2. Paternity should be uncertain before acknowledgement.
3. Difference in age should be their between the child and the
acknowledger.
4. Acknowledgement is not only acceptance as his son or daughter…
acknowledgement of that fact that the child is his legitimate son or
daughter for all purposes (maintenance, guardianship and inheritance)
should be done.
5. Casual love and affection is not enough to confer legitimacy.
6. Acknowledged child has an option to repudiate the
acknowledgement on attaining the age of discretion or
understanding.
In case child cancels acknowledgement, then it can’t be considered as
valid acknowledgement.
Once acknowledgement of paternity is done by the father, it can’t be
cancelled or taken back.

LEGAL EFFECTS OF ACKNOWLEDGEMENT

The moment acknowledgement of paternity is done; a child enjoys
certain rights;
1) Child becomes legal, legitimate child of the acknowledger.
2) Child is entitled to inherit properties of acknowledger, mother and
other relations.
3) Acknowledgement establishes a lawful marriage between the
child’s mother and acknowledger.
4) Even child’s mother (wife) can inherit property of her husband
(acknowledger).
Therefore, paternity establishes two important facts:
Marriage between a man (husband) and woman (wife) is legal and the
relationship is justified as valid. The child born out of this relationship is
also legitimate. Whatever benefits/ rights legitimate people enjoy, same
liberties will be given to these people also (Woman and the child).
DIFFERENCE B/W ACKNOWLEDGEMENT & ADOPTION
These are very similar.
- In adoption they is a gift of the child to the adoptive parents.
Acknowledgement is not possible if the parent of the child is known.
- Adoption has no reference to the natural descent from the
adopted child from the adoptive father.
Acknowledgement proceeds upon the theory of actual decent.

INDIAN DIVORCE ACT 1869

Sec 10 for dissolution of marriage,

Any marriage solemnized whether before or after the
commencement of Indian Divorce Act,
a. The husband or wife may on a petition present to district court
dissolve the marriage.
On the following grounds;
1. Committed adultery
2. Has ceased to be Christian by conversion to any other religion.
3. Incurable due to unsoundness of mind.
4. Suffering from incurable deceases.
5. Suffering from leprosy.
6. Has not been heard of being alive for a period of 7yrs.
7. Has refused to consummate the marriage.
8. Has failed to comply with the restitution of conjugal rights.
9. Has deserted the petitioner for a period of 2 yrs.
10. Has treated the petitioner with cruelty as to cause a reasonable
apprehension.
11. Wife may also present a petition for dissolution of marriage on
the ground that the husband has since the solemnization of the
marriage been guilty of rape, sodomy.
b. dissolution of marriage by mutual consent, application may be filed
before the D C by both the parties together, on the ground that the
parties were staying separately for two years.
If the court is satisfied on the evidences that the petitioner’s case has
not been proved or is not satisfied that the adultery has been committed
the court shall dismiss the petition u/sec 13 of the act.
u/sec 14 of the act the court looking into the evidences pass decree for
dissolution of the marriage sec 18 petition for nullity of marriage may be
filed .Sec 19 grounds for nullity,
1. Respondent was an impotent at the time of the marriage.
2. The parties are within the prohibited decree of consanguinity or
affinity.
3. Either party was lunatic at the time of marriage.
4. That the former husband or the wife was present at the time of
marriage. Petition for restitution of conjugal rights can be filed u/sec 32
of the act before the D C by either the husband or the wife.

DIWORCE

Marriage or "Nikah" in Islamic law is a contract pure and simple. Nikah

as per Islam is considered to be a religious duty (sunnat).
Though marriage in Islam is considered to be a contract, it is not so
easily dissolved.the parties to the contract (husband and wife) have to
carry forward the marriage with full love and dedication.
However, in unavoidable circumstances, where the union of husband and
wife is detrimental to each other’s life and property, then dissolution
concept is present in the holy Quran.
Dissolution of the marriage is breaking of the marital tie or bond
between the husband and the wife. dissolution of marriage is a type of
exceptional rights given to both husband and wife in different situations.
The moment a nika gets dissolved, the relationship of husband and wife
comes to an end.
There are two ways in which a Muslim marriage can be dissolved. They
are as follows;
1) By the act of god (vis-major)
2) By the act of the parties.
Act of god
Marriage gets dissolved by the god and not by the parties. when the
husband or the wife dies.
Death of either spouse ends the nikah immediately.
Act of parties
Marriage gets dissolved by the act of the parties. When the husband
pronounces talaq, ila or zihar
Or when wife exercises her khula option. Here the marriage doesn’t
dissolve immediately. Certain formalities have to be completed to end
the marriage.
Dissolution of marriage
By act of god or death of husband or wife by act of parties extra-judicial
divorce.
1. by husband
talaq
ila
zihar
1. by wife (delegated)
khula
mubarat.
2. judicial divorce (by wife)
3. by mutual agreement

HUSBANDS RIGHT TO DISSOLVE MARRIAGE

Dissolution of marriage can be by the husband. The moment husband
exercises his right of DIVORCE; he brings to an end his marital
relationship with his wife.
Husband can use 3 ways of dissolution-
TALAQ or
ILA or
ZIHAR.

TALAQ:
Talaq is an Arabic word and its literal meaning is ‘to release’. Talaq
means repudiation of marriage by he husband. Muslim husband has an
unrestricted right to divorce his wife by pronouncing talaq.
Husband has been given the absolute authority to terminate the
marriage by uttering the words Talaq.
This absolute authority cannot be misused by the husband.
1. Capacity of the husband pronouncing talaq - which also covers
capacity of the wife.
2. Free consent – husband has to voluntarily give talaq.
3. Formalities – talaq may be in oral or writing (talaqnama).
4. No witnesses required (Sunni law). Shia law 2 male witness is
necessary.
5. Shia law stresses on the use of the word talaq.
6. Presence of wife is not mandatory for pronouncing talaq. No
notice is required to be given to the wife with regard to talaq.
Based on the mode of pronouncement and effect,
There are two kinds of talaq:
1. talaq-ul-sunnat or revocable talaq
 2. talaq-ul-bidaat or irrevocable talaq.
TALAQ –UL-SUNNA (revocable talaq)
1. Talaq ahasan
2. Talaq hasan
TALAQ –UL-BIDDA
TALAQ –UL-SUNNA (revocable talaq OR TALAQ –UL- RAJE)
Based on prophet’s tradition.. (Sunna).This is the most approved form of
talaq. Talaq was the most objected by the Prophet.If at all marriage has
to come to an end, Prophet suggested dissolution by this method.In this
type, talaq does not become final at once. This type is recognized by
both Sunnis and Shias.
TWO TYPES OF TALAQ –UL-SUNNA
a) Talaq ahsan (most proper)
b) Talaq hasan (proper).
TALAQ AHASN
Most proper form of repudiationTalaq can be revoked before completion
of iddat period.Talaq word is pronounced only once during the time of
wife’s purity (tuhr).Iddat for three months –revocation of talaq can be
done within this three months duration.
TALAQ HASAN
Approved form. Here also chance of revocation of talaq is present
before completion of third utterance . Husband has to pronounce
the word talaq in three sittings-
 one in the first month of ‘tuhr’.
 second pronouncement in the second month of ‘tuhr’.
 third pronouncement in the third month of ‘tuhr’.

Final third pronouncement, talaq becomes final and binding.

In Gulam Mohyuddin V/S Khaizer( AIR 1929 Lah 6)

Husband wrote talaknamma in which it was said that he has pronounced
talaq on 15th of Sep & 3rd Talaq would be completed on the 15th Nov. He
had communicated to his wife on the 15th of Sep. The Lahore HC held
that this was Talaq Hasan . Court further stated that the Talaqnamma
was merely a record of 1st pronouncement & Talaq was revocable. The
court also stated that for effective & final Talaq the three
pronouncement must actually be made in three ‘Tuhrs’. Only mention of
third declaration was not sufficient.

TALAQ-UL-BIDDAT OR BAIN :
It is the most disapproved form of Talaq .Peculiar feature of this Talaq is
that it comes into effect as soon as it is pronounced & there is no
chances of re-conciliation b/w the parties.Prophet never approved this.
This was again introduced by the Omayad Kings
Sunni Muslims still practice this .Shia school of law, irrevocable
Talaq was not recognized.
In Mariam V/S Shamsi Alam(AIR 1979 ALL 257)
Wife left to parents house, as health was neglected by her husband
.When husband came to take her back she refused to go ,In anger the
husband uttered Talaq three times in one breath. Later realizing his
mistake he revoked the Talaq during Iddat period .HC of ALL, held that,
though talaq was uttered thrice it was pronounced in one breath it is to
be interpreted as one single pronouncement & it could be considered as
Talaq Ahsan. Marriage hence is not dissolved.
In Rehmatullah V/S State of UP ( 1994 ALL (1) 530)
HC of Allahabad has observed that an irrevocable Talaq is unlawful
because this kind of Talaq is against the dictates of the holy Quran &
against the provisions of the Indian Constitution ( fundamental Rts) .
DIVORCE BY WIFE:
Divorce by wife is possible only in cases of ;
1. Where the husband delegates to the wife the right of talaq (Talaq-e
-Tafweez)
2. Where she is a party to divorce by mutual consent(Kula &
Mubarath)
3. Where she wants to dissolve the marriage under the Dissolution of
Muslim Marriage Act 1939.
TALAQ –E-TAFWEEZ :
Divorce by such other person acting as husbands agent is Talaq-e-
Tafweez . or delegated Talaq.
Talaq pronounced by other person is effective as if it were made by the
husband himself & the marriage dissolves.
Husband may delegate his right of divorce to his own wife & authorize
her to pronounce Talaq.
In Magila Bibi V/S Noor Hassain (AIR 1992 Cal 92)
Calcutta HC decision, here the wife was given authority to utter talaq
when ever she wants on a written & signed agreement by both. On
finding husband was not a medico as stated to her before marriage wife
uttered Talaq, It was valid Talaq since delegation of authority was done
by husband .No compulsion to utter Talaq in Talaq-e-Tafweez.
DIFFERENCE B/W TALAQ-E-TAFWEEZ & CONDITIONAL TALAQ.
Conditional Talaq is a Talaq by husband based on the happening of
future event .
Talaq-e- Tafweez is a Talaq by the wife provided she is authorized to do
so.
Mere happening of the event is sufficient the husband need not
pronounce Talaq.
TALAQ Tafweez mere happening of the event is not sufficient to
dissolve the marriage . The marriage dissolves only if wife exercises her
right after happening of the event.
conditional or contingent talaq is not recognized by the shias but only by
the Sunnies .Thalq –e-Tafweez is recognized under the bothe schools of
law.
Apart from the different kinds of thlaq there are 2 more kinds of talaqs:
Ila AND Zihar
ILA : Ila according to the sunnie law & Shia Law

SUNNIE LAW
Here the conduct of the husband is of such that he intends to dissolve
the marriage.Here the husband does not cohabits with the wife and
followed for a period of 4 yrs continuously.After this duration the
marriage dissolves automaticlly.

SHIA LAW
According to this school of law ,under one of its sub-sect i.e. Itna Ashara
.Ila does not operate as divorce on the wife till she gets the decree of
court .Wife can appear the court by a suit for restitution of conjugal
rights after expiry of 4th month against husband and can seek divorce.If
she does not obtain decree of court marriage does not dissolve.

ZIHAR: Zihar according to the Sunnie & the Shia law

SUNNIE SCHOOL OF LAW

This is a constructive divorce .Here the husband compares his wife with
a women ,of the prohibited relationship e.g. Mother and siUpon this
objection the husband would stay away from cohabitation with wife till
expiry of 4 months .Upon the expiry of 4th month ‘Zihar’ is complete.
The wife has 2 rights after expiry of 4 months i.e.
1 she may go to the court for judicial divorce. 2nd ‘ly she may go to the
st

court for ascertaining an order of restution of conjugal rights. When the

husband wants to revoke zihar , he can do so by resuming cohabitation
within the said period .In such circumstances the wife cannot seek
judicial divorce .Cohabitation is a sin here under such circumstances
wife can ask the husband to perform penance (penalty) i.e.By feeding 60
poor. Observance of fast for 2 months .Release of a slave.
SHIA LAW
According to shia law the declaration of zihar must be before 2
witnesses.
The practise of Illa & Zihar is outdated today.
DIVORCE BY MUTUAL CONSENT
1. Khula
2. Mubarath
KHULA : It is a divorce by the common consent but the wife has to make
payment of some consideration to husband because she takes the
initiative for dissolving the marriage.

ESSENTIALS OF KULA;
1. Competency of parties.
Soundness of mind of parties.
Age of majority (puberty) 15yrs,
Minor or insane husband or wife cannot lawfully affect Kula nor the
guardians.
2. Free consent.
Offer & acceptance of Khula must be made with free consent of
parties. Kula in Hanifis under compulsion & in the state of
intoxication is also valid. Shia law & all other sub sects, Kula
without free consent is only void.
3. Formalities.
Offer from the side of wife to husband to release her from the
marriage.
Offer to should be accepted by the husband.
Till the husband accepts it is not complete & the wife can revoke
the Kula before his acceptance .Once accepted the Kula cannot be
revoked. Offer & acceptance may be oral or in writing & must be
made in one sitting at one place.
Under Sunni law the presence of witnesses is not essential, but in
Shias the Kula must be made in front of two competent witnesses.

4. Competency.
For the release of herself wife has to pay consideration, any some
 of money or property may be settled as consideration which
cannot be increased.
Generally the wife relinquishes claim of her Dower for her release
in Kula.
In case of non payment of sum to the husband by wife, the
husband can file a suit for recovery of that amount as
consideration.
LEGAL EFFECTS OF KULA:
Same as that of divorce the wife is entitled to maintain Iddath
period, she is also entitled to be maintained by her husband
after compleating kula or mubarath.
Marriage dissolves & the parties become strangers to one
another.
Cohabitation b/w the parties is said to be unlawful.
If dower is not given to the wife then dower is to be given to the
wife.
MUBARATH: divorce by mutual consent of husband & wife both
the parties are equally desirous to dissolve the marriage, the offer
may come from the side of either husband or the wife.
Essentials of Mubarath:
1. Willingness of both the parties to get rid of each other
2. It has the same essence as that of sec 24 of Special Marriage
Act 1925 & sec 13-B of the Hindu marriage Act 1955 (as per the
amendment in 1976).
3. As in Kula the parties must be competent also the same is
applicable in mubarath, consent of the parties must be free in
case of mubarath.