Kerala High Court Upholds Validity of Khula Divorce : Return of Mahar Need Not Appear in Khula Nama and Can Be Established Through Parties’ Statements
Isabella Mariam
The High Court of Kerala, Division Bench of Justice Devan Ramachandran and Justice M.B. Snehalatha held that in matters concerning a Muslim wife’s declaration of divorce by Khula, the return of Mahar—the consideration given by the husband at marriage—may be determined not only from the Khula Nama but also from the statements of the parties. The Bench was hearing an appeal filed by the husband challenging the Family Court’s decision upholding the wife’s divorce through Khula. Dismissing the appeal, the Court affirmed that the Family Court had properly verified the reconciliation efforts and the circumstances surrounding the Mahar, thereby sustaining the validity of the divorce.
The case arose from matrimonial differences between a husband and wife who were married on 15 December 2019 and had a son born on 23 April 2021. Following disputes in their relationship, the wife issued a handwritten Khula Nama on 5 October 2023, declaring the dissolution of the marriage. She subsequently approached the Family Court seeking a declaration of her marital status as divorced under Islamic law, relying on the Khula Nama and related documents. The Family Court recorded her statement as PW1 and considered six exhibits, including the marriage certificate, the Khula Nama, a legal notice, an unclaimed postal cover, and postal acknowledgments.
The husband contested the wife’s petition, appearing in person before the courts. He contended that the Khula was invalid as there had been no reconciliation efforts before its issuance and that the wife had not offered to return the Mahar (dower) he had given her at marriage. He argued that the Family Court failed to verify these aspects as required by precedent, particularly the judgment in Asbi K.N. v. Hashim M.U. (2021).
The wife’s counsel submitted that reconciliation attempts had been initiated through two mediators—identified in her petition and testimony—and that the husband had refused any settlement. It was also stated that although the wife had received Mahar at the time of marriage, the husband had taken it back before she issued the Khula Nama. Her position was supported through her chief affidavit and oral evidence before the Family Court.
The record showed that the husband neither filed a proof affidavit nor gave a statement before the Family Court to rebut these claims. The Division Bench examined the materials and referred to the principles in Asbi K.N., which recognize Khula as an extrajudicial mode of divorce requiring verification of reconciliation efforts and the return or status of Mahar through the pleadings and statements of the parties.
The Bench recorded that “the ‘Khula Nama’ does not specifically say that the ‘Mahar’ which the respondent admitted to, has been either returned, or will be returned, or has been taken away by him.” However, the Court noted that “in the petition before the learned Family Court, the respondent has unequivocally stated that the ‘Mahar’ had been taken away by the appellant much before she issued Ext.A2; and she reiterated so in her proof affidavit and the statement which she gave as PW1 before the learned Court.”
It further recorded, “This virtually fortifies the opinion of the learned Family Court that there were attempts of reconciliation.” The Court observed that the appellant’s argument—that the mediators were relatives of the respondent—strengthened the inference that reconciliation was attempted, as there was no affidavit or evidence to the contrary.
The Court observed that “when the factum of an attempt of reconciliation and the absence of ‘Mahar’ with the respondent being prima facie established, we cannot find any reason to doubt, or to find in error, the views and holdings of the learned Family Court.”
Referring to Asbi K.N. (supra), the Court held that “Khula, as in the case of Talaq and Mubaraat, is a mode of extrajudicial divorce and the learned Family Court has only to verify whether the pronouncement/declaration of the same was done in a proper manner, and if it was preceded by an effective attempt of conciliation.” The Bench found that both these conditions were satisfied in the present case. It held that the absence of any rebuttal from the appellant corroborated the respondent’s assertion regarding the ‘Mahar.’
The Bench noted that “the endorsement of the extrajudicial divorce and consequential declaration by the learned court does not preclude the right of the appellant from challenging the divorce as per law, for which liberties are reserved in Asbi K.N. (supra) itself.”
“In the afore circumstances, we obtain no cogent cause to find the judgment of the learned Family Court to be in any kind of error; and consequently, dismiss this Appeal.”
Advocates Representing the Parties
For the Respondent: Shri T.P. Sajid, Shri K.P. Mohamed Shafi, Smt. Shifa Latheef, Smt. Sreeshma B. Chandran, Shri Muhammed Haroon A.N., Shri Hasharurahiman U., and Shri Mohemed Favas.
For the Appellant: Adv Muhammed Ashar .K
Case Title: Muhammed Ashar K. v. Muhsina P.K.
Neutral Citation: 2025: KER:76062
Case Number: Mat. Appeal No. 625 of 2024
Bench: Justice Devan Ramachandran, Justice M.B. Snehalatha
