Isabella Mariam

The High Court of Telangana Division Bench of Justice Moushumi Bhattacharya and Justice B.R. Madhusudhan Rao held that a Muslim woman’s right to seek Khula divorce is absolute and not dependent on the husband’s consent. The Court dismissed a husband’s plea challenging the issuance of a Khulanama by a religious council and clarified that such advisory opinions have no binding legal authority. However, it stated that once a wife initiates Khula, the Family Court is empowered to determine whether it was validly exercised, independent of any religious body’s certificate.

The appeal before the High Court arose from an order passed by the Family Court, Hyderabad, which dismissed a petition filed by the husband seeking to declare a Khulanama issued by a religious council null and void. The appellant and respondent No.1 were married on 1 June 2012 with a dower of Rs.11,000. After five years of marital life, the wife raised complaints of domestic abuse. On 7 July 2017, she was hospitalized following an assault and subsequently shifted to her parental home.

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The wife later demanded a Khula divorce, which the husband declined. She then approached the Sada-E-Haq Sharai Council, an Islamic body comprising a Mufti, an Imam, and professors of Islamic and Arabic studies. This council issued three notices to the husband requesting his presence for a reconciliation meeting. The husband responded by questioning the Council's authority and refused to attend the scheduled meeting.

After failed reconciliation attempts, the Council issued a Khulanama dated 5 October 2020, certifying the dissolution of marriage. The husband challenged the validity of this certificate before the Family Court in Original Petition No.1009 of 2020. He contended that the Council, being an NGO, lacked legal authority to dissolve marriages and that its decision was not binding under law.

In response, the wife argued that Khula is a legitimate form of divorce under Muslim Personal Law and does not require the husband's consent or judicial intervention. Relying on decisions of the Supreme Court and various High Courts, her counsel submitted that advisory opinions by religious scholars are not binding but also not necessary for the Khula to take effect. It was also submitted that the Family Court's decision was not based on the advisory opinion but rather on established legal principles.

The Family Court dismissed the husband’s petition, observing that the wife had followed due procedure and that her demand for divorce had been consistent and supported by efforts at reconciliation.

The High Court undertook a detailed examination of judicial precedents and religious texts to understand the legal position of Khula under Muslim Personal Law. It began by placing the matter in context, noting the absence of a defined procedure when a wife’s demand for Khula is refused by the husband. It stated, “Islamic law does not prescribe any procedure either in the Quran or in the Sunnah/sayings of the Prophet if the husband rejects the wife’s demand for Khula. The decisions pronounced by the Courts however point to four different procedures/approaches undertaken in the case of a Khula divorce.”

Addressing the first approach, the Court noted, “Khula divorce envisages a private settlement where a person only needs to consult a Mufti of his/her School. The Mufti gives his fatwa/advisory decision based on the Shariat of his School. Upon failure of a private settlement, if either of the parties carry the matter to litigation, the Judge (Qazi) is required to deliver a judgment (Qaza) based upon the Shariat.”

The Court cited the Supreme Court’s approval of this approach, recording, “Juveria Abdul Majid Patni (supra) described Khula in simple terms as a mode of dissolution of marriage when the wife does not wish to continue with her marriage and consults a Mufti for his advisory decision based on the Shariat of his School. The wife is simply required to propose Khula to her husband and may choose to accompany her offer to give something in return including giving up her claim to dower.”

On the second approach, the Court quoted from a Kerala High Court judgment which stated, “A married woman can decide to put an end to the marriage by asking her husband for a divorce. As in Talaq, the parties must make an attempt for a reconciliation in Khula. However, unlike Talaq, the married woman has the last word in a Khula divorce and the husband cannot compel her to continue in the marriage.”

Further quoting from the same judgment, it observed, “It is indeed a mockery of the Shariat that we regard Khula as something depending either on the consent of the husband or on the verdict of the Qazi. The law of Islam is not responsible for the way Muslim women are being denied their right in this respect.”

Regarding the third judicial approach, the High Court recorded, “The Division Bench observed that the Review Petition may have been filed at the behest of individuals representing a conservative section of Muslim scholars who believe that a woman lacks the capacity and competence to pronounce Khula.” It further noted, “The Kerala High Court disagreed with the argument of the review applicant (husband) that a wife must approach the Court upon the husband’s refusal to accept the demand for Khula. The Court held that Khula may be invoked even if the husband refuses to give consent.”

In relation to the fourth approach, the Court highlighted the constitutional context of interpreting Muslim Personal Law. Citing Shayara Bano v. Union of India, it stated, “The Supreme Court reiterated the view taken in Shamim Ara Vs. State of U.P, which held that a man cannot force a woman to remain married against her will. Therefore, the husband’s refusal to the wife’s demand for Khula divorce, being theologically wrong, would also be legally untenable.”

The Court then summarized the consensus from judicial precedent: “Khula is a no-fault divorce initiated by the Muslim wife. Upon a demand for Khula, the husband does not have the option to refuse the demand save and except to negotiate the return of the dower (Mehr) or a part thereof.” It continued, “The husband however does not have the right to refuse Khula merely because the wife declines to return the dower or a part of it. Khula is, therefore, a non-confrontational form of divorce and one which is privately settled after the parties have made an attempt to preserve the marriage.”

The Court clarified the legal status of certificates issued by religious bodies: “Approaching a Mufti for a Khulanama is not compulsory and does not reinforce the Khula as the Fatwa/advisory decision given by a Mufti is not legally enforceable in a Court of law.”

It stated further, “The aggrieved party/husband may approach a Court/Qazi for adjudication on the status of the marriage consequent upon the wife seeking the Khula. The Court/Qazi is required to pronounce its view which becomes a binding judgment on the status of the marriage.”

Discussing the Family Court’s decision, the Bench recorded that the trial court had framed six legal requirements for validating a Khula, and found that the facts of the present case satisfied those conditions. The High Court noted, “None of these findings have been disputed by the appellant.”

It added, “After considering the facts and the relevant law on the subject, the Family Court concluded that the Fatwa/advisory opinion given by the respondent No.2 was correct. Therefore, the Khulanama granted by the respondent No.2 did not warrant interference.”

However, the Court made an important clarification regarding the jurisdiction of religious bodies, stating, “Although we agree with the impugned order dismissing the O.P. filed by the appellant, we find the fourth and fifth requirements formulated by the Family Court on the powers conferred upon a Mufti for issuing a Khulanama, to be contrary to the law laid down by the Courts.”

The Court concluded its observations with a pointed remark on the procedural scope of the Family Court, stating, “The Family Court is simply to ascertain whether the demand of Khula is valid upon an effective attempt to reconcile the differences between the parties; or any offer by the wife to return the dower. The enquiry should be summary in nature without long-drawn out evidence.”

Finally, in recognition of the broader social context, the Bench noted, “We confine our opinion to the matter before us although learned counsel for the respondent has urged that the collective fate of Muslim women, post-demand for Khula, is consigned to limbo and a long and uncertain wait for resolution. We are confident that the law pronounced by the Courts shall be given their due weightage by all the stakeholders in easing the plight of Muslim women in their respective situations.”

The High Court upheld the Family Court’s dismissal of the Original Petition filed by the husband. It endorsed the view that the Khula initiated by the wife was legally valid, given that attempts at reconciliation were made, and that she had consistently expressed her intention to end the marriage.

The Court acknowledged that the Family Court had correctly recorded the undisputed facts and the relevant legal framework. It had also formulated six principles concerning Khula, including that the husband’s consent is not required, that the wife may approach religious functionaries if he refuses, and that the Family Court may subsequently validate the Khulanama.

However, the High Court clarified that the Family Court erred in holding that a Mufti or religious authority can issue a legally valid certificate of divorce. It held that such certificates are merely advisory and not enforceable. Only a judicial determination by a Family Court has legal force.

The Court also addressed the appellant’s prayers before the Family Court, noting that the request to declare the Khulanama null and void and to restrain the wife from claiming to be divorced was unnecessary. It held that once the Family Court adjudicated on the matter and found that the marriage had ended, the appellant was required to demonstrate a legal or factual error in that ruling—which he failed to do.

The Court further stated that it was not necessary to examine the cause of marital discord, as the issue before it was strictly whether the Khulanama was legally valid and whether the dismissal of the petition was correct in law.

It affirmed that the wife's right to seek Khula becomes effective upon demand and does not require religious certification. The Family Court’s role is to examine the demand’s validity, reconciliation efforts, and any offer to return dower. The proceedings should be summary in nature and not entail elaborate evidence.

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The Court found that the appellant’s challenge to the Khulanama was legally misconceived. While it upheld the Family Court’s decision to dismiss the petition, it clarified that religious authorities do not have jurisdiction to conclusively determine marital status.

Finally, the Court expressed concern for the prolonged uncertainty faced by Muslim women post-Khula and urged that courts and stakeholders give due effect to legal pronouncements to prevent hardship. It concluded that, apart from correcting the Family Court’s misstatement on the authority of Muftis, no grounds for interference existed.

The appeal was dismissed, and all interim orders and connected applications were vacated. No costs were awarded.

Advocates Representing the Parties

For the Petitioners: Mr. J. Prabhakar, learned Senior Counsel representing Mr. Mohd. Shafiuddin, learned counsel
For the Respondents: Mr. Mubashir Hussain Ansari, learned counsel representing Mr. Imtiaz Gulam Mahboob Faiz MD, learned counsel

Case Title: Mohammed Arif Ali v. Smt. Afsarunnisa and Another
Case Number: FCA No.75 of 2024
Bench: Justice Moushumi Bhattacharya and Justice B.R. Madhusudhan Rao