Telangana High Court cites Quran’s verses while ruling that Muslim wife has absolute right to divorce by Khula without husband’s consent

On Tuesday, June 24, the Telangana High Court held that under Sharia law, a Muslim woman has every right to terminate her marriage by Khula without requiring the consent of her husband. The Court also made it clear that it is not required to obtain a certificate (khulanama) from a Mufti or an Islamic authority to render the divorce valid.

The matter was decided by a division bench of Justices Moushumi Bhattacharya and BR Madhusudhan Rao. They stated that khula—a type of divorce under Islamic law sought by a Muslim wife—is valid from the time she makes the request, provided the issue remains confidential and is not brought to court immediately.

High Court quoted the verses of the Quran 

During the process of reviewing the case, the High Court quoted verses of the Quran, Chapter II, Verses 228 and 229. According to the Court, these verses allow women to seek separation from their husbands without their consent. The Court further observed that there is no practice mentioned in the Quran or Sunnah by Prophet Muhammad regarding what should be done if the husband does not agree to the wife’s demand for khula.

The bench further noted that khula is a form of “no-fault divorce” and no reason needs to be given by the wife for desiring termination of the marriage, and the husband cannot also oppose it—he can only negotiate the refund of the mehr. Even when the wife does not return the dower, that would not be a sufficient reason to reject her application for khula.

“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 high court said.

The court said that if the case does come to court, then the sole function of the court is to establish that the wife has issued a valid request for Khula and that there has been an attempt to reconcile. There is no need for the court to hold a long trial. Rather, the procedure should be straightforward and limited only to establishing the wife’s intention to live separately and whether she wishes to relinquish the Mehr (dower) or not.

The case

The verdict was given while considering an appeal by a Muslim man, Mohammed Arif Ali, whose wife had divorced him via khula. She approached the Ada-e-Haq Sharai Council (a private voluntary organisation) when it denied her a divorce. The man had approached the family court, requesting it to invalidate the divorce certificate given by the NGO. But his plea was turned down by the family court, and he turned to the High Court.

Here, in this specific situation, the High Court concluded that the woman had requested for divorce several times, but her husband did not consent. She then went to the NGO, and after reconciliation attempts proved unsuccessful, the certificate of khula was issued. According to the judges, the petition of husband was not required, particularly since religious institutions such as a Mufti have no legal jurisdiction to issue binding certificates of divorce—their view is merely advisory.

Court’s opinion is limited

The Court stated, “The husband is not entitled to prevent a khula simply because the wife does not agree to return the dower. Khula is to be an amicable and quiet process that follows only after attempts to salvage the marriage have been unsuccessful.”

Although the Court limited its opinion to this particular case, it did take cognisance of complaints made regarding Muslim women being placed in precarious positions after seeking khula. It stated that it was hopeful its ruling and other rulings by courts on this issue would improve the condition of Muslim women throughout the nation.

In short, this ruling upholds that Muslim women are entitled to dissolve a marriage by khula without the consent of husband. All that the court has to do is ensure the procedure and imprint it with the legal seal, not to pull it into a protracted trial.

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