Mohammed Arif Ali vs Smt. Afsarunnisa
2025 Latest Caselaw 4189 Tel

C.II.V.229. Divorce must be pronounced twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that ye take from women aught of that which ye have given them; except (in the case) when both fear that they may not be able to keep within the limits (imposed by) Allah. And if ye fear that they may not be able to keep the limits of Allah, in that case it is no sin for either of them if the woman ransom herself. These are the limits (imposed by) Allah. Transgress them not. For whoso transgresseth Allah's limits:

such are wrongdoers.'

10. Khula is also been defined in several textbooks on Mohammedan

law including Muhammadan Law, Vol.II by Mr. Syed Ameer Ali;

Muslim Law of Marriage, Divorce and Maintenance by Mr. M.A.

Qureshi; Mullas Principles of Mahommedan Law, 19th ed., by Mr.

Hidayatullah and Mr. Arshad Hidayatullah; Divorce and Gender

Equality in Muslim Personal Law of India by Dr. Justice Kauser

Edappagath; The Islamic Digest of Aqeedah and Fiqh by Mr. Mahmoud

Rida Murad and Summarised Sahih Al-Bukhari - 61 The Book of

Divorce by Dr. Muhammad Muhsin Khan.

Khula Divorce

11. 'Khula' literally translates to relinquishment in Arabic. It is a

mode of dissolution of marriage when the wife does not want to

continue with the marital tie and can settle the matter privately by

consulting a Mufti (Jurist Consult) of her School. The Mufti gives an

advisory decision (Fatwa) based on the Shariat of his School. In a

Khula divorce, the wife proposes to her husband for dissolution of

marriage which may or may not be accompanied by an offer on the

part of the wife to give something in return. The wife may however

offer to relinquish her claim to Mahr (Dower) as an option available to

her but which is not a pre-requisite for a Khula divorce. When

approached by the wife, the Mufti gives a Fatwa/advisory decision

based on Shariat of his School. However, if the matter cannot be

settled privately and is carried to litigation, the Judge (Qazi) is

required to deliver a judgment (Qaza) based upon the Shariat: Masroor

Ahmed Vs. State (NCT of Delhi) 2.

12. The difference between a Khula divorce and a Mubaraat divorce

is that the former is initiated by the wife whereas both spouses desire

a separation in a Mubaraat divorce. In essence, a wife's right to Khula

is parallel to a husband's right to Talaq and both forms of divorce are

unconditional.

2 2008 (103) DRJ 137

13. The Quran in Verses 228 and 229 in Chapter II confer absolute

right on the wife to annul the marriage with her husband. The

husband's consent is not a precondition for the validity of Khula:

XXXXX Vs. XXXXX (MAT Appeal No.89 of 2020) (2021 SCC OnLine Ker

2054). A part of the judgment of the Kerala High Court is extracted

below:

"Wael B.Hallaq in his book (Sharia Theory Practice Transformation at Pages 283-284) refers to khula:

Another form of marital dissolution, apparently more widespread than talaq is khula. "If a woman dislikes her husband due to his ugly appearance or as a result of discord between the two, and she fears failure to fulfill her (marital) duties toward him, she may rid herself of him for consideration. But even though she may not dislike anything (about him), and they amicably agree to separate (through khula) without a reason, it is also permissible."

...

"Section 2 of the Shariat Act specifically recognized all modes of extra-judicial divorce except Faskh. Faskh, as we noted earlier, is a mode of divorce with the intervention of an authority like Qazi. In Section 5 of the Shariat Act a provision was made to dissolve marriage by the District Judge on a petition made by Muslim married women. This would show that the intention of the Shariat Act is to entrust the mode of dissolution of marriage by Faskh through the court. Thus, under the Shariat Act, a Muslim women retained the right of all modes of extra judicial divorce recognized under their personal law Shariat, except Faskh."

The Four Approaches

14. Upon the considering various authorities, it can be concluded

that 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.

15. Procedure 1:

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. A Qazi is a Judge appointed by the State and

may pass a judgment within the prescribed jurisdiction in respect of

legal matters including divorce, inheritance, property and contractual

disputes.

16. The Supreme Court in Juveria Abdul Majid Patni (supra) relied

on the judgment of the Delhi High Court in Masroor Ahmed (supra) to

describe the first approach. 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.

17. Procedure 2:

A Division Bench of the Kerala High Court relied on Divorce and

Gender Equity in Muslim Personal Law of India, a Book authored by

Dr.Justice Kauser Edappagath, in XXXXX Vs. XXXXX (MAT Appeal

No.89 of 2020) (2021 SCC OnLine Ker 2054) to hold that the concept of

Khula by women is the counterpart of Talaq by men in Muslim law. 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. The dower becomes

immediately payable by the husband in the case of Talaq. In Khula,

the husband may ask the wife to forego her unpaid dower. The

Division Bench of the Kerala High Court relied on the Islamic scholar

Maulana Abul Ala Maududi to further hold that the wife's right to

Khula is parallel to the man's right of Talaq and both are

unconditional forms of divorce. The relevant passage from the

decision is extracted below:

'59. .........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'

18. The Court further held that the Quran entitles a Muslim wife

with the right of Khula for annulling the marriage without prescribing

a procedure and clarified that there is no pre-condition for validating a

Khula. It was further held that the stipulation of Quran with regard to

the attempts of reconciliation applies also in the matter of Khula

divorce and that invocation of Khula without any reconciliation would

be bad in law.

19. Procedure 3:

This is reflected in the decision of the Kerala High Court on the

Review Petition (AIR 2023 Ker 33) filed by the husband against the

judgment. 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. The review

applicant/husband argued that the wife does not have an absolute

right to pronounce Khula as opposed to the absolute right of the

husband to pronounce talaq. It was also argued that a large section of

Muslim women were resorting to Khula in derogation of the Sunnah

and that the Court is not competent to decide on religious practices.

20. On the other hand, the wife's argument in the Review Petition

was that Khula is a form of divorce where the acceptance of the

husband to the demand for Khula constituted an essential element.

Although Khula contemplates an out-of-Court resolution, it takes the

form of faskh (a judicial divorce) when a woman seeks the intervention

of a Qazi (Judge) on the husband's refusal to give consent.

21. 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. The review was accordingly dismissed.

22. Procedure 4:

The Court's approach dwells on the interpretation of Muslim

Personal Law within the framework of the Constitution of India. This

approach was articulated in Shayara Bano Vs. Union of India 3 in the

judgment delivered by Justice Kurian Joseph (Justice Nariman and

Justice Lalit, concurring in the result). The Supreme Court reiterated

the view taken in Shamim Ara Vs. State of U.P4 , 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 Points of Concurrence in the Four Approaches

23. For putting the four approaches in the context of judicial

precedents, at the risk of some amount of repetition, it is important to

summarize the views taken by the Courts regarding the procedure to

be adopted for a Khula divorce. The decisions are given in

chronological order, from the earliest to the most recent.

24. In Masroor Ahmed Vs. State (NCT of Delhi), the Delhi High Court

suggested that where the matters can be settled privately, a person

3 (2017) 9 SCC 1 4 (2002) 7 SCC 518

only needs to consult a Mufti (Juris Consult) of his/her School to avail

Khula. The Mufti will issue a Fatwa/advisory opinion based on the

Shariat of his School. In this arrangement, the parties agree to treat

the decision of the Mufti as final by putting an end to their marriage.

However, if the matter cannot be resolved amicably in a private

settlement and one of the parties carries the matter to Court, then a

Qazi/Judge is required to deliver a Qaza (Judgment) based on the

Shariat. While a Qaza is binding, a Fatwa is merely advisory.

However, both must be based on the Shariat i.e., The Muslim Personal

Law (Shariat) Application Act, 1937. The relevant part of the judgment

is extracted below:

".........Islamic jurisprudence (fiqh) has developed from four roots (usul al-fiqh):- (1) The Quran; (2) The hadis or sunna; (3) Ijma; and (iv) Qiyas. Employing these usul al-fiqh, the ulema (the learned) conducted a scientific and systematic inquiry. This is known as the process of ijtihad. Through this process of ijtihad sprung out various schools of law each of which owed its existence to a renowned master. For example, the jurisprudence (fiqh) developed by Abu Hanifah and continued by his disciples came to be known as the Hanafi school. The Maliki school owed its origin to Malik b. Anas, the Shafie school to al- Shafii, the Hanbali school to Ibn-Hanbal and so on. These are the sunni schools. Similarly, there are shifa schools such as the Ithna Ashari, Jaffariya and Ismaili schools. In India, muslims are predominantly sunnis and, by and large, they follow hanafi school. The shias in India largely follow the Ithna Ashari School.

In essence, the Shariat is a compendium of rules guiding the life of a Muslim from birth to death in all aspects of law, ethics and etiquette. These rules have been crystallized through the process of ijtihad employing the sophisticated jurisprudential techniques. The primary source is Quran."

25. In Juveria Abdul Majid Patni Vs. Atif Iqbal Masoori (supra), the

Supreme Court followed the view taken by the Delhi High Court in

Masroor Ahmed and reiterated that the wife is required to propose

dissolution of marriage to her husband if she does not want to

continue with the marriage and takes the mode of Khula for

dissolution of marriage. This proposal may or may not be accompanied

by an offer to give something in return. The husband cannot refuse the

wife's proposal for Khula and may only negotiate with the wife with

regard to what the wife may offer to give in return. The Mufti gives his

Fatwa/advisory decision based on the Shariat of his School and in

case the parties approach the Court/Qazi through litigation, the

Court/Qazi is then required to deliver a Qaza (Judgment) based upon

the Shariat.

26. The Kerala High Court in XXXXX Vs. XXXXX (2021 SCC OnLine

Ker 2054) held that the Quran entitles a Muslim wife to the right of

Khula to annul her marriage without prescribing a procedure. This

would indicate that fairness of procedure should be followed. The

Court opined that Khula is a no-fault divorce but its invocation

without any attempt for reconciliation would be bad in law. Upon

Review of the earlier judgment, the Kerala High Court in XXXXX Vs.

XXXXX (AIR 2023 Ker 33), reaffirmed its earlier view and added that

the nature of Khula is in the form of a permissible action to the

Muslim wife who seeks to exercise the option of terminating her

marriage. The husband does not have the right either to accept or

repudiate the will expressed by the wife for dissolution of the marriage.

Further, the husband cannot impose any contingencies for accepting

the wife's proposal for divorce.

27. The Supreme Court in the recent judgment delivered on

04.02.2025 in Shahjahan vs The State of Uttar Pradesh 5 held that a

Court of Qaza (Dar-ul-Qaza) does not have any legal recognition. The

Supreme Court relied upon the earlier view taken in Vishwa Lochan

Madan vs. Union of India 6, wherein it was held that decisions taken by

religious functionaries is not binding on anyone including the person

who had asked for the decision. In Shahjahan (supra), the Supreme

Court reiterated that such an advisory decision/Fatwa does not have

the force of law. It should be noted that the Madras High Court,

5 2025 LiveLaw SC 495 6 (2014) 7 SCC 707

relying on Vishwa Lochan Madan, had taken a similar view in

Mohammed Rafi Vs. State of Tamil Nadu 7.

28. The Constitution Bench of the Supreme Court in Shayara Bano

(supra) reiterated the view taken in Shamim Ara (supra) that what is

bad in the Quran cannot be good in Shariat in respect of talaq.

Conclusion from the Case law cited above

29. The consensus which emerges from the decisions is that 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. 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.

30. 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. The aggrieved

7 2023 SCC OnLine Mad 471

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. The judgment/qaza

pronounced by the Court is binding on the parties.

The Impugned Order of the Family Court dated 06.02.2024

31. In the present case, after considering the factual matrix, the

Family Court formulated six legal requirements, which are set out

below:

1) The khula should be preceded by reconciliation attempts. efforts to sort out the differences between husband and wife.

2) The wife may offer some consideration to the husband to accept the divorce. Even if no consideration is offered by the wife, it's a valid khula.

3) For a valid khula, the husband's concurrence is not necessary.

4) If the husband does not agree to the khula, the wife can approach the mufti/khazi/or other religious functionaries and obtain khula nama from them.

5) If the said khula nama is not acceptable to the husband, he can file a case in the Family court against the same.

6) The family court then decides the validity of the khula based on the points 1 to 3.

32. As stated above, the Family Court recorded the undisputed facts

including that the respondent No.1 demanded a Khula divorce from

the appellant on multiple occasions despite efforts made by the

respondent No.2 for a reconciliation between the respondent No.1 and

the appellant. None of these findings have been disputed by the

appellant. 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.

33. Although Khula divorce is recognized as a private non-

confrontational dissolution of marriage, the wife has the option to

approach the Qazi for a Khulanama (Certificate of Divorce) if the

husband refuses to grant the Khula. The husband, in turn, is entitled

to approach the Court if he disputes the demand for Khula or the

Khulanama. The Family Court, in essence provides a forum (the only

forum) to both the parties to ventilate their grievances in relation to

the status of the marriage. The requirements formulated by the Family

Court paraphrases the essentials for a Khula divorce for attaining

finality.

34. Notably, the appellant has not challenged the formulation of

requirements by the Family Court nor the conclusion that the

marriage of the appellant and the respondent No.1 is no longer

subsisting. The only grievance of the appellant is that the respondent

No.2 lacked jurisdiction to issue the Fatwa or the Khulanama in

favour of the respondent No.1. This would be evident from the prayers

of the appellant before the Family Court, which are reproduced below:

"RELIEF(S): It is therefore prayed that this Hon'ble Court be pleased to:

(i) Pass a Judgment, Decree or Order declaring the Judgment dated 05.10.2020 passed by the respondent No.2 dissolving the marriage by and between the petitioner and the respondent No.1 as was performed as per the tenants of Mohammadan Law on 1st day of June 2012 by way of QULA as NULL AND VOID AB-INITIO AND WITHOUT ANY AUTHORITY OR FORCE OF LAW; and consequently declare the petitioner and the respondent No.1 is still Husband and Wife.

(ii) Consequentially restrain the respondent No.1 from claiming to be no more the wife of this petitioner on the basis of the so-called Judgment/Order respondent No.2 on 05-10-2020."

35. The second prayer is couched in vague and negative terms.

Simply put, the appellant sought a prohibition on the respondent No.1

from acting upon or giving effect to the order passed by the respondent

No.2 on 05.10.2020 dissolving the marriage between the appellant and

the respondent No.1, as well as the Khulanama. The second relief

sought for by the appellant clearly indicates that the appellant had

specifically requested the intervention of the Family Court to decide

the status of his marriage with the respondent No.1 i.e., whether the

marriage was subsisting after the Khulanama issued by the

respondent No.2.

36. The impugned order contains a detailed exposition of the law on

the subject and expresses the unequivocal view that the order passed

by the respondent No.2 was correct. Hence, once the Family Court

pronounced its decision, the appellant is required to plead and show a

factual or legal error warranting interference by this Court. The

appellant has not shown any such infirmity.

Conclusion

37. We do not consider it necessary to dwell on the facts prior to the

respondent No.1 demanding Khula divorce from the appellant; that is,

the cause of marital discord between the parties. These facts are not

relevant for the adjudication, which is whether the appellant's

challenge to the Khulanama was legal and whether the appellant's

O.P. was dismissed on correct legal principles.

38. We are of the considered view that obtaining a Khulanama

(Certificate of dissolution of marriage) from a Mufti or a Dar-ul-Qaza is

not necessary for putting the seal of finality on the dissolution of the

marriage since the opinion given by a Mufti is advisory in nature.

What however is important is the transition of the private dispute from

the personal sphere to the Court on the parties seeking a decision on

the wife's demand for Khula. This means that the wife's proposal for

Khula takes immediate effect upon the demand being made, provided

the matter remains within the private, non-adjudicatory realm of the

parties.

39. Since the wife's right to demand Khula is absolute and does not

have to be predicated on a cause or acceptance of the demand by the

husband, the only role of a Court of law is to put a judicial stamp on

the termination of the marriage, which then becomes binding on both

parties.

40. 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 - adjudication: Asbi.K.N. Vs. Hashim.M.U. 8.

41. Viewed in this context, the appellant's prayer before the Family

Court for declaring the judgment of the respondent No.2, which issued

8 2021 SCC OnLine Ker 3945

the Khulanama to the respondent No.1, as null and void was

unnecessary and superfluous.

42. We, therefore, find the O.P. filed by the appellant to be

misconceived and contrary to the law on the subject. Thus, 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.

43. 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.

44. In conclusion, the impugned order dated 06.02.2024 passed by

the Family Court is found to be correct, insofar as it pertains to the

rejection of the O.P. filed by the appellant/husband. The appellant

has failed to make out a case for interference in the impugned order,

save and except to the extent that a Mufti/Religious Functionary does

not have the authority to certify a Khula Divorce. Subject to this

clarification, we are in agreement with all other aspects of the

impugned order.

45. F.C.A.No.75 of 2024 is accordingly dismissed. All connected

applications are disposed of. Interim orders, if any, are vacated. There

shall be no order as to costs.

____________________________________ MOUSHUMI BHATTACHARYA, J

______________________________ B.R.MADHUSUDHAN RAO, J Date: 24.06.2025 Note: Mark L.R. Copy.

(B/o.) VA/BMS