On khula, a reiteration of existing jurisprudence

Hindustan Times

29-06-2025

'The Telangana High Court has held that a Muslim wife has an absolute and unconditional right to dissolve her marriage through khula and that the husband's consent is not a prerequisite for its validity, in a significant ruling that underscores the autonomy of Muslim women within personal law.' (Hindustan Times, June 27). This case has been prominently reported across the media and is being projected as an unprecedented ruling. Muslim law had enabled married women also to dissolve their marriage without approaching a court (Getty Images/Hemera)
The fact is the Telangana ruling (Arif Ali vs Afsarunnisa, June 24) for the most part, merely reiterates and affirms the elaborate exposition of the law on khula found in a Kerala high court case decided four years earlier (Abdul Samad vs State of Kerala, 2021). The judge-author of the Telangana judgment, Moushumi Bhattacharia, has reproduced verbatim major parts of the Kerala verdict, of course with proper acknowledgment, but without adequately explaining its background. The issue has to be understood in its proper perspective.
The practice of unilateral divorce pronounced by Muslim husbands is notoriously known in Indian society. What is not as widely known is that Muslim law had enabled married women also to dissolve their marriage without approaching a court. This procedure is known as khula, by taking recourse to which a wife disgruntled with her marriage may initiate the process of divorce. If, at her behest, the husband divorces her, the marriage stands dissolved. If he obstinately refuses to let this happen, the decisive voice will be hers. On her request, a religious functionary specialising in Muslim law, or a court, may affirm that on a proper exercise of her right to khula by the wife the marriage has come to an end.
In India, however, there has been an erroneous belief that for effecting a khula the wife must obtain her husband's consent, and in a disputed case should approach a qazi or court for adjudication. This misbelief is absolutely baseless. In all of my books on Muslim law I have explained the true law on khula and have tried to remove the misconceptions in this regard.
Under the Shafei school of Muslim law, which is widely followed in Kerala, a married woman can instantly dissolve her marriage on a few specified grounds. Known as faskh, this provision is limited to the Shafei law and is not shared by the Hanafi school of Muslim law which is predominant in the rest of the country.
In an old case decided in 1973 a judge in Kerala High Court of the time, V Khalid (later elevated to the Supreme Court), had ruled that after the extension of the Dissolution of Muslim Marriages Act, 1939 to the state, this provision of the Shafei law could not be enforced. His decision was misunderstood by the lower courts to mean that a khula also can be obtained only through judicial proceedings. This was a misreading of the decision. A judge of the late Justice Khalid's calibre could not have given such an irrational verdict.
In subsequent years, several women whose cases of khula were not recognised by the lower courts sought relief from the high court. These cases were clubbed and decided by a single judgment in the Abdus Samad case cited above.
The learned Kerala judge, Muhamed Mustaque, began his judgment with the query 'Have Muslim women lost their right to invoke extra-judicial divorce, after the coming into force of the Dissolution of Muslim Marriages Act, 1939 is the short and straight forward question rising for consideration in these cases.'
After an elaborate discussion of the Muslim law on khula with repeated references to established legal sources (including my book, Muslim Law in India and Abroad, 2016), he answered the query in the negative, adding that 'these cases speak in abundance about the patriarchal mindset followed in the society for decades depriving Muslim women their right to invoke extra-judicial divorce.'
In the Telangana case under discussion, a Muslim wife had duly exercised her right to khula as per the law. Her husband challenged its validity in a family court pleading that as he had not consented to it, the marriage remained intact. A learned judge of the family court restated at length the true law on khula, (borrowed from the Kerala High Court verdict of 2021) and rejected his plea.
The husband then went in appeal to the high court, where justice Moushumi Bhattachaya upheld the family court's decision. Extensively citing the Kerala verdict and several other judicial decisions, she concluded that 'the consensus which emerges from the decisions is that khula is a no-fault divorce initiated by the Muslim wife' and 'a non-confrontational form of divorce and one which is privately settled after the parties have made an attempt to preserve the marriage.' An admirable description of the concept, indeed.
Notably, the Muslim Women (Protection of Rights on Marriage) Act enforced in 2019 has outlawed and criminalised only the so-called 'triple talaq' pronounced by Muslim husbands (which was surely based on a distorted view of the law). It has not affected in the least the correct Islamic procedures either for talaq by men or for khula by women. Three years after the enactment of the 2019 Act, the Supreme Court had upheld a family court's ruling that the marriage of a woman who had properly exercised her right to khula was no more intact (Rehana Begum vs State of Assam, 2022).
The reality of justice delayed is justice denied plays havoc with the couples bearing the pangs of irretrievably broken marriages. All forms of extra-judicial divorce cannot, for this reason, be condemned in absolute terms. Happily, true Islamic law ensures gender parity at least in this regard.
Tahir Mahmood is professor of law and former member of the Law Commission of India. The views expressed are personal.