The Telangana High Court has reaffirmed the legal position that a Muslim wife’s right to seek divorce through Khula is absolute and does not depend on the husband’s consent. The ruling came while dismissing a family court appeal challenging the validity of a Khula divorce certificate issued by a religious advisory council.
The Division Bench of Justice Moushumi Bhattacharya and Justice B.R. Madhusudhan Rao delivered the judgment in a Family Court Appeal (FCA No. 75 of 2024) against the order dated 6 February 2024 passed by the Family Court, Hyderabad. The appellant had sought a declaration that the Khulanama (certificate of divorce) issued by a religious institution was null and void and without legal effect.
Background of the Case
The appellant and respondent had entered into a marriage in 2012. After several years, the respondent-wife alleged domestic abuse, following which she demanded divorce through Khula. The appellant refused to grant the Khula, prompting the respondent to approach a religious council composed of Islamic scholars and clerics.
The council made attempts at reconciliation and issued three notices to the appellant, who questioned its authority and refused to participate in further proceedings. Upon failure of the reconciliation efforts, the council issued a Khulanama (certificate of divorce) on 5 October 2020.
The appellant filed an Original Petition before the Family Court challenging the validity of the Khulanama, arguing that the religious council lacked jurisdiction and legal authority to dissolve a marriage. The Family Court dismissed the petition, prompting the present appeal.
Arguments by the Parties
Counsel for the appellant argued that the council, being a non-governmental organization, had no legal authority to issue a divorce certificate and lacked the jurisdiction to decide on Khula. It was submitted that only a Qazi or a court of law can pronounce a judgment (Qaza) under Islamic law and that the issuance of the Khulanama by a private body was without force of law.
On the other hand, counsel for the respondent-wife submitted that under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, Khula is a recognized form of extra-judicial divorce that does not require court intervention. Relying on the Supreme Court’s decision in Juveria Abdul Majid Patni v. Atif Iqbal Masoori [(2014) 10 SCC 736], it was contended that the wife’s right to Khula is independent of the husband’s approval. It was further submitted that the Family Court’s decision was based on well-established legal principles and factual findings that remained unchallenged in the present appeal.
Court’s Analysis
The High Court undertook an extensive analysis of Islamic law and judicial precedents on the subject of Khula. The Court noted that Khula, which literally means “relinquishment”, is a mode of divorce initiated by the wife, and is distinct from Talaq, which is initiated by the husband.
Citing the Quran (Chapter II, Verse 229) and authoritative legal texts, the Court observed:
“Khula is a no-fault divorce that does not require the husband’s consent. Once the wife expresses her will to dissolve the marriage and reconciliation fails, the divorce takes effect.”
The Court reviewed four procedural approaches recognized by various High Courts and the Supreme Court regarding Khula:
- Private Settlement through a Mufti — A religious advisory opinion (Fatwa) may be sought, but it is not legally binding.
- Direct Legal Effect — The wife’s right to Khula is parallel to the husband’s right to Talaq, both being unconditional.
- Judicial Endorsement in Case of Dispute — When the husband contests the Khula, a court may be approached to determine the status of the marriage.
- Constitutional Interpretation — The refusal by a husband to accept Khula is both theologically and legally invalid, as recognized in Shayara Bano v. Union of India (2017).
The Court also noted that religious advisory bodies such as Dar-ul-Qaza do not have legal recognition as per the Supreme Court’s ruling in Shahjahan v. State of Uttar Pradesh, reaffirming the precedent set in Vishwa Lochan Madan v. Union of India [(2014) 7.
Observations and Decision
The Court emphasized:
“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.”
While concurring with the Family Court’s dismissal of the Original Petition, the High Court clarified that religious institutions and Muftis do not possess the legal authority to issue binding divorce certificates. Only a court of law or a legally recognized Qazi may adjudicate upon the status of marriage if the matter is contested.
The Family Court had earlier outlined six principles regarding Khula, including that reconciliation should be attempted, consideration by the wife (such as returning Mahr) is optional, and the husband’s consent is not necessary. The High Court upheld these principles but disagreed with the suggestion that a Khulanama issued by a Mufti or religious body carries legal force.
Concluding that the appeal was “misconceived and contrary to the law on the subject,” the Court dismissed the appeal while cautioning against relying on advisory opinions from non-judicial religious bodies.
