A muslim man has no right to decline wife’s demand for Khula (divorce initiated by wife), Telangana High Court said upholding the judgement of family court.
Muslim woman is having right to take Khula (divorce initiated by woman in Islam) and for that Husband’s permission is not required.
Division bench comprising Justice Bhattacharya and Justice Madhusudhan Rao dismissed the petition upholding family courts decision.
A Muslim couple got married on 1.06.2012 and stayed together for 5 years. Later Wife has made several harassment complaints against husband on 7.07.2017 and even admitted to hospital.
Wife had approached husband for divorce but he refused then wife had approached Sada-E-Haq Sharai Council for Khula nama.
The council had asked husband to attend for reconciliation meetings but he refused to attend and handed over a letter on 14.09.2020 questioning the authority of the council.
The council is consisted of experts in muslim law including a mufti, a professor of islamic studies, a professor of Arabic and the imam of the mosque.
Later upon failed conciliation the council issued Khula nama on 5.10.2020. But Husband did not accept the advisory/fatwa/Khula nama issued and approached the family court.
The trial court dismissed the original petition filed in 2020 stating that Sharai Council had followed due procedure in issuing a divorce certificate to the wife.
The family court also found that wife obtained Khula by following procedure laid by court.
High Court in conclusion said : We do not consider it necessary to dwell on the facts prior to the
respondent No.1 (wife) 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.
HC – 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.
HC – 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.
HC – 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.
HC – Viewed in this context, the appellant’s prayer before the Family Court for declaring the judgment of the respondent No.2, which issued the Khulanama to the respondent No.1, as null and void was unnecessary and superfluous.
HC – 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.
HC – 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. 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.
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