The Telangana High Court on Tuesday held that a Muslim wife possesses absolute right to annul her marriage through khula, and the husband's consent is not a prerequisite for its validity [Mohammed Arif Ali vs Smt Afsarunnisa and Another]..Khula, a mode of dissolution of marriage among Muslims, is initiated by the wife when she does not want to continue with the marital tie. The Division Bench of Justice Moushumi Bhattacharya and Justice BR Madhusudhan Rao also held that it is not necessary for a wife to obtain a khulanama (certificate of dissolution of marriage) from a Mufti or Dar-ul-Qaza to put a seal of finality on the dissolution of marriage since the Mufti’s opinion is only 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,” it added..Since a Muslim wife’s right to demand khula is absolute and does not have to predicated on a cause or acceptance of the demand by the husband, the role of courts is also limited to putting a judicial stamp on the termination of marriage, the Court made it clear. “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…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,” the Bench said. .The Court was dealing with an appeal moved by a Muslim man who was divorced by his wife. He had moved the Court challenging a family court’s decision to reject his petition for a declaration against a divorce certificate issued to him by Sada-E-Haq Sharai Council, an NGO for resolution of marital disputes. His wife had approached the Council after he refused to agree to the Khula.Considering the case, the High Court at the outset went through the Quranic verses on the concept of khula and also examined the literature on the subject. “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,” it said..The Court also noted 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. Having examined various decisions of the courts across India, it found that khula is a no-fault divorce initiated by the Muslim wife and 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 of it. “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,” it added. .Dealing with the case on merits, the Court found that it was undisputed that the khulanama was issued only after the wife had demanded a khula on multiple occasions and attempts at reconciliation had failed. In this backdrop, the Court said that the husband’s prayer against the khulanama or certificate of divorce was unnecessary.“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,” it said.The Court further noted a submission related to disputes over khula and said that it was confident that the law pronounced by the courts would be given due weightage by the stakeholders."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.".Senior Counsel J Prabhakar with advocate Mohd Shafiuddin represented the husband. Advocates Mubashir Hussain Ansari and Imtiaz Gulam Mahboob Faiz represented the wife.[Read Judgment]
