Khula divorce

Quran conferred a Muslim wife with right of ‘khula’ to annul the marriage without prescribing a procedure which indicates to mean that fairness

The wife’s right to Khula is parallel to the man’s right of talaq. Like the latter the former too is unconditional. 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 kazi. The law of Islam is not responsible for the way Muslim women are being denied their right in this respect.” – Abul Ala Maududi, Huqooq-uz- Zaujain, 9 th ed, Lahore, 1964 [translated by me from Urdu].

 Quran conferred a Muslim wife with right of ‘khula’ to annul the marriage without prescribing a procedure which indicates to mean that fairness is a matter relative consideration in a context to be followed in such course opted by a wife. As adverted earlier, when the Prophet was approached by a wife to invoke khula, he advised the wife to return the dower and garden only to be considered as a part of equity and fairness. It cannot be treated as a pre-condition to validate khula. When substantial provisions in  unequivocal terms confer a right on a Muslim wife, procedural equity to be followed cannot override such substantial right. Insistence to return dower or payment of compensation, therefore, are to be understood as husband is legitimately entitled to claim back what is otherwise due to him on account of unilateral invocation of khula by wife.

Khula is a divorce which proceeds from the wife which the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return.

In Masroor Ahmed v. State (NCT of Delhi) and Another [2008 (103) DRJ 137], the learned Judge Badar Durrez Ahmed in a matter arising under Section 482 of the Criminal Procedure Code, 1973 by a detailed judgment referred to the right of Muslim wife to seek divorce outside the court and observed as follows:

Khula, for example, is the mode of dissolution when the wife does not want to continue with the marital tie. She proposes to her husband for dissolution of the marriage. This may or may not accompany her offer to give something in return. Generally, the wife offers to give up her claim to Mahr (dower). Khula is a divorce which proceeds from the wife which the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return.

The Hon’ble Supreme Court in Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and another [(2014) 10 SCC 736] considered extra-judicial divorce of khula in the context of the Protection of Women from Domestic Violence Act, 2005. The Apex Court recognized khula as a mode of extra-judicial divorce to decide the issue  related to the said Act. The Apex Court in para 13 of the judgment refers mode of Khula in para.13 as follows:

From the discussion aforesaid, what we find is that Khula' is a mode of dissolution of marriage when the wife does not want to continue with the marital tie. To settle the matter privately, the wife need only to consult a Mufti (juris consult) of her school. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. Further, if the wife does not want to continue with marital tie and takes mode ofKhula’ for dissolution of marriage, she is required to propose her husband for dissolution of marriage. This may or may not accompany her offer to give something in return. The wife may offer to give up her claim to Mahr (dower). The `Khula’ is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. However, if the matter is carried to the point of litigation and cannot be settled privately then the Qazi(Judge) is required to deliver a qaza (judgment) based upon the Shariat.