The answer is no. Any invocation of khula without there being an attempt for reconciliation would be bad in law. Though there need not be any specific reasons to invoke khula, the procedure of reconciliation itself become a reasonable cause in as much as that it would reflect an attempt to resolve the disputes amicably between parties.
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 of `Khula’ 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.
KHULA DIVORCE ACROSS THE GLOBE:
Khula in acceptance in different jurisdiction reflects its flexibility for adaption. We have already discussed about the right and procedure for khula. The varied nature of acceptance in different jurisdiction therefore, may be useful here.
(a). IRAQ – A woman is allowed to seek khula’ if her husband is infertile and they do not have children. In Iraq it is stated in the law that infidelity constitutes as a valid reason for divorce. When a woman is granted khula’ compensation can be greater or less than the dower.
(b). JORDAN, MOROCCO AND SYRIA– In morocco, if a woman is coerced or harassed by her husband, the husband has no entitlement to compensation. In Morocco, Syria and Jordan, compensation other than money can include child care/ custody. In Jordan a new law been recently passed that allows a woman to end her marriage by using the principle of khula’ itself. The courts saw an exponential increase in khula’ lawsuits, within the first two years of passing this law. The law has yet to be approved by parliament, however, and it is still condemned by many lawyers to this day.
(c). LEBANON-Marriage is a contract under Shia, Sunni, and Druze personal status laws in Lebanon and it can be terminated by divorce.
(d). MALAYSIA– Khula’ is conducted under section 49 of the Islamic Family Law Act (federal territories), 1984, which states that if the husband does not agree to voluntarily pronounce a divorce (talaq), but the parties agree to a divorce by redemption khula’ the court shall, after the amount of the payment is agreed upon by the parties, cause the husband to pronounce a divorce by khula’ and such divorce is irrevocable. In Malaysia, in the case of redemption (khula’) the Islamic Family Law Act/ Enactments do not expressly state that redemption (khula’) without the consent of the husband will be affected, however, it may take place after the couple have gone through a lengthy and elaborate procedure at the Shariah court. khula’ in Malaysia is also known as “cerai tebus talaq” this basically involves the wife offering payment to the husband to pronounce talaq and release her from marriage. It’s covered under section 49 of the IFLA and the payment can be as low as RM1, but the Shariah court can decide on the amount based on the parties’ means under section 49(3). This divorce is considered permanent and ruju’ cannot be used to get back together.
(e). NIGERIA Khula’ is the most common form of divorce in Northern Nigeria. If a woman can provide enough compensation on her own or with the help of family it is likely that she will be able to get out of an unhappy marriage.
(f). NORTH AMERICA- Imams in North America have adopted multiple approaches towards khula’. One of the biggest issues that cause Imams to differ in their views is whether or not the women should return the mahr to the husband. Another important issue for women in North America is getting both a civil decree and religious divorce. Religious divorce is sought out as “a meaningful personal and spiritual process” that is attained in addition to a civil decree. Another important issue is that many women are unaware of their Islamic right to seek khula’.
(g).PAKISTAN (Based on the works of Muhammad Munir): Pakistan practices Judicial Khula’. Unlike India, Pakistan has over the years developed an impressively progressive attitude towards khula’ and the muslim women’s right to an independent divorce. Though there is no enacted law in Pakistan, the institution of khula’ has been entrusted to and developed by judicial precedents. In 1959, the Lahore High Court gave a revolutionary decision in the case of Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi (PLD 1959 Lahore 566) overruling a decision in a previous case (Sayeeda Khanam v. Muhammed Sami, PLD 1952 Lahore 113) which had rejected the plea that incompatibility of temperament is a ground for dissolution of marriage. This judgment, for the first time in Pakistan, recognised the right of khula’ for a muslim woman without the consent of her husband.. In this case the court resorted to its own interpretation of the verse 2:229 of the Quran and the Hadith with reference to the case of Habibah, wife of Tabit bin Qays, this decision was endorsed by the Supreme Court of Pakistan in 1967 in the case of Khurshid Bibi v. Mohd. Amin, PLD 1967 SC 121. Both of these were landmark judgments and is followed till date in Pakistan and Bangladesh.
In Mst. Zubaida v. Muhammad Akram (1988 MLD 2486) it was held that; “Non payment of khula’ or non fulfilment of conditions will not render the khula’ decree ineffective; imposition of conditions merely creates a civil liability and a decree of khula’ cannot be considered as dependent on requiring the wife to fulfil the conditions first.” In Khalid Mahmood v. Anees Bibi (PLD 2007 Lahore 626), the Lahore High Court held;
“It is established…that court has the power to fix any amount of compensation being the consideration of khula’ if it is found after recording evidence that khula’ is not Mat. Appeal Nos. 89/2020, 72/2021 & O.P.(FC).Nos.372/2020, 124/2021 & 133/2021 claimed merely on the desire of the wife but the fault of the husband is also the reason for recourse to khula’.”
(h). SAUDI ARABIA- Women awarded khula’ in Saudi Arabia are required to financially compensate their husbands or give away marriage settlements. Sometimes this may include custody rights to their children.
(i). YEMEN- In Yemen khula’ is recognised as a judicially supervised annulment. Alcoholism, jail time for more than three years, impotence, mental feebleness, and hatred constitute as a valid reason for a woman to seek khula’.
(j). ZANZIBAR-Judicial khula’ in Zanzibar differs from judicial khula’ in Arab countries that have recently introduced it through legislative reform. In Zanzibar’s Islamic courts, khula’ is used primarily as a judicial mechanism for ending a marriage. Judges view khula’ as a right that a woman can exercise to extricate herself from marriage, a right that judges sometimes encourage in court.
In the absence of any secular law governing khula in India, we hold that khula would be valid if the following conditions are satisfied:
(i). A declaration of repudiation or termination of marriage by wife.
(ii). An offer to return dower or any other material gain received by her during marital tie.
(iii). An effective attempt for reconciliation was preceded before the declaration of khula.
Chapter II verse 182 Quran says about dispute resolution by way of conciliation as follows: But he who feareth from a testator some unjust or sinful clause and maketh peace between the parties, (it shall be) no sin for him. Lo! Allah is Forgiving. Merciful.
Similarly Chapter-IV verse 35 Quran states about dispute resolution in marital dispute as follows: And if ye fear a breach between them twain (the man and wife), appoint an arbiter from his folk and as arbiter from her folk. If they desire amendment Allah will make them of one mind. Lo! Allah is ever Knower. Aware.
We have already referred to verses 128-129 of Chapter-IV Quran, in the context of dissolution of marriage invoking faskh. Chapter XLIX verses 9 and 10 Quran states as follows:
And if two parties of believers fall to fighting, then make peace between them. And if one party of them doth wrong to the other, fight ye that which doth wrong till it returns unto the ordinance of Allah; then, if it return, make peace between them justly, and act equitably. Lo! Allah loveth the equitable.
The believers are naught else than brothers. Therefore, make peace between your brothers and observe your duty to Allah that haply ye may obtain mercy.
We will not be justified in recognising the right of khula in the light of the personal law without adverting to the whole scheme of justice referable under the personal law.
When Quran itself speaks about conciliation to resolve the disputes, it essentially means that an attempt for resolution of disputes shall be made at the first instance. This would guard against an impulsive decision at the instance of the wife. Further, it would also give an opportunity to air out the grievances and resolve the disputes peacefully. If an unbridled power to invoke khula is given to a Muslim wife, it may result in untold miseries and hardships to both. The very idea of legal system is to arrest human tendencies in taking decision affecting her or him permeated by instincts and impulsiveness. Law assures common interest based on a jurisprudential footing on an overreaching principles of idea of justice to protect all.
As we adverted earlier, divorce invoking khula is recognized as similar right conferred upon the husband by way of talaq. In Section 2 of Shariat Act, khula and talaq juxtaposed as similar rights available to wife and husband.
Be it remembered that in Shamim Ara v. State of U.P. [(2002) 7 SCC (Crl.) 1814], the Apex Court held that instantaneous triple talaq not preceded by the attempt of reconciliation is bad in law. In the majority decision of the Constitutional Bench of the apex court in Shayara Bano v. Union of India and Others [(2017) 9 SCC 1] it was held that triple talaq invoked without any attempt for reconciliation is arbitrary and violative of fundamental right contained in Article 14 of the Constitution.
The Dissolution of Muslim Marriages Act, 1939