The Kerala High Court has ruled that a Muslim woman’s decision to seek divorce through ‘khula’ does not depend on her husband’s consent or acceptance.
A Division Bench of Justice J. Nisha Banu and Justice Shoba Annamma Eapen held that khula is a form of divorce available to Muslim women, similar to talaq available to Muslim men.
“‘Khula’ is the form of divorce conferred upon the wife similar to ‘talaq’ conferred upon the husband,” the court said.
The ruling came in a case involving a couple who married under Muslim personal law in 2023. The wife later approached the Family Court seeking a declaration of khula.
The husband challenged the proceedings and sought a declaration that the khula was invalid. He also sought the return of a diamond ornament and compensation for alleged mental agony.
Court Says Husband Cannot Refuse Khula
The husband argued that the Family Court should have allowed him to present evidence on whether the requirements for khula had been met, including the return of mahar and attempts at reconciliation.
He also argued that an earlier Kerala High Court judgment, Asbi K.N. v. Hashim M.U., which held that a detailed inquiry was not required in proceedings concerning khula, was contrary to Supreme Court judgments in Shamim Ara v. State and Shayara Bano v. Union of India.
The husband argued that the issue should therefore be referred to a larger Bench.
The High Court rejected the argument, noting that the Supreme Court judgments relied upon by the husband concerned triple talaq and not khula.
The Bench also relied on its earlier judgment in X and Ors. v. Y and Ors., which had laid down the requirements for a valid khula.
Three Conditions for Valid Khula
According to the court, three conditions have to be considered while determining whether a khula is valid.
These include a declaration by the wife repudiating or terminating the marriage, an offer to return the dower or any other material gain received during the marriage, and an effective attempt at reconciliation before the declaration of khula.
The court noted that these principles had subsequently been followed by other Division Benches in cases including Muhammed Ashar K. v. Muhsina P.K. and Sudheer v. Surumiya.
“We are inclined to follow the judgments in X (supra), Asbi (supra), Sudheer (supra) and Muhammed Ashar K. (supra), and hold that a detailed inquiry is neither essential nor desirable in a proceeding initiated by either of the parties for endorsement of an extrajudicial divorce,” the Bench said.
The court clarified that the Family Court only needs to examine whether the three conditions laid down in the earlier judgments have been fulfilled.
‘Validity Does Not Depend on Husband’s Consent’
The Bench further held that khula is a right available to a Muslim woman for dissolution of marriage and that the husband cannot refuse to accept her request.
“The validity of ‘khula’ does not depend upon the acceptance or consent of the husband; rather, it constitutes a right available to the wife for dissolution of the marriage,” the court said.
The court also observed that the recognition of khula as a form of divorce is found in the Quran and referred to Chapter II, Verses 228 and 229.
The Family Court had earlier rejected the husband’s applications seeking to conduct a detailed inquiry and produce additional documents and witnesses. It had also refused his request to keep the proceedings in abeyance.
The High Court upheld those orders and dismissed the husband’s petition.
