Muslim Wife Has Absolute Right To Divorce By Khula Sans Husband’s Consent: Telangana HC

 It would be vital to note that in a very significant move with far reaching consequences, the Telangana High Court in a most learned, laudable, landmark, logical and latest judgment titled Mohammed Arif Ali vs Smt Afsarunnisa and Another in Family Court Appeal No. 75 of 2024 that was pronounced most recently on 24.06.2025 has minced absolutely just no words to hold in no uncertain terms 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. It must be mentioned here that the Telangana High Court was dealing with an appeal that had been moved by a Muslim man who was divorced by his wife. It must be noted that the Muslim man had moved the Court while challenging a Family Court’s decision to reject his petition for a declaration against a divorce certificate that had been issued to him by Sada-E-Haq Sharai Council which is an NGO for resolution of marital disputes. 

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Ms Justice Moushumi Bhattacharya for a Division Bench of Telangana High Court comprising of herself and Hon’ble Mr Justice BR Madhusudhan Rao sets the ball in motion by first and foremost putting forth in para 1 that, “The Family Court Appeal arises out of an order dated 06.02.2024 passed by the learned Family Court, Hyderabad, in a petition filed by the appellant for a declaration that the judgment passed by the respondent No.2/Sada-E-Haq Sharai Council by which the marriage between the appellant (husband) and the respondent No.1 (wife) was dissolved, should be declared as null, void and not binding on the appellant.”

As we see, the Division Bench then lays bare in para 2 disclosing that, “By the impugned order, the Trial Court dismissed the Original Petition (O.P.No.1009 of 2020) filed by the appellant on the ground that the respondent No.2 had followed due procedure in issuing a Divorce Certificate to the respondent No.1/wife. The Trial Court also found that the respondent No.1 had obtained ‘Khula’ divorce from the appellant by following the procedure laid down by the Courts.”

To put things in perspective, the Division Bench envisages in para 3 while elaborating on the facts of the case revealing that, “The appellant and the respondent No.1 were married on 01.06.2012 with a dower of Rs.11,000/-. The respondent No.1 stayed in the marital home for about five years. The respondent No.1, however, made several complaints against the appellant alleging assault and other acts of violence. On 07.07.2017, on being assaulted by the appellant, the respondent No.1 was admitted in a hospital and was shifted to her parents’ house after being discharged from the hospital. Subsequently, the respondent No.1 demanded Khula divorce from the appellant, which the appellant refused. The respondent No.1, thereafter, approached the respondent No.2 for grant of Khula divorce. The respondent No.2 consisted of experts in Muslim Law: a Mufti, a Professor of Islamic Studies, a Professor of Arabic and the Imam of a Mosque. The respondent No.2 sent three notices to the appellant with the demand for Khula divorce and invited the appellant to attend a reconciliation meeting. The appellant visited the office of the respondent No.2 and handed over a letter to the respondent No.2 on 14.09.2020 questioning the authority of the respondent No.2 in assuming the duty/jurisdiction to resolve/mediate the disputes between the appellant and the respondent No.1 and refused to attend the reconciliation meeting scheduled on 26.09.2020. ”  

As it turned out, the Division Bench enunciates in para 4 that, “Upon the failed conciliation efforts between the parties, the respondent No.2 issued a Khulanama (Divorce Certificate) on 05.10.2020 to the respondent No.1 certifying the dissolution of the marriage between the appellant and the respondent No.1. The appellant, however, did not accept the Advisory Opinion/Fatwa/Khula nama issued by the respondent No.2 and filed an Original Petition (O.P.No.1009 of 2020) against the respondent No.1 and the respondent No.2 in the Family Court at Hyderabad. The appellant prayed for a declaration that the Khulanama was null and void and without authority of law and also sought a restraint on the respondent No.1 from claiming that the respondent No.1 is no longer the appellant’s wife. The Family Court dismissed the said O.P. by the impugned order dated 06.02.2024.”

Do note, the Division Bench notes in para 9 that, “The concept of Khula divorce has been explained in the Quran – Chapter II Verse 229 which is set out below:

‘C.II.V.229. Divorce must be pronounced twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that ye take from women aught of that which ye have given them; except (in the case) when both fear that they may not be able to keep within the limits (imposed by) Allah. And if ye fear that they may not be able to keep the limits of Allah, in that case it is no sin for either of them if the woman ransom herself. These are the limits (imposed by) Allah. Transgress them not. For who so transgresseth Allah’s limits: such are wrongdoers.’”

Be it noted, the Division Bench notes in para 13 that, “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: XXXXX Vs. XXXXX (MAT Appeal No.89 of 2020) (2021 SCC OnLine Ker 2054). A part of the judgment of the Kerala High Court is extracted below:

“Wael B. Hallaq in his book (Sharia Theory Practice Transformation at Pages 283-284) refers to khula:

Another form of marital dissolution, apparently more widespread than talaq is khula. “If a woman dislikes her husband due to his ugly appearance or as a result of discord between the two, and she fears failure to fulfill her (marital) duties toward him, she may rid herself of him for consideration. But even though she may not dislike anything (about him), and they amicably agree to separate (through khula) without a reason, it is also permissible.”

“Section 2 of the Shariat Act specifically recognized all modes of extra-judicial divorce except Faskh. Faskh, as we noted earlier, is a mode of divorce with the intervention of an authority like Qazi. In Section 5 of the Shariat Act a provision was made to dissolve marriage by the District Judge on a petition made by Muslim married women. This would show that the intention of the Shariat Act is to entrust the mode of dissolution of marriage by Faskh through the court. Thus, under the Shariat Act, a Muslim women retained the right of all modes of extra judicial divorce recognized under their personal law Shariat, except Faskh.””

Do further note, the Division Bench then notes in para 28 that, “The Constitution Bench of the Supreme Court in Shayara Bano (supra) reiterated the view taken in Shamim Ara (supra) that what is bad in the Quran cannot be good in Shariat in respect of talaq.”

Do also note, the Division Bench then notes in para 29 that, “The consensus which emerges from the decisions is that Khula is a no-fault divorce initiated by the Muslim wife. 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 thereof. 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 is worth paying attention that the Division Bench while referring to the Impugned Order of the Family Court dated 06.02.2024 specifies in para 31 stating that, “In the present case, after considering the factual matrix, the Family Court formulated six legal requirements, which are set out below:

1. The khula should be preceded by reconciliation attempts. efforts to sort out the differences between husband and wife.
2. The wife may offer some consideration to the husband to accept the divorce. Even if no consideration is offered by the wife, it’s a valid khula.
3. For a valid khula, the husband’s concurrence is not necessary.
4. If the husband does not agree to the khula, the wife can approach the mufti/khazi/or other religious functionaries and obtain khula nama from them.
5. If the said khula nama is not acceptable to the husband, he can file a case in the Family court against the same.
6. The family court then decides the validity of the khula based on the points 1 to 3.”

It would be instructive to note that the Division Bench notes in para 32 that, “As stated above, the Family Court recorded the undisputed facts including that the respondent No.1 demanded a Khula divorce from the appellant on multiple occasions despite efforts made by the respondent No.2 for a reconciliation between the respondent No.1 and the appellant. None of these findings have been disputed by the appellant. After considering the facts and the relevant law on the subject, the Family Court concluded that the Fatwa/advisory opinion given by the respondent No.2 was correct. Therefore, the Khulanama granted by the respondent No.2 did not warrant interference.”

Notably, the Division Bench underscores in para 33 propounding that, “Although Khula divorce is recognized as a private non-confrontational dissolution of marriage, the wife has the option to approach the Qazi for a Khulanama (Certificate of Divorce) if the husband refuses to grant the Khula. The husband, in turn, is entitled to approach the Court if he disputes the demand for Khula or the Khulanama. The Family Court, in essence provides a forum (the only forum) to both the parties to ventilate their grievances in relation to the status of the marriage. The requirements formulated by the Family Court paraphrases the essentials for a Khula divorce for attaining finality.”

Briefly stated, the Division Bench states in para 34 that, “Notably, the appellant has not challenged the formulation of requirements by the Family Court nor the conclusion that the marriage of the appellant and the respondent No.1 is no longer subsisting. The only grievance of the appellant is that the respondent No.2 lacked jurisdiction to issue the Fatwa or the Khulanama in favour of the respondent No.1.”     

Most significantly, the Division Bench encapsulates in para 38 what constitutes the cornerstone of this notable judgment postulating that, “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.”   

Equally significant is what is then laid down in para 39 holding that, “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.”

For clarity, the Division Bench clarifies in para 40 observing that, “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. 2021 SCC OnLine Ker 3945.”

Quite significantly, the Division Bench holds in para 41 that, “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.”

Truth be told, the Division Bench expounds in para 42 holding that, “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.”

As things stands, the Division Bench then opines in para 43 postulating that, “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.”

Resultantly, the Division Bench maintains in para 44 holding precisely that, “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. 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. Subject to this clarification, we are in agreement with all other aspects of the impugned order.”

Finally, the Division Bench then concludes by directing and holding in para 45 that, “F.C.A.No.75 of 2024 is accordingly dismissed. All connected applications are disposed of. Interim orders, if any, are vacated. There shall be no order as to costs.”  

In conclusion, we thus see that the Division Bench of the Telangana High Court comprising of  Hon’ble Ms Justice Moushumi Bhattacharya and Hon’ble Mr Justice BR Madhusudhan Rao have made it indubitably clear in this most commendable judgment that the Muslim wife has absolute right to get divorce by Khula sans husband’s consent. To put it differently, the husband’s consent is certainly not a pre-requisite for getting the validity of divorce by Khula. We thus see that the husband’s plea was thus rejected and divorce by Muslim woman through Khula was resoundingly upheld by the Telangana High Court! No denying or disputing it!