On Khula, Reiteration of Existing Jurisprudence

The Muslim Women (Protection of Rights on Marriage) Act 2019 Has Not Affected in the Least the Correct Islamic Procedures Either for Talaq by Men or for Khula by Women

- Tahir Mahmood

The Telangana High Court has held that a Muslim wife has an absolute and unconditional right to dissolve her marriage through khula and that the husband's consent is not a prerequisite for its validity, in a significant ruling that underscores the autonomy of Muslim women within personal law. (Hindustan Times, June 27). This case has been prominently reported across the media and is being projected as an unprecedented ruling.

The fact is the Telangana ruling (Arif Ali vs Afsarunnisa, June 24) for the most part, merely reiterates and affirms the elaborate exposition of the law on khula found in a Kerala high court case decided four years earlier (Abdul Samad vs State of Kerala, 2021).

The judge-author of the Telangana judgment, Moushumi Bhattacharia, has reproduced verbatim major parts of the Kerala verdict, of course with proper acknowledgment, but without adequately explaining its background.

The issue has to be understood in its proper perspective.

The practice of unilateral divorce pronounced by Muslim husbands is notoriously known in Indian society. What is not as widely known is that Muslim law had enabled married women also to dissolve their marriage without approaching a court. This procedure is known as khula, by taking recourse to which a wife disgruntled with her marriage may initiate the process of divorce. If, at her behest, the husband divorces her, the marriage stands dissolved. If he obstinately refuses to let this happen, the decisive voice will be hers. On her request, a religious functionary specializing in Muslim law, or a court, may affirm that on a proper exercise of her right to khula by the wife the marriage has come to an end.