Husband's Consent Not Required For Muslim Wife To Invoke 'Khula' Divorce; Family Court Need Not Conduct Detailed Inquiry: Kerala High Court
The Kerala High Court recently clarified that husband's consent or acceptance is immaterial when Muslim wife invokes extra-judicial divorce in the form of 'Khula'. [2026 LiveLaw (Ker) 548]
The Division Bench of Justice J. Nisha Banu and Justice Shoba Annamma Eapen held:
“'Khula' is the form of divorce conferred upon the wife similar to 'talaq' conferred upon the husband. The recognition of 'khula' as a form of divorce is directly available from the Holy Quran. In Chapter II Verses 228-229, Quran confers rights on both husband and wife to unilaterally divorce the spouse. The husband cannot refuse to accede to the request of the wife. 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 significance of invoking 'khula' is absolute.”
The parties were married as per Muslim personal law in 2023. Thereafter, the wife/respondent filed a petition before the Family Court for declaration of 'khula'. The husband/petitioner then moved the Family Court by filing another petition for declaring that the 'khula' is void, for return of diamond ornament and for compensation for mental agony.
The husband also filed an interlocutory application in the wife's petition to hear the issue of whether khula is legally valid as a preliminary issue. Additionally, he filed applications for producing documents, examining witnesses and to keep the proceedings in abeyance. The wife filed objections and finally, the Family Court dismissed all of the husband's applications. He then moved the High Court.
The petitioner/husband submitted that the Family Court ought to have permitted him to lead evidence and ought to have held that inquiry in a case for 'khula' declaration involves the question of evidence as to the return of mahar and attempt of mediation.
The respondent/wife opposed the plea and relied on Asbi K.N. v. Hashim M.U., wherein it was held that detailed inquiry is not necessary in pleas for declaration of 'khula'. She also placed reliance on X and Ors. v. Y and Ors. [2021 (2) KLT 967] that laid down the conditions for declaring 'khula'. She pointed out that the only remedy available to the husband was to challenge the order declaring 'khula' in the appropriate manner under law and that the Family Court cannot adjudicate upon the extra judicial divorce unless called upon to do so. The wife also contended that she had filed a sworn statement and the case was posted several times for the husband's sworn statement but he sought adjournments to cause delay.
The petitioner/husband argued that the decision in Asbi K.N. is per incuriam for being contrary to Apex Court's decisions in Shamim Ara v. State and Shayara Bano v. Union of India and Ors. It was pointed out that the requirement of detailed enquiry in 'khula' declaration is an issue that needs to be referred to a Larger Bench.
After hearing the parties, the Court observed that the decisions in Shamim Ara and Shayara Bano were on triple talaq, not 'khula'. It added that the issue in question in the present case was already decided in Asbi K.N., wherein directions were given to the Family Court to restrain from adjudicating on the extra judicial divorce of 'khula'.
The Court then referred to X and Ors. v. Y and Ors., where the Court had laid down that the three ingredients for a valid khula were: (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; and (iii) an effective attempt for reconciliation was preceded before the declaration of khula.
It also noted that the afore decisions were relied on in later decisions by other Division Benches in Muhammed Ashar K. v. Muhsina P.K. and Sudheer v. Surumiya.
It then added:
“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 Family Court is required only to consider whether the three ingredients stated in X (supra) have been complied with.”
Thus, it upheld the Family Court's orders and dismissed the petition.
Counsel for the petitioner: Jamsheed Hafiz, T.S. Sreekutty, Fathima Nasreen S.
Counsel for the respondent: K. Jayesh Mohankumar, Pushparajan Kodoth, Vandana Menon, Vimal Vijay