What If Husband Does Not Agree To Khula?

Under Islamic Law, khula is a form of divorce, initiated by the wife. The procedure is different from that of Talaq because, when Khula takes place, it is the wife initiating divorce with her husband by offering some kind of compensation, be it returning her mehr or other material possessions. The process gives insight into the right of a woman to dissolve the marriage when she finds it unbearable to live the remaining part of her life with her husband.

Ideally, the plea of the wife to dissolve the marriage in the process of Khula should be done with consent of the husband. If the husband agrees for Khula, the couple settles the matter amicably and their marriage is dissolved. What happens if the husband does not agree to Khula? In such cases, the legal and religious implications become complex at times.

The Implication Of The Judgement of Xxxxxxxxxx vs. Xxxxxxxxxx (2021) For Khula

This Kerala High Court judgement answers whether Indian Muslim women in India have retained the right to extra-judicial divorce after the enactment of the Dissolution of Muslim Marriages Act, 1939. The Court explains different types of divorce that have been recognized under Islamic Law and it is divided into four subheadings: firstly, khula - where the wife is allowed to apply for divorce on any satisfaction to be offered; secondly, Mubaraat- divorce by mutual consent; thirdly, talaq- divorce initiated by the husband; and lastly, Faskh- judicial divorce falls under it. The judgement declares that the 1939 Act was created to consolidate and restate the law relating to faskh only. Other forms of divorce would remain untouched. The Court declared that khula is a valid form of divorce for Muslim women. The judgement further details conditions that must be met for khula to be considered effective. These conditions include an attempt at reconciliation and restitution of all material gains received during their marriage.

Judgement in Xxxxxxxxxx v/s Xxxxxxxxxx has broad implications for the practice of Khula in India and also for the role of Family Courts.

Implications for Khula:

• Recognition of Khula as a valid form of Divorce: The judgement restates that Muslim women have absolute rights to obtain khula and dissolve their marriage, much like the right a husband has to pronounce talaq. Even otherwise, the same is not dependent on the Dissolution of Muslim Marriages Act, 1939, since it does not require the consent of the husband for effectiveness. This right, the Court has underlined, is ordained by the Quran and not founded on the consent of the husband. The Court clarifies that interpretations based on the consent of the husband originated from a misapprehension of the emphasis on justice and equality in Khula rather than as a precondition for its validity.
• Mandatory reconciliation attempts: This Court further establishes a strong procedural safeguard that any pleading for Khula has to be preceded by actual attempts at reconciliation. In the opinion of the Court, any Khula is possible only when there exist bonafide attempts at reconciliation. According to it, such a condition accords with the emphasis in the Quran on conciliation and amicable resolution of disputes. By insisting on attempts at reconciliation, the Court avoids impulsive decisions and ensures Khula is not desired easily.
• Fairness and equity in Khula proceedings: The Court ruled that, whereas consent by the husband is not required for Khula, as a matter of principle, the wife should propose the offer to return the dower (mahr) or any other material benefits received during the marriage. The Court clarified that restitution of dower may not be required for the very validity of Khula but is, nonetheless, a question of equity and fairness. The Court relies upon the Quran as well as the approach of the Prophet in certain specific cases to emphasise that the wife should not financially gain at the expense of the husband. However, the Court believes that the right of the husband to reclaim the dower does not convert into a right to deny consent for the Khula itself.
• Redressal of monetary claims through legal recourse: The judgement pronounces that if the wife demands Khula and does not return the dower or other material benefits, the husband would be permitted to bring his claims before the Family Courts.

Jurisdiction of the Family Courts:

• Declaratory jurisdiction over Khula: The judgement declares that the Family Courts shall have jurisdiction to accept applications regarding the validity of Khula and to pass decrees regarding declarations of the marital status of the parties.
• Limited role in unilateral Divorce: The Family Court has a very limited role as far as unilateral divorce like Khula is concerned. It can simply record the Khula and declare the status of the marriage after due notice to both parties.
• Formal inquiry for Mubaraat and Talaq-e-tafwiz: As far as divorces by mutual consent are concerned, like Mubaraat and Talaq-e-tafwiz, the inquiry by the Family Court is limited only to finding the mutual agreement of the parties.

In essence, the judgement in Xxxxxxxxxx v Xxxxxxxxxx is a landmark step toward ensuring the rights of a Muslim woman to seek dissolution of marriage through Khula. It balances this right by securing reconciliation, fairness, and the involvement of the Family Court for the protection of both parties.

Practical Actions For Women Based On Khula, When Husbands Dosen’t Consent

When a woman has come to know that her husband does not intend to let go of his claim by declaring a talaq, she can use the following steps:

• Taking help from religious authorities: She can approach a religious institution or an Islamic leader who is of the view that a woman deserves Khula. In many instances, qazis or religious bodies may be able to make the husband and wife discuss with each other and reach an amicable settlement.
• Legal representation: Women should seek the assistance of a lawyer familiar with Muslim personal laws. A legal expert can guide them through the process of judicial divorce if necessary.
• File for Divorce in the Court: Under the Dissolution of Muslim Marriages Act, 1939, the woman can file an application for divorce on any of the grounds recognized under the Act. The case will be taken into consideration by the Courts upon evaluation of the merits of the application of the woman without requiring the consent of the husband.
• Grounds for divorce by Judicial decree: As per Section 2 of the Dissolution of Muslim Marriages Act, 1939, a woman can claim for dissolution of marriage under Muslim law by a decree issued on any one or more of the following grounds:
  • If the whereabouts of the husband have not been known for a period of four years.
  • If the husband has neglected or failed to provide for her maintenance for a period of two years.
  • If he has been convicted of an imprisonable offence and has been sentenced to imprisonment for a term of seven years or upwards.
  • If the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.
  • If the husband was impotent at the time of the marriage and continues to be so.
  • If the husband has been insane for a period of two years or is suffering from virulent venereal disease.
  • If she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated.
  • If the husband treats her with cruelty, including but not limited to:
    • Habitually assaulting her or making her life miserable by cruelty of conduct, even though such conduct may not amount to physical ill-treatment.
    • Associating with women of evil repute or leading an infamous life.
    • Attempting to force her to lead an immoral life.
    • Disposing of her property or preventing her from exercising her legal rights over it.
    • Obstructing her in the observance of her religious profession or practice.
    • If he has more wives than one, not treating her equitably in accordance with the injunctions of the Quran.
  • Any other ground that is recognised as valid for the dissolution of marriages under Muslim law.
• Community support: Organisations and NGOs dealing with the rights of women play an essential role in offering support, both legal and emotional, to women seeking to dissolve oppressive marriages.

Conclusion

In Muslim personal law in India, Khula becomes an important method for women to seek dissolution of marriage. Yet, in some cases, it becomes hard to obtain sometimes, especially when there is no consent from the husband about the dissolution. While some argue that the husband must agree with the dissolution, others argue that the woman may dissolve the marriage even against the will of her husband only if there is a lawful reason for doing so. Although certain social pressures and legal obstacles remain, recent legal precedents, jurisprudence and greater activism for rights of the women continue to strengthen the protection for Muslim women obtaining Khula in India.