What If the Husband Does Not Agree to Khula?
What If the Husband Does Not Agree to Khula?
Introduction
Khula is a form of divorce initiated by the wife in Islamic law, allowing her to seek separation from her husband by returning the dower (mahr) or something of value. However, in many cases, the husband may refuse to grant Khula.
Legal Position in India
Under Islamic personal law, Khula requires the husband’s consent because it is essentially a consensual divorce initiated by the wife.
However, if the husband refuses to grant Khula, the wife is not left without remedy in the Indian legal system.
Remedies Available When Husband Does Not Agree
1. Judicial Khula (Divorce by the Court)
The wife can file a dissolution petition under Section 2(vii) of the Dissolution of Muslim Marriage Act, 1939, or seek divorce under the Muslim Women (Protection of Rights on Divorce) Act, 1986.
The courts can grant judicial divorce on grounds similar to Khula, such as cruelty, desertion, or irretrievable breakdown of marriage.
In the absence of husband’s consent, the court can exercise its judicial power to dissolve the marriage.
2. Judicial Intervention and Khula Without Husband’s Consent
Courts in India have taken the view that if a wife desires to dissolve the marriage and is willing to return her dower or any other compensation, the court can grant Khula even without the husband’s consent.
This judicial Khula is treated as divorce by mutual consent, where the court acts as a mediator.
Important Case Laws
1. Mubarik Begum v. Md. Sadique (AIR 1985 SC 945)
The Supreme Court held that a Muslim woman can obtain divorce from the court without the husband’s consent if she is willing to return the dower or make compensation.
The Court emphasized that Khula is a right available to the wife and the court should not deny relief merely because the husband does not agree.
2. Shamim Ara v. State of UP (2002) 7 SCC 518
The Supreme Court observed that the husband’s refusal to grant Khula cannot be an absolute bar for the wife to seek divorce.
The Court stressed the importance of protecting the rights of Muslim women and endorsed judicial Khula as a viable remedy.
3. Danial Latifi v. Union of India (2001) 7 SCC 740
Though dealing with the Muslim Women (Protection of Rights on Divorce) Act, the Court underlined that judicial intervention in Muslim divorce matters should aim to balance the rights of both spouses.
It reinforced that courts must ensure Muslim women are not left at the mercy of the husband’s consent.
Summary
| Situation | Legal Position | Case Reference |
|---|---|---|
| Husband agrees to Khula | Khula granted through mutual consent | - |
| Husband refuses to grant Khula | Wife can approach the court for judicial Khula | Mubarik Begum v. Md. Sadique |
| Court can grant Khula without consent | Court may dissolve marriage on wife’s request if she returns dower or compensation | Shamim Ara v. State of UP |
Conclusion
If the husband does not agree to Khula, the wife is not without remedy under Indian law. She can file for judicial Khula or dissolution of marriage through the courts, which can grant divorce based on the wife’s willingness to return the dower or provide compensation. The courts have been progressive in ensuring Muslim women’s rights are protected and have ruled that refusal of Khula by the husband should not become an obstacle to a woman’s right to dissolve her marriage.
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