- Khurshid Bibi was married to Muhammad Amin, and her brother was married to his sister. Since there were no offspring of the wedlock, Muhammad Amin took a second wife. Khurshid Bibi then demanded a separate house and though he promised it to her, he failed to fulfill his promise. She complained of maltreatment at his hands. Muhammad Sharif, her brother, took out warrants under section 100, Criminal Procedure Code, and she left his house. The respondent’s father convened two Panchayats, but efforts at reconciliation between the spouses failed.
- Khurshid Bibi then brought a suit for dissolution of marriage with Muhammad Amin, and he instituted a suit for restitution of conjugal rights. Her suit was dismissed, but her husband’s suit was decreed against her on January 21, 1960. Muhammad Amin visited her at her parents’ house to realize costs awarded to him in his suit.
- In Khushid Bibi’s second appeal, the Single Judge of the High Court believed that because her brother was married to his sister, he could not afford to be inconsiderate towards her. Thus, he felt that if the defendant could not provide a separate residence for her it was because he lacked the means. He also felt that because she was not prepared to live with her husband because he had remarried, but that this was not a grounds for khula divorce. Her appeal was dismissed in limine. Finally, Khurshid Bibi initiated a Petition for Special Leave to Appeal, which brings us to the case at hand in the Supreme Court.
1. Can the wife claim khula as a matter of right on restoring or agreeing to restore, to the husband the dower or some other consideration given by the husband to her?
S.A. Mahmood, J., writes, “Verse 2:229 of the Holy Qur’an implies that the wife has to pay compensation to the husband in order to obtain dissolution of marriage by khula. This conclusion clearly emerges from its words “what she gives up to be free,” or “by what she ransomes herself” (p. 148). Thus, the wife can claim khula as long as she gives up her dower or pays compensation.
S.A. Mahmood, J., writes, “…the wife has to return the benefits of the marriage and…has to refund no more than what she has received, for though Jamila was willing to give more than the garden given to her by her husband, the Holy Prophet said: “No, only the garden.” (p. 148). According to S.A. Mahmood, J., the wife is not required to give up more than her dower. S.A. Rahman, J. has written, “She expressed a willingness to give up the dower, but the husband said he would not agree, even in that situation, to
grant her khula. According to the Hedaya, it is “abominable” for the husband to obtain more than the dower, but it is legally permissible in the case of khula if he insists on getting restitution for the gifts he provided during the marriage to the wife.” (p. 121).
However, it is legally permissible (though not required) for the wife to give up more than she has received – essentially, the cost of expenditures the husband has made on the marriage (e.g. gifts) if the husband requests it or if there is some sort of mutual agreement between husband and wife. In such cases, since it is a contract between husband and wife, it is legal; though it is considered “abominable,” the court cannot prevent such a situation.
2. On what grounds can the wife claim dissolution of marriage under khula?
As S.A. Rahman, J. writes, “…the wife is given the right to ask for khula in cases of extreme incompatibility though the warning is conveyed by ahadith against too free exercise of this privilege…” (p. 114) He also writes, “The generally accepted account of Jamila’s case as well as that of Habiba makes it clear that the only ground on which the Prophet ordered the woman to be releaed from the marriage bond, was her intense dislike of her husband. According to one text, she clarified that she found him to be ugly and repulsive, and in another that she felt like spitting at him. The Prophet being convinced that the spouses could not live together in conformity with their conjugal obligations, ordered the husband to separate her” (p. 118).
S.A. Mahmood, J. corroborates this view: “Thus, khula was decreed by the Holy Prophet on the ground that the wives having developed intense hatred for their husband, it had become impossible for them to live with him and to perform their marital obligations” (p. 138-139).
From the above three quotes, it is clear that a wife can claim dissolution under khula even for reasons such as extreme incompatibility or intense dislike of the husband.
S.A. Mahmood, J. states that “Khula is thus a right conferred on the wife… The right is not, however, an absolute right by which the wife can herself dissolve the marriage, but is a controlled right. The success of her right depends upon the Qazi’s reaching the conclusion that the spouses cannot live within the limits of God” (p. 136). The wife can obtain khula even due to personal dislike or aversion, or any other reason, as long as it is proved that the spouses can no longer live together and fulfill their conjugal duties according to Islam.
3. Is the khula different from talaq?
S.A. Rahman, J. writes that, “There are good reasons for the view that khula is separation and not talaq, as the right of the husband to take back the wife after khula, does not exist, as it does in the case of talaq-i-raja’I, and the period of Iddat is different in the two cases” (p. 116).
This shows that khula is different from talaq.
S.A. Mahmood, J. concurs when he writes that Verse 2.229 of the Qur’an “by making it not lawful for the husband, where he pronounces a talaq to takeback anything from the wife and permitting it where she seeks khul, indicates that talaq is in a category different from khula. There is a clear difference between the two, for khula is the right of the wife, and talaq is the right of the husband. A talaq is pronounced by the husband on his own, but khula under the verse is sought by the wife, and is effected by the order of the Qazi for a consideration to be paid by her. The nature and character of talaq and khula are different, though their effect may the same, namely, dissolution of the marriage tie…Khula is not the same thing as talaq and the two cannot be equated” (p. 136-137). Here, the judge explains that khula and talaq have different characteristics. After khula , the husband no longer has the right to take back the wife as the dissolution has been initiated by her. However, after a talaq has been pronounced, a husband still has the right to take back the wife. Thus the two are different in a critical aspect.
The two are also different in the form they take; talaq is pronounced by the husband, but khula is sought by the wife and put into force either by the husband’s permission or the Qazi.
4. Is the consent of the husband required for the wife to obtain dissolution of marriage under khula, or can the Qazi dissolve the marriage even if the husband does not agree with it?
S.A. Rahman, J. states: “But where the husband disputes the right of the wife to obtain separation by khula, it is obvious that some third party has to decide the matter and, consequently, the dispute will have to be adjudicated upon by the Qazi…Any other interpretation of the Qur’anic verse regarding khula would deprive it of all efficacy as a charter granted to the wife. It is significant that according to the Qur’an, she can “ransom herself” or “get her release and it is plain that these words connote an independent right in her”
(p. 117-118). Additionally, “…the person in authority, including the Qazi, can order separation by khula even if the husband is not agreeable to that course” (p. 121).
S.A. Mahmood, J. concurs when he argues that Verse 2.229 of the Qur’an “virtually adds a ground for dissolution of marriage, and thus authorizes the Qazi to dissolve the marriage in appropriate cases, even without or against the will of the husband.” He also writes that “dissolution is by the order of the Qazi and is not dependent on the consent of the husband or on his pronouncing a talaq. There are no words in the verse indicating that the consent of or talaq by the husband is necessary for khula” (p. 137). Thus, “…the Qazi can dissolve a marriage at the instance of the wife without the husband pronouncing a talaq. Therefore the authority vests in the Qazi to
dissolve a marriage independent of the consent of the husband, whose refusal to pronounce a talaq makes no difference to his powers and authority” (p. 146).
As seen above, the judges concurred in their opinion and endorsed the view of Kaikaus, J. in Mst. Balqis Fatima that under Muslim law, the wife is entitled to khula , as of right, if she satisfies the court that otherwise she would be forced into a hateful union – even if her husband does not want a dissolution.
The dissolution does not rest on the consent of the husband, but depends on the order of the Qazi, who has the power to order dissolution of marriage.
Since the dissolution can take effect without the husband’s pronouncing the talaq, the Qazi has the power to dissolve the marriage by khula also independent of the husband’s consent and his pronouncing a talaq.
In the current case, the judges concurred that it was clear that the relations between husband and wife were embittered. He was in a financial position to provide an extra residence for her, but he did not. He mistreated and abused her, and since she was not able to provide him with any children, it is clear he did not care for her. The wife was not willing to return to the marital home and fulfill any marital responsibilities. Thus, the Court was satisfied that there was no possibility of them living together and fulfilling their conjugal duties and responsibilities within the limits set by God. She was also willing to give up her dower in return for khula. Thus, she deserved a dissolution of marriage by khula despite the husband’s refusal.
(1) A wife can claim khula on agreeing to restore to the husband the dower or some other consideration.
(2) The wife can claim dissolution of marriage under khula as long as there is personal aversion or dislike, and if the Qazi or Court finds that the husband and wife cannot live together in amity and fulfill the limits set by God.
(3) Khula is separate from talaq and is the right of a woman to obtain dissolution of marriage.
(4) The consent of the husband is not required for the wife to obtain dissolution under khula, if the Qazi finds they cannot live together in harmony and if the wife is willing to provide compensation in return.