FAMILY LAW ASSIGNMENT

JAMIA MILLIA ISLAMIA

New Delhi-110025

FACULTY OF LAW

FAMILY LAW ASSIGNMENT

KHULA: DIVORCE AT THE INSTANT OF WIFE.

SUBMITTED BY-
AHMED SHAH HUSSAIN
20201567 (SF)
ROLL NO.: 07

COURSE: BA.L.L.B. (Hons.) (SF)

SEMESTER: 4th (2nd Year/2022-2027)

SUBMITTED TO-
PROF. NISHA PARWEEN
(Guest Faculty, Faculty of Law, JMI)

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 FAMILY LAW ASSIGNMENT

ACKNOWLEDGEMENT

I would like to express my gratitude to my teacher PROF. Ms. NISHA

PARWEEN, who gave me the opportunity to do this wonderful project of

the subject FAMIY LAW on the topic: KHULA: DIVORCE AT THE

INSTANT OF WIFE.
The project helped me learn how to do proper Research and I learned

about many new things while doing the project. I am greatly indebted to
the various writers and jurists and all others from whose writings and

work I have taken help to complete this assignment.

DATE: 1st April 2022

AHMED SHAH HUSSAIN

202201567[SF]

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 FAMILY LAW ASSIGNMENT

INTRODUCTION
During the British colonial period in India from 1757 to 1947, Muslims and non-Muslims were
subject to the same legal system, with some exceptions, notably in family law. While most laws
applied equally to both groups, Muslims were permitted to adhere to Sharī'a rules concerning
marriage and divorce. However, despite this allowance, courts predominantly relied on the Ḥanafī
school of jurisprudence, which was prevalent in India, to issue fatwās and subsequently make legal
decisions.

Significantly, the Ḥanafī school traditionally imposed stringent regulations regarding divorce initiated
by women, making it exceedingly challenging for a woman to seek divorce without her husband's
consent in British India. This situation persisted well into the twentieth century, leading to instances
where women, living in dire circumstances, resorted to apostasy to dissolve their marriages.
According to Ḥanafī principles, apostasy automatically nullified the marriage contract of the apostate,
providing an alternative route out of marriage for some women.

These occurrences prompted Muslim jurists to contemplate ways to ease divorce regulations for
women, offering them alternatives to apostasy for terminating marital contracts. Consequently, efforts
were made in the first half of the twentieth century, compelling colonial rulers to pass legislation
specifically addressing Muslim family matters. This chapter will delve into the genesis of these legal
amendments and assess their effectiveness in facilitating divorce for women, particularly in cases
where the husband is uncooperative.

KHUL’ IN ISLAM: DEFINTION AND CONCEPT IN ISLAM

Khul’ means the separation of the wife in return for a payment; the husband takes the payment and
lets his wife go, whether this payment is the mahr which he gave to her, or more or less than that.1

The basic principle concerning this is the verse in which Allah says (interpretation of the meaning):
“And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal-money
given by the husband to his wife at the time of marriage) which you have given them, except when
both parties fear that they would be unable to keep the limits ordained by Allah (e.g. to deal with each
other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by
Allah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Khul
(annulment).” [al-Baqarah 2:229]

VALID CONDITIONS OF KHULA IN ISLAM ARE2

- Irreconcilable Differences: When the husband and wife cannot resolve their conflicts, leading to an
irretrievable breakdown of the marriage, Khula may be considered.

- Incompatibility: Fundamental differences between the spouses that render the continuation of the
marriage impossible can serve as grounds for Khula.

- Cruelty or Abuse: If the husband subjects the wife to physical, emotional, or verbal abuse, and
living with him poses a threat to her well-being, Khula may be warranted.

1
https://ma-law.org.pk/divorce_lawyer_in_Karachi_Pakistan_Law_Firm_Family_Law_Khula ((last visited Page
on | 3
March 31, 2024)
2
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT 1986
 FAMILY LAW ASSIGNMENT

- Failure to Provide: Should the husband neglect his financial responsibilities towards the wife,
failing to meet her basic needs, it can be deemed a valid reason for Khula.

- Neglect or Desertion: In instances where the husband abandons or neglects the wife without
justification, and her rights are compromised as a result, Khula may be pursued.

1. Economic Independence:

• In contemporary society, economic independence plays a crucial role in empowering women to

initiate Khula divorce.

• With increasing education and employment opportunities for women, many are no longer
financially reliant on their husbands.

• Economic independence allows women to assert their autonomy and make decisions regarding
their marital status without being financially bound to their spouses.

• Women who are financially stable may find it easier to initiate divorce proceedings, knowing that
they can support themselves financially post-divorce.

• This aspect underscores the importance of economic empowerment in enabling women to

exercise agency in marital matters.

2. Sociocultural Shifts:

• Sociocultural shifts refer to changes in societal norms, attitudes, and perceptions regarding
marriage and divorce.

• In many societies, traditional gender roles and expectations are evolving, with greater emphasis
placed on gender equality and women's rights.

• Sociocultural shifts have led to increased awareness and acceptance of women's autonomy and
agency in decision-making, including the decision to seek divorce.

• Prevailing social attitudes that stigmatized divorce or discouraged women from leaving unhappy
marriages are gradually shifting, creating a more supportive environment for women
contemplating divorce.

• These shifts reflect broader societal changes towards gender equality and individual autonomy in
marital relationships.

3. Psychological Liberation:

• Psychological liberation refers to the emotional and psychological freedom experienced by

women who choose to initiate Khula divorce.

• In many cases, women may endure years of emotional abuse, neglect, or dissatisfaction in their
marriages, leading to psychological distress and unhappiness.

• Initiating divorce allows women to break free from toxic or oppressive marital situations, leading
to a sense of relief, empowerment, and self-liberation. Page | 4
• By asserting control over their lives and making decisions that prioritize their well-being and
 FAMILY LAW ASSIGNMENT

happiness, women experience a newfound sense of agency and self-determination.

• Psychological liberation is a vital aspect of Khula divorce, as it enables women to reclaim their
autonomy and rebuild their lives on their own terms.

DIFFERENCE BETWEEN DIVORCE & KHULA IN ISLAM

Divorce and khula serve as methods for terminating a Muslim marriage, despite yielding similar
outcomes, they diverge in initiation and procedural aspects. Here's a breakdown of their key
disparities:
1. Initiator:
• Divorce is initiated by the husband, who holds the authority to pronounce talaq.
Conversely, khula is instigated by the wife, signalling her desire to dissolve the
marriage.

2. Consent:
• Divorce necessitates no consent from the husband for validity, while in khula, the
wife must either secure the husband's agreement or obtain a court decree to dissolve
the marital bond.

3. Procedure:
• Divorce is straightforward, with the husband able to issue talaq verbally or in writing.
Khula, however, involves a formal legal process, obligating the wife to return the
mahr (dowry) received during marriage to dissolve the union.

4. Grounds:
• Divorce can stem from various reasons such as irreconcilable differences, cruelty, or
adultery. In contrast, khula solely permits dissolution based on the wife's
dissatisfaction with the marriage.

5. Financial Obligations:
• Post-divorce, the husband is obliged to provide maintenance for the wife and
children, if any, in a divorce scenario. Conversely, in khula, the wife returns the mahr
to the husband, with the financial responsibilities of the husband towards the wife and
children determined by the specifics of the case.

6. Remarriage:
• After divorce, the wife cannot remarry her former husband until she marries another
man and obtains a divorce from him. However, in khula, reconciliation between the
spouses allows for the wife's remarriage to her previous husband, contingent upon
mutual agreement to reconcile their differences.

In summary, divorce and khula are two different procedures that result in the dissolution of a Muslim
marriage. Divorce is initiated by the husband, while Khula in Islam is initiated by the wife. Divorce
requires the husband to pronounce talaq, while khula requires the wife to seek a court order and
return the mahr. Both procedures have their own specific rules and requirements, and it is important
to seek legal advice before initiating either process.

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 FAMILY LAW ASSIGNMENT

LEGAL DEVELOPMENT OF THE CONCEPT OF KHULA

During the initial stages of British rule, Muslims were granted autonomy in personal law matters, with
the appointment of Muslim judges (qāḍīs) to handle legal issues. However, over time, British judges
assumed greater control, seeking guidance from Islamic scholars (‘ulamā’) and customary law to
inform their rulings, especially concerning women's financial rights and divorce proceedings. Yet,
adherence to strict Ḥanafī-based customary law led to a crisis, where women resorted to apostasy as a
legal loophole to escape unhappy marriages. This crisis deepened in the second phase, causing friction
between Islamic scholars, women, and British judges, as Ḥanafī rules clashed with evolving societal
norms and legal interpretations.3

Efforts to address these challenges culminated in legal reform driven by Islamic scholars,
incorporating elements from different schools of Islamic law, particularly the Mālikī School. Notably,
scholars like Thānavī proposed innovative solutions to mitigate the misuse of apostasy while
expanding options for judicial divorce.4 This shift marked a significant departure from previous
approaches, emphasizing the need for legal adaptation to contemporary realities.

In the third phase, these reforms materialized into legislation, such as the Shari ‘at Application Act of
1937 and the Dissolution of Muslim Marriages Act of 1939. These laws, influenced by Thānavī's
insights and supported by the Jamʻiyyat ‘Ulamā ‘-I- Hind, granted Muslim women greater agency in
seeking divorce on legitimate grounds. This legislative transformation underscored the changing
dynamics of governance, with Islamic scholars transitioning from advisory roles to active participants
in the legislative process, ushering in a new era of legal development in matters of family law.

MOLDING OF THE CONCEPT THROUGH CASE LAWS

In the case of Moonshe Buzul-ul-Raheem v. Luteefut-oon-Nisha (1861)5, the respondent filed

a lawsuit against the plaintiff, her former husband, to reclaim her "dyn-mohr" payment, which was
owed to her in the event of marriage dissolution. The plaintiff disputed having divorced the
respondent through talaq, claiming instead that she had signed an "ikrarnamah," releasing him from
any dower claims, and that she had voluntarily accepted a "khoola" and signed a "kaboolnamah."
However, the respondent argued that the documents relinquishing her dyn-mohr were obtained under
duress and emphasized the plaintiff's admission of divorce. The court ruled that the "ikrarnamah" and
"kaboolnamah" presented by the defence were merely assertions and held no legal weight without
proof. As talaq was proven, the respondent was deemed entitled to her dower payment.

Saiyid Rashid Ahmad v. Mussammat Anisa Khatun (1931)6

In this case, a Sunni husband divorced his wife by pronouncing three talaqs under the undue influence
of his parents in their presence when the wife was not there. Later, he continued to live with his wife
without remarrying her. He had five children with her after this resumed cohabitation, and he treated
them as his legitimate children. After his death, the children and his widowed wife claimed a share in
his property, which was challenged before the court. The Privy Council held that there was no proof
of any remarriage, and their union was void, making the children illegitimate; therefore, they had no
right in the property of the deceased father.

3
Ahmad, Furqan. “UNDERSTANDING THE ISLAMIC LAW OF DIVORCE.” Journal of the Indian Law
Institute 45, no. 3/4 (2003): 484–508. http://www.jstor.org/stable/43951877 (last visited on March 31, 2024)
4
https://blog.ipleaders.in/all-about-khula-in-muslim-law (last visited on March 31, 2024) Page | 6
5
Moonshe Buzul-ul-Raheem v. Luteefut-oon-Nisha [1861] UKPC 19
6
Saiyid Rashid Ahmad v. Mussammat Anisa Khatun (1932) 34 BOM LR 475
 FAMILY LAW ASSIGNMENT

Yousuf Rawther v. Sowramma (1970)7

In this case, after the plaintiff’s marriage, the couple started living in the husband’s house,
immediately after which the husband had to leave for Coimbatore to run his business. After a month
of living in his house, the wife went back to her parents for a period of two years, during which he
failed to maintain her. The issue before the court was whether the dissolution of marriage can be
claimed by the wife on the grounds of the failure of her husband to maintain it for two years, to which
the court held that a Muslim woman can sue for dissolution if she is not given maintenance by her
husband, even if there is a good determination at which instance the talaq took effect upon the first
utterance, in front of the witnesses, but in the absence of the wife, or when he informed her in writing
in 1990, or whether it was even a valid divorce. The Court held that the written statement lacked
evidence, and there were no reasons given in justification of the talaq and no proof that the effort of
reconciliation was made preceding the talaq. As mentioned in the Quran, the talaq must be for
reasonable cause and must be led by attempts of reconciliation. The respondent failed to provide
evidence of the same and, hence, was liable to pay maintenance.

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7
1970 KER LT 477
 FAMILY LAW ASSIGNMENT

CONCLUSION

The legal development of Khula in British colonial India represents a significant chapter in the
evolution of Muslim family law. Under British rule, Muslims were granted autonomy in personal law
matters, but the reliance on Ḥanafī jurisprudence and customary law posed challenges, particularly for
women seeking divorce. The stringent rules and social stigma surrounding divorce forced some
women to resort to drastic measures like apostasy to dissolve their marriages, highlighting the urgent
need for reform.

Efforts to address these challenges led to significant legal amendments and legislative reforms aimed
at empowering women and modernizing Islamic family law. Scholars like Thānavī played a pivotal
role in proposing innovative solutions to ease divorce regulations for women, while legislative acts
such as the Shari ‘at Application Act of 1937 and the Dissolution of Muslim Marriages Act of 1939
granted women greater agency in seeking divorce on legitimate grounds.

However, despite these advancements, there remains room for further reform to ensure the equitable
treatment of women in matters of divorce. One potential avenue for reform lies in revisiting the
conditions for Khula in Islam and expanding the grounds on which women can seek dissolution of
marriage. This may include recognizing additional factors such as emotional abuse, neglect, or mental
health issues as valid grounds for Khula. Moreover, efforts should be made to streamline the legal
process for Khula, making it more accessible and efficient for women seeking divorce.
Additionally, educational initiatives and awareness campaigns are essential to challenge societal
norms and attitudes surrounding divorce, particularly the stigma associated with women initiating
divorce. By promoting gender equality and empowering women to assert their rights, society can
create a more supportive environment for women seeking divorce and navigating the legal process of
Khula.

In conclusion, while significant progress has been made in reforming Khula laws in British colonial
India, ongoing efforts are needed to ensure the continued advancement of women's rights and gender
equality in matters of divorce. By adopting a holistic approach that combines legal reform, education,
and societal awareness, the concept of Khula can be reformed to better reflect the principles of justice,
equality, and compassion in Islam.

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