Khula - Muslim Woman’s Right To Unilateral Divorce

Muslim marriage (nikah) is a civil contract, not a sacred sacrament like in Hindu or Christian traditions. For a nikah to be valid, the essentials are straightforward: a proposal (ijab) by one party, acceptance (qabul) by the other, both expressed in the same sitting before two competent witnesses. Both parties must have attained puberty and must give free, unconstrained consent; coercion or fraud invalidates the contract. A specified mehr in consideration of marriage, an obligatory financial gift or security from the husband to the wife, is an essential component. A Muslim woman’s identity does not change after marriage, and she is not required to display marital markers through dress or symbols. She does not even have to change her name or take her husband's surname after marriage.

Like any contract, the nikah nama (marriage document) can have valid conditions that both parties agree to abide by. A wife can include conditions to protect her rights and well-being, such as a clause against the husband taking another wife, stipulations regarding financial support or maintenance, or the right to continue working. Conditions about living arrangements, staying connected with her family, and having a say in divorce proceedings.

Like all contracts, a nikah can be dissolved. Islamic law provides multiple pathways for ending a marriage: talaq initiated by the husband (talaq-e-ahsan, talaq-e-hasan, and talaq-e-biddat); khula, initiated by the wife; mubarat, where both spouses mutually agree to part ways; and faskh, a judicial decision based on fault grounds such as cruelty, non-maintenance, or other valid causes. These options for divorce ensure neither spouse is trapped in an untenable marriage.

Popular discourse in India reduces Muslim divorce to a single, politically charged practice — talaq-e-biddat (instant triple talaq). The 2017 Shayara Bano v. Union of India judgment became a national spectacle, projected as a historic “liberation” of Muslim women. The legal reality is that instant triple talaq had already been declared invalid several times before 2017: in 1981 by Justice Baharul Islam of the Gauhati High Court in Jiauddin v. Anwara Begum, by the Supreme Court in 2002 in Shamim Ara v. State of U.P., by the full bench of the Bombay High Court in Dagdu Pathan v. Rahimbi Pathan (2002). These judgments did not receive national attention. In the Shayara Bano case, the right-wing establishment was not interested in a legal discussion but in crafting a cultural narrative. Triple talaq was weaponised as “proof” of Islam’s misogyny and Muslim men’s barbarism, allowing the state to position itself as the heroic liberator of Muslim women. Once the political objective was achieved and a criminal law was passed, the noise abruptly faded. Instant triple talaq, which was projected as a civilisational crisis, has now quietly disappeared from public debate, as though Muslim women’s struggles were resolved overnight.

Muslim women’s rights are deeply embedded in Islamic jurisprudence, including compulsory education as a religious duty, equal spiritual status to men, and the right to own and manage property. Raising daughters is considered sunnat and a source of divine reward.

In this context, the Telangana High Court’s judgment in Family Court Appeal No. 75 of 2024, reaffirming Muslim women’s long-standing Islamic right to khula—a woman-initiated unilateral divorce did not receive any media attention as it does not fit the political narrative that Muslim women are powerless, voiceless, and without rights until the state intervenes.

What was the case about

The dispute arose between Mohammed Arif Ali and Afsarunnisa, whose marriage had broken down. The wife expressed her intention to dissolve the marriage, stated her willingness to return the mehr and declared khula outside the judicial system. The Family Court verified this and issued a declaratory order dissolving the marriage. The husband appealed, claiming that khula requires the husband’s consent, and therefore, the dissolution could not be valid without his approval. The High Court rejected this argument unequivocally.

What the Telangana High Court Held

The Court first clarified that while historically khula may have involved negotiation, all major Islamic schools—from Hanafi to Maliki—recognise that a woman may seek unilateral khula, especially when the marriage becomes harmful or impossible to continue. Classical jurists such as Ibn Abideen and Al-Sharbini consistently held that a woman’s sincere declaration, coupled with her willingness to return the mehr, is sufficient for khula to take effect.

The Court emphasised two core elements of khula:

1. A clear declaration from the woman that she wishes to end the marriage

2. Her readiness to return the mehr (but non-return cannot invalidate khula, especially where the husband’s conduct warrants separation).

Once these are fulfilled, the khula is complete. The husband’s refusal cannot invalidate it. The court cannot compel a woman to remain married against her will.

Role of Family Courts

The High Court also clarified the procedural role of Family Courts. Courts is not to grant khula because khula is not a judicial divorce. Nor is their role merely to “register” the khula. The Court’s function is limited yet vital:

● to verify that the woman exercised her right voluntarily and in accordance with Islamic requirements, and then

● issue a declaratory order confirming the dissolution for civil purposes such as remarriage, documentation, and legal certainty.

This framework harmonises personal law with the Family Courts Act, 1984, ensuring that women can have their marital status formally recognised without judicial overreach or patriarchal veto.

Consistency with Precedents

The judgment aligns with Shamim Ara v. State of U.P. (2002), where the Supreme Court held that any Muslim divorce requires reasonable cause and attempts at reconciliation. Khula, by its very nature, embodies these principles: a woman seeks dissolution when the marriage has become unbearable and reconciliation has failed.

This judgment does more than resolve a marital dispute—it dismantles the myth that Muslim women lack rights or that Islamic law is inherently oppressive. One of the earliest precedents of khula comes from the Prophet’s (PBUH) dissolution of the marriage of Jameela bint Abdullah, who sought release simply because she “could not continue living with her husband.” No allegation, reason, or proof was required; her discomfort alone was enough. This is not modern feminism retrofitted onto Islam—it is foundational Islamic jurisprudence. By reaffirming a woman’s autonomous right to exit a marriage, the Telangana High Court corrects historical distortions and counters contemporary political narratives. Properly understood, Islamic law offers women meaningful protections, including robust financial safeguards.

Additionally, the Indian legal system offers multiple avenues through which Muslim women can access their legal rights. They may seek divorce under the Dissolution of Muslim Marriages Act, 1939. They can claim a fair and reasonable settlement, including mehr dues, maintenance for themselves and their children, and return of gifts and property, under the Muslim Women (Protection of Rights on Divorce) Act, 1986. Muslim women can also use the secular laws, which apply to women from all religions, to claim maintenance under S. 125 CrPC (as affirmed in Danial Latifi v. Union of India), both during marriage and after divorce, as well as use the Domestic Violence Act, 2005, to access residence, protection, maintenance, compensation, and custody reliefs.

Yes, Muslim women face violence and abuse in marriage no less than women from other communities—but that is patriarchy, not religion. Gender-based violence is a structural problem that cuts across caste, class, and faith. Dowry deaths, domestic violence, marital rape, abandonment, bigamy these are not “Muslim issues,” they are societal issues rooted in male dominance. The real battle is not against religion but against the social structures that enable male control and silence women’s agency.

Audrey DMello is the Director of Majlis, a legal centre supporting women and children facing sexual and domestic violence. She can be reached at majlislaw@majlislaw.com.