THE SUPREME COURT recently agreed to examine the constitutional validity of unilateral Khula and whether a Muslim woman possesses an absolute right to terminate her marriage without the consent of her husband. The issue arises from an appeal challenging a Kerala High Court judgment that upheld the unilateral nature of Khula as a right “akin to talaq”.
Khula is a form of divorce under Islamic law in which a Muslim woman seeks to dissolve her marriage by her own initiative, usually by returning the mahr (dower) or other benefits received from her husband.
A Division Bench of Justices P.V. Sanjay Kumar and K. Vinod Chandran granted leave to appeal the High Court’s decision. It appointed Senior Advocate Shoeb Alam as amicus curiae to assist the Court on questions involving Islamic jurisprudence.
Kerala High Court ruling under challenge
The appeal challenges the Kerala High Court’s 2022 judgment in a review petition. A Division Bench of Justices A. Muhamed Mustaque and C.S. Dias had held that a Muslim woman’s right to terminate her marriage through Khula is an absolute right directly granted by the Holy Quran. The review petition before the High Court had challenged its earlier ruling on the ground that recognising Khula as an absolute right departed from established clerical opinion and Islamic practice.
The High Court, however, characterised the review plea as an attempt by “hegemonic masculinity” and sections of the clergy to resist recognising Muslim women’s autonomy. It rejected the contention that the validity of Khula depends on the husband’s consent or pronouncement of talaq. It reasoned that making the wife’s right contingent on the husband’s approval would subordinate her autonomy to the will of her male counterpart.
While affirming the unilateral nature of Khula, the Bench laid down certain conditions for its validity, including a clear declaration of termination of marriage by the wife, an offer to return the dower (mahr) or other material benefits received during the marriage, and a prior attempt at reconciliation.
High Court’s interpretation of Islamic law
The Kerala High Court distinguished between Shariah as divine law and Fiqh as human interpretation of that law. It observed that courts in a secular system cannot defer entirely to clerical opinion lacking formal legal authority.
The Court emphasised that judicial interpretation must focus on legal norms rather than religious practices shaped by social belief. It held that while religious injunctions may impose moral accountability, they do not necessarily determine the legal validity of a divorce in a secular legal framework.
Referring to Chapter II, Verse 229 of the Quran, the High Court observed that the provision permits dissolution of marriage where the parties fear they cannot maintain the limits ordained by God, subject to the wife returning the dower. The Court interpreted this as conferring a legal right on the wife to terminate the marriage.
It further distinguished between moral injunctions and enforceable legal rights, and held that while religious principles caution against transgressing limits, the legal framework enables a woman to exit a marriage.
Addressing absence of enforcement mechanism
Addressing situations where a husband refuses consent for khula, the Kerala High Court invoked the doctrine of Istihsan (juristic preference), which allows deviation from strict legal interpretation to prevent hardship and ensure justice. The Court noted that in the absence of an institutional mechanism such as a legally recognised Qazi to enforce the wife’s will, denying her unilateral termination would result in injustice. It observed that requiring a woman to seek a decree of dissolution (Faskh) through civil courts would defeat the purpose of Khula as a no-fault divorce mechanism.
It further observed that civil courts cannot act as a guardian to pronounce divorce on behalf of a woman but must recognise her right to terminate the marriage. The judgment emphasised the autonomy of choice exercised by the wife and underscored gender justice as an underlying constitutional value.
Substantial question of Muslim Personal Law before Supreme Court
Taking note of the legal issues involved, the Supreme Court observed that the matter raises a substantial question concerning Muslim Personal Law and its interpretation within the constitutional framework. The Court will now examine whether the High Court’s interpretation of Khula as an absolute right aligns with personal law principles and constitutional guarantees.
The outcome of the proceedings is expected to have significant implications for the recognition of Muslim women’s autonomy within personal law and the broader relationship between religious practices and constitutional principles.
The matter is scheduled to be heard on April 22, 2026.
