The court affirmed that a wife’s right to demand Khula divorce is absolute, necessitating judicial involvement only when challenged; advisory councils lack binding authority.

JUDGMENT:

(Per Hon’ble. Justice Moushumi Bhattacharya)

1. The Family Court Appeal arises out of an order dated 06.02.2024 passed by the learned Family Court, Hyderabad, in a petition filed by the appellant for a declaration that the judgment passed by the respondent No.2/Sada-E-Haq Sharai Council by which the marriage between the appellant (husband) and the respondent No.1 (wife) was dissolved, should be declared as null, void and not binding on the appellant.

2. By the impugned order, the Trial Court dismissed the Original Petition (O.P.No.1009 of 2020) filed by the appellant on the ground that the respondent No.2 had followed due procedure in issuing a Divorce Certificate to the respondent No.1/wife. The Trial Court also found that the respondent No.1 had obtained ‘Khula’ divorce from the appellant by following the procedure laid down by the Courts.

The Facts leading to filing of the Original Petition by the Appellant

3. The appellant and the respondent No.1 were married on 01.06.2012 with a dower of Rs.11,000/-. The respondent No.1 stayed in the marital home for about five years. The respondent No.1, however, made several complaints against the appellant alleging assault and other acts of violence. On 07.07.2017, on being assaulted by the appellant, the respondent No.1 was admitted in a hospital and was shifted to her parents’ house after being discharged from the hospital. Subsequently, the respondent No.1 demanded Khula divorce from the appellant, which the appellant refused. The respondent No.1, thereafter, approached the respondent No.2 for grant of Khula divorce. The respondent No.2 consisted of experts in Muslim Law: a Mufti, a Professor of Islamic Studies, a Professor of Arabic and the Imam of a Mosque. The respondent No.2 sent three notices to the appellant with the demand for Khula divorce and invited the appellant to attend a reconciliation meeting. The appellant visited the office of the respondent No.2 and handed over a letter to the respondent No.2 on 14.09.2020 questioning the authority of the respondent No.2 in assuming the duty/jurisdiction to resolve/mediate the disputes between the appellant and the respondent No.1 and refused to attend the reconciliation meeting scheduled on 26.09.2020.

4. Upon the failed conciliation efforts between the parties, the respondent No.2 issued a Khulanama (Divorce Certificate) on 05.10.2020 to the respondent No.1 certifying the dissolution of the marriage between the appellant and the respondent No.1. The appellant, however, did not accept the Advisory Opinion/Fatwa/Khula nama issued by the respondent No.2 and filed an Original Petition (O.P.No.1009 of 2020) against the respondent No.1 and the respondent No.2 in the Family Court at Hyderabad. The appellant prayed for a declaration that the Khulanama was null and void and without authority of law and also sought a restraint on the respondent No.1 from claiming that the respondent No.1 is no longer the appellant’s wife. The Family Court dismissed the said O.P. by the impugned order dated 06.02.2024.

Arguments made on behalf of the Parties

5. Learned Senior Counsel appearing for the appellant argues that the respondent No.2, being a Society/Non-Government Organisation, is not authorized to grant divorce by dissolving the marriage between the appellant and the respondent No.1. Senior Counsel submits that the respondent No.2 lacked the jurisdiction to decide on a plea for Khula divorce and hence has no authority to issue a Certificate of Divorce/Khulanama. According to Counsel, the respondent N