Divorce on the basis of khula

Woman can release herself from the tie of marriage by giving up some property in return in consideration of which the husband has to give her khula

Khula is repudiation with the consent and at the instance of the wife in which she agrees to give consideration to the husband for her release from the marital tie

However, the Court cannot on its own deprive a lady of her dower and cannot order her to relinquish the same because the dower is the right of the woman given by Shariah.

It is obligatory on Courts granting khula to take into consideration dower regardless of whether it is prompt or deferred.

Where the wife had stated in her plaint that she had faced agony at the hands of the husband and that it was not possible for her to live with him while abiding by the limits of Allah; the parties had been living separately for years; the pre-trial reconciliation proceedings had not succeeded in the Family Judge's own opinion, High Court observed that such factors were sufficient grounds for the grant of a decree for dissolution of marriage by way of khula in order to avoid a hateful union even if the grounds alleged by the wife for dissolution of marriage were not proved through evidence in the opinion of the Family Court as no woman could be forced to live with a man without her consent or liking.

Husband can refuse to give 'Talaq' but at the same time it would create an environment causing the wife to seek khula, which would entitle him to the benefit of retaining deferred dower and/or getting back prompt dower property/amount

Thus, where the Court through legal, cogent and convincing evidence comes to the conclusion that the husband has compelled the wife to ask for dissolution of marriage on the ground of khula then the Court shall have the power to refuse the return of the prompt dowered property/amount to husband or to release him from the liability of payment of deferred dower.

Khula is a right given to a woman as the right to divorce is vested in a man with the difference that khula can be obtained only through a decree of Court and on payment of such consideration as may be fixed by Court.

If a wife seeks khula without pointing any fault of the husband and the Court finds it proper to grant khula then the wife should be ordered to return all the benefits received by her and also forego such rights under which she can claim any benefit.

Wife contended that when factum of cruelty was proved, marriage should not have been dissolved on the basis of Khula and she was entitled to recovery of maintenance also

Validity

Attitude of wife had made her desert her husband's house and preferred to stay with her parents, and the same could not be termed as ouster of wife on the part of husband from his house but rather a desertion on the part of wife to leave her husband's house out of her own sweet and free will

Wife was disobedient, therefore, she did not have right to claim maintenance from her husband and the same was rightly disallowed to her by Family Court

Element of cruelty and torture at the hands of husband was disproved, therefore, marriage was rightly dissolved on the basis of Khula

High Court, in exercise of constitutional jurisdiction under Art. 199 of the Constitution, declined to make factual determination or interfere in judgment passed by competent court vested with statutory powers unless there was a jurisdictional error or other legal infirmity such as arbitrariness etc. in the order assailed before High Court

Petition was dismissed in circumstances.