A division bench of Justices A Muhamed Mustaque and CS Dias held that there is absolutely no need for a Muslim woman to approach the Court if her husband refuses Khula, as her right to the same is acknowledged by Islamic law.
“It is acknowledged by Islamic law that the Muslim wife has the right to demand termination of marriage. The argument that if the husband refuses, she has to move the Court stares at us. For what purpose she has to move the Court, begs the question. The Court is neither called upon to adjudicate nor called upon to declare the status, but simply has to pronounce termination of marriage on behalf of the wife,” the Court said.
It stated that the Court is not the guardian of any able adult woman in the country and that it cannot assume such a role to simply pronounce termination of marriage at the assistance of the woman.
“The Court in our country is not a guardian of an adult and able woman. If there is nothing for a Court to adjudicate, the Court cannot assume the role of a guardian and pronounce termination of marriage at the instance of a woman,” the Court observed.
Source: Barandbench
