Khurshid Bibi v Muhammad Amin
Rule established
Under Muslim law a wife is entitled to khula as of right if she satisfies the court that she would otherwise be forced into a hateful union, even if the husband does not consent and does not pronounce talaq. Where the husband disputes the right, the dispute is for the Qazi, that is the court, to adjudicate. The right is controlled rather than absolute, in that its success depends on the court being satisfied that the spouses cannot live within the limits of God, and it is conditional on the wife restoring or agreeing to restore the dower or other consideration received. Khula is separation and not talaq, so the husband has no right to take the wife back as he would after talaq-i-raja'i.
Facts
- Khurshid Bibi married Muhammad Amin; her brother was married to his sister. There were no children of the marriage, and Muhammad Amin took a second wife. Khurshid Bibi demanded a separate house; he promised one but never provided it. She complained of maltreatment; her brother took out warrants under S.100 of the Code of Criminal Procedure and she left the house. Two panchayats convened by the respondent's father failed to reconcile them.
- She sued for dissolution of the marriage and he sued for restitution of conjugal rights. Her suit was dismissed and his was decreed against her on 21 January 1960, and he came to her parents' house to realise his costs. A single Judge of the High Court dismissed her second appeal in limine, reasoning that his failure to provide a separate residence showed only lack of means, and that her unwillingness to live with him because he had remarried was not a ground for khula. She petitioned for special leave.
Issue
- Whether a Muslim wife is entitled to a decree of khula where the husband does not consent and does not pronounce talaq.
Held
- Khula was decreed despite the husband's refusal. Endorsing Kaikaus J in Mst Balqis Fatima, the Court held that under Muslim law a wife is entitled to khula as of right if she satisfies the court that she would otherwise be forced into a hateful union, even without the husband's consent and without any talaq. Where the husband disputes the right a third party must decide, and that third party is the Qazi, the court; any other construction would deprive the Quranic verse (2:229) of all efficacy as a charter granted to the wife.
- Khula is separation and not talaq: the husband has no right to take the wife back afterwards as he does after talaq-i-raja'i, and the iddat differs. The right is not absolute but "controlled", in that its success depends on the Qazi being satisfied that the spouses cannot live within the limits of God. The wife must restore or agree to restore the dower or other consideration received; she is not obliged to give up more than she received, though it is legally permissible, if described in the Hedaya as "abominable", for her to agree to more. Grounds include extreme incompatibility or intense dislike.
- On the facts the relations were embittered, the husband had the means but did not provide a separate residence, he mistreated her, he did not care for her as she was childless, and she offered to give up her dower. Khula was accordingly decreed.
Ratio Decidendi
The classical statement of khula makes it a divorce by mutual agreement at the wife's instance, on her giving consideration, which appears to require the husband's consent. The Court's answer is that a right which depends entirely on the consent of the person against whom it is asserted is not a right at all. Since the Quran confers the entitlement on the wife, there must be a forum to determine it where the husband refuses, and that forum is the Qazi. The judicialisation of khula follows from taking the Quranic grant seriously as a grant. The counterbalancing conditions keep the right within limits. The wife must satisfy the court on the merits, that the union has become hateful and that the parties cannot live within the limits of God, and she must restore the consideration she rece
How to use it in an exam
- Cite for the proposition that the wife's right to khula does not depend on the husband's consent, and that on his refusal the court may decree it.
- Flag the jurisdiction. This is Pakistani authority, persuasive but not binding in India. Indian courts have reached comparable positions by different routes, and Krishna Iyer J's obiter in A Yousuf Rawther v Sowramma (1971) that the belief in an unfettered husbandly power is a "popular fallacy" is the natural Indian companion citation.
- Get the three qualifications right, because they are what distinguish a good answer: the right is controlled and depends on the court's satisfaction; it is conditional on restoration of the dower or consideration; and khula is not talaq, so there is no right of return and the iddat differs.
- Useful in comparative questions on how Muslim majority jurisdictions have reformed personal law by judicial interpretation rather than by legislation.
- Contrast mubarat, divorce by mutual consent where the aversion is mutual and either party may propose, with khula, which proceeds at the wife's instance and requires her to give consideration.
Source
Source: PLD 1967 SC 97. Supreme Court of Pakistan, on petition for special leave to appeal from the Lahore High Court. Endorses Kaikaus J in Mst Balqis Fatima. Citation, court, the identified opinions, facts and holding verified on audit of 12 August 2026. The complete Bench composition and the exact date could not be confirmed and are therefore not stated. This is Pakistani authority, persuasive but not binding in India.
This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.