Husband’s Undertaking To Give A Share Of His Property To Wife Post-Khulanama Doesn't Run Counter To Islamic Law: Karnataka HC

The Court was hearing a Miscellaneous First Appeal filed under Section 19(1) of the Family Courts Act, 1984 against the judgment and decree that decreed the suit filed for declaration, partition and permanent injunction.

The bench of Justice Krishna S. Dixit and Justice Vijaykumar A. Patil observed, “As a part of bargain between the parties, in which others too participated the appellant had undertaken to give 1/4th share in the subject property to the respondent. This cannot be said to run counter to the Islamic Law which mandates that the women should be treated with love and affection.”

Advocate Vitthal S. Teli appeared for the Appellant and Advocate Vishwanath V. Badiger appeared for the Respondent.

Brief Facts-

The parties, being Sunni Muslims, ended their marriage through a Khulanama. The plaintiff (wife) claimed that the Khulanama entitled her to a 1/4th share in the house property. Due to a dispute over this property, she filed a suit seeking a declaration of her 1/4th share, partition of the property, and an injunction against its alienation. The defendant (husband) contended that the Khulanama required the wife to provide consideration to the husband, not vice versa, and claimed she had relinquished her share for money, as per her affidavit. He argued that the suit was not maintainable in its current form.

The Court declined to interfere in the present case while observing, “the present case is not a case of khula as such but a mixed case of mubara’at & Khula.”

The Court explained the process by which khula is brought about and the way mubara’at is effected and observed, “the former, the proposal to put an end to the marital relation comes from the side of wife whereas in the later both the sides bring it up.”

The Court mentioned the decision in Moonshee Buzulur Raheem Vs. Luteefut-oon-Nissa where the Privy Council observed, “... A divorce by Khoola is a divorce with the consent and at the instance of the wife in which she gives or agrees to give a consideration to the husband for her release from the marriage tie …if the desire to separate emanates from the wife it is called Khula; but if the divorce is effected by mutual aversion (and consent) it is known as mubara’at ...”.

The Court observed, “The mankind is appreciably moving towards gender equality. India is a party to several International Conventions that promote gender equality. The UN Convention on the Elimination of All Forms of Discrimination against Women is one of them. Conventions of the kind need to animate out domestic law, be it statutory or customary.”

The Court emphasised that the international conventions have to be kept in view while construing and applying the rules of personal laws like Hindu Law, Islamic Law, etc.

The Court further mentioned the decision of the Supreme Court in Safai Karmachari Andolan Vs. UOI where the SC observed, “International covenants which have been ratified by India are binding to the extent that they are not inconsistent with the native law.”

The Court observed that the stipulation as to granting of 1/4th share in the subject property is only a condition and not a consideration. The Court said that pacta sunt servanda is “abide by what is agreed upon” is a way of life on which the society has been organised and the appellant had undertaken to give 1/4th share in the property in question. Therefore, according to the Court, any argument to the contrary would strike at the root of law, reason & justice.

Accordingly, the Court dismissed the Petition.

Cause Title: Bashirahmed v. Surayya (Neutral Citation: 2024:KHC-D:10677-DB)