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The key words are ―notwithstanding any customs or usage to the contrary and ―the rule of decision in cases where the parties are muslims shall be the muslim personal law (shariat). This provision requires the court before which any question relating to, inter-alia, dissolution of marriage is in issue and where the parties are muslims to apply the muslim personal law (shariat) irrespective of any contrary custom or usage. This is an injunction upon the court (See: C. Mohd. Yunus v. Syed Unnissa:(1962) 1 SCR 67). What is also of great significance is the expression – ‘dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat. This gives statutory recognition to the fact that under muslim personal law, a dissolution of marriage can be brought about by various means, only one of which is talaq. Although islam considers divorce to be odious and abominable, yet it is permissible on grounds of pragmatism, at the core of which is the concept of an irretrievably broken marriage. An elaborate lattice of modes of dissolution of marriage has been put in place, though with differing amplitude and width under the different schools, in an attempt to take care of all possibilities. Khula, for example, is the mode of dissolution when the wife does not want to continue with the marital tie. She proposes to her husband for dissolution of the marriage. This may or may not accompany her offer to give something in return. Generally, the wife offers to give up her claim to Mahr (dower). Khula is a divorce which proceeds from the wife which the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return. Mubaraat is where both the wife and husband decide to mutually put an end to their marital tie. Since this is divorce by mutual consent there is no necessity for the wife to give up or offer anything to the husband. It is important to note that both under khula and mubaraat there is no need for specifying any reason for the divorce. It takes place if the wife (in the case of khula) or the wife and husband together (in the case of mubaraat) decide to separate on a no fault/no blame basis. Resort to khula (and to a lesser degree, mubaraat) as a mode of dissolution of marriage is quite common in India.“

14. From the discussion aforesaid, what we find is that ‘Khula’ is a mode of dissolution of marriage when the wife does not want to continue with the marital tie. To settle the matter privately, the wife need only to consult a Mufti (juris consult) of her school. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. Further, if the wife does not want to continue with marital tie and takes mode of ‘Khula’ for dissolution of marriage, she is required to propose her husband for dissolution of marriage. This may or may not accompany her offer to give something in return. The wife may offer to give up her claim to Mahr (dower). The ‘Khula’ is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. However, if the matter is carried to the point of litigation and cannot be settled privately then the Qazi(Judge) is required to deliver a qaza (judgment) based upon the Shariat.

15. In the present case, the appellant stated that she has obtained an ex parte ‘Khula’ on 9th May, 2008 from Mufti under the Muslim Personal Law. Neither it is pleaded nor it is made clear by the appellant or the 1st respondent as to whether for such ‘Khula’ the appellant made a proposal to husband-1st respondent for dissolution of marriage accompanied by an offer to give something in return. It has not been made clear that whether the appellant gave up her claim to Mahr(dower). The husband, 1 st respondent has not accepted ‘Khula’ given by Mufti (jurisconsult) which is in the form of fatwa or advisory decision based on the Shariat. He, however, has not moved before the Qazi (Judge) to deliver a qaza (judgment) based upon the Shariat. Instead, he has moved before the Family Court, Bandra against the ‘Khula’ by filing petition-M.J. Petition No.B-175 of 2008. He has also prayed for restitution of conjugal right. Therefore, with no certainty, it can be stated that the divorce was taken on 9 th May, 2008.

18. In the present case, as noticed that there is no definite plea taken either by the appellant or by the 1st respondent that ‘Khula’ become effective in accordance with Muslim Personal Law (Shariat). Neither the appellant nor the 1st respondent placed any evidence in support of such divorce. No specific pleading was made that the appellant proposed to her husband – 1 st respondent for dissolution of marriage. On the other hand, it is clear that the ‘Khula’ was pronounced by the Mufti ex parte. For the said reason, the 1st respondent challenged the same by filing M.J. Petition No.B-175 of 2008, before the Family Court, Bandra. In this background, we hold that the Sessions Judge, Sewree, Mumbai by order dated 3rd November, 2012 wrongly observed and held that the appellant is no more wife of the 1 st respondent. The High Court has also failed to notice that no evidence was produced in support of the statement either made by the appellant or by the 1st respondent. It also failed to appreciate the fact that the ‘Khula’ was obtained from the Mufti and not from Qazi and the same was challenged by the 1st respondent before the Family Court, Bandra, Mumbai and wrongly upheld the finding of the Sessions Judge. Therefore, with no certainty, it can be stated that the divorce has taken place on 9th May, 2008, in absence of pleading, evidence and finding.