Can Muslim Women divorce by 'Khula'? Supreme Court appoints Amicus to assist

The Supreme Court of India has recently granted leave in a Special Leave Petition filed before it that has challenged the Kerala High Court's 2021 decision whereby it had overruled a 49-year-old judgment that effectively barred Muslim women from resorting to extra judicial modes of dissolving marriage, has been challenged before the Supreme Court of India. 

While listing the issue for regular hearing on April 22, 2026, court has requested Senior Advocate Shoeb Alam, to assist it in this matter, as it involves a question of Muslim personal law.

"Registry is directed to communicate this order and furnish a full set of paper books/papers of this matter to Mr. Shoeb Alam, learned amicus curiae", a bench of Justices Sanjay Kumar and K Vinod Chandran ordered accordingly.

In April 2024 a bench of Justices AS Bopanna and Sanjay Kumar had issued notice in the SLP filed against the 2021 ruling while condoning the delay.

High Court's bench comprising of Justice A Muhamed Mustaque and Justice CS Dias had in the impugned judgment allowed Muslim Women to enforce “Khula” or Reverse Talaaq by returning dower to her husband.

The High Court's decision emanated from a matrimonial case wherein a young woman, hereinafter referred to as ‘Y’ (name withheld to protect her privacy) was granted a decree of divorce by the Family Court, Thalassery. ‘Y’ had instituted the petition under the Dissolution of Muslim Marriages Act, on the grounds that her husband ‒ ‘X’, was impotent and treated her with cruelty. Challenging the decree, ‘X’ had preferred the appeal before the High Court.

The Court took into consideration the question as to whether it is the intention of the Legislature to do away with extra-judicial divorce otherwise followed by the followers of different school. “The issue involved in as above is inextricably connected to ultimate justice which women involved in all these cases seek. These cases speak in abundance about the patriarchal mind-set followed in the Society for decades depriving Muslim women their right to invoke extra-judicial divorce. While there was a huge clamour to retain the practice of ‘triple talaq’, an un-Islamic practice; no such open and apparent demand seems to exist to restore the right of Muslim women to invoke extra-judicial divorce. The above sketch the miseries of women despite the promise guaranteed under Article 14 of the Constitution of India", the High Court noted.

“The Holy Quran, therefore, recognizes the right to divorce equally for both men and women. However, the dilemma of Muslim women, particularly in the State of Kerala, came into the fore when a learned Single Judge of this Court in K.C.Moyin v. Nafeesa & Others [1972 KLT 785] negated the right of Muslim women to invoke extra-judicial divorce in light of the Dissolution of Muslim Marriages Act, (in short ‘Act”). It is held that under no circumstances, a Muslim marriage cannot be dissolved at the instance of wife, except in accordance with the provisions of the Act", the High Court added while holding that the law declared in K.C. Moyin's case was not good law.

In the case before High Court a young woman, referred to as ‘Y’ (name withheld to protect her privacy) was granted a decree of divorce by the Family Court, Thalassery. ‘Y’ had instituted the petition under the Act, on the grounds that her husband ‒ ‘X’, was impotent and treated her with cruelty. Challenging the decree, ‘X’ had preferred the appeal before the High Court.

‘Y’ contended that “because of the decision in K.C.Moyin (supra), ‘Y’ has been made to go through the ordeal of a long drawn adversarial litigation and is being prevented to invoke her right for extra-judicial divorce vis-a-vis Khula, as permitted and recognised under the personal law. Hence, K.C.Moyin (supra) requires reconsideration. He also submitted that ‘Y’ may be granted leave to pronounce Khula, so that her miseries may not get prolonged. If Khula is accepted as valid, ‘Y’ has no objection in setting aside the impugned decree on fault grounds and the appeal can be disposed recording Khula.”

The court disagreed on the decision given in the K.C.Moyin case by the High Court and observed that, “Shariat Act recognized extra-judicial divorce as well as judicial divorce. The Shariat Act was enacted in an attempt to get rid of customary law that was followed by the Muslims in India. It was observed in the statement and objects and reasons of the Shariat Act that the status of Muslim women under the so called customary law is simple and graceful. The customary law appears to have affected the rights of Muslim women.”

Case Title:  X vs. Y

Bench: Justices Kumar and Chandran

Hearing Date: February 2, 2026