CASE NOTE

ON

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

(Family Court Appeal No. 179 of 2009)
Decided On:23/03/2010

Appellant: Sabah Adnan Sami Khan

Vs
Respondent: Adnan Sami Khan

FACTS
Sabah Khan, the petitioner is a Citizen of UAE and Adnan Sami Khan, the respondent is a
citizen of Pakistan. They both are Mahomedans and belong to Sunni Sect.
They both got married to each other in 2001 according to Islamic rights. They dissolved their
marriage in 2004 by signing Talaqnama (A Divorce Agreement). They remarried again in the
Year in 2007. The Petitioner filed for a Divorce again in 2009 under Sec 2 of The Dissolution
of Muslim Marriage Act.

PROCEDURAL HISTORY
In 2009 the Wife filed for Divorce under section 2 of The Dissolution of Muslim Marriage
Act, but the Respondent claimed that their marriage was void as the petitioner has not
performed the custom of “Halala”. The Family Court has upheld the claim made by the
Respondent. Then the respondent filed a petition against the Family Courts order in Bombay
High Court
SECTIONS & RULES BEING DISCUSSED
Divorce by ' Ahsan ' mode is when the husband pronounces divorce (Talaq) once during two
consecutive ' tuhrs ' (menstrual periods), followed by a period of three lunar months called
the 'Iddat ' period during which the husband may revoke the divorce and at the end of which
the divorce becomes irrevocable.
Khula Mode ' divorce is when the wife initiates a divorce proceeding. The wife should make
an offer to the husband in the' Khula' mode and could renounce her claim to ‘mehr' as
consideration for the husband to relieve her of marital rights and duties. The marriage
becomes irrevocable upon acceptance of the offer and the wife can withdraw her offer before
it is accepted by the husband.

ARGUMENTS OF THE PARTIES

The Husband argued that the remarriage between them was not valid as she did not do
“Halala” which is a custom to be followed in Khula mode to remarry her husband
The wife appealed that her marriage was not under Khula mode but was under Ahsan mode
as they revoked Talaqnama in the required time

COURTS RATIO
In this case, the court referred to the ' talaqnama ' signed between the parties stating that the
initiation for the divorce proceeding was initiated on the petitioner's wishes, but the court
paid particular attention to one provision in the ' talaqnama ' stating that the respondent had
said, "My wife Sabah Khan is divorced. The court concluded that of' talaq' and by' Ahasan '
style, the divorce was by a single pronouncement. The court dismissed the respondent's claim
that divorce was by' Khula' mode by saying that the petitioner, wife, was not the only person
in the' talaqnama' who relinquished her claim to the husband's financial rights; the
respondent, Husband, also relinquished his claim to financial rights over his wife

FINAL DECISION
The divorce between the respondent and the applicant was by mode ' Ahasan ' and not by
mode ' Khula '