Supreme Court Issues Notice On Plea Challenging Kerala HC's Judgment Recognizing Muslim Woman's Absolute Right To Divorce By 'Khula'

In a petition filed against a Kerala High Court judgment recognizing Muslim women's unconditional right to resort to khula (a form of divorce under Muslim personal law), the Supreme Court yesterday (April 1) issued notice.

The Bench of Justices AS Bopanna and Sanjay Kumar was hearing the challenge brought by Kerala Muslim Jamaat and a private individual, vide two separate Special Leave Petitions (SLPs), to a judgment delivered by the High Court in a Matrimonial Appeal, as well as to the dismissal of the Review Petition against the judgment in the Matrimonial Appeal. 

In the matrimonial appeal, the High Court dealt with a challenge to a divorce decree granted to a Muslim wife under the Dissolution of Muslim Marriages Act. Holding that the right to terminate the marriage is a Muslim wife's absolute right, conferred on her by the Holy Quran and not subject to the acceptance or the will of her husband, the Court overruled the 49-year-old judgment in KC Moyin v. Nafeesa which effectively barred Muslim women from resorting to extrajudicial modes of dissolving marriage.

The High Court further observed that all forms of extra-judicial divorce referred in Section 2 of the Shariat Act, except Faskh, were available to Muslim women. In the absence of any secular law governing khula, the Court enunciated that khula would be valid if the following conditions are satisfied:

“(i) A declaration of repudiation or termination of marriage by wife.

(ii) An offer to return dower or any other material gain received by her during marital tie.

(iii) An effective attempt for reconciliation was preceded before the declaration of khula."

"If any person want(s) to contest the effectiveness of khula or talaq, it is open for such aggrieved person to contest the same in appropriate manner known under law," the High Court added.

Against this ruling in the matrimonial appeal, a review petition was filed stating that if a Muslim wife wishes to terminate her marriage with her husband, she must demand talaq from her husband and on his refusal, move the qazi or Court. In other words, the petitioner conceded that a Muslim woman had the right to demand divorce of her own will, but argued that she has "no absolute right" to pronounce khula.

The review petition came to be dismissed in 2022. This time, the bench noted that the will of a wife could not be related to the will of a husband who may not be agreeing to the divorce. It was reasoned that right to invoke khula is granted to a Muslim woman by Quran and would be rendered ineffective if subjected to husband's will.

"In the absence of any mechanism in the country to recognize the termination of marriage at the instance of the wife when the husband refuses to give consent, the court can simply hold that khula can be invoked without the conjunction of the husband", the High Court said.

It added that khula was in the nature of a 'permissible' action to a Muslim wife who seeks to exercise the option of terminating her marriage.

“If the Quran, in unequivocal terms, permits spouses to terminate their marriage on their own will, it cannot be said that the Sunnah further qualifies it, subjecting it to the will of the husband, in the case of khula.”

Against the two judgments, the present petitioner approached the Supreme Court. Senior Advocate Devadatt Kamat, appearing for the petitioner, contended that whether the conditions laid down for khula are satisfied has to be seen by Courts: “what we are only saying is this…that all this is accepted, but it has to be with the intervention of the court”.

Kamat underscored that the petitioner was not contesting on individual merits of the case. Rather, it is the law that the petitioner is concerned with, as it is not in consonance with earlier judgments by the top Court and Madras High Court.

On hearing Kamat and perusing the record, the Bench issued notice.

Case Title: X v. Y, Diary No.- 11727 – 2023, Kerala Muslim Jamaat v. Y Diary No. 16709 - 2023

Click here to read the order