Islamic Law Recognizes Muslim Woman's Right To Demand Divorce, Husband's Consent Not Essential: Kerala High Court

Tracing back the evolution of the right of women to obtain a divorce from pre-islamic period onwards, the Court, relying on a research thesis, said the women exercised the authority to divorce unilaterally even during the per-Islamic period.

"In the post-Islamic period, Islam emphasised on conciliation as the preferred mode of resolution of all disputes between the believers. The believers, at the first instance, will have to resort to conciliation, before resorting to the authority given to them to terminate any sort of legal relationship," said the court.

Referring to the reported Hadith, the Court observed that the instances involved a conciliatory situation, and questioned whether procedure in itself can become law for effecting khula.  To answer the question, the court said one needs to distinguish between Hadith and Sunna - the former refers to the conduct of the prophet in a situation and latter refers to the law deduced from it. 

"The procedure delineated and relied upon only refers to the settlement of a demand and the husband obliging thereon, by accepting return of the materials by pronouncing talaq, at the intervention of a third-party. That procedure adopted in a particular situation cannot itself be made a general law relating to khula while analyzing the right of the wife to obtain divorce. The general law has to be understood from the purport of the authority given and not with reference to the situation or circumstances under which it was exercised," added the court.

It further observed that in Islamic law, it is desirable that all kinds of disputes are resolved amicably between believers, either themselves or with the assistance of the Ruler.

"If the matter is resolved by the Ruler or with the intervention of a third party, that procedure itself cannot be cited as the procedure for the determination and validity of the right conferred under the Quranic legislation. The right itself has to be understood from the scheme of the law," said the bench

However, the Court clarified that it is not invalidating the procedure of arriving at a settlement between spouses on demand of the wife. The Court reiterated that the procedure is most desirable for parties.

"However, we cannot hold that that procedure followed situationally, be treated as a law when parties are not able to arrive at such a settlement. If the procedure itself is understood as the law, that would derogate from the right conferred on a Muslim wife, under Quranic legislation, to terminate the marriage at her will."

The Court observed that the deduction of law from a particular conduct of the Prophet is not easy as the prophet acted in different and varied capacities, either in isolation or in a combination of those different capacities. The same has resulted in different understandings of Sunnah among Islamic scholars, the Court said, adding that as a result the difference has extended to beliefs and practices as well.

Woman Has Right To Terminate Marriage On Her Own

A Muslim Scholar turned lawyer, Advocate Hussain C. S. contended that if the husband refuses to pronounce talaq on the request of the wife, a qadi has the power to pronounce talaq, and in the absence of a qadi, the modern Court can exercise the power of qadi.

"A qadi cannot be equated with a Court in the modern State. Apparently, the reference to the qadi in this context is to exercise his authority as a guardian rather than an adjudicator. It is acknowledged by Islamic law that the Muslim wife has the right to demand termination of marriage. The argument that if the husband refuses, she has to move the Court stares at us," said the bench.

The court added that when the woman moves the court in such a situation, it is neither called upon to adjudicate nor called upon to declare the status, but simply has to pronounce termination of marriage on behalf of the wife.

"The Court in our country is not a guardian of an adult and able woman. If there is nothing for a Court to adjudicate, the Court cannot assume the role of a guardian and pronounce termination of marriage at the instance of a woman. Conferring authority upon the court is an exercise in futility, inasmuch as the court cannot entertain the request as there is no dispute to be resolved between the parties. The relief of declaration of status based on divorce can be given only when divorce is effected through an extra judicial method," it observed.

The Court further said that the very nature Khula has been recognised as a mode of divorce on a no-fault basis, and that is the reason why in the order under review, the Court interpreted that the residuary ground as referred under Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939 cannot be equated with khula.

"Dissolution of Muslim Marriages Act only contemplates the dissolution of marriage at the instance of Muslim women on fault grounds," it added. 

Observing that Sunnah cannot override or abrogate the primary legislation in Islamic law, the court further said:

If the Qur'an, 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

The Court, relying on the writings on Islamic Law, pointed out that the nature of Khula is in the form of a 'permissible' action to the Muslim wife who seeks to exercise the option of terminating her marriage.