Muslim Women Can Approach Family Courts For 'Khula', Self Declared Bodies Like ‘Shariat Council’ Can’t Certify Dissolution Of Marriage: Madras High Court

Justice C Saravanan quashed a Khula certificate issued by the Shariat Council and directed a woman and her husband to approach the Tamil Nadu Legal Services Authority or a Family Court to resolve their disputes.

"Thus, while it is open for a Muslim Woman to exercise her inalienable rights to dissolve the marriage by Khula recognized under the Muslim Personal Law (Shariat) Application Act, 1937 by approaching a Family Court, it cannot be before a self declared body consisting of few members of Jamath."

The bench noted that even previously, the High Court in Bader Sayeed Vs. Union of India had restrained bodies such as Kazis from issuing certificates dissolving marriages by Khula.

"The private bodies such as the Shariat Council, the second respondent herein cannot pronounce or certify dissolution of marriage by Khula. They are not Courts or Arbitrators of disputes. The Courts have also frowned upon such practice as mentioned above," said the bench.

Background

The court was hearing a petition by Mohammed Rafi seeking to quash the Khula Certificate issued by the Shariat Council, registered under the Tamil Nadu Societies Registration Act 1975.

Relying upon decision of the Apex Court in Vishwa Madan Lochan Vs. Union of India and ors, he submitted that "fatwa" has no legal sanction and cannot be enforced either by parties.

He added that as per the decision in Bader Sayed, the parties have to be governed by respective personal laws which are formulated in consequence of the Dissolution of Muslim Marriages Act, 1939.

The Shariat Council, on the other hand relied upon the decision of the Kerala High Court in which the court upheld the right of a Muslim woman to resort to extra judicial divorce of Khula thus allowing her to terminate her marriage.

Justice Saravanan however noted that the Kerala High Court decision only upheld the right of the Muslim women, and did not endorse the involvement of private parties. Thus, the court deemed it fit to set aside the certificate.

Case Title: Mohammed Rafi v. State of Tamil Nadu and Others

Citation: 2023 LiveLaw (Mad) 34