Breaking: Muslim Woman Has The Right To Invoke Extra-Judicial Divorce, Rules Kerala High Court, Overrules About Half-Century Old Precedent

Finding that the governing law, The Dissolution of Muslim Marriages Act did not contemplate the undoing of the modes of extra-judicial divorce available to women under personal law, the bench of Justices A Muhamed Mustaque and CS Dias held,

"All other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to a Muslim women. We, therefore, hold that the law declared in K.C.Moyin's case (supra) is not good law."

The Court's judgment comes in the context of a clutch of petitions filed before it by aggrieved partners in marriages where extra-judicial modes of dissolution had been resorted to.

"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".

At the outset of its 77-page ruling, the Court poses the question of whether it is the intention of the Legislature to do away with extra-judicial divorce otherwise followed by the followers of different schools.

"There is a growing tendency to resist changes being effected upon the Muslim community with regard to the method and manner of effecting divorce consistent with the Quranic injunctions. This dilemma in our country is as old as the Dissolution of Marriage Act, 1939. The question involved in these cases also has to be probed on the anvil of the personal law protected under the statute, 'The Muslim Personal Law (Shariat) Application Act, 1937'".

How the Court resolves the question

In the judgment, the Court elaborately discusses the various modes of dissolution of marriage. Prior to its ruling, the Bench first discusses the modes of dissolution in Muslim personal law generally and then proceeds to discuss the modes specifically available to women. The modes available to women, the Court explains is,

- Talaq-e-tafwiz, where the wife can dissolve the marriage if her husband fails to keep his end of the marriage contract,

- Khula, where a wife can unilaterally divorce her husband by returning his dower,

- Mubara'at, dissolution by mutual consent, and

- Faskh, dissolution with the intervention of a third person such as a qazi.

The Court noted that the previous legislation governing Muslim marriages and other practices, The Shariat Act of 1937, specifically recognized all modes of extra-judicial divorce except Faskh. Highlighting this, the Court pointed out that Section 2 of the Shariat Act specifically recognized all modes of extra-judicial divorce except Faskh.

In KC Moyin v. Nafeesa, the High Court had declared that a woman could only resort to remedies under the Dissolution of Muslim Marriages Act and could not invoke remedies under personal law (extra-judicial remedies).

Disagreeing with the find after analysing provisions of the Dissolution of Muslim Marriages Act, the Court ruled,

"On an overall analysis of the scheme of the Shariat Act as well as the Dissolution of Muslim Marriages Act as above, we are of the considered view that the Dissolution of Muslim Marriages Act restrict Muslim women to annul their marriage invoking Faskh except through the intervention of the Court. All other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to a Muslim women. We, therefore, hold that the law declared in K.C.Moyin's case (supra) is not good law.

On khula

Holding that a Muslim woman held an unconditional right to invoke a khula, the Court, however, highlighted that any invocation of the same without there being an attempt for reconciliation would be bad in law.

"If an unbridled power to invoke khula is given to a Muslim wife, it may result in untold miseries and hardships to both…"

Further, the man could take recourse to law if the woman did not return her dower.

"Insistence to return dower or payment of compensation, therefore, are to be understood as husband is legitimately entitled to claim back what is otherwise due to him on account of unilateral invocation of khula by wife," the Court said.

Since there was no secular law to govern extra-judicial dissolution, the Court proceeded to adjudge principles from the hadith (Prophet's sayings),

"In the absence of any secular law governing khula, we hold 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."

How the Family Courts are to adjudicate extra judicial modes of dissolution

The Bench pointed out that the there is no difficulty for the Family Court to endorse an extra-judicial divorce to declare the matrimonial status of a person.

The Court directed that in the matter of talaq, khula, mubaraat, talaq-e-tafwiz, the Family Courts shall entertain such applications moved by either of the parties or both parties to declare the marital status of such parties.

Where unilateral modes of dissolution such as khula and talaq, the Court stated that the scope of inquiry before the Family Courts would be limited. In such proceedings, the High Court insisted that the court record the khula or talaq to declare the marital status of the parties after due notice to other party.

"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 Court stated.

Where consensual modes of dissolution were concerned, such as through the invocation mubaraat and talaq-e-tafwiz, on being satisfied that the dissolution is being effected on mutual consent, the Family Court without further inquiry shall declare the marital status, the Court mandated.

The Bench specially instructed Family Courts not to adjudicate upon extra-judicial divorce unless it was called upon to do so in an appropriate manner, since the Courts were overburdened with large number of cases.

"The Family Court in such matters shall endeavour to dispose the cases treating it as uncontested matter, without any delay by passing a formal order declaring the marital status", the Court said.

"There is a growing tendency to resist changes being effected upon the Muslim community with regard to the method and manner of effecting divorce consistent with the Quranic injunctions"

The Court pointed out the similarities of the practice of Khula to the more widely-known mode of dissolution available to men, the talaq, since both these practices are unilateral modes of divorce. Speaking specifically about a mode of talaq struck down by the Supeme Court, the talaq-e-biddat  (triple talaq), the Court emphasized,

"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"

From religious texts, the Court concluded that the khula was derived from the Quran. In this backdrop, the Court additionally observed, "there is a growing tendency to resist changes being effected upon the Muslim community with regard to the method and manner of effecting divorce consistent with the Quranic injunctions."

Underscoring that these deprived the rights of Muslim women to invoke extra judicial divorce, the Court remarked, "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".

Based on these findings, the various petitions were disposed.

CASE NAME: X v. Y and connected petitions 

COUNSEL: Amicus Curiae Advocates Mather KI and Vaheeda Babu, Advocates Babu Karukapadath, R.Ranjith Manjeri, Narayanan.P, V.K.Hema and Athira A.Menon for the petitioners. Kerala Federation of Women Lawyers, who sought permission to address the Court was represented by Advocate Shajna M.

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