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IN THE HIGH COURT OF KERALA
A. MUHAMED MUSTAQUE, C.S. DIAS, JJ.
X - Appellant
Versus
Y - Respondent
Mat. A. No.89 of 2020 & connected cases
Decided On : 09-04-2021
Divorce - Muslim Personal Law - Dissolution of Muslim Marriages Act, 1939; Muslim Personal Law (Shariat) Application Act, 1937 - The court recognized the right of Muslim women to invoke extra-judicial divorce (khula) and clarified that the Dissolution of Muslim Marriages Act does not negate this right. Key provisions include Section 2 of the Shariat Act, which recognizes various forms of extra-judicial divorce, and the implications of the 1939 Act, which consolidates rights but does not eliminate them.
Fact of the Case:
Multiple cases arose regarding the right of Muslim women to invoke extra-judicial divorce (khula) after the enactment of the Dissolution of Muslim Marriages Act, 1939. Women sought relief from family courts facing patriarchal practices restricting their divorce rights, particularly those stemming from the decision in K.C. Moyin v. Nafeesa.
Issues: The primary issues included whether Muslim women lost their right to invoke extra-judicial divorce after the Dissolution of Muslim Marriages Act and the interpretation of khula within the context of current personal laws.
Ratio Decidendi: The court concluded that the right to invoke khula is absolute and does not require the husband's consent, affirming that existing legislation recognizes a woman's right to initiate divorce through khula.
Final Decision: The court validated the khula invoked by Y, declaring her marriage with X to be dissolved.
Certainly. Here are the key points derived from the provided legal document:
The court affirms the absolute right of Muslim women to invoke khula for divorce, and this right remains valid despite the provisions in the Dissolution of Muslim Marriages Act, 1939 (!) (!) .
The right to khula is recognized as an unconditional right conferred upon Muslim women, similar to the husband's right of talaq, and does not require the husband's consent for its validity (!) (!) .
Khula can be invoked by the wife without the necessity of prior reconciliation attempts, but effective reconciliation efforts are considered a reasonable prerequisite, and invoking khula without such attempts may be deemed invalid (!) (!) .
The procedure for khula involves the wife making an offer to the husband to terminate the marriage, which must be accepted for the divorce to be valid. The offer and acceptance can be oral or written and should ideally be made at one meeting (!) (!) .
The husband's consent is not a precondition for the validity of khula; however, returning or compensating the consideration (such as dower) received by the wife may be a matter of fairness and can be claimed back if the wife refuses to return it after invoking khula (!) (!) .
The legal validity of khula is reinforced by its recognition in Quranic verses and Islamic teachings, emphasizing fairness, justice, and the importance of reconciliation before divorce (!) (!) (!) .
The court has jurisdiction to recognize and declare the validity of extra-judicial divorces like khula, mubaraat, and others, and Family Courts are empowered to declare the matrimonial status based on such divorces, provided procedural fairness is observed (!) (!) .
Any invocation of khula should be preceded by an effective attempt at reconciliation; otherwise, it may be considered arbitrary or unlawful (!) (!) .
The recognition of khula varies across different jurisdictions, with some countries permitting it under specific conditions, often involving the return of consideration or an attempt at reconciliation (!) (!) (!) (!) .
The procedural aspect of khula, in the absence of specific secular laws, relies on Quranic principles, Hadith, and Islamic jurisprudence, emphasizing fairness and justice (!) (!) (!) .
The Family Courts Act, 1984, provides a framework for the courts to declare the matrimonial status of the parties and recognize extra-judicial divorces, with procedures aimed at minimizing delays and ensuring fairness (!) .
The court underscores that the right to invoke khula is fundamental and independent, but procedural fairness, including attempts at reconciliation, is essential for its validity under law (!) (!) .
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JUDGMENT :
A. MUHAMED MUSTAQUE, J.
1. INTRODUCTION: Have Muslim women lost their right to invoke extra-judicial divorce, after the coming into force of the Dissolution of Muslim Marriages Act, 1939 is the short and straight forward question rising for consideration in these cases.
2. These bunch of cases arise out of different proceedings before the Family Courts seeking varied reliefs. 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-lslamic 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 Art.14 of the Constitution of India.
3. Islam lays great emphasis on the stability of family. According to the Holy Quran[In the judgment, translation of Quaranic verses are from The Meaning of The Glorious Qur’an - An explanatory translation by Marmaduke Pickthall.] “God did create you from dust” then from sperm drop, then he made you in pairs (Surah (Chapter) xxxv Verse 11). God’s declaration that men and women are created in pairs is repeatedly stated in several verses to acknowledge the spirit of marriage. They are made as a mate to find comfort and purify their inner soul, it is also stated that male and female together make a single self, which symbolises raiment. Chapter II Verse 187 Quran states: ‘you are raiment for her and she is raiment for you’, which highlights the closeness of a mate, like cloth; for protection and comfort etc. The spirit of marriage lies in the closeness and bonding between the partners.
4. Chapter IV Verse 28 Quran states that man was created weak, to mean that his decisions are vulnerable. The very concept of institutionalizing marriage in Islam through a contract is to remind that the parties to the marriage may error in their decision and they may fall apart in conflict to remain as united. Marriage as a contract guarantees both parties permanent rights and obligations. The Holy Quran, therefore, recognizes the right to divorce equally for both men and women. However, the dilemma of Muslim women, particularly in the State of Kerala, came into the fore when a learned Single Judge of this Court in K.C.Moyin v. Nafeesa & Ors. (1972 KLT 785) negated the right of Muslim women to invoke extra-judicial divorce in light of the Dissolution of Muslim Marriages Act, 1939, (in short ‘Act”). It is held that under no circumstances, a muslim marriage can be dissolved at the instance of wife, except in accordance with the provisions of the Act.
5. Muslim Personal Law is broadly understood as Shariah. The word Shariah literally means “a way to the watering place, or a path apparently to seek felicity and salvation.[ Shari’ah Law: An introduction: Mohammad Hashim Kamali.] In Chapter xlv Verse 18 Quran says: “Thus we put you on the right way of religion. So follow it and follow not the whimsical desire of those who have no knowledge”. Shariah primarily and predominantly relates to ethical values essential for both worlds. Quran by itself did not promote straight forward code of law. Many legal rules become part of Shariah from the life and sayings of the last Prophet Muhammad (This is called Hadith). After the demise of the Prophet, islamic scholars and jurists developed Rules through legal reasoning (Ijtihad) and using legal verdict (Fatwa). This is how principles of Islamic jurisprudence called ‘Fiqh’ developed. Fiqh is the corpus of legal principles deducted from the Holy Quran for implementing Shariah.[ For more reading on Fiqh, refer outlines of Mohammedan Law by Asaf A.A.Fyzee.] The Holy Quran is neither a legal document nor a code of law. Most of the ideas
The court established that the right to invoke khula by Muslim women is absolute and remains intact despite provisions in the Dissolution of Muslim Marriages Act.
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