The Kerala High Court has asserted the right of Muslim women to seek extra-judicial ways for dissolution of their marriage without intervention of the courts. The bench of Justices A Muhamed Mustaque and CS Dias, with the aid of a few amicus curiae overturned the Kerala High Court’s 1972 judgment by a single-bench negating the right of Muslim women to invoke extra-judicial divorce in light of the Dissolution of Muslim Marriages Act. When the Bench juxtaposed the Act with the Shariat Act it observed that the Dissolution of Muslim Marriages Act only deals with divorce by mutual consent and hence, other extra-judicial ways for dissolution of marriage were still available to Muslim women.
The court examined the question whether Muslim women have lost their right to invoke extra-judicial divorce, after the coming into force of the Dissolution of Muslim Marriages Act, 1939. The court clubbed cases seeking varied reliefs but where this common question was arising and where women wished to enforce their divorce. “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,” the court observed at the outset.
The court referred to the Holy Quran while observing, “The very concept of institutionalising 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, recognises the right to divorce equally for both men and women.” The court further observed that while the Quran conferred rights on spouses for divorce, it did not lay down exhaustive procedure for dissolving marriages. This indicates that areas related to divorce are amenable to change without prejudice to the right conferred on a spouse to separate or sever a marital knot.
The court then cited K.C.Moyin v. Nafeesa & Others [1972 KLT 785], a precedent set by the Kerala High Court which negated the right of Muslim women to invoke extra-judicial divorce in light of the Dissolution of Muslim Marriages Act. The counsel for one of the petitioners stated that his client was being prevented to invoke her right for extra-judicial divorce vis-a-vis Khula, as permitted and recognised under the personal law. Hence, KC Moyin needs to be reconsidered.
Forms of divorce under Islamic law
The court set forth the four forms of dissolution of marriage at the instance of the wife that are protected under Shariat Act.
Talaq-e-tafwiz: It is based on contract and if the husband violates the agreement, the wife is entitled to divorce without intervention of the Court
Khula: The wife agrees to give a consideration to her husband for her release from the marriage tie.
Mubaraat: Dissolution of marriage by mutual consent
Faskh: Effected through intervention of the court/Qazi
Under the Shariat Act, a Muslim women retained the right of all modes of extra-judicial divorce recognised under their personal law Shariat, except Faskh. However, in spite of the Shariat Act, women belonging to the Hanafi School of Law were not allowed to obtain decree from the court to dissolve their marriage. The Dissolution of Muslim Marriages Act, therefore, was enacted to consolidate and clarify the provisions of the Muslim law relating to the suit for dissolution of marriage by married Muslim women. However, what is consolidated in the Act is the law relating to Faskh alone. The intention of the Act is to extend judicial divorce to all Muslim women irrespective of the schools they follow, with the intervention of the court and it never intended to do away with the practice of extra-judicial divorce otherwise available to a Muslim woman. This is fortified by the fact that after passage of the Act, section 5 of the Shariat that dealt with Faskh was repealed, while other provisions related to extra-judicial dissolution of marriage remain untouched.
The court held that judgment passed in KC Moyin which negated the right of Muslim women to invoke extra-judicial divorce, to be bad in law and observed thus,
“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.”
The court further found it necessary to elucidate what is Khula and how it is effected since judicial pronouncements has confused Khula as a ground for divorce under the Dissolution of Muslim Marriages Act. The court examined a few verses of the Quran to state that they confer absolute right on the wife to annul the marriage with her husband, without the husband’s consent being a pre-condition for the validity of such Khula. However, the return of dower is a condition in order ensure fairness of justice. A wife cannot walk away from the marriage after obtaining material gain from the husband, on her own volition, without returning what she obtained. Thus, the husband may approach the court if the wife declares Khula and does not return the dower, but it is not ore-condition to validate Khula. Such an approach would deny the right conferred upon the wife under the Quran, the court stated. “When substantial provisions in unequivocal terms confer a right on a Muslim wife, procedural equity to be followed cannot override such substantial right,” the court observed.
The court referred to cases where the court had recognised Khula as a mode of extra-judicial divorce. In Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and another [(2014) 10 SCC 736] recognized khula as extra-judicial divorce in the context of the Protection of Women from Domestic Violence Act, 2005. The court held that the procedural aspect has not been declared under any law hence the same has to be determined with the help of Quran and Hadiths.
The court stressed upon conciliation before declaration of divorce, “When Quran itself speaks about conciliation to resolve the disputes, it essentially means that an attempt for resolution of disputes shall be made at the first instance. This would guard against an impulsive decision at the instance of the wife,” the court stated. The court guarded the procedure against untold miseries to both parties. The court referred to the apex court’s decision in Shayara Bano v. Union of India and Others [(2017) 9 SCC 1] where it was held that triple talaq invoked without any attempt for reconciliation is arbitrary and violative of fundamental right contained in Article 14 of the Constitution. Talaq and Khula are juxtaposed as similar rights available to husband and wife under the Shariat Act.
Thus, the court held that “Khula will be treated as valid or effective under law only if it was preceded by an effective attempt for reconciliation by the parties.” The court also made a reference to how Khula is practiced in several countries across the world to reflect upon its flexibility for adaptation.
The court then set out pre-requisite conditions that would validate khula:
(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.
In order to arrive at the decision on legal validity of Khula and how it can be effected legally, the court referred to opinions of Islamic scholars through their works as also of the many Amicus curiae appointed by the court to assist in the matter.
How Family courts may deal with extra-judicial practices
The court stated that in the matter of unilateral dissolution of marriage, invoking khula and talaq, the scope of inquiry before the Family Courts is limited.
In such proceedings, the court shall record the khula or talaq to declare the marital status of the parties after due notice to other party.
If any person wants 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.
In the matter of 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 Family Court therefore, shall restrain from adjudicating upon such extra-judicial divorce unless it is called upon to decide its validity in appropriate manner.
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 then, accordingly disposed of each petition, based on the varied prayers made in each of these petitions. One petitioner had already declared khula and conciliation had taken place at Family court; the court declared the marriage to have been dissolved due to Khula. In another appeal the mutual consent decree was challenged by the husband stating it was obtained by fraud; the court declared that the decree be treated as Mubaraat as the signature on such decree was not contested. Another petitioner sought expeditious disposal of proceedings under the Dissolution of Muslim Marriages Act; the court reserved her liberty to resort to extra-judicial divorce. The last petition was filed against the Family court that refused to entertain mutual consent divorce stating that there is no substantial provision under the Muslim law to grant divorce on mutual consent; the court stated that the role of Family court in such cases is limited and once it is satisfied that mubaraat is executed by both the parties, it shall declare the matrimonial status of such parties. The court stated that the Family Court is bound to entertain a petition for declaration of the status based on mubaraat.
Accordingly, the court disposed all the petitions before it while making an important pronouncement recognizing extra-judicial forms of dissolution of marriage for Muslim women; which had been restricted by a single judge bench judgement of the Kerala High Court.
The complete judgment may be read here: