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‘Khula absolute, not subject to husband’s will’ — Kerala HC on Muslim woman’s right to divorce

Decision came as HC dismissed a review petition filed by a man challenging divorce granted to his wife. According to the husband woman's right to end marriage under khula is not absolute.

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New Delhi: A Muslim woman has the absolute right to terminate her marriage at will and does not need her husband’s consent for it, held the Kerala High Court last week, while dismissing a review petition filed by a man challenging the divorce granted to his wife, under the Dissolution of Muslim Marriages Act,1939.

The verdict comes even as the discourse on introducing a Uniform Civil Code — to bring in uniformity in the personal laws regulating succession, inheritance, adoption, marriage, divorce, maintenance and alimony, for all religious groups in the country — is gathering strength.

“We declared that the right to terminate the marriage at the instance of a Muslim wife is an absolute right, conferred on her by the holy Quran and is not subject to the acceptance or the will of her husband,” said the division bench of Justice A. Muhamed Mustaque and C.D. Dias, of the Kerala High Court.

In an order last week, the court noted that Muslim women have the extra-judicial option of calling off the marriage “unilaterally” and went on to observe that the husband’s petition against the divorce was not “innocuous” and appeared to have been filed at the behest of “Muslim clergies and hegemonic masculinity”.

“This is a typical review portraying that Muslim women are subordinate to the will of their male counterparts. This review does not look innocuous at the instance of the appellant, but rather appears to have been fashioned and supported by clergies and the hegemonic masculinity of the Muslim community who are unable to digest the declaration of the right of Muslim women to resort to the extra-judicial divorce of khula, unilaterally,” observed the court.

The review petition was directed against a divorce granted to a Muslim woman by the Kerala High Court in 2020.

Dismissing the review petition, the Kerala high court bench cited the three conditions to hold khula, or the termination of marriage by a woman, valid — a declaration of repudiation or termination of marriage by the wife, an offer to return dower or any other material gain received by her during marital tie and that an effective attempt for reconciliation was preceded before the declaration of khula. 


Also read: Uniform Civil Code raked up before polls to hide governance failures, says Muslim body


‘Court in our country not guardian of an adult and able woman’

According to the judgment, advocate Hussain C.S. — who was present in court at the time of the proceedings and whom the court had allowed to submit arguments in favour of the petitioner — said that if the husband refuses to pronounce talaq on the request of the wife, a qadi (or qazi, magistrate or judge of a Sharia court) has the power to pronounce talaq, and in the absence of a qadi, the modern courts can exercise the power of a qadi, who can act as a conciliator, mediator and also as guardian.

To this, the court noted that qadi cannot be equated with a court in the modern state, but it is to be analysed for what purpose the woman has to move the court when the Islamic law acknowledged that the Muslim wife has the right to demand termination of marriage.

“The argument that if the husband refuses, she has to move court stares at us. For what purpose she has to move the court, begs the question,” observed the court.

The bench added: “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.”

However, in the absence of any mechanism in the country to recognise the termination of marriage at the instance of the wife when the husband refuses to give consent, the court said, it can simply hold that khula can be invoked without the conjunction of the husband.

‘Court won’t surrender to the opinions of the Islamic clergy’

The petitioner’s counsel argued that though a Muslim woman has a right to demand divorce of her own will, she does not have the absolute right to pronounce khula, like the right of her counterpart (husband) to pronounce talaq.

According to the judgment, the petitioner’s counsel further claimed that nowhere in the world is a Muslim wife “allowed to unilaterally terminate the marriage” and that the court is also “not competent to decide on religious beliefs and pratices and should follow the opinion of Islamic scholars”.

The division bench of Mustaque and Dias held, however, that it cannot rely upon Islamic clergy who have no legal training or knowledge in legal sciences to decide on a point of law.

“The courts are manned by trained legal minds. The court shall not surrender to the opinions of the Islamic clergy, who have no legal training on the point of law,” stated the judgment.

It added that the high court had relied on Chapter II, verse 229, of the Quran, where the right of a Muslim wife has been explicitly referred to, and said that this “legal conundrum” is not an isolated one, but has evolved over the years.

It observed that this was the result of “the scholars of Islamic studies, who have no training in legal sciences who started to elucidate on the point of law in Islam, on a mixture of belief and practice (sic).”

Khula — Muslim woman’s right to end marriage at will

To hold that the Islamic laws recognise Muslim women’s right to end marriage at will without the husband’s consent, the division bench of Justices Mustaque and Dias cited verses from the Quran and made an attempt to distinguish between Hadith (narration of the conduct of Prophet Muhammad in any situation) and Sunnah (the law deduced from it).

Referring to the Hadith, the petitioner claimed that the Prophet has prescribed a procedure for divorce according to which the husband has to pronounce talaq on the demand of the wife.

The petitioner’s counsel further argued that khula is legally effective only when the husband accepts the wife’s offer of payment of dower and divorces her and that all Muslim scholars are unanimous in their opinion that khula is a divorce by mutual consent with the acceptance of the husband being an essential element for a valid khula.

“We are called upon to decide as to the true procedure to be followed for divorce at the instance of the wife (khula),” the court said. For this, the court said it is important to make a distinction between Hadith and Sunnah.

The court said general law cannot be made from a procedure adopted in a particular situation, but 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. “That procedure adopted in a particular situation cannot itself be made a general law relating to khula while analysing the right of the wife to obtain divorce,” it said.

“The Quranic verse relating to khula found in Chapter 2, verse 229, in unequivocal terms, declares that a Muslim wife has the right to terminate her marriage,” the bench held.

It added: “The will of the wife so expressed cannot be related to the will of the husband who has not expressed his choice to terminate the marriage.”

(Edited by Poulomi Banerjee)


Also read‘POCSO overrides personal laws’ — Karnataka HC holds pregnant Muslim minor’s marriage invalid  


 

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