Kerala High Court Overrules Old Precedent & Holds Right Of Muslim Woman To Invoke Extra-Judicial Divorce

Kerala High Court Overrules Old Precedent & Holds Right Of Muslim Woman To Invoke Extra-Judicial Divorce

The Kerala High Court (HC) held that 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 HC bench comprising of the bench of Justices A Muhamed Mustaque and CS Dias gave the judgment in the context of a clutch of petitions filed before it by aggrieved partners in marriages where extra-judicial modes of dissolution had been restored to.

The Court discussed in detail the modes of dissolution in Muslim personal law and further discussed the modes specifically available to women. The modes available to women are discussed below-

• 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'atg, dissolution by mutual consent, and

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

The HC stated that a Muslim woman has an unconditional right to invoke a khula, and it highlighted that any invocation of the same without there being an attempt for reconciliation would be bad in law.

The Court further holds that "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 a marriage by the wife.

II. An offer to return dower or any other material gain received by her during the marital tie.

III. An effective attempt for reconciliation was preceded before the declaration of khula."

The HC further emphasized 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.

The HC highlighted that a mode of talaq was struck down by the Supreme Court namely the talaq-e-biddat (triple talaq) and stated that "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."

It stated that "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."

In Juveria Abdul Majid Patni v. Atif Iqbal Mansoori and another [(2014) 10 SCC 736]- The Apex Court considered extra-judicial divorce of khula in the context of the Protection of Women from Domestic Violence Act, 2005. It recognized khula as a mode of extra-judicial divorce to decide the issue related to the said Act.

The HC highlighted that in the case titled KC Moyin v. Nafeesa, [1972 KLT 785], 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). Hence, it held that the findings of this case were bad in law.

The HC ruled, "On an overall analysis of the scheme of the Shariat Act as well as the Dissolution of Muslim Marriages Act as we are of the considered view that the Dissolution of Muslim Marriages Act restricts 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 Muslim women."

It placed reliance on the judgments of the Apex Court in Shamim Ara v. State of U.P. [(2002) 7 SCC (Crl.) 1814], the Apex Court held that instantaneous triple talaq not preceded by the attempt of reconciliation is bad in law.

In the majority decision of the Constitutional Bench of the Apex Court in Shayara Bano v. Union of India and Others [(2017) 9 SCC 1] it was held that triple talaq invoked without any attempt for reconciliation is arbitrary and violative of the fundamental right contained in Article 14 of the Constitution.

It concluded, "We hold that Khula will be treated as valid or effective under the law only if it was preceded by an effective attempt for reconciliation by the parties."