Shariat Councils Are Not Courts; Cannot pronounce or certify divorce of Khula: Madras High Court
While it is open for a Muslim woman to exercise her right to dissolve marriage by 'Khula' by approaching a family court, it cannot be before a self-declared body consisting of few members of Jamath, the court stated.
;A Single Judge Bench of the Madras High Court comprising Justice C. Saravanam has recently held that private bodies such as the Shariat Council cannot pronounce or certify dissolution of marriage by Khula and it is open for a Muslim Woman to dissolve the marriage by Khula by approaching a Family Court.
The court was hearing a case wherein a Muslim woman had left the matrimonial house in 2016 and dissolved the marriage under the Muslim Personal Law (Shariat) by way of “Khula”. The wife then approached the Shariat Council which issued a Khula Certificate to the wife. The husband had challenged the Khula Certificate before the High Court through a writ petition.
However, before the khula was granted an exparte decree of restitution of conjugal rights was passed in favor of the husband. The husband had also filed a writ petition under the Guardians and Wards Act.
The counsel for the petitioner argued that a Muslim person can divorce his wife by pronouncing Talaq in three regular intervals and is not required to approach the Court as long as such announcements of Talaq are in public and in accordance with provisions of the Muslim Personal Law and should be preceded with the mediation. Further, it was submitted that as far as khula is concerned, the very nature of khula has always been recognized as a mode of divorce on a no-fault basis.
The counsel for the Shariat Council argued that it is the right of Muslim women to resort to the extra-judicial divorce of khula, allowing her to terminate her marriage. It is submitted that the Writ Petition is not maintainable.
The court rejected the argument of the Shariat Council and said that private bodies like Shariat Council cannot pronounce or certify Khula. The order reads,
“The private bodies such as the Shariat Council, the second respondent herein cannot pronounce or certify dissolution of marriage by Khula. They are not Courts or Arbitrators of disputes. The Courts have also frowned upon such practice as mentioned above”
The court said that the High Court had granted an interim stay in Bader Sayeed Vs. Union of India and had restrained the bodies such as Shariat Council and Kazis from issuing such Certificates certifying dissolution of marriage by Khula.
The High Court while quashing and setting aside the order of Shariat Council and Khula certificate said that the Muslim women can approach the family court to dissolve the marriage by Khula. The order states,
“Thus, while it is open for a Muslim Woman to exercise her inalienable rights to dissolve the marriage by Khula recognized under the Muslim Personal Law (Shariat) Application Act, 1937 by approaching a Family Court, it cannot be before a self-declared body consisting of few members of Jamath.”
Case Title: Mohammed Rafi vs State of Tamil Nadu & Ors.
Statue: Muslim Personal Law (Shariat) Application Act, 1937, Family Courts Act, 1984, Dissolution of Muslim Marriages Act, 1939, Tamil Nadu Societies Registration Act, 1975, Guardians and Wards Act, 1890