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Synopsis

The Kerala High Court while dismissing a review petition challenging a decision on Muslim women's right to invoke the remedy of Khula (Khula is a conditional divorce in which the wife is at liberty to purchase her freedom from her husband if she comes to the conclusion that it is not possible for them to live as husband and wife) held that the Court shall not surrender to the Islamic Clergy.

A bench of Justice A Muhamed Mustaque and Justice CS Dias noted, "This review 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".

The order has been passed in a review petition over a judgment wherein a divorce decree granted to a Muslim Wife under the Dissolution of Muslim Marriages Act, 1939 was challenged. The appeal was disposed off, recording "khula" and also delineating the different methods of extra-judicial divorce applicable to Muslim spouses. The review petition had challenged the judgment which had declared that the right to terminate the marriage at the instance of a Muslim wife as an absolute right, conferred on her by the holy Quran. It was the case oft he petitioner that the right is subject to the acceptance or the will of her husband.

Over the review petition, the bench opined that this is a typical review portraying that Muslim women are subordinate to the will of their male counterparts. It noted the courtroom was filled with people who have shown an interest in the outcome and the bench allowed all those interested to make submissions.

Muslim scholar turned lawyer, Advocate Hussain CS appearing for the petitioner submitted that the High Court has erred in recognizing the procedure for effecting "khula". He added that if a Muslim wife wishes to terminate her marriage with her husband, she has to demand talaq from her husband, and on his refusal, she has to move the qazi or Court.

Additionally, "though a Muslim woman has a right to demand divorce of her own will, she has no absolute right to pronounce khula like the right of her counterpart to pronounce talaq", Hussain added.

Furthermore, it was argued that as a consequence of the declaration of law by the High Court, a large section of Muslim women are resorting to khula in derogation of the Sunnah. Hussain also submitted that the Court is not competent to decide on religious beliefs and practices and the Court ought to have followed the opinion of Islamic Scholars.

The bench noted,
"The legal conundrum in this case, is not an isolated one. It has evolved over the years as the scholars of Islamic studies, who have no training in legal sciences started to elucidate on the point of law in Islam, on a mixture of belief and practice."

"Islam has a code of law, apart from laying down rules relating to beliefs and practices. Legal norms are the cornerstones of creating a social and cultural order within the Muslim community," the bench added.

Justice Mustaque opined, "ordinary scholars and the Islamic clergy, who have no formal legal training find it difficult to deduce Islamic law from its sources."

The dilemma faced by the Islamic clergy in understanding triple talaq was based on the practice followed in society for centuries, on the footing that a single pronouncement of triple talaq would constitute a valid talaq, he added.

In conclusion, the bench held that in the absence of any mechanism in the country to recognize the termination of marriage at the instance of the wife when the husband refuses to give consent, the court can simply hold that khula can be invoked without the conjunction of the husband.

The bench said, "to effectuate the right conferred on Muslim women being prevalent in this country, the Court’s authority in conferring upon Muslim women the right to invoke khula at her own will, will have to be respected."