Kerala High Court's 2021 ruling allowing Muslim Women to divorce by 'Khula' challenged before Supreme Court, notice issued

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Notably, in 2022 the High Court had also dismissed a review petition filed against its decision of April 2021 allowing Muslim women to divorce by Khula

The Kerala High Court's decision whereby it had overruled a 49-year-old judgment that effectively barred Muslim women from resorting to extra judicial modes of dissolving marriage, has been challenged before the Supreme Court of India.

A bench of Justices AS Bopanna and Sanjay Kumar has issued notice in the SLP filed against the 2021 ruling while condoning the delay. 

High Court's bench comprising of Justice A Muhamed Mustaque and Justice CS Dias had in the impugned judgment allowed Muslim Women to enforce “Khula” or Reverse Talaaq by returning dower to her husband.

The High Court's decision emanated from a matrimonial case wherein a young woman, hereinafter referred to as ‘Y’ (name withheld to protect her privacy) was granted a decree of divorce by the Family Court, Thalassery. ‘Y’ had instituted the petition under the Dissolution of Muslim Marriages Act, on the grounds that her husband ‒ ‘X’, was impotent and treated her with cruelty. Challenging the decree, ‘X’ had preferred the appeal before the High Court.

The Court took into consideration the question as to whether it is the intention of the Legislature to do away with extra-judicial divorce otherwise followed by the followers of different school.

“The issue involved in as above is inextricably connected to ultimate justice which women involved in all these cases seek. 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. 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. The above sketch the miseries of women despite the promise guaranteed under Article 14 of the Constitution of India", the High Court noted.

“The Holy Quran, therefore, recognizes the right to divorce equally for both men and women. However, the dilemma of Muslim women, particularly in the State of Kerala, came into the fore when a learned Single Judge of this Court in K.C.Moyin v. Nafeesa & Others [1972 KLT 785] negated the right of Muslim women to invoke extra-judicial divorce in light of the Dissolution of Muslim Marriages Act, (in short ‘Act”). It is held that under no circumstances, a Muslim marriage cannot be dissolved at the instance of wife, except in accordance with the provisions of the Act", the High Court added while holding that the law declared in K.C.Moyin's case was not good law.

Case Title: X vs. Y