Islamic Law Recognizes Muslim Woman's Right To Demand Divorce, Husband's Consent Not Essential: Kerala High Court

Observing that Islamic law recognises a Muslim woman's right to demand termination of marriage, the Kerala High Court has ruled that the will of the wife cannot be "related to the will of the husband" who may not be agreeing to the divorce.Dismissing a review petition against a judgment wherein the court had recognized a Muslim woman's right to resort to Khula, the division bench of Justice A. Muhamed Mustaque and Justice C. S. Dias said:"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 court at the outset of the 59-page judgment said: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.The appeal from which the review petition arose was filed challenging a divorce decree granted to a Muslim wife under the Dissolution of Muslim Marriages Act, 1939. In the appeal, the court had 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. The court had said a Khula would be valid if certain conditions are met. i. A declaration of repudiation or termination of marriage by the wife.ii. An offer to return dower or any other material gain received by her during marital tie.iii.An effective attempt for reconciliation was preceded before the declaration of khula. In the review petition, it was argued 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. Though the petitioner conceded that a Muslim woman has the right to demand divorce of her own will, he also argued that she has "no absolute right" to pronounce khula. Nowhere in the world is a Muslim wife allowed to unilaterally terminate the marriage, it was contended.Understanding Meaning of KhulaThe Court in the judgement delivered last week said that Quranic verse found in Chapter 2, verse 229, relating to khula, in unequivocal terms, declares that a Muslim wife has the right to terminate her marriage. The bench noted the issue in the case before it arises in context of a reported Hadith, illustrating an instance of termination of marriage at the instance of a wife during the lifetime of the Prophet Mohammed. Tracing back the evolution of the right of women to obtain a divorce from pre-islamic period onwards, the Court, relying on a research thesis, said the women exercised the authority to divorce unilaterally even during the per-Islamic period. "In the post-Islamic period, Islam emphasised on conciliation as the preferred mode of resolution of all disputes between the believers. The believers, at the first instance, will have to resort to conciliation, before resorting to the authority given to them to terminate any sort of legal relationship," said the court. Referring to the reported Hadith, the Court observed that the instances involved a conciliatory situation, and questioned whether procedure in itself can become law for effecting khula. To answer the question, the court said one needs to distinguish between Hadith and Sunna - the former refers to the conduct of the prophet in a situation and latter refers to the law deduced from it. "The procedure delineated and relied upon only refers to the settlement of a demand and the husband obliging thereon, by accepting return of the materials by pronouncing talaq, at the intervention of a third-party. That procedure adopted in a particular situation cannot itself be made a general law relating to khula while analyzing the right of the wife to obtain divorce. The general law 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," added the court.It further observed that in Islamic law, it is desirable that all kinds of disputes are resolved amicably between believers, either themselves or with the assistance of the Ruler. "If the matter is resolved by the Ruler or with the intervention of a third party, that procedure itself cannot be cited as the procedure for the determination and validity of the right conferred under the Quranic legislation. The right itself has to be understood from the scheme of the law," said the benchHowever, the Court clarified that it is not invalidating the procedure of arriving at a settlement between spouses on demand of the wife. The Court...

Islamic Law Recognizes Muslim Woman's Right To Demand Divorce, Husband's Consent Not Essential: Kerala High Court

Athira Prasad

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