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

Athira Prasad

1 Nov 2022 5:26 AM GMT

  • Islamic Law Recognizes Muslim Womans Right To Demand Divorce, Husbands 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...

    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 Khula

    The 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 bench

    However, the Court clarified that it is not invalidating the procedure of arriving at a settlement between spouses on demand of the wife. The Court reiterated that the procedure is most desirable for parties.

    "However, we cannot hold that that procedure followed situationally, be treated as a law when parties are not able to arrive at such a settlement. If the procedure itself is understood as the law, that would derogate from the right conferred on a Muslim wife, under Quranic legislation, to terminate the marriage at her will."

    The Court observed that the deduction of law from a particular conduct of the Prophet is not easy as the prophet acted in different and varied capacities, either in isolation or in a combination of those different capacities. The same has resulted in different understandings of Sunnah among Islamic scholars, the Court said, adding that as a result the difference has extended to beliefs and practices as well.

    Woman Has Right To Terminate Marriage On Her Own

    A Muslim Scholar turned lawyer, Advocate Hussain C. S. contended that if the husband refuses to pronounce talaq on the request of the wife, a qadi has the power to pronounce talaq, and in the absence of a qadi, the modern Court can exercise the power of qadi.

    "A qadi cannot be equated with a Court in the modern State. Apparently, the reference to the qadi in this context is to exercise his authority as a guardian rather than an adjudicator. It is acknowledged by Islamic law that the Muslim wife has the right to demand termination of marriage. The argument that if the husband refuses, she has to move the Court stares at us," said the bench.

    The court added that when the woman moves the court in such a situation, it is neither called upon to adjudicate nor called upon to declare the status, but simply has to pronounce termination of marriage on behalf of the wife.

    "The Court in our country is not a guardian of an adult and able woman. If there is nothing for a Court to adjudicate, the Court cannot assume the role of a guardian and pronounce termination of marriage at the instance of a woman. Conferring authority upon the court is an exercise in futility, inasmuch as the court cannot entertain the request as there is no dispute to be resolved between the parties. The relief of declaration of status based on divorce can be given only when divorce is effected through an extra judicial method," it observed.

    The Court further said that the very nature Khula has been recognised as a mode of divorce on a no-fault basis, and that is the reason why in the order under review, the Court interpreted that the residuary ground as referred under Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939 cannot be equated with khula.

    "Dissolution of Muslim Marriages Act only contemplates the dissolution of marriage at the instance of Muslim women on fault grounds," it added. 

    Observing that Sunnah cannot override or abrogate the primary legislation in Islamic law, the court further said:

    If the Qur'an, in unequivocal terms, permits spouses to terminate their marriage on their own will, it cannot be said that the Sunnah further qualifies it, subjecting it to the will of the husband, in the case of khula

    The Court, relying on the writings on Islamic Law, pointed out that the nature of Khula is in the form of a 'permissible' action to the Muslim wife who seeks to exercise the option of terminating her marriage. 

    This reflects the autonomy of choice exercised by the wife. The will of the wife so expressed cannot be related to the will of the husband who has not expressed his choice to terminate the marriage. The very idea of categorization under the law, of an action as permissible, is to retain that action within the domain of the person who exercises the option, by relating it with his or her autonomy. Extending such actions to the will of another would certainly keep the action out of the category of 'permissible'. The law being categorized so, it cannot be whittled down or constricted by the will of her husband upon whom no authority is conferred to enforce such permission.

    Furthermore, the court also recorded that the review petitioner has admitted that neither Quran nor Sunnah provides any guidance in the event the husband refuses to pronounce talaq, and in such a situation. Islam itself has provided the guidance to overcome situation like this where a legal vacuum is created, the bench added.

    The court said the Muslim women in India are confronted with a situation where no solution would be available to them to effectuate this right, conferred on her by Quran, if the arguments of the review petitioner are accepted. 

    "In the absence of any other method in the manner suggested by the counsel for the review petitioner and others,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," the court added.

    The Court found no reason to review the judgment and, thereby, dismissed the revision petition. 

    Advocates Babu Karukapadath, P. U. Vinod Kumar, Arya Raghunath, Vaisakhi V, T.M. Muhammed Musthaq, Mohamed Hisham P, Karukapadath Wazim Babu, P. Lakshmi and Aiswarya Ann Jacob appeared for the Review Petitioner.

    Case Title: XXXX v. XXXXX

    Citation: 2022 LiveLaw(Ker) 559

    Click Here To Read/Download The Order

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