Muslim women do not require husband's consent for divorce: Kerala HC

Article image Haritha - 5
Representational image: Onmanorama

Kochi: The Kerala High Court on Tuesday said that Muslim women do not require the husband's consent to file for divorce under Islamic law.

Observing that Islamic law recognises a Muslim woman's right to demand termination of marriage, the HC 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.

The division bench of Justice A Muhamed Mustaque and Justice C S Dias was dismissing a review petition against a judgment wherein the court had recognized a Muslim woman's right to resort to Khula.

"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 said.

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.

1. A declaration of repudiation or termination of marriage by the wife.

2. An offer to return dower or any other material gain received by her during marital tie.

3.An effective attempt for reconciliation was preceded before the declaration of khula.

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.

High Court of Kerala

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.

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.

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.

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.

DENMARK-RELIGION-VEIL
File photo: Reuters

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 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.

(With inputs from LiveLaw.)

 

The comments posted here/below/in the given space are not on behalf of Onmanorama. The person posting the comment will be in sole ownership of its responsibility. According to the central government's IT rules, obscene or offensive statement made against a person, religion, community or nation is a punishable offense, and legal action would be taken against people who indulge in such activities.