Ker HC| Muslim women’s right to Khula (extra-judicial divorce) revived; Patriarchal decision in K. C. Moyin overruled

Kerala High Court: The Division Bench of A. Muhamed Mustaque and C. S. Dias, JJ., addressed the controversial question regarding rights of Muslim women, i.e.  Have Muslim women lost their right to invoke extra-judicial divorce, after the coming into force of the Dissolution of Muslim Marriages Act, 1939? A number of women had approached the Court for seeking to validate their extra-judicial divorce by obtaining a declaration to that affect. The Bench expressed,

“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. The above sketch the miseries of women despite the promise guaranteed under Article 14 of the Constitution of India.”

Controversy before the Court

The controversy came into force when a Single Judge of Kerala High Court in K. C. Moyin v. Nafeesa, 1972 KLT 785 negated the right of Muslim women to invoke extra-judicial divorce in light of the Dissolution of Muslim Marriages Act, 1939. It was held that under no circumstances, a muslim marriage could be dissolved at the instance of wife, except in accordance with the provisions of the Act.

In the instant case a woman, ‘Y’  ‘Y’ had instituted divorce petition on the grounds that her husband ‒ ‘X’, was impotent and treated her with cruelty and was granted a decree of divorce by the Family Court. The grounds were challenged before the High Court and though the X was willing to prove his potency the Court granted ‘Y’ leave to pronounce Khula (exta-judicial divorce) on her request. Y stated that she was prepared to return the dower to ‘X’. However, ‘X’ had declined to accept the dower, which had raised a question mark on validity of Khula.

Observations and Analysis

 Chapter IV: Verse 28 of Quran states that,

“Man was created weak, to mean that his decisions are vulnerable. The very concept of institutionalizing marriage in Islam through a contract is to remind that the parties to the marriage may error in their decision and they may fall apart in conflict to remain as united. Marriage as a contract guarantees both parties permanent rights and obligations. The Holy Quran, therefore, recognizes the right to divorce equally for both men and women.”

The Bench observed, the Holy Quran gives a clear guidance as to the areas of family law, it does not by itself constitute a system. While conferring rights on spouses for divorce, it did not lay down exhaustive procedure to give effect to dissolution of marriage. This approach clearly gives an indication that areas related to divorce are amenable to change with regard to procedure and process without prejudice to the right conferred on a spouse to separate or severe the marital knot. The Bench noticed, many modes of dissolution of marriage existed prior to Islam which were accepted by the Prophet with certain refinement and modifications. The Prophet always had taken a liberal view in the matter of divorce in the best interest of the parties.

The Legal Conundrum and K. C. Moyin v. Nafeesa Case

The legal conundrum that has resulted from K.C. Moyin’s case wherein the Court in unequivocal terms declared that Muslim wife cannot repudiate a marriage dehors the provisions of the Dissolution of Muslim Marriages Act (the Act). The Single Judge was of the view that unilateral repudiation of marriage by Faskh without the intervention of court under the Dissolution of Muslim Marriages Act was opposed to the law of the land and when a particular branch of law is codified, it was not possible to travel beyond the same and decide the rights of the parties.

To assess the validity of abovementioned decision the Bench pursued to examine the reasons and objects of enactment of the Act. Accordingly, the Bench observed that Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 (the Shariat Act) specifically recognized all modes of extra-judicial divorce except Faskh for which intervention of an authority like Qazi was mandatory. In Section 5 of the Shariat Act a provision was made to dissolve marriage by the District Judge on a petition made by Muslim married women. This would show that the intention of the Shariat Act was to entrust the mode of dissolution of marriage by Faskh through the court. Thus, under the Shariat Act, Muslim women retained the right of all modes of extra-judicial divorce recognized under their personal law Shariat, except Faskh. Later on, after observing that inspite of Shariat Act, Hanafi women were not allowed to obtain decree from the court to dissolve their marriage. Therefore, the Dissolution of Muslim Marriages Act, 1939 was enacted to consolidate and clarify the provisions of the Muslim law relating to the suit for dissolution of marriage by married Muslim women. By the said Act Section 5 of the Shariat Act was repealed, which consolidated the law relating to Faskh alone and the Act, 1939 never intended to do away with the practice of extra-judicial divorce otherwise available to a Muslim woman. Hence,

On an overall analysis of the scheme of the Shariat Act as well as the Dissolution of Muslim Marriages Act as above, we are of the considered view that the Dissolution of Muslim Marriages Act restrict Muslim women to annul their marriage invoking Faskh except through the intervention of the Court. All other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to Muslim women. We, therefore, hold that the law declared in K.C.Moyin’s case (supra) is not good law.”

Khula: Whether Consent of Husband a prerequisite?

The right to invoke khula conferred upon married Muslim women is an absolute right; akin to talaq conferred upon the married Muslim men. It was submitted by the Amicus Curiae that like talaq, there are no specific stages or procedures to be complied by the wife before seeking divorce invoking khula. The Bench opined that the idea of justice in Quran is rooted in fairness and Chapter IV verse 1 Quran which refers to mutual obligation has to be read into the right conferred on the wife to invoke khula. The Quranic verse as referred in verses 228 in Chapter II in clear terms confers absolute right on the wife to annul the marriage with her husband. Therefore, husband’s consent is not a precondition for validity of khula.

Khula: If Valid When the Wife fails to Return Dower?

The Bench opined that in Hadith, the direction of the prophet to the wife to return or pay compensation to the husband had to be understood to ensure fairness of justice. The right of the husband to claim back what was given in marriage could not be construed to mean khula can be effective only when the husband had consented to the offer made by the wife. Such an approach would deny the right conferred upon wife under Quran in unequivocal terms. The Bench remarked, the procedural equity to be followed cannot override such substantial right. Insistence to return dower or payment of compensation, therefore, were to be understood as husband is legitimately entitled to claim back what is otherwise due to him on account of unilateral invocation of khula by wife and can very well approach the court of law for the return of the same. Reliance was placed on the decision of Supreme Court in Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736, wherein the Court while considering extra-judicial divorce of khula had held that, “This may or may not accompany her offer to give something in return. The wife may offer to give up her claim to Mahr (dower). The `Khula’ is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return.”

Validity of Khula without Attempts for Reconciliation

Human minds are vulnerable. Quran itself describes a human as fallible. Sometimes, a decision to invoke khula by wife may be due to perceptible differences she had in the relationship with her husband. Quran, therefore, thrusts on conciliation as a medium of dispute resolution before taking a concrete decision. Since, if an unbridled power to invoke khula is given to a Muslim wife, it may result in untold miseries and hardships to both.

Shayara Bano v. Union of India (2017) 9 SCC 1 it was held that triple talaq invoked without any attempt for reconciliation is arbitrary and violative of fundamental right contained in Article 14 of the Constitution. Hence, the Bench held that though there need not be any specific reasons to invoke khula, the procedure of reconciliation itself become a reasonable cause in as much as that it would reflect an attempt to resolve the disputes amicably between parties.  Hence, any invocation of khula without there being an attempt for reconciliation was held to be bad in law.

Jurisdiction of Family Court In Matters Related to Extra-Judicial Divorce

In the matter of unilateral dissolution of marriage, invoking khula and talaq, the scope of inquiry before the Family Courts is limited. In such proceedings, the court shall record the khula or talaq to declare the marital status of the parties after due notice to other party. The Family Court therefore, shall restrain from adjudicating upon such extra-judicial divorce unless it is called upon to decide its validity in appropriate manner.

In the light of above, Khula pronounced by Y was held to be valid in law. However, X, the husband of Y was granted liberty to approach the Family Court for the demand of consideration or dower. Accordingly, the case was disposed of.

[X v. Y, Mat.Appeal.No.89 of 2020, Decided On 09-04-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before The Court By:

Amicus Curiae: Adv.K.I.Mayankutty Mather

Counsels for the Petitioners: Sri.Babu Karukapadath, Smt.M.A.Vaheeda Babu
Shri.P.U.Vinod Kumar, Sri.Avinash P Raveendran, Smt.Arya Raghunath
Smt.Sneha Sukumaran Mullakkal And Sri.Shelly Paul

Counsel for the Respondent: Sri.P.Narayanan And Smt.P.Sheeba

Counsel for Kerala Federation Of Women: Adv. Shajna

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