Kerala High Court

Kerala High Court: In a review petition arising from an appeal filed by the husband challenging a divorce decree granted to a Muslim wife under the Dissolution of Muslim Marriages Act, 1939, the division bench of A. Muhamed Mustaque* and C.S. Dias, JJ. has dismissed the review petition and has upheld that in the absence of any mechanism in the country to recognize the termination of marriage at the instance of the Muslim wife, when the husband refuses to give consent, then khula can be invoked without the conjunction of the husband.

In the review petition, the husband does not dispute the Authority given to the Muslim wife to invoke ‘khula’, but rather raises, as a ground of review, the procedure acknowledged by the Court to invoke the remedy of khula by the Muslim wife.

The Court viewed that the dilemma that persisted in this case, is related to the practice that has been followed for years, overlooking the mandate of the legal norm conferring on Muslim women the right to terminate the marriage without the conjunction of the husband.

The Court to understand the true meaning of ‘khula’ and the procedure to be followed, traced back the evolution of the right of women to obtain a divorce, from the pre-Islamic period onwards, and observed that the woman exercised the authority to divorce unilaterally even during the pre-Islamic period. Further, it was observed that in the post-Islamic period 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.

The Court relied on ‘Hadith’, wherein the true meaning of the procedure followed by the Prophet for terminating the marriage between husband and wife, at the instance of the wife was given, and said that the direction given by the Prophet to the wife to return the garden is on an equitable consideration. Thus, in a unilateral divorce invoked by her, she must return what she had received from her husband. Thus, it was observed that this part constitutes the substantial law relating to khula, further as Talaq is considered as a unilateral termination by the husband, therefore, the Quran casts an obligation upon the husband to provide fair provisions for the wife’s future. Also, the right to invoke talaq or its validity is not dependent on the acceptance or acknowledgment of the provisions for wife’s future.

The Court observed that the procedure delineated and relied upon only refers to the settlement of a demand and the husband obliging by accepting return of the materials by pronouncing talaq, at the intervention of a third-party, and the 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; and the general law must be understood from the purport of the authority given and not with reference to the situation or circumstances under which it was exercised.

It was also 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, and 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, and the right itself has to be understood from the scheme of the law.

Thus, the Court refused that the procedure followed situationally be treated as a law when parties are not able to arrive at such a settlement, and if the procedure 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 while examining the fallacy that women have no right to terminate marriage on her own, said that in the judgment under review, it has interpreted that the residuary ground as referred under Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939 (‘DMM Act’) cannot be equated with khula, as DMM Act only contemplates dissolution of marriage at the instance of Muslim women on fault grounds. Further, if the Quran, 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. As Sunnah is the second source of legislation, and the primary source is the Quran itself, therefore, Sunnah cannot be interpreted in a way to either abrogate or reduce the scope of the command of the lawgiver in the primary legislation.

Thus, the Court held 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, and 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, as the very idea of categorization under the law, of an action as permissible, is to retain that action within the domain of the person exercising the option, by relating it with his or her autonomy, as extending such actions to the will of another would certainly keep the action out of the category of ‘permissible’. Thus, the law cannot be whittled down or constricted by the will of her husband upon whom no authority is conferred to enforce such permission.

The Court noted that, there is no qualifying obligation on the husband in the form of the five categories of defining law, either in the Quran or the Sunnah, to accept or repudiate the will expressed by the wife to make the permissible activity contingent or dependent upon any qualifying factors.

[X v. X, 2022 SCC OnLine Ker 5512, decided on 28-10-2022]

Advocates who appeared in this case :

For Review Petitioners: Advocate Babu Karukapadath

Advocate P.U.Vinod Kumar

Advocate Arya Raghunath

Advocate Vaisakhi V.

Advocate T.M. Muhammed Musthaq

Advocate Mohamed Hisham P

Advocate Karukapadath Wazim Babu

Advocate P. Lakshmi

Advocate Aiswarya Ann Jacob

For Respondents: Advocate P.Narayanan

*Apoorva Goel, Editorial Assistant has reported this brief.

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