Sunday 9 May 2021
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Muslim women have right to invoke extra-judical divorce: Kerala HC

Overruling a nearly five-decade old judgment, the Kerala High Court has restored the rights of Muslim women for divorce without resorting to judicial proceedings. A division bench of the high court pronounced the judgment in a bunch of cases that arose out of different proceedings before the family courts seeking varied relief.

The bench overruled the 1972 ruling of the single bench of the court barring Muslim women from resorting to extra-judicial modes of dissolving marriage. Noting that the Qur’an recognised the right to divorce equally for both men and women, the bench observed that the dilemma of Muslim women, particularly in Kerala, came to the fore when the single bench in the KC Moyin versus Nafeesa and Others case negated the right of Muslim women to invoke extra-judicial divorce in the light of the Dissolution of Muslim Marriages Act, 1939.

The single bench then had held under no circumstances, a Muslim marriage can be dissolved at the instance of the wife, except in accordance with the provisions of the Act.

In its judgment, the division bench of Justices A Muhamed Mustaque and CS Dias analysed four major forms of dissolution of marriages as recognized under Islamic Law and protected under the Shariat Act at the instance of the wife. This includes talaq-e-tafwiz, khula, mubara’at and faskh.

“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 KC Moyin’s case (supra) is not good law,” the court said in its judgment on 9 April.

While Talaq-e-tafwiz allows the wife to dissolve the marriage if her husband fails to keep his end of the marriage contract, – Khula allows her to unilaterally divorce her husband by returning his dower.

Mubara’at deals with dissolution by mutual consent while Faskh allows dissolution with the intervention of a third person such as a qazi. On the jurisdiction of family court in matters related to extra-judicial divorce, the division bench noted that Explanation (b) of Section 7(1) of the Family Courts Act, confers the family court with the jurisdiction to declare the matrimonial status of any person.

It said there is no difficulty for the family court to endorse an extra-judicial divorce to declare the matrimonial status of a person. The division bench said in the matter of talaq, khula, mubara’at, talaq-e-tafwiz, the family courts shall entertain such applications moved by either of the parties or both parties to declare the marital status of such parties.

It said in the matter of unilateral dissolution of marriage, invoking khula and talaq, the scope of inquiry before the family courts are 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 parties. If any person wants to contest the effectiveness of khula or talaq, it is open for such aggrieved persons to contest the same in an appropriate manner known under law,” it said.

The court said in the matter of mubara’at and talaq-e-tafwiz, on being satisfied that the dissolution is being effected on mutual consent, the family court without further inquiry shall declare the marital status.

“We notice family courts are overburdened with a large number of cases. The family court, therefore, shall restrain from adjudicating upon such extra-judicial divorce unless it is called upon to decide its validity inappropriate manner.”

“The family court in such matters shall endeavor to dispose of the cases treating it as uncontested matter, without any delay bypassing a formal order declaring the marital status,” the court said.

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