Kerala High Court recently noted that a Muslim woman has the absolute right to divorce through Khula (a form of extra-judicial divorce), conferred on her by the Holy Quran and is not subject to the acceptance or the will of her husband.
The Division bench comprising Justice A Muhamed Mustaque and Justice CS Dias held that there is absolutely no need for a Muslim woman to approach the Court if her husband refuses Khula, as her right to the same is acknowledged by Islamic law.
The court stated, “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. For what purpose she has to move the Court, begs the question. The Court 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,” the court added.
Underscoring the nature of khula and the fact that it is in the form of a ‘permissible’ action to a Muslim wife who seeks to exercise the option of terminating her marriage, the court noted that it cannot be conditional on the will of another.
“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,” the court said.
The Court was hearing a petition seeking a review of its April 2021 judgment. In the judgment, it had overruled a 1972 verdict to effectively restore the right of Muslim women to invoke extra-judicial divorce as set out in Muslim personal law.
The bench had declared that a Muslim woman has a right to obtain a divorce by Khula, regardless of her husband’s consent. To obtain a divorce through Khula, the following conditions need to be fulfilled.
- A declaration of repudiation or termination of marriage by the wife;
- An offer to return dower or any other material gain received by her during marital tie; and
- An effective attempt for reconciliation was preceded before the declaration of khula.
In the review petition filed by the husband, he had not disputed the authority given to the Muslim wife to invoke khula but rather challenged the procedure acknowledged by the Court to invoke the remedy of khula by the Muslim wife.
Advocate CS Hussain, appearing for the husband, 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 a Court.
Quranic verse relating to khula in Chapter 2, verse 229 declares that a Muslim wife has the right to terminate her marriage. The counsel argued on reported Hadith, illustrating an instance of termination of marriage at the instance of a wife during the lifetime of the Prophet Mohammed in which a settlement was reached at the instance of the Prophet.
The bench concurred with these arguments and clarified that it is not invalidating the procedure of arriving at a settlement between spouses on demand of the wife but is stating that a situational procedure cannot be treated as law.
“We reiterate that that procedure is most desirable for parties. We also clarify our judgment to that extent. 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 said.
The bench mentioned that relief of declaration of status based on divorce can be given only when divorce is effected through an extra-judicial method. It observed that in a judicial divorce in the nature of faskh, the courts are deciding the cause on the premise of fault.
“If the arguments of the review petitioner is accepted that the court will have to pronounce termination of marriage, then the claim for khula would turn on fault. The very nature of khula has always been recognised as a mode of divorce on a no-fault basis,” the Court added.
The bench went on to add that if the arguments of the petitioner are accepted, Muslim women in India will be confronted with a situation where no solution would be available to them to effectuate their right to obtain divorce, conferred on her as per Quranic legislation
