The Supreme Court will examine a 2021 ruling of the Kerala High Court affirming a Muslim woman’s right to pronounce extrajudicial divorce by way of “khula”. Extrajudicial divorces are those that take place without the court’s intervention.
The April 9, 2021 judgment by a two-judge HC Bench of Justices A Muhamed Mustaque and C S Dias dealt with the conditions of khula. It said that a Muslim woman’s right to khula is “absolute” and “does not depend upon the consent or assent of the husband”.
The question before the Kerala HC in its 2021 ruling, which the top court will now reconsider, was whether Muslim women lost their right to extrajudicial divorce after the passage of the Dissolution of Muslim Marriages Act, 1939.
What was this law, and what are the ways in which divorce can be given in Islam? We explain.
First, what is khula?
Khula refers to the right of a Muslim woman to unilaterally divorce her husband. This is similar to the right of talaq conferred upon Muslim men under Sharia law. The recognition of khula as a form of divorce stems directly from the Holy Qur’an.
However, scholars differ on the manner in which khula has to take place.
While some, like the followers of the Hanafi school of Islamic jurisprudence, believe that the husband’s consent is a prerequisite for a valid khula, others, like the sitting Kerala H C judge Dr Justice Kauser Edappagath, have said that a wife’s right to khula is analogous to the husband’s right to pronounce talaq, on being convinced of the irretrievable breakdown of the marriage.
In his book, ‘Divorce and Gender Equity in Muslim Personal Law of India’, Dr Justice Edappagath has also said that in khula, the wife agrees to give a consideration to her husband for her “release from the marriage tie”.
Besides khula, what other forms of extrajudicial divorce are available to Muslim women?
There are three other ways.
TALAQ-E-TAFWIZ: This is contract-based divorce. Since Islam views marriage as a contract, the parties are free to choose the terms of their contract and decide how their marital lives will be regulated. If a husband violates any condition agreed upon at the time of marriage, the wife will be entitled to divorce without the court’s intervention.
However, the conditions in the contract should be reasonable, and not go against public policy. For instance, if the husband marries again without the wife’s permission, or neglects her, etc., are valid grounds for divorce.
MUBARA’AT: This is a form of separation by mutual consent. The offer to dissolve the marriage may come from either side. Once both parties enter into mubara’at, all mutual rights and obligations of the spouses come to an end. Both Shi’a and Sunni sects deem this form of divorce to be irrevocable.
FASKH: This is divorce through the intervention of the court, or an authority like a qazi. While khula is given by one of the spouses and mubara’at by both spouses, faskh is decided by a third party or external authority like an arbitrator, mediator, or judge.
What does the Shariat Act say?
The Muslim Personal Law (Shariat) Application Act, 1937, recognises both judicial and extrajudicial divorce. However, faskh is not recognised. Section 2 of the Act recognises all forms of extrajudicial divorce except faskh.
Section 5 of the Act, which allows the dissolution of marriage by court in certain circumstances, allows a district judge to dissolve a marriage based on the woman’s plea.
However, despite the existence of the Sharia Act, the Hanafi school did not allow women to obtain a decree from the court to dissolve their marriage.
To resolve this situation, two years after the passage of the 1937 Act, the Dissolution of Muslim Marriages Act, 1939, was enacted.
And what was the 1939 Act?
The 1939 Act was passed to clarify and consolidate the provisions of the law relating to the dissolution of marriage by Muslim women, and to remove doubts with respect to the effect of married Muslim women renouncing their faith.
The Act extended the right to extrajudicial divorce to all Muslim women, regardless of the school of Islamic jurisprudence they followed. It also aimed to clarify the law around the faskh route of extra-judicial divorce.
Section 5 of the Shariat Act was repealed and replaced with Section 2 of the 1939 Act, which laid down nine grounds for Muslim women to obtain a decree for dissolution of marriage. These grounds included cruelty, desertion, and husband’s imprisonment for seven years or more.
The 1939 Act recognised the faskh route of extrajudicial divorce. Section 2(ix) of the 1939 Act allowed a divorce decree to be obtained on “any other ground which is recognised as valid for the dissolution of marriages under Muslim law”.
All other modes of extrajudicial divorce under Section 2 of the Shariat Act remained untouched.
So what was the HC ruling of 2021?
The court was acting on a bunch of appeals arising out of proceedings before family courts seeking a range of reliefs.
In the leading case, a woman was granted a divorce decree by the family court, Thalassery, on grounds of her husband’s alleged cruelty and impotence. The husband challenged the decree in the Kerala HC.
Counsel for the woman informed the court that it was because of the Kerala HC’s 1972 ruling in ‘K C Mohyin vs Nafeesa & Others’, which negated Muslim women’s right to invoke extrajudicial divorce under the 1939 Act, that she had to go through long-drawn, adversarial litigation, and was prevented from invoking her right to extrajudicial divorce vis-à-vis khula, which is permitted under personal law.
The HC rejected the 1972 verdict as bad in law, and said that courts have reiterated time and again that the 1939 Act is a declaratory regulation that does not amend all rules of Muslim law.
Citing an Allahabad HC ruling in ‘Sofia Begum vs. Syed Zaheer Hasan Rizvi’, the court said that the 1939 Act’s objective is to enlarge the rights of Muslim women, and the courts must give effect to that.
It also relied on a 1951 Bombay HC ruling in ‘Jamila Khatun vs. Kasim Ali’ to say that the 1939 Act crystallises only a portion of the Muslim law and cannot be applied to the provisions of the whole law.