Kerala High Court restores Muslim women's right to invoke extra-judicial divorce; clarifies divorce by "Khula" does not require husband's consent

In a significant ruling, the Kerala High Court has overruled a 1972 judgment to effectively restore the right of Muslim women to invoke extra-judicial divorce as set out in Muslim personal law. .The Court also clarified that a Muslim woman has a right to obtain a divorce by "Khula" (one form of extra-judicial divorce), regardless of her husband's consent for the same, provided that it was preceded by effective reconciliatory efforts..The ruling was passed in a batch of cases involving invocations of extra-judicial divorce. "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. While there was a huge clamour to retain the practice of ‘triple talaq’, an un-Islamic practice; no such open and apparent demand seems to exist to restore the right of Muslim women to invoke extra-judicial divorce. The above sketch the miseries of women despite the promise guaranteed under Article 14 of the Constitution of India," the Court observed. .The Court added that there is a "growing tendency to resist changes being effected upon the Muslim community with regard to the method and manner of effecting divorce consistent with the Quranic injunctions.".This was despite the seemingly liberal and pragmatic views on divorce expressed in the Quran and by Prophet Muhammad, the Bench remarked. .In this regard, it was noted that the areas related to divorce in the Quran are amenable to change, that the Prophet has always taken a liberal view in the matter of divorce in the best interest of the parties and that the legal implication of the Quranic precepts are "pragmatically aligned to ensure fairness in such form of a divorce.".The findings of a Division Bench of Justices A Muhamed Mustaque and CS Dias on these issues include the following. .Dissolution of Muslim Marriages Act, 1939 does not extinguish rights to extra-judicial divorce.The Court disagreed with the 1972 ruling in KC Moyin v. Nafeesa & Others to hold that the Dissolution of Muslim Marriages Act, 1939 did not do away with extra-judicial forms of divorce at the instance of the woman. .The Division Bench opined that the 1939 Act only intended to clarify the law, particularly with respect to one form of extra-judicial divorce termed as Faskh. Other forms of extra-judicial Muslim divorce at the instance of the woman, which was already recognised by the Shariat Act, would continue to remain, the Court said. ."Intention of the Dissolution of Muslim Marriages Act is to extend judicial divorce to all Muslim women irrespective of the schools they follow. The statutory provision never intended to do away with the practice of extra-judicial divorce otherwise available to a Muslim woman," the judgment stated..There are four forms of extra-judicial divorce at the instance of the Muslim woman, the Court found:1. Talaq-e-tafwiz (divorce for violation of marriage contract), 2. Khula (unilateral divorce at wife’s instance involving the passage of three monthly courses) 3. Mubara'at (separation/dissolution of marriage contract by mutual consent), and 4. Faskh (judicial divorce through court intervention or another authority like a Qazi at the instance of wife)..Under the earlier Shariat Act of 1937, a Muslim woman retained the right of all modes of extra-judicial divorce recognized under their personal law Shariat, except Faskh, the Bench observed. .In this backdrop, and in view of conflict over obtaining divorce amongst followers of different schools of Islam, the Dissolution of Muslim Marriages Act was enacted. The aim was to clarify the law and not to do away with extra-judicial forms of divorce already recognised in personal law and under the Shariat Act, the Court said. "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 a Muslim women. We, therefore, hold that the law declared in K.C.Moyin's case (supra) is not good law," the judgment held..Validity of divorce by "Khula" not dependent on husband's consent.Upon examining the text of the Quran, the writings of Muslim scholars on the subject, case laws on the issue and submissions made by the counsel assisting the Bench, the Court observed that Muslim women have an unconditional right to invoke Khula."The signification of invoking khula is absolute and does not depend upon the consent or assent of the husband," the judgment read..The right to invoke Khula conferred upon a married Muslim woman is an absolute right, akin to talaq conferred upon married Muslim men, the Bench said. The husband's consent is not a precondition for the essential validity of Khula, it added. In this regard, the Bench also expressed disagreement with Mulla's writings on Mohammedan Law, which views Khula and Mubara'at (dissolution of the marriage by mutual consent) as being the same..The Court emphasised that the husband is entitled to the return of any dower if the wife invokes divorce by Khula, in the interest of fairness. However, this cannot be construed to mean that the divorce itself would be invalid if the husband's consent for the divorce is not obtained.."A wife cannot walk away from the marriage after obtaining material gain from the husband, on her own volition, without returning what she obtained. The right of the husband to claim back what was given in marriage cannot be construed to mean khula can be effective only when husband consents to the offer made by the wife. Such an approach would deny the right conferred upon wife under Quran. If the wife invokes khula and refuses to return the dower or what she had obtained from the husband, the husband can very well approach the court of law for the return of the same... Insistence to return dower or payment of compensation, therefore, are 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," the Court said..The Bench added that its findings were hinged on Muslim personal law, also given that "unless and until declared through the secular law of this Country, the court needs to refer to the same only with reference to the Quran and Hadiths.".Khula is not valid without prior attempts at effective reconciliation.The Court emphasised that invocation of Khula by a woman must be accompanied by proper attempts to reconcile with her husband for it to be valid. This is also what is envisioned by the Quran, the Court observed.."When Quran itself speaks about conciliation to resolve the disputes, it essentially means that an attempt for resolution of disputes shall be made at the first instance. This would guard against an impulsive decision at the instance of the wife. Further, it would also give an opportunity to air out the grievances and resolve the disputes peacefully. If an unbridled power to invoke khula is given to a Muslim wife, it may result in untold miseries and hardships to both," the Bench said..The Court also pointed out that the right to unilateral divorce at the instance of a Muslim woman through Khula is similar to the invocation of Talaq by Muslim men. .While so, the Court noted that the Supreme Court has already struck down instantaneous triple talaq as unconstitutional in 2017. Viewed from this perspective as well, the Bench said that a reconciliatory effort is a pre-condition to seeking divorce by Khula.."In the majority decision of the Constitutional Bench of the apex court in Shayara Bano v. Union of India...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......In such circumstances, we have to hold that any invocation of khula without there being an attempt for reconciliation would be bad in law...Khula will be treated as valid or effective under law only if it was preceded by an effective attempt for reconciliation by the parties," the judgment stated. .In the absence of any secular law governing Khula, the Bench proceeded to lay down the following procedure for a valid divorce by Khula:1. A declaration of repudiation or termination of marriage by wife.2. An offer to return dower or any other material gain received by her during the marital tie.3. An effective attempt for reconciliation preceded the declaration of Khula..Restricted role of Family Courts in cases involving extra-judicial divorce.Adverting to the provisions of the Family Courts Act, the High Court observed that "there is no difficulty for the Family Court to endorse an extra-judicial divorce to declare the matrimonial status of a person.".Having noted this, the High Court emphasised that the Family Court should treat cases involving extra-judicial divorce as uncontested, unless the validity of the divorce itself is in question. ."We notice Family Courts are overburdened with 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 in appropriate manner. The Family Court in such matters shall endeavour to dispose the cases treating it as uncontested matter, without any delay by passing a formal order declaring the marital status," the Bench stated..The Court was assisted in the case by Advocates Mayankutty Mather KI and Vaheeda Babu MA (Amici Curiae), the Kerala Federation of Women Lawyers through Advocate Shajna M and counsel for the parties, Advocates Babu Karukapadath, R Ranjith Manjeri, Narayanan P, VK Hema and Athira A Menon. .[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.