Landmark Kerala High Court judgement clarifies Muslim women ’s right to initiate divorce.5 min read

By- Mayuri

Overruling a nearly five-decade judgment, the Kerala High Court has restored the rights of Muslim women for divorce without resorting to judicial proceedings. This means that now, Muslim Women can resort to the extra-judicial methods of annulling their marriage. This right was earlier given only to the Muslim men but now the court has extended its purview stating that, “the governing law, The Dissolution of Muslim Marriages Act, 1939 did not contemplate the undoing of the modes of extra-judicial divorce available to women under personal law”. This was observed by the bench of Justices A Muhamed Mustaque and CS Dias.

Issue:

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 held that the Dissolution of Muslim Marriages Act did not do away with the practice of out-of-the-court divorces available to Muslim women under Section 2 of the Shariat Act. The Bench comprising Justice A. Muhamed Mustaque and Justice C.S. Dias observed that the intention of the Dissolution of Muslim Marriages Act was to extend judicial divorce to all Muslim women irrespective of the schools they follow. Section 2 of the Shariat Act statutorily recognized the personal law and dissolution of marriages without the intervention of court through ‘talaq,’ ‘illa,’ ‘zihar,’ ‘lian,’ ‘khula,’ ‘mubaraat’ etc. The court pointed out that there were four major forms of dissolution of marriages as recognized under Islamic law and protected under the Shariat Act at the instance of the wife. They were Talaq-e-tafwiz , Khula, Mubara’at, and Faskh. Under the Shariat Act, Muslim women retained the right of all modes of extrajudicial divorce recognized under their personal law, except Faskh. Faskh was a form of judicial divorce effected through the intervention of a court or through the authority at the behest of wife. The Bench observed that modes of extrajudicial divorce as referred in Section 2 of the Shariat Act of 1937 remain untouched by the Dissolution of Muslim Marriages Act. The provisions of the Act never intended to do away with the practice of extrajudicial divorce otherwise available to a Muslim woman.

The court also over-ruled a single judge’s verdict which had held that Muslim women could only resort to divorces under the provision of the Dissolution of Muslim Marriage act and had no right to invoke the provision of their personal law i.e., Section 2 of the Shariat Act.

The bench overruled a 1972 ruling of the single bench of the court in the case KC Moyin vs. Nafeesa And Ors. On 6 September,1972 by Justice V. Khalid, barring Muslim women from resorting to extra-judicial modes of dissolving marriage.

Facts of KC Moyin vs. Nafeesa And Ors.:

The appellant filed a private complaint before the District Magistrate. Kozhikode, against six persons; the first accused his wife, the 2nd accused her second husband whom she married during the subsistence of her marriage with the appellant, accused 3 and 4 her parents, the 5th accused an abettor, and the 6th accused her uncle. The marriage between the appellant and the first respondent took place in 1950 end a child was born of that marriage. After the birth of the child, the wife was taken away from the appellant by her parents and was not sent back. All his efforts to get back his wife failed and therefore the appellant filed for restitution of conjugal rights. The suit for restitution of conjugal rights was decreed subject to the condition that the appellant Paid in Court the mahar within 30 days. The mahar suit was also decreed. The suit for dissolution of marriage filed by the wife was however dismissed on 27-8-1963.

It was held that they cannot resort to the extra-judicial ways of annulling their marriage and only have to stick to the ways listed in the Dissolution of Muslim Marriages Act,1939.

Recent observations made by Kerala High Court:

“There is a growing tendency to resist changes being affected upon the Muslim community with regard to the method and manner of effecting divorce consistence with Quranic Injunctions”

Noting that the Holy Quran recognises the right to divorce equally for both men and women, the bench observed that the dilemma of Muslim women, particularly in the State of 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. “All other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to a Muslim woman. We, therefore, hold that the law declared in K.C.Moyin’s case (supra) is not good law.”

“The issue involved in as above is inextricably connected to ultimate justice which women involved in all these cases seek. 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 finally held that the women could resort to all the methods of extra-judicial divorce which are recognised under Section 2 of the Shariat Act.

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