X Vs Y And Other Connected Petitions: Court Validated Khula With Three Essential Conditions That Need To Be Fulfilled

Bench: Justice A. Muhamed Mustaque and Justice C.S Dias

Appellant: X

Respondent: Y

Issue

• The question which arises for consideration here is, “Have the Muslim Women lost their rights to invoke extra-judicial divorce, after, The Dissolution of Muslim Marriages Act, 1939 was enacted?”
• Is it the intention of the Legislature, to do away with extra-judicial divorce otherwise followed by the followers of different schools?

Facts

• The Judgment was given on several family court cases clutched together related to aggrieved Muslim married women where extra-judicial modes of dissolution of marriage have resorted.
• All these cases reached this level because of the In Matrimonial appeal 89 of 2020, the appellant 'Y' wanted a divorce on grounds of impotency and cruelty and was granted a divorce and the 'Y' was permitted to invoke Khula by the court which was challenged by the husband ‘X’. The counsel for ‘Y’ also mentioned that the judgment under K.C Moyin’s case of 1972 requires reconsideration.
• In Mat.A.No.72/2021, Muhammad Musthafa B.K. challenges the decree of the Family Court Kalpetta in O.P.No.300/2019. While the above matter was pending, the parties were referred for mediation. In the mediation proceeding, Muhammad Musthafa B.K. agreed to divorce his wife Harsha M.A. ‒ The Family Court based on the mediation agreement, granted a decree of divorce on mutual consent. This decree is challenged on the ground of lack of consent on the part of Muhammad Musthafa B.K. The validity of divorce granted by the Family Court on mutual consent of the parties under Islamic law is also questioned.
• O.P.No.372/2020 is filed by Farhana, the petitioner before the Family Court, Malappuram, seeking dissolution of her marriage with her husband Noufal P.P under the Act. She seeks expeditious disposal of her case. Her counsel submitted that Farhana may be granted the liberty to invoke extra-judicial divorce available to a Muslim wife.
• O.P.Nos.124 and 133 of 2021 are filed by Raseena Pareekunju challenging the proceedings of the Family Court, Ernakulam against returning joint petitions filed with her husband-Mohammed Asif for dissolution of their marriage by mutual consent and to declare that their marriage stands dissolved as per their personal law. According to them, their marriage has been dissolved by mutual consent invoking Mubaraat, an extra-judicial form of joint divorce, applicable to Muslim husband and wife. The Family Court refused to accept their petitions stating that there is no substantial law to entertain such petitions.

Judgment

• The Court validated Khula but three essential conditions were given that need to be fulfilled.
• The court also declared that the decision taken in K.C Moyin V. Nafeesa is not a good law.
• After analyzing the findings of the Dissolution of Muslim Marriages Act, 1939 and disagreeing with them, the Honorable Court held that, 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 consideration of the view that, The Dissolution of Muslim Marriages Act restrict Muslim women to annul their marriage invoking Faskh except through the intervention of the court and all the other forms of modes of dissolution of marriages given under section 2 of the Shariat Act, 1937 are thus available to a Muslim woman.

Relevant Paragraphs

• The K.C Moyin’s case judgment, A learned Single Judge of this Court in unequivocal terms declared that a Muslim wife cannot repudiate a marriage dehors the provisions of the Dissolution of Muslim Marriages Act. The Court in the present case declared that the judgment in K.C Moyin’s case is not a good law.
• The Court first of all in detail discussed the different modes for dissolution of marriage in Muslim Personal Law.

1. Talaq-e-tafwiz, is a mode where the wife can dissolve the marriage if her husband fails to keep his end of the marriage contract.
2. Khula, is a mode where a wife can unilaterally divorce her husband by returning the dower received her.
3. Mubara’at, is a mode where the dissolution of marriage takes place by mutual consent.
4. Faskh, is a mode for dissolution of marriage with the intervention of a third person, such as qazi.

The Shariat recognized all these modes for dissolution of marriage except Faskh.

• • Also, while holding that the Muslim Women have an unconditional right to invoke khula, the Court also specified three essential conditions which needed to be fulfilled for invoking Khula.

1. A declaration of repudiation or termination of the marriage by the 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 was preceded before the declaration of khula.

• Regarding the Jurisdiction of the family court, in the extra-judicial matters, the Court said that, In the matter of talaq, khula, mubaraat, 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. In the matter of unilateral dissolution of marriage, invoking khula and talaq, the scope of inquiry before the Family Courts is limited. In such proceedings, the court shall record the khula or talaq to declare the marital status of the parties after due notice to the other party. If any person wants to contest the effectiveness of khula or talaq, it is open for such an aggrieved person to contest the same in the appropriate manner known under law. In the matter of mubaraat 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 appropriately. The Family Court in such matters shall endeavor to dispose of the cases treating it as an uncontested matter, without any delay by passing a formal order declaring the marital status.
• In the Matrimonial appeal of 89/2020, the Court, In the light of the law declared by us on the procedure of valid khula, we declare that khula invoked by 'Y' is valid. No doubt, if 'X' wants any compensation, return of any valuables he gave to 'Y' during the subsistence of the marriage, we reserve the liberty to 'X' to approach the competent Family Court. Thus, we hold that marriage between 'Y' and 'X' has come to an end consequent to the invocation of khula by 'Y'. Thus we set aside the impugned decree and judgment and dispose of the original petition filed by 'Y' recording the Khula. Hence, the appeal was disposed of.
• The Court in the Matrimonial appeal no. 72/2021 said that, are of the considered view that decree of divorce granted by the Family Court, Kalpetta, have to be treated as divorce in the form of mubaraat. And decree granted is only a declaration of status of the parties based on such extra-judicial divorce. Accordingly, we dismiss this appeal as not maintainable. However, we make it clear that dismissal of appeal will not preclude Muhammad Musthafa from challenging the decree in an appropriate forum on the ground of fraud.
• In the O.P (FC) 372/2020, the Court, In the light of the declaration that Muslim women have the right to invoke extra-judicial divorce, we reserve the liberty to the petitioner to resort to extra-judicial divorce. We have already issued necessary guidelines to the Family Court regarding the disposal of pending matters through the judgment in O.P.(FC). No.352/2020 and connected cases dated 23/3/2021. If the petitioner wants to pursue the case under the Dissolution of Muslim Marriages Act, the Family Court shall dispose of the case under the said guidelines. The original petition is disposed of as above.
• O.P.(FC). Nos.124/2021 and 133/2021: These original petitions were filed by the same persons, namely, Raseena Pareekunju. She along with her husband Muhammed Asif, filed a petition for dissolution of marriage by mutual consent under Section 9(2) of the Dissolution of Muslim Marriages Act. The Family Court refused to entertain the petition stating that there is no substantial provision under the Muslim law to grant the divorce on mutual consent. That is challenged in O.P. (FC). No.124/2021. Thereafter, it appears the petitioner filed O.P. before the same Family Court for declaration of marital status based on mubaraat. This was returned with an endorsement as follows: Quote the relevant provision of Muslim Marriage. The above is challenged in O.P.(FC). No.133/2021. We have already adverted that mubaraat is a form of an extra-judicial divorce based on mutual consent under Islamic law and the same is valid as it remains untouched by the Dissolution of Muslim Marriages Act. The Family Court in such circumstances is neither called upon to adjudicate nor called upon to dissolve the marriage by a decree of divorce. On the other hand, the Family Court only has to declare the marital status by endorsing the mubaraat invoking jurisdiction under Explanation (b) Section 7(1) of the Family Courts Act. Once a declaration of joint divorce invoking mubaraat is produced before the Family Court, the Family Court has to pass a decree declaring the matrimonial status of the parties. The inquiry in such cases is limited to the extent to find out whether both parties have agreed to dissolve such marriage invoking mubaraat. Once the Family Court is satisfied that mubaraat is executed by both the parties, it shall declare the matrimonial status of such parties. We are, therefore, of the considered view that the Family Court is bound to entertain a petition for declaration of the status based on mubaraat. The Family Court shall dispose of such matter, if both the parties have filed the petition, after making a formal inquiry without any further delay treating it as an uncontested matter in the light of the guidelines issued by us in the judgment in O.P. (FC). No.352/2020 and connected cases dated 23/3/2021. The original petitions are disposed of.