DATE OF JUDGMENT:
9th April, 2021.
JUDGES:
Muhamed Mustaque, C.S. Dias.
PARTIES:
Muhammad Musthafa (Appellant)
Harsha M.A. (Respondent)
SUMMARY
The following case deals with the issue of whether or not Muslim women can avail extra-judicial methods to dissolve a marriage.
OVERVIEW
1. The present case was heard by the High Court after several cases on the matter at hand were filed. The High Court clubbed the cases and heard them at the same time.
2. The court, while hearing the cases, sought to refer the decision given in the case of K.C. Moyin v. Nafeesa and Ors., (1972 KLT 785), which held that Muslim women cannot invoke the right to use extra-judicial methods for dissolution of their marriage.
3. The court, in the instant case, sought to overrule the judgment given in the aforementioned case by invoking the provisions of Art. 14 of the Constitution.
4. The court held that 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 have existed to restore the right of Muslim women to invoke extra-judicial divorce.
5. The court, taking the aforementioned view, contended that this was against the protections that Muslim women were entitled to under the provisions of Art. 14 of the Constitution.
6. The court, while pronouncing its judgment, raised questions to the legislature with regards to its intent to do away with extra-judicial divorce followed by different schools of jurisprudence.
ISSUES
The following issues were analyzed by the court:
- Whether or not Muslim women can avail extra-judicial methods to dissolve a marriage.
- Whether it was the intention of the legislature to do away with extra-judicial divorce followed by different schools of jurisprudence.
IMPORTANT PROVISIONS
- Art. 14 of the Constitution: Right to equality.
- Sec. 2 of the Muslim Personal Law (Shariat) Application Act, 1937: Application of personal law to Muslims.
- Sec. 5 of the Muslim Personal Law (Shariat) Application Act, 1937: Dissolution of marriage by Court in certain circumstances.
- Sec. 494 of the Indian Penal Code: Marrying again during lifetime of husband or wife.
ANALYSIS OF THE JUDGMENT
1. In the judgment, the court sought to discuss the various modes of dissolution of marriage while keeping emphasis on Muslim personal and marriage laws. The following modes include:
a. Talaq-e-tafwiz: where the wife can dissolve the marriage if she feels that the husband failed to keep his end of the marriage contract.
b. Khula: where the wife can unilaterally divorce her husband by giving back his dower.
c. Mubara’at: dissolution by mutual consent.
d. Faskh: dissolution with the intervention of a third person.
2. The court was of the view that while there was a huge clamour to return to the practice to triple talaq, no such open and apparent demand seems to exist to restore the right of Muslim women to invoke extra-judicial divorce.
3. The court held that the aforementioned view was against the promise made to Muslim women under the provisions of Art. 14 of the Constitution.
4. In K.C. Moyin v. Nafeesa and Ors., (1972 KLT 785), the High Court held that a woman could not dissolve her marriage by extra-judicial and personal means and can only resort to remedies under the provisions of Dissolution of Muslim Marriages Act.
5. The court, in the present case, held that all other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to a Muslim woman.
6. The court, therefore, held that the law declared in K.C.Moyin's casewas not good law.
7. With regards to the validity of Khula as a form of divorce, the court held that a Muslim woman had an unconditional right to invoke a Khula. However, the court held that if an unbridled power to Khula was given to a woman, it would create miseries and hardships to both the men and the women.
8. The court held that in absence of a secular law governing Khula, the Khula would be valid if the following conditions were satisfied:
a. A declaration of termination of marriage by wife.
b. An offer to return dower received by the wife during her marital tie.
c. An effective attempt for reconciliation was preceded before the declaration of Khula.
9. The court, with regards to how the family courts were to adjudicate extra-judicial modes of dissolution, held that there was no difficultyfor family Court to endorse an extra-judicial divorce to declare the matrimonial status of a person.
10. The court, therefore, held that these cases speak in abundance the patriarchal mindset followed by the society today and for decades which deprive the Muslim women their right to invoke extra-judicial divorce.
CONCLUSION
The issue that the present case deals with is whether or not Muslim women can avail extra-judicial methods to dissolve a marriage. The court, in the present case, held in the positive and, by overruling the judgment given in K.C. Moyin’s case, held that Muslim women had the right to use extra-judicial methods to dissolve their marriage.
Unlike Hindu family laws and personal laws, Muslim personal laws in India had, and have never been codified so far. There have been calls for the promulgation of the Muslim Family Law Act, which would result in the codification of a Muslim personal law that would seek to protect the rights of Muslim women. An example of this arose from the Shah Bano case, wherein religious organizations tried to pressure the government to reject a verdict of the Supreme Court which ruled that Muslim women were entitled to civil provisions for post-divorce maintenance. The government caved in and passed the Muslim Women’s (Protection of Rights on Divorce) Act, which re-emphasized the jurisdiction of Muslim personal laws over maintenance. The call for Muslim women to avail equal rights under Muslim personal laws was rejected by the government’s decision in the aforementioned case. The case and the controversy that ensued fomented religious fundamentalism which posed a threat to democracy in India without the intervention of Uni
form Civil Code (UCC). The absence of a Uniform Civil Code enabled the controversy surrounding the aforementioned case. There was severe opposition to the UCC by conservative Islamic organizations, who argued that the introduction of the UCC would infringe on their right to practice their religion and that any change in their personal law would violate their right to religious freedom.
The verdict passed by the Supreme Court in the triple talaq case brought down the barriers that were created in the aftermath of the Shah Bano verdict. The court held that the practice of triple talaq as a form of divorce was unconstitutional. This verdict sought to bring emphasis of equality and justice over religion.
The present case, like the Shah Bano case, sought to give Muslim women their right to extra-judicial forms of dissolution of their marriage. The court, while pronouncing its judgment, contended that not granting women their right to avail extra-judicial forms of divorce infringes on their right to equality guaranteed to them under the provisions of Art. 14 of the Constitution.
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