OVERVIEW
The Kerala High Court, on an order dated 9th April, 2021, overruled a prior judgement delivered by the Kerala High Court in the year 1972in the landmark case of K.C. Moyin v. Nafeesa and Ors., where the question put forth to the Hon’ble Court was “whether a muslim wife can repudiate the marriage with her husband de hors the provisions of the Dissolution of Muslim Marriages Act, 1939.”
The Court had replied in the negative to the question in the year 1972, which decision was overturned after 49 years in 2021 and the court recognised the right of Muslim women to invoke extra-judicial divorce.
The Court stated that, “Allother forms of extra-judicial divorce as referred inSection 2 of the Shariat Act are thus available to aMuslimwoman. We, therefore, hold that the lawdeclared in K.C.Moyin's case (supra) is not good law.”
BACKGROUND
The High Court, while considering the various cases with various issues arising out of the Family Courts, “inextricably connected to ultimate justice” that are sought by the women in the circumstances when the Muslim women are denied their right to seek extra-judicial divorce.
The Holy Quran recognises marriage as a contract which guarantees both the parties to it permanent rights and obligations. Therefore, the right to divorce is recognised equally forboth men and women according to Muslim law. However, the Muslimwomen, particularly in the State of Kerala were faced with a dilemma when a learned Single Judge of the Kerala High Court “negatedthe right of Muslim women to invoke extra-judicialdivorce in light of the Dissolution of Muslim Marriages Act, 1939, except in accordance with the provisions of the Act,” in the case of K.C.Moyin v. Nafeesa& Others [1972 KLT 785].
The Court further considered that “While therewas a huge clamour to retain the practice of ‘tripletalaq’, an un-Islamic practice; no such open andapparent demand seems to exist to restore the right ofMuslim women to invoke extra-judicial divorce. Theabove sketch the miseries of women despite the promiseguaranteed under Article 14 of the Constitution ofIndia.”
OBSERVATIONS OF THE COURT
The Court observed that the four modes of dissolution of marriage at the instance of the wife that are protected by the Shariat Act, which are as follows:
- Talaq-e-tafweez: It refers to when the wife uses her delegated power given by the husband to divorce herself from marriage on the happening of certain events, like subsequent marriage of husband, etc.
- Mubarat: It is a dissolution of marriage by mutual release, and may move from either the husband or the wife.
- Khula: The offer to be released from the marital tie, when moved by the wife, is termed as Khula.
- Faskh: It refers to cancelling, annulling, revoking or abolishing the marriage by a judicial divorce at the option of the wife.
On matters involving dissolution of marriage by Khula, the Court held that as long as there is an absence of secular law governingkhula,such dissolution “would be valid if thefollowing conditions are satisfied:
(i) A declaration of repudiation or terminationof marriage by wife.
(ii) An offer to return dower or any othermaterial gain received by her during marital tie.
(iii) An effective attempt for reconciliation waspreceded before the declaration of khula.”
CONCLUSION
It was directed that in the matter of talaq, khula, mubaraat, talaq-e-tafwiz, such applications would be entertained by the Family Courts, when such Courts are moved by either of the parties or both parties in order to declare the marital status of such applicant parties.
The Family Courts were further directed to entertain applications of unilateral modes of dissolution. When such unilateral modes such as khula and talaq are moved by either of the parties or both parties to declare the marital status of such parties, the Family Courts would consider the applicable laws and deliver such appropriate order.
In cases of extra-judicial divorce, the Family Courts were directed to “endeavour to dispose the cases treating it asuncontested matter, without any delay by passing aformal order declaring the marital status.”
WHAT IS YOUR OPINION REGARDING THE RIGHT OF MUSLIM WOMEN TO INVOKE EXTRA-JUDICIAL DIVORCE? DO LET US KNOW IN THE COMMENTS BELOW!
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