Kerela HC Judgment Clarifies Muslim Women’s Right To Initiate Divorce

Overview

• On 09 April 2021, Kerela High Court passed a judgment declaring that Muslim Women have the right to invoke extra-judicial modes for dissolving marriage.

Background of the case

• The name of the case was, X Vs. Y and connected petitions.
• This judgment was given in the context of clutched petitions before the Honorable Court filed by the aggrieved Muslim wives in marriage.
• The issue involved is connected to the justice that all these women seek in the petitions.
• The question of law arising out of these cases is that “Does the Muslim women have lost their right to invoke extra-judicial divorce, after the Dissolution of Muslim Marriages Act, 1939 came into force?"

Court’s Decision

• `The Bench consisted of Justice Muhamed Mustaque and Justice C.S Dias.
• The Court remarked that " these cases speak in abundance about the patriarchal mindset followed in the society for decades depriving Muslim women their right to invoke extra-judicial divorce"
• While looking into the case, the Court first of all elaborately discussed the various modes of dissolution of marriages for Muslim Women provided under the Muslim Personal law.
• There are four modes mentioned are, a) Talaq-e-tafwiz, b) Khula, c) Mubara’at, and, d) Faskh, all these modes of dissolution of marriage are recognized by the Shariat Act, 1937 except Faskh and also provides three conditions by following which divorce through Khula shall be granted.
• The court also declared that the decision taken in K.C Moyin V. Nafeesa, is not a good law. The High Court earlier in K.C Moyin’s case declared that Muslim Women can only resort to remedies provided under the Dissolution of Muslim Marriage Act, 1939 and not the modes of dissolution of marriage provided under personal 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.

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