The Kerala High Court last week dismissed a review petition filed by a man challenging the divorce granted to his wife under the Dissolution of Muslim Marriages Act,1939, holding that a Muslim woman has the absolute right to dissolve her marriage at will and does not need her husband’s consent for it.
“We declared that the right of a Muslim wife to terminate the marriage at her request is an absolute right conferred on her by the Quran and is not subject to the acceptance or will of her husband,” said the Kerala High Court division bench of Justices A Muhamed Mustaque and CD Dias.
In a recent order, the court stated that Muslim women have the extra-judicial choice of ending their marriage “unilaterally,” and that the husband’s petition against the divorce was not “innocuous” and appeared to have been filed at the request of “Muslim clerics and hegemonic masculinity.”
The court stated that a Khula is valid if certain conditions are met. The wife’s declaration of repudiation or termination of the marriage, an offer to return her dower or any other material gain received during her marriage, and that before the declaration of the Khula, an effective attempt at reconciliation was made.
According to the review petition, if a Muslim wife wants to end her marriage with her husband, she must first demand talaq from him, and if he refuses, then she can go to court or the Qazi.
According to the ruling, the petitioner had argued that no Muslim wife is “allowed to unilaterally terminate the marriage” anywhere in the world, and the court is also “not competent to decide on religious beliefs and practices and should follow the opinion of Islamic scholars.”
However, the division bench of Mustaque and Dias ruled that it cannot rely on Islamic clergy who have no legal training or knowledge of legal sciences to decide a point of law.
“The courts are manned by trained legal minds. “The court shall not submit to the opinions of Islamic clergy who have no legal training on the subject of law,” the ruling stated.
It went on to say that the Kerala High Court had relied on Chapter II, verse 229 of the Quran, where the right of a Muslim wife is explicitly mentioned, and that this “legal conundrum” is not unique, but has evolved over time.
To no surprise, the Kerala High Court judgment did not go well with the All India Muslim Personal Law Board (AIMPLB). On Thursday AIMPLB asserted that a Muslim woman does not have the unilateral right to end her marriage through Khula. According to the Board, the husband has the right of accepting or rejecting her demand for Khula.
The Board stated in a statement that “Khula is reliant on both husband and wife agreeing to end the marriage after a woman initiates the proposal. If the husband does not agree to Khula, the wife has the right to seek faskh or judicial divorce,” AIMPLB general secretary Khalid Saifullah Rehmani stated.
The Board accused the court of going beyond its brief. “The court was supposed to make a decision based on the Shariah Application Act of 1937.” Unfortunately, the court appeared to go beyond its brief on legal interpretation. The court does not have the authority to add to or alter the law.”
According to Rehmani, a Muslim marriage can be ended in three ways: Talaq, which is pronounced by a man, Khula, which is initiated by a woman, and Faskh, which is judicial divorce.
In the ongoing Talaq-e-Hassan case, the Supreme Court rendered an oral observation juxtaposing Khula and Talaq-e-Hassan, stating that just as a woman has a unilateral right to Khula, so does a man have a unilateral right to Talaq-e-Hassan.
The AIMPLB, on the other hand, insists that in the case of Khula, which is an option of divorce available at the behest a Muslim woman, the man has the final say.