Historic Kerala HC verdict restores a right for Muslim women


For for decades, it was the best-kept secret when it comes to divorce among Muslims. Even as huge spaces in the newspapers were devoted to debating the issue of the triple talaq, which does not find any mention in the Koran, the right of Muslim women to annul a marriage by the practice of khula was ignored despite the fact that the Quran, in the chapter of Sura Baqarah, clearly gives women the option of leaving their marriage.

At the societal level, most women have remained unaware of the right to khula, only one inalienable right to divorce offered to them, and the matter became even more complicated and ignorance spread through the generations because the Law on the Dissolution of Muslim Marriages, 1939, denied them this right without going to court.

Now the old order has been restored with a landmark ruling from the Kerala High Court granting Muslim women the right to end their marriage through non-judicial divorce. In April 2021, the court overturned a 49-year-old verdict in KC Moyin v Nafeesa and others (1972) which prohibited Muslim women from dissolving their marriages through non-judicial means.

The court observed: “A learned single judge of this court has defined in no uncertain terms that a Muslim woman cannot repudiate a marriage outside the provisions of the Law on the dissolution of Muslim marriages. It found that the law on the dissolution of Muslim marriages did not contemplate the annulment of the method of extrajudicial divorce offered to women under Muslim personal law. Judges A. Muhamed Mustaque and CS Dias declared: “All other forms of extrajudicial divorce referred to in article 2 of the Sharia law are thus accessible to a Muslim woman. We therefore consider that the law declared in the KC Moyin case is not a good law. “

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In the latter case, a young woman (name withheld) had filed a petition on the grounds that her husband was powerless and cruel to her. When the appeal was considered, the woman upheld her decision to dissolve her marriage while the man was prepared to undergo a potency test to prove the falsity of his request. At this point, the woman’s lawyer, Narayanan P., argued that it was because of the decision by KC Moyin that his client had to undergo the test of long-term adversarial litigation and was prevented from invoking her right to extrajudicial divorce, khula, as recognized by the law of persons. He asked his client for permission to comment khula to end his misery. Yes khula was considered a valid form of divorce, the woman had no objection to setting aside the judgment under appeal for fault, he argued. As a result, the court granted him leave. The woman pronounced khula and produced the same additional evidence. She was later ready to return her mehr, or dowry.

The reasoning of the Court

In a 77-page ruling, the court referred to various forms of divorce recognized under the Muslim Personal Law Enforcement Act of 1937 (Shariat) and agreed that extrajudicial divorce was recognized as legally valid in British India. “Article 2 of the Sharia law statutorily recognizes the rights of persons and the dissolution of marriages without intervention of the court by talaq, he has, zihar, liana, khula and mubarat, etc. “The court described talaq-e-tafwiz, khula, mubarat and faskh as four main forms of marriage dissolution under Islamic law.

Talk about khula, the court called it “the form of divorce conferred on the wife similar to talaq conferred on the husband ”. He added: “The recognition of khula as a form of divorce is directly available in the Holy Quran. khula as a valid form of divorce. Maulana Abul Ala Maududi, the founder of Jamaat-e-Islami, said in his book Huquq al-Zawjain: “Islamic law achieves a good balance between the rights to divorce of men and women. It is great folly that we have practically taken away the right of our women to khula, careless of the fact that denying them the right that the Shariat gives them on an equal footing with talaq is anti-Islamic. It is indeed a parody of the chariat that we consider khula as something that depends on either the husband’s consent or the qazi’s verdict. The law of Islam is not responsible for how Muslim women are deprived of their rights in this regard.

The ramifications of the decision

The ruling is likely to have ramifications for the Muslim community as various Darul Qaza or Shariat courts are at different stages of hearing pleas on khula. There are many more khula cases before the courts of Darul Qaza in relation to talaq case.

Incidentally, khula is considered more powerful by some jurists in relation to a man’s right to divorce his wife. In talaq, the man is supposed to look after his well-being for three months, and the wife continues to stay with the husband during the iddah (waiting time), while it khula divorce is instantaneous. In talaq, the divorce can be revoked by word or by action during the iddah. However, in the case of khula, the wife immediately leaves the husband’s home.

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There are two opinions among scholars when it comes to the husband’s right to say no to khula. Like Maududi, the famous Islamic scholar Tahir Mahmood, whom the High Court cited in its verdict, argues that the husband cannot say no to khula. And if he does, it is up to the qazi (judge of personal law) to convince him. In the rare cases where the qazi is also lacking, he can initiate the procedure through the faskh mode of divorce.

The court dismissed Judge Kauser Edappagath, who said that khula is analogous to the husband’s right to pronounce talaq, after being convinced of the irremediable breakdown of the marriage. Dr Edappagath said: “Khula is a divorce at the request of the wife in which she agrees to take her husband into account as soon as he is released from the marital bond.

The court also quoted Mahmoud Rida Murad, who in his book referred to khula like an instant divorce whereby the wife redeems herself from the marriage for a ransom or compensation given to the husband. The learned author was cited by the court as having stated: “The khula is permitted whether the woman is menstruating or not. It is permissible for the husband to remarry with his consent after entering into a new contract with a new dowry.

Likewise, there are two opinions on whether the woman should forgo the agreed mehr money at the time of marriage, given that she is the one who is withdrawing from the marriage by khula.

In the absence of legal context, the Kerala court recently cited a hadith (say) of the Prophet Muhammad where he allowed a woman to enter for khula for the simple reason of not liking the appearance of her husband. In this well-known case, a woman approached the Prophet Muhammad and announced her intention to divorce her husband. He asked her to reconsider his decision, after which the woman asked him if it was his recommendation or his instructions. The Prophet Muhammad said this was only a recommendation. Following this, the woman rejected the recommendation and entered into khula. The man was advised to accept the garden she offered and let the woman go.

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The decision of the High Court of Kerala reinforces the age-old standard that women have the right to their inalienable right to khula, the qazi not having the right to annul his decision or even to ask him the reasons for it. He can’t even ask her to reconsider her decision. The woman does not need any intermediary, any clerk to execute it.

Khula can be spoken orally in the presence of the qazi or in a writing called the khulnama. The qazi cannot overturn a woman’s decision. No grounds should be given for the divorce. If the man has not paid his mehr before the woman comes in for khula, he cannot demand it.

Some jurists believe that if he paid the mehr, she should return part of it because she is the one who is withdrawing from the marriage. However, the Qur’an also asks Muslim men to be generous at the time of divorce.

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