The Kerala High Court has said that the Islamic law recognises a Muslim woman’s right to demand termination of marriage.
In an order, the court observed that the will of the wife cannot be “related to the will of the husband” who may not be agreeing to a divorce.
Dismissing a review petition against a judgment wherein the court had recognised a Muslim woman’s right to resort to khula (a procedure through which a woman can give a divorce to her husband in Islam, by returning the dower), the division bench of Justice A Muhamed Mustaque and Justice CS Dias said, “In the absence of any mechanism in the country to recognise the termination of marriage at the instance of the wife when the husband refuses to give consent, the court can simply hold that khula can be invoked without the conjunction of the husband.”
“This is a typical review portraying that Muslim women are subordinate to the will of their male counterparts. This review does not look innocuous at the instance of the appellant, but rather appears to have been fashioned and supported by clergy and the hegemonic masculinity of the Muslim community who are unable to digest the declaration of the right of Muslim women to resort to the extra-judicial divorce of khula, unilaterally,” the court said in its 59-page judgment.
The appeal from which this review arises was filed challenging a divorce decree granted to a Muslim wife under the Dissolution of Muslim Marriages Act, 1939. The appeal was filed by the husband. In the appeal, the court noticed the existence of the right of Muslim women to resort to the extra-judicial divorce of khula, allowing her to terminate her marriage.
In the appeal, the court had declared that the right to terminate the marriage at the instance of a Muslim wife is an absolute right, conferred on her by the Holy Quran and is not subject to the acceptance or the will of her husband.
The court said Khula would be valid if the following conditions are satisfied :
i. A declaration of repudiation or termination of marriage by the wife
ii. An offer to return dowry or any other material gain received by her during marital tie
iii. An effective attempt for reconciliation was preceded before the declaration of khula
It was argued in the review petition that if a Muslim wife wishes to terminate her marriage with her husband, she has to demand talaq from her husband and on his refusal, she has to move the qazi or the court.
Though the petitioner agreed that a Muslim woman has the right to demand divorce of her own will, he also argued that she has “no absolute right” to pronounce khula. The petitioner contended that nowhere in the world is a Muslim wife allowed to unilaterally terminate the marriage.
The court in the judgment delivered last week said that Quranic verse found in Chapter 2, verse 229, relating to khula, in unequivocal terms, declares that a Muslim wife has the right to terminate her marriage.
Observing that Sunnah cannot override or abrogate the primary legislation in Islamic law, the court further said: “If the Qur’an, in unequivocal terms, permits spouses to terminate their marriage on their own will, it cannot be said that the Sunnah further qualifies it, subjecting it to the will of the husband, in the case of khula”.
The court dismissed the petition after finding no reason to review the judgment.