Kerala HC Observes Islamic Law Recognises Muslim Women’s Right To Demand Divorce

The Kerala High Court, on November 1, 2022, observed that Islamic laws recognise Muslim women’s right to demand a divorce and ruled that the will of the wife cannot be "related to the will of the husband" who does not consent to the divorce.

"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," the High Court observed.

The observation came while the division bench of Justice A. Muhamed Mustaque and Justice C. S. Dias was dismissing a review petition against a court judgement that recognised a Muslim woman's right to resort to Khula.

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Khula is a form of divorce that is initiated by the wife and is affected by the return of her husband's wedding gift.

The review typically depicted that Muslim women are “subordinate to the will of their male counterparts.” Further, the 59-page review judgement mentioned that this review “does not look innocuous at the instance of the appellant, but rather appears to have been fashioned and supported by clergies 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 appeal for the review petition was filed while challenging a divorce order granted to a Muslim wife under the Dissolution of Muslim Marriages Act, 1939. The court declared that the right to terminate the marriage at the instance of a Muslim wife is an absolute right, which is conferred on her by the Holy Quran and is not subject to the acceptance or the will of her husband. Further, the court mentioned that Khula is valid based on various conditions including a declaration of termination of the marriage by the wife, an offer to return the dower or other marital gain he received during the marriage, and an effective attempt for reconciliation preceded before the declaration of it.

To which, the review petition argued that if the wife decides to end the marriage, she has to demand talaq from her husband and if he refuses, she has to move the qazi or Court. It also argued that she has "no absolute right" to pronounce khula or demand divorce out of her own will and that nowhere in the world is she allowed to unilaterally end the marriage.

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However, the court observed, “We cannot hold that that procedure followed situationally, be treated as a law when parties are not able to arrive at such a settlement. If the procedure itself is understood as the law, that would derogate from the right conferred on a Muslim wife, under Quranic legislation, to terminate the marriage at her will.”

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