Overruling a nearly five-decade judgment, the Kerala High Court has restored the rights of Muslim women for divorce without resorting to judicial proceedings.
A division bench of the high court pronounced the judgment in a bunch of cases that arose out of different proceedings before the family courts seeking varied relief.
The bench overruled a 1972 ruling of the single bench of the court barring Muslim women from resorting to extra-judicial modes of dissolving marriage.
Noting that the Holy Quran recognises the right to divorce equally for both men and women, the bench observed that the dilemma of Muslim women, particularly in the State of Kerala, came to the fore when the single bench in the ”KC Moyin versus Nafeesa and Others” case negated the right of Muslim women to invoke extra-judicial divorce in the light of the Dissolution of Muslim Marriages Act, 1939.
The single bench then had held under no circumstances, a Muslim marriage can be dissolved at the instance of the wife, except in accordance with the provisions of the Act.
In its judgment, the division bench of Justices A Muhamed Mustaque and CS Dias analysed four major forms of dissolution of marriages as recognised under Islamic Law and protected under the Shariat Act at the instance of the wife.
This includes Talaq-e-tafwiz, Khula, Mubara’at and Faskh.
“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 considered view that the Dissolution of Muslim Marriages Act restrict Muslim women to annul their marriage invoking Faskh except through the intervention of the Court.”
“All other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to a Muslim women. We, therefore, hold that the law declared in K C Moyin’s case (supra) is not good law,” the court said in its judgment on April 9.
While Talaq-e-tafwiz allows the wife to dissolve the marriage if her husband fails to keep his end of the marriage contract, – Khula allows her to unilaterally divorce her husband by returning his dower.
Mubara’at deals with dissolution by mutual consent while Faskh allows dissolution with the intervention of a third person such as a qazi.