B Mohammed Tahir M. Hakim*
The recent judgment of two Judges of the Kerala High Court titled ‘X v. Y’, recognizing a Muslim woman’s right to extra judicial divorce (Khula) is extensively reported and celebrated in the media. The judgment has been perceived as a progressive judgment which advances the cause of gender justice in Islamic Law; apparently, on the lines of recent judgments like the Triple Talaq judgment which held that instantaneous triple divorce under the Hanafi and Shafei schools of Islam as practiced by the majority of Sunni Muslims in India was bad in law.
It is the view of this author that the comparison of this judgment with the Triple Talaq judgment is misplaced, as this judgment merely reiterates a long-standing position under Islamic Law regarding the Muslim woman’s equivalent right to get the marriage dissolved extra judicially, i.e., without intervention of Court/Kazi/Any other Adjudicatory Body. The necessity for a restatement of the law arose out of a very technical issue viz., the confusion created by a 1976 judgment of one judge bench of the Kerala High Court titled KC Moyeen v. Nafeesa which effectively held that the only mode of getting divorce for a Muslim woman was through Court’s intervention under the Section 2 of the Dissolution of Muslim Marriage Act, 1939 (1939 Act), albeit in different facts and circumstances.
Thus, the 1976 judgment foreclosed the modes of divorce available to Muslim women under Islamic Law without intervention of the Court/Kazi as recognized under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (1937 Act), particularly in the State of Kerala. In view of the same the relief/s of Khula and Mubarat were denied to women and therefore they had approached Kerala High Court.
In order to fully comprehend the entire controversy, a brief description of the concept of marriage, marital relationship and divorce under the Islamic Law needs to be stated. In the Quran, the husband and wife are described as ‘each other’s garment’ (Quran 2:187). Thus, the relationship between the husband and wife is ordained to be sacrosanct where they cover and protect each other. In the said spirit, there are several verses in the Quran which provide for the mutual rights and obligations to be maintained between the husband and wife. However, since it is natural that in some cases the said relationship may not be blissful and also may be unbearable and troublesome for both of them, or for either of them, therefore, in such circumstances the option for divorce is also provided in the Quran itself. While divorce under different religions is governed by specific statutes, divorce for Muslims is governed by the modes and methods known as Shariat, principally derived from the Quran and Hadith which were also canonized by different schools of Muslim law and have been recognized under the 1937 Act. Attributing utmost importance to the privacy, secrecy, and sacrosanct nature of marriage, all the modes of divorce under Islamic law are extra judicial, except Faskh. This also simplifies separation for the couple as they can dissolve their marriage without involving the State or the judiciary. In this context, a brief description of broadly four modes of divorce under Islamic Law as recognized under the 1937, Shariat Act are necessary to be elucidated:
(1) Talaq – divorce at the instance of the husband effected by pronouncement of the word ‘Talaq’ to the wife in the presence of competent witnesses;
(2) Khula – divorce at the instance of the wife conditional upon return of dower (Maher) and/or compensation and/or any other conditions, as they may be prescribed;
(3) Mubarat – divorce by mutual consent of both husband and wife and;
(4) Faskh – Annulment of marriage i.e. Divorce declared through Kazi/competent Court when approached by the wife, either when the husband does not agree for Khula or when the wife wants divorce on the grounds as also provided under the 1939 Act.
Significantly, only in the case of Faskh, the reasons for separation come in public domain, whereas, in all other forms, the reasons for separation remain a secret between the spouses and whereas sometimes they may also be known to their families.
However, contrary to the multiplicity of options available to the Muslim woman to dissolve her marriage, it was held in the 1976 judgment that the only manner in which a Muslim woman could obtain a divorce from her husband was under the specific grounds under the 1939 Act and no other mode of divorce was permitted. It is noteworthy to point out that the 1939 Act was only for the codification of divorce through Faskh. All other modes of divorce were still available as per the 1937 Act. Therefore, the legal position of the 1976 judgment rendered illegal the option of extra judicial divorce available to the woman through Khula and Mubarat under the 1937 Act. This position now stands overruled by the present judgment which holds that divorce at the instance of the wife can be effected extra judicially through the mode of Khula under the 1937 Act, subject to conditions specified for the same. For this, the High Court relies on many verses of the Quran and Hadiths that deal with divorce and particularly the following verses of the Quran and a famous Hadith of the Prophet (PBUH) regarding the Muslim woman’s right of Khula. The verses of the Quran and the Hadith are reproduced below:
“Divorced women must wait three monthly cycles before they can re-marry. It is not lawful for them to conceal what Allah has created in their wombs, if they truly believe in Allah and the Last Day. And their husbands reserve the right to take them back within that period if they desire reconciliation. Women have rights similar to those of men equitably, although men have a degree of responsibility above them. And Allah is Almighty, All-Wise. (Quran 4:228)
Divorce may be retracted twice, then the husband must retain his wife with honour or separate from her with grace. It is not lawful for husbands to take back anything of the dowry given to their wives, unless the couple fears not being able to keep within the limits of Allah. So if you fear they will not be able to keep within the limits of Allah, there is no blame if the wife compensates the husband to obtain divorce. These are the limits set by Allah, so do not transgress them. And whoever transgresses the limits of Allah, they are the true wrongdoers.” (Quran 4:229)
“Narrated Ibn Abbas: The wife of Thabit bin Qais came to the Prophet and said, “O Allah’s Messenger! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in an un-Islamic manner (if I remain with him).” On that Allah’s Messenger said (to her), “Will you give back the garden which your husband has given you (as Mahr/Dower)?” She said, “Yes.” Then the Prophet said to Thabit, “O Thabit! Accept your garden, and divorce her once.” Sahih Bukhari (Book No. 63, Hadith No. 197)
Therefore, the High Court recognizes an apparent distinction between ‘forms of divorce’ and ‘grounds of divorce’ under Islamic law. It holds that the 1939 Act merely provides for the ‘grounds of divorce’ whereas, the 1937 Act provides for ‘forms/modes of divorce’.
Therefore, it is held that a Khula can be obtained by the wife without any intervention of the Court subject to the conditions being satisfied for the same. The High Court further goes on to hold that, once the Khula has been effected, the Family Court or any competent Court is straightaway obliged to recognize the divorce and pass a decree and judgment to that effect without investigating and/or interrogating the justifiability of the divorce. Moreover, it is also held that a similar approach is also required to be adopted in case of divorce effected by Mubarat.
Hence, by the present judgment, the High Court restored the correct position under Islamic Law which was disturbed by an aberrational 1976 judgment. The idea of equity between the sexes and upholding the privacy of marriage has always been an integral part of classical Islamic Law as well as its modern interpretations. However, there are a few fine aspects where the judgment’s exegesis of the law on Khula is slightly inaccurate. For instance, it is held that the husband’s consent is not required for Khula and it can be effected by the woman unilaterally. It is submitted that this interpretation is questionable as the Khula takes effect only when the husband declares it to be so. Moreover, the reliance on the classical sources of Muslim law (Qur’an and Hadith) followed by the modern treatises which essentially contain Anglo Indian interpretations of Muslim law breaks the chain of sources under Muslim law which include Ijma (Consensus among scholars), Ijtihad (Independent scholarly reasoning), and Qiyas (Analogical deduction). However, that is the age-old dichotomy of applying colonial codified Muslim law in a Common Law system.
In conclusion, while this judgment of the Kerala High Court is rightly celebrated for resurrecting the authentic position under Muslim Law on the Muslim woman’s right to obtain divorce without Court’s intervention, it is to be borne in mind that it has only reiterated the legal position that is holding the field since more than 1400 years.
(The author is an advocate practicing at the High Court of Gujarat)
