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The HC said it is open for a Muslim woman to exercise her inalienable right to dissolve a marriage but not through private bodies.
Published Feb 01, 2023 | 5:11 PM ⚊ Updated Feb 01, 2023 | 5:12 PM
The Madras High Court. (Creative Commons)
It is open for a Muslim woman to exercise her inalienable right to dissolve a marriage by “Khula” (divorce proceeding initiated by the wife) by approaching a family court and not private bodies such as a Shariat Council, the Madras High Court has ruled.
Private bodies cannot pronounce or certify the dissolution of marriage by Khula.
“They are not courts or arbitrators of disputes. The courts have also frowned upon such practice…,” the court held.
Such Khula certificates issued by private entities are hence invalid. “Khula is the form of divorce conferred upon the wife similar to talaq conferred upon the husband.”
In his judgement on a writ petition by a man who prayed for quashing the Khula certificate issued to his wife, Justice C Saravanan quashed the impugned certificate issued in 2017 by Shariat Council, Tamil Nadu Towheed Jamath in Chennai.
The Madras High Court granted an interim stay in Bader Sayeed Vs Union of India, 2017 and restrained bodies such as the respondents in that matter (Kazis) from issuing certificates certifying dissolution of marriage by Khula, the judgment said.
“Thus, while it is open for a Muslim woman to exercise her inalienable rights to dissolve the marriage by Khula recognized under the Muslim Personal Law (Shariat) Application Act, 1937 by approaching a family court, it cannot be before a self-declared body consisting of few members of Jamath.”
The impugned Khula certificate issued by the Shariat Council is quashed. The high court directed the petitioner and his wife to approach the Tamil Nadu Legal Services Authority or a family court to resolve their disputes.
In this matter, the petitioner relied upon a Supreme Court decision in Vishwa Madan Lochan Vs Union of India and others (2014) in which the court held that whatever may be the status of “fatwa” during Mughal or British rule, it has no place in independent India under the Constitutional Scheme.
In an order on a writ plea, the Madras High Court, referring to a body, Makka Masjid Shariat Council had said that the impression conveyed to the public is of a “court functioning”, the petitioner cited.
The petitioner had also filed a suit for restitution of conjugal rights and it was decreed as ex parte. In the writ plea proceedings, the woman chose to remain absent.
Out of wedlock, a male child was born to them in 2015. They were married in 2013 and she left the matrimonial home in 2016.
The petitioner had also filed another petition under the Guardians and Wards Act which was allowed and a plea is pending before a family court for execution of the decree.
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