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Muslim women can pronounce divorce through 'Khula' only via family courts, not Shariat councils
Mohammed Rafi Vs The State
W.P.No. 35688 of 2019
About/from the judgment:
The Court said that while Muslim women have the absolute right to pronounce unilateral divorce through Khula under the Muslim personal law, the same can be exercised only through a statutory court.
The Madras High Court has said that while a Muslim Woman has an inalienable right to dissolve her marriage through Khula, which is the option of pronouncing unilateral divorce under the Muslim Personal Law, such divorce decree can be granted only by a family court, and not by any private or extra judicial body such as a Shariat Council that merely represents some members of the community.
In a judgement passed on January 11, Justice C Sarvanan of the Madras High Court quashed a Khula certificate issued to a woman in 2017 by a Shariat Council registered under the Tamil Nadu Societies Registration Act, 1975.
"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 High Court said.
The petitioner-husband argued that extra judicial decrees such as a fatwa or a Khula certificate has no legal sanction and cannot be enforced by any private persons or bodies.
The lawyer for the Shariat Council, however, cited a 2020 judgement of the Kerala High Court that had upheld the right of a Muslim woman to resort to the extra judicial divorce proceedings of Khula.
The Shariat Council argued that in light of the Kerala High Court judgement, the present writ petition was not maintainable.
The Madras High Court, however, said that the Kerala High Court judgement had upheld only the Muslim woman's right to initiate unilateral divorce through Khula and had not endorsed the involvement of private bodies such as the Shariat Council.
"The Courts are empowered under Section 7(1)(b) of the Family Courts Act, 1984 read with Section 2 of the Dissolution of Muslim Marriages Act, 1939 and Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 to pass a decree to dissolve a marriage. The private bodies such as the Shariat Council, the second respondent herein cannot pronounce or certify dissolution of marriage by Khula. They are not Courts or Arbitrators of disputes. The Courts have also frowned upon such practice as mentioned above," the Madras High Court said.
It, therefore, quashed the Khula Certificate and directed the petitioner-husband and his estranged wife to approach the Tamil Nadu Legal Services Authority or a family court to resolve their dispute.
Read the Judgment
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