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Muslim woman has the right to invoke extra-judicial divorce
xxxxxxxxxx Vs xxxxxxxxxx
Mat. Appeal. No. 89 of 2020
About/from the judgment:
Overruling a 49-year-old judgment that effectively barred Muslim women from resorting to extra judicial modes of dissolving marriage, the High Court has upheld the validity of these modes.
Finding that the governing law, The Dissolution of Muslim Marriages Act did not contemplate the undoing of the modes of extra-judicial divorce available to women under personal law, court held,
"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's judgment comes in the context of a clutch of petitions filed before it by aggrieved partners in marriages where extra-judicial modes of dissolution had been resorted to.
"The issue involved in as above is inextricably connected to ultimate justice which women involved in all these cases seek. These cases speak in abundance about the patriarchal mind-set followed in the Society for decades depriving Muslim women their right to invoke extra-judicial divorce. While there was a huge clamour to retain the practice of 'triple talaq', an un-Islamic practice; no such open and apparent demand seems to exist to restore the right of Muslim women to invoke extra-judicial divorce. The above sketch the miseries of women despite the promise guaranteed under Article 14 of the Constitution of India".
At the outset of its 77-page ruling, the Court poses the question of whether it is the intention of the Legislature to do away with extra-judicial divorce otherwise followed by the followers of different schools.
"There is a growing tendency to resist changes being effected upon the Muslim community with regard to the method and manner of effecting divorce consistent with the Quranic injunctions. This dilemma in our country is as old as the Dissolution of Marriage Act, 1939. The question involved in these cases also has to be probed on the anvil of the personal law protected under the statute, 'The Muslim Personal Law (Shariat) Application Act, 1937'".
How the Court resolves the question
In the judgment, the Court elaborately discusses the various modes of dissolution of marriage. Prior to its ruling, the Bench first discusses the modes of dissolution in Muslim personal law generally and then proceeds to discuss the modes specifically available to women. The modes available to women, the Court explains is,
- Talaq-e-tafwiz, where the wife can dissolve the marriage if her husband fails to keep his end of the marriage contract,
- Khula, where a wife can unilaterally divorce her husband by returning his dower,
- Mubara'at, dissolution by mutual consent, and
- Faskh, dissolution with the intervention of a third person such as a qazi.
The Court noted that the previous legislation governing Muslim marriages and other practices, The Shariat Act of 1937, specifically recognized all modes of extra-judicial divorce except Faskh. Highlighting this, the Court pointed out that Section 2 of the Shariat Act specifically recognized all modes of extra-judicial divorce except Faskh.
In KC Moyin v. Nafeesa, the High Court had declared that a woman could only resort to remedies under the Dissolution of Muslim Marriages Act and could not invoke remedies under personal law (extra-judicial remedies).
Disagreeing with the find after analysing provisions of the Dissolution of Muslim Marriages Act, the Court ruled,
"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.
Since there was no secular law to govern extra-judicial dissolution, the Court ruled,
"In the absence of any secular law governing khula, we hold that khula would be valid if the following conditions are satisfied:
(i). A declaration of repudiation or termination of marriage by wife.
(ii). An offer to return dower or any other material gain received by her during marital tie.
(iii). An effective attempt for reconciliation was preceded before the declaration of khula."
"The above sketch the miseries of women despite the promise guaranteed under Article 14 of the Constitution of India" - how the Court differentiated extra-judicial modes of divorce from "un-islamic" practice of triple talaq
The Court pointed out the similarities of the practice of Khula to the more widely-known mode of dissolution available to men, the talaq, since both these practices are unilateral modes of divorce.
Speaking specifically about a mode of talaq struck down by the Supeme Court, the tala-e-biddat or the 'un-islamic' triple talaq, the Court emphasized,
"While there was a huge clamour to retain the practice of 'triple talaq', an un-Islamic practice; no such open and apparent demand seems to exist to restore the right of Muslim women to invoke extra-judicial divorce"
Underscoring that these deprived the rights of Muslim women to invoke extra judicial divorce, the Court remarked, "these cases speak in abundance about the patriarchal mind-set followed in the Society for decades depriving Muslim women their right to invoke extra-judicial divorce".
Read the Judgment
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