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Kerala HC overturns 1972 judgement, says Muslim women have right to invoke extra-judicial divorce

In its judgement, the bench 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.

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Overruling a 49-year-old judgement that barred Muslim women from resorting to extra judicial modes of dissolving marriage, the High Court has restored the rights of Muslim women for divorce without resorting to judicial proceedings. The Court’s judgement 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.

A division bench of Justices A. Muhamed Mustaque and C.S. Dias in its April 9 judgement had said all other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to a Muslim women. The bench, therefore, said that the law declared in K.C. Moyin’s case (supra) is not good law.

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. However, the Dissolution of Muslim Marriages Act did not contemplate the undoing of the modes of extra-judicial divorce available to women under personal law.

Notably the Holy Quran recognises the right to divorce equally for both men and women. The dilemma of Muslim women, particularly in Kerala, came to the fore when the single bench in K.C. Moyin vs 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.

In its judgement, the bench 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.

After a 360 degree analysis of the Shariat Act and the Dissolution of Muslim Marriages Act, the court had considered the view that the Dissolution of Muslim Marriages Act restrict Muslim women to annul their marriage invoking Faskh except through the intervention of the Court.

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.

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On the jurisdiction of family court in matters related to extra-judicial divorce, the division bench noted that Explanation (b) of Section 7(1) of the Family Courts Act, confers the family court with the jurisdiction to declare the matrimonial status of any person. It said there is no difficulty for the family court to endorse an extra-judicial divorce to declare the matrimonial status of a person.

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