SC issues notice on plea against Kerala HC’s ruling on ‘khula’

The Kerala High Court overruled a 49-year-old judgement that disallowed a Muslim woman to initiate a divorce through extra-judicial modes.

The Supreme Court, on Monday, April 1, issued a notice against a Kerala High Court’s verdict that granted Muslim women unconditional right to resort to khula.

Khula is a traditional procedure in Islamic jurisprudence that enables a Muslim woman to initiate a divorce. This process involves the woman returning the mahr (dowry) and any possessions she received from her husband during their marriage. Alternatively, the divorce may occur without the need to return anything, as mutually agreed upon by the spouses or ordered by a judge, depending on the specific circumstances.

The Bench of Justices AS Bopanna and Sanjay Kumar was hearing the challenge brought by Kerala Muslim Jamaat and a private individual, vide two separate Special Leave Petitions (SLPs), to a judgment delivered by the High Court in a Matrimonial Appeal, as well as to the dismissal of the Review Petition against the judgment in the Matrimonial Appeal, Live Law reported.

In the matrimonial appeal, the High Court dealt with a challenge to a divorce decree granted to a Muslim wife under the Dissolution of Muslim Marriages Act. Holding that the right to terminate the marriage is a Muslim wife’s absolute right, conferred on her by the Holy Quran and not subject to the acceptance or the will of her husband, the Court overruled the 49-year-old judgment in KC Moyin v. Nafeesa which effectively barred Muslim women from resorting to extrajudicial modes of dissolving marriage.

Kerala HC’s judgment

On April 9, 2021, the Kerala High Court overruled a 49-year-old judgement (KC Moyin Vs Nafeesa and Others) that disallowed a Muslim woman to initiate a divorce through extra-judicial modes. It further observed that the law under the Dissolution of Muslim Marriage Act, 1939, restricted a Muslim woman from seeking any form of extra-judicial modes while seeking divorce.

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Stating that a Muslim woman had an “absolute” right to seek divorce and “does not depend upon the consent or assent of the husband” as conferred on her by the Holy Quran, the Kerala High Court declared the 49-year-old law as “not a good law.”

Review petition filed

A review petition was filed challenging the High Court’s decision. The petitioners stated that while a Muslim woman had the right to demand divorce of her own will, she had “no absolute right” to pronounce khula.

The High Court dismissed the review petition in 2022 stating that a wife’s will is not the same as her husband’s and hence the Holy Quran allows khula to a woman.

“If the Quran, in unequivocal terms, permits spouses to terminate their marriage on their own will, it cannot be said that the Sunnah further qualifies it, subjecting it to the will of the husband, in the case of khula,” the Kerala High Court pointed out while dismissing the review petition.

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