It seems women of almost every group, religion, culture, seem to get the shorter end of the stick, with several of those in power trying to limit their rights and freedoms with everything they have. Women have been fighting for a long time to be seen as equal and not beneath someone, but the fight does get a bit easier when the big authorities also seem to be in agreement.
The Kerala High Court, while reviewing a petition to a divorce case has stated in absolute terms that a Muslim woman has all the rights to terminate her marriage and is not dependent on the consent of her husband for it.
A division bench of Justice A. Muhamed Mustaque and C.D. Dias stated that “We declared that the right to terminate the marriage at the instance of a Muslim wife is an absolute right, conferred on her by the holy Quran and is not subject to the acceptance or the will of her husband.”
What Was The Petition About?
The case was a review petition that asked for an appeal against a judgement in a divorce case given by the Kerala High Court where it had recognised that a Muslim woman has the right to resort to ‘khula’ under the Dissolution of Muslim Marriages Act, 1939.
The petitioner, represented by advocate Hussain C.S claimed that while a Muslim woman certainly has the right to demand divorce of her own will, however, she has “no absolute right” to pronounce khula, somewhat like how the other partner or husband can pronounce ‘talaq’.
The petition argued that in case a Muslim woman wants to end her marriage, she must first demand talaq from her husband, and if he refuses she can then go to the qazi and then the court if the qazi is not available.
Khula for the unaware, is an Islamic practice that allows a Muslim woman to give divorce to her husband, in very layman’s terms, it’s kind of the female equivalent of the ‘talaq’ concept that is allowed to men regarding marital separation.
The petitioner, as per sources, brought up the Hadith (narration of the conduct of Prophet Muhammad in any situation) and how according to it the Prophet had apparently set a way where a man has to pronounce talaq on the demand of the wife if she pronounces khula. However, the petitioner also claimed that the khula is only valid if the husband accepts it and that the final granting of divorce is by the husband only.
Read More: Muslim Girls Dropping Out Of Schools Due To Karnataka Hijab Ban: Here’s What’s Happening
What Did Supreme Court Say?
The Kerala High Court, led by a bench of Justice A Muhamed Mustaque and Justice CS Dias invoked how the Quranic verse found in Chapter 2, verse 229, referring to khula did make it very clear that a Muslim wife has all the right to pronounce khula and terminate her marriage.
The court stated that “If the Qur’an, 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”.
As per an India Today report, the court gave the conditions, which if completed would make a Khula valid:
i. A declaration of repudiation or termination of marriage by the wife
ii. An offer to return dowry 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 division bench also was not in agreement with the Islamic clergy having a say in this since they don’t have legal training or knowledge of this area saying in the judgement that “The courts are manned by trained legal minds. The court shall not surrender to the opinions of the Islamic clergy, who have no legal training on the point of law.”
They also said that this confusion was because of “the scholars of Islamic studies, who have no training in legal sciences who started to elucidate on the point of law in Islam, on a mixture of belief and practice (sic).”
The court also made a very clear statement that “This review does not look innocuous at the instance of the appellant, but rather appears to have been fashioned and supported by clergies and the hegemonic masculinity of the Muslim community who are unable to digest the declaration of the right of Muslim women to resort to the extra-judicial divorce of ‘khula’ unilaterally.”
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Sources: The Hindu, The Print, India Today
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This post is tagged under: Kerala HC divorce, khula, khula islam, khula muslim wife, talaq, divorce, Kerala HC, Muslim woman rights, Muslim woman rights india, Islamic law, Islamic law muslim women
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