Kerala HC’s order that ‘husband’s consent not essential for divorce in Islam’ sparks debate

The court observed in the absence of any mechanism in the country to recognize the termination of marriage at the instance of the wife when the husband refuses to give consent, the court can simply hold that khula can be invoked without the conjunction of the husband.

Huneza Khan |  

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NEW DELHI — The Kerala High Court’s recent judgment over the dissolution of Muslim marriage has sparked debate with several Muslim leaders questioning the brief of the court to legislate on matters concerning Islamic sharia (a broad spectrum of laws and jurisprudence in Islam).

On November 1, a two-judge division bench of Justice A. Muhamed Mustaque and Justice C. S. Dias dismissed a review petition filed by a husband challenging a divorce decree granted to a Muslim wife under the Dissolution of Muslim Marriages Act, 1939. The order states that the review petition is a fashion supported by Muslim clergies and the patriarchal mindset of the Muslim community who are uncomfortable with Muslim women’s right to resort to the extra-judicial divorce of Khula. 

In April 2021, the Kerala High Court under the same judge bench overruled a 49-year-old precedent that barred Muslim women from resorting to extra-judicial methods of dissolving marriage. The Court observed that Islamic Law recognizes Muslim women’s right to resort to Khula and maintained the status quo of the previous judgment by dismissing the review petition. 

The judgment was questioned by the All India Muslim Personal Law Board (AIMPLB) General Secretary Khalid Saifullah Rehmani who called the order “unacceptable.”  

The Times of India quoted Maulana Rehmani saying in a statement that the High Court in the particular case did not interpret the provisions of the Sharia but “instead tried to legislate over the same, which was unacceptable to the board.” 

Rehmani said Islam provided for only four talaq (divorce) options. One is triple talaq where the husband has the right to pronounce the divorce. The second is khula where divorce is usually moved by the wife and comes into force after the husband acknowledges. 

The third is talaq-e-tafweez (delegated divorce) where the prospective wife has it mentioned in the nikahnama (marriage contract) that she will be authorised for talaq without the consent of her husband in case he treats her inhumanely and/or subjects her to mental and physical torture. The fourth option is before a qazi/court, Rehmani said. 

“There is no other manner of talaq explained in the Sharia and the Kerala HC has exceeded its brief of interpreting the divorce provisions in the light of Islamic jurisprudence,” Times of India quoted Rehmani as saying. 

What did the Kerala High Court say?
While dismissing the review petition, the judges said, “In the absence of any mechanism in the country to recognize the termination of marriage at the instance of the wife when the husband refuses to give consent, the court can simply hold that Khula can be invoked without the conjunction of the husband.”

In a 59-page judgement, the court said, “This is a typical review portraying that Muslim women are subordinate to the will of their male counterparts. 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.”

The judgement is seen as attacking Muslim clergy and Ulema (religious scholars). 

Nehal Ahmed Nadwi, who is an Assistant Professor of Law and an advocate in Delhi Court told that he is disappointed with the judgement. 

Calling it a personal attack against the Ulema, Professor Nadwi said it should be condemned.

“Muslims will always take the matter of Islam and Sharia to the Qadis because they are the experts. The Qadi is entitled to adjudicate the issue but the decision given by the Qadi is not binding upon the parties. It saves money and time. The appellants may thereafter refer to the Court as the Qadi is not substituted with the authority of judges,” he said.  

Professor Nadwi said that judgment will have a negative impact on society.  

“Some women who lack understanding of the Quran and Hadith might misunderstand this judgment. They may make wrong decisions in the heat of the moment that will affect their lives,” he said.  

In a conversation with, Dr Asma Zehra, a former president of the AIMPLB women’s wing said that she was dissatisfied with the court’s judgment. 

Dr Zehra said that Indian Muslims follow personal law and don’t want any kind of Court interference in their matters.

Objecting to the judges for taking the liberty to interpret and deliver a judgment that women have absolute rights, she said that “judges raising questions on the competency of Muslim clergies is appalling.”

“Our community should develop a strong mechanism and ease the way for Khula. There’s a need for awareness in society. Women must not be put in a situation to specify their reasons. She must be granted a divorce if she doesn’t want to live with her husband. A husband can’t have a free way to bring obstacles to the Khula procedure,” she said.  

She appealed to the Muslim community to resolve issues within the community and not to take it to the courts. 

She applauded Muslim clergies for delivering fine judgments for over 14 centuries.“There’s a lack of mechanism and not the competency.”

Dr Zehra called for bringing a Qadi Act and empower the Qadis for taking up such issues. “The Court has a burden of numerous issues. They will be relieved of marital issues if the Qadi Act is brought,” she added.  

Meaning of Khula and essentiality of consent
Professor Nadwi said that “there is nothing new or contradictory to Islam in this judgment.” 

“It looks complicated because there is a conflict among some Muslim clergies. The condition of consent is not essential in every situation. There must be a concrete cause based on which a woman is to claim a particular right of Khula. It is not permitted without any reasonable ground,” he said. 

He explained the meaning of Khula in etymology as “freedom” or “to set free”.  

“The purpose of Khula is to attain freedom. If we give the essentiality of consent to the husband then the very essence and phenomena of Khula will be lost,” Professor Nehal said.

There are three essential points for Khula, he said. “The declaration of repudiation to end the marriage, returning dower and reconciliation/mediation between a couple,”  

If these steps are followed and still there is no room to mend the bond then Talaq-e-Tafweez and Khula are followed. “It is not only the men who are authorized to get a divorce. Women are also provided with equal rights to end their marriages. It is called Khula. If the procedure is followed correctly and still the issue is not resolved then the woman should reach out to Qadi or Court for Khula,” Professor Nehal said. 

Atiya Waris, an LLM student from Jamia Millia Islamia told that Talaq is the right of the husband to divorce his wife. “On the contrary, Khula is the right of the wife to demand separation from wedlock.” 

She said Khula is the process of annulment of marriage in which a woman pays compensation to her husband for terminating a marriage. “Whatever settlement is made between a husband and wife should come into effect. However, if the matter is referred to the Court, it will investigate only whether the wife has become too disgusted with the husband to put up with him.”

“The divorce that comes into effect is irrevocable and brings separation into effect immediately. Since the woman has paid compensation, she has in effect purchased the right of repudiation and the husband, therefore, has ceased to have the right to revoke the divorce. If, however, the spouses agree to contract marriage, they may do so,” Atiya said. 

Atiya said it is better if Shariya arbitration councils are instituted for deciding sensitive matters of marriage and divorce. “Qadis should be provided with proper training on Islamic laws,” she added.

Huneza Khan is a student and a budding journalist from Bhopal, Madhya Pradesh. She tweets @KhanHuneza