Kerala HC gives Muslim Women right to Reverse Talaq

By: WE Staff | Thursday, 15 April 2021

The Kerala high court, overturning a 1972 decision, has restored Muslim women's right to divorce without turning to legal proceedings.

A division bench of the high court handed down the decision in a slew of cases stemming from various family court proceedings seeking various relief.

The bench overruled the five-decade judgment of the single bench of the court barring Muslim women from restoring to extra-judicial modes of dissolving marriage.

The problem of Muslim women, especially in Kerala, was brought to the fore when a single bench in the "KC Moyin versus Nafeesa and Others" case negated the right of Muslim women to seek extra-judicial divorce in light of the Dissolution of Muslim Marriages Act, 1939."

The single bench had held at the time that a Muslim marriage could not be dissolved at the request of the wife unless it was done in compliance with the Act's provisions.

The division bench of Justices A Muhamed Mustaque and CS Dias examined four major types of marriage dissolution recognised under Islamic law and covered under the Shariat Act at the request of the wife in their decision.

This includes Talaq-e-tafwiz, Khula, Mubara'at, and Faskh.

"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 Muslim women. We, therefore, hold that the law declared in KC Moyin's case (supra) is not good law," the court said in its judgment.

Though Talaq-e-tafwiz allows the wife to terminate the marriage if her husband breaches the marriage contract, Khula allows her to divorce her husband unilaterally by returning his dower.

Mubara'at deals with mutual consent dissolution, while Faskh allows dissolution with the help of a third person, such as a qazi.

The division bench noted that Explanation (b) of Section 7(1) of the Family Courts Act gives the family court the power to declare a person's marital status. It stated that it is not difficult for a family court to approve an extrajudicial divorce to declare a person's matrimonial status.

"We notice family courts are overburdened with a large number of cases. The family court, therefore, shall restrain from adjudicating upon such extra-judicial divorce unless it is called upon to decide its validity inappropriate manner."

"The family court in such matters shall endeavor to dispose of the cases treating it as uncontested matter, without any delay by passing a formal order declaring the marital status," the court said.

The division bench stated that in the case of talaq, khula, mubara'at, and talaq-e-tafwiz, the family courts shall entertain certain applications filed by either party or both parties to declare the parties' marital status.