Khula Right for Muslim Women: Muslim women have every right to divorce through ‘Khula’ without the consent of the husband – Kerala High Court

Muslim Women Rights: It was said in the petition that if the Muslim wife wants to end the marriage, then she will have to seek divorce from the husband and if he refuses then the woman will have to go to the Qazi or the court.

By: Rohit Kumar Porwal

Kerala High Court Judgment on Khula: Muslim women can take divorce through ‘Khula’ process without the consent of their husband, Kerala High Court has said in its Said this while reiterating the decision of April 2021. A review petition was filed in the court regarding ‘Khula’.

It was said in the petition that if the Muslim wife wants to end the marriage, then she will have to seek divorce from the husband and if he refuses then the woman will have to approach the Qazi or the court. However, the petitioner held that a Muslim woman has the right to seek divorce of her own free will but also argued that she has no absolute right to ‘khula’. He argued that nowhere in the world is a Muslim wife allowed to end a one-sided marriage.

What did the court say?

On Tuesday (November 1), a division bench of Justice A Mohammad Mustaq and Justice CS Dias said that Muslim women have every right to divorce without the consent of the husband through the ‘khula’ process, which has been given to her from the Holy Quran and that Not subject to the approval or will of her husband. The Bench said that if the husband denies Khula, then there is absolutely no need for the Muslim woman to approach the court as her right is recognized in Islamic law.

The court also said that open will be valid if certain conditions are met. The first is to declare ‘Khula’ on behalf of the wife. Secondly, an offer to return the dowry or any other material benefit received during the matrimonial bond. However, in the 2021 judgment, the court had held that the right of ‘khula’ cannot be void even if the wife does not return the dowry or any other material benefit received during the sustenance of the marriage at the time of declaration of ‘khula’. . The third condition is that an effective attempt at reconciliation has been made before the declaration of Khula. In 2021 also, the court had said that there was an attempt at reconciliation.

Decision of 9 April 2021

On 9 April 2021, the Kerala High Court overturned a 49-year-old ie 1972 decision regarding the ‘open’ process. While pronouncing the verdict, the court had said that without the intervention of the courts, a Muslim woman can unilaterally divorce her husband if the husband has entrusted the right of divorce to his wife in the contract. The second method is divorce by mutual consent, which is called ‘Mubarat’. One way is the ‘open’ process. This process can be called divorce initiated by the wife.

The Kerala High Court had also noted that forcing the wife to approach the court for ‘khula’ was a violation of the right laid down for her in personal law, which is largely derived from two primary sources – the Quran and the Based on hadith. The court had said that the husband’s acceptance in ‘Khula’ is not correct. The court had said that the right to ‘khula’ is an ‘absolute right’ given to a Muslim wife and no special reason is required to enforce it.

This decision of 1972 was overturned by the court.

On 6 September 1972, a Bench of Justice V Khalid in the High Court gave its verdict in a case in KC Moyin v Nafisa et al. It said, “The question raised in this criminal appeal is whether a Muslim wife can refuse marriage with her husband under the provisions of the Dissolution of Muslim Marriage Act, 1939? My answer is ‘no’ in view of the manner in which Act VIII of 1939 is referred to. According to me, except under the provisions of the Act, under no circumstances can a Muslim marriage be dissolved at the instance of the wife.

Who objected to ‘Khula’?

A section of Muslims, especially the ulema of the Hanafi school, have interpreted the ‘khula’ as a process that allows a woman to divorce only if her request is accepted by the husband. If the husband refuses, the woman has no other option but to approach the court under the provisions of the Dissolution of Muslim Marriages Act, 1939.

At the same time, the All India Muslim Personal Law Board had welcomed the court’s decision regarding ‘Khula’ last year but called the process a one-sided exercise without the husband’s permission. The board had said that the husband’s approval is a condition in the ‘khula’ process. The court had said that the Quran gives a ‘khula’ right to a Muslim wife to annul her marriage without prescribing a procedure.

Courtesy : ABP Live

Note: This news piece was originally published in abplive.com and used purely for non-profit/non-commercial purposes exclusively for Human Rights .