The Kerala High Court recently said that Islamic law recognizes a Muslim woman’s right to demand termination of the marriage, irrespective of the husband’s consent. The court said this while dismissing the review petition against a judgment wherein the court had recognized a Muslim woman’s right to resort to Khula. The petition was filed challenging a divorce decree granted to a married Muslim woman under the Dissolution of Muslim Marriages Act, of 1939.

A division bench of Justices A Muhamed Mustaque and CS Dias observed that the will of the wife cannot be related to the will of the husband who may not be agreeing to a divorce.

“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”, the court observed.

“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 court said.

“It is acknowledged by Islamic law that the Muslim wife has the right to demand termination of marriage. The argument that if the husband refuses, she has to move the Court stares at us. For what purpose she has to move the Court, begs the question. The Court is neither called upon to adjudicate nor called upon to declare the status, but simply has to pronounce termination of marriage on behalf of the wife,” the Court further observed.

“The Court in our country is not a guardian of an adult and able woman. If there is nothing for a Court to adjudicate, the Court cannot assume the role of a guardian and pronounce termination of marriage at the instance of a woman”, the court further said.

“This reflects the autonomy of choice exercised by the wife. The will of the wife so expressed cannot be related to the will of the husband who has not expressed his choice to terminate the marriage. The very idea of categorization under the law, of an action as permissible, is to retain that action within the domain of the person who exercises the option, by relating it with his or her autonomy. Extending such actions to the will of another would certainly keep the action out of the category of ‘permissible’. The law being categorized so, it cannot be whittled down or constricted by the will of her husband upon whom no authority is conferred to enforce such permission”, the court further noted.

Earlier in October 2022, the court while declaring that Muslim women have the right to terminate their marriage said, “in the post-Islamic period, Islam emphasized conciliation as the preferred mode of resolution of all disputes between the believers. The believers, at the first instance, will have to resort to conciliation, before resorting to the authority given to them to terminate any sort of legal relationship”.

Earlier in April 2021, Kerala High Court overruled a 1972 verdict that barred Muslim women from resorting to extra-judicial modes of dissolving marriage. The court declared that a Muslim woman has the right to obtain a divorce by Khula, regardless of her husband’s consent for the same, if the Khula satisfies the following conditions:

1. A declaration of repudiation or termination of a marriage by the wife;
2. An offer to return dower or any other material gain received by her during marital tie; and
3. An effective attempt at reconciliation was preceded by the declaration of Khula.