Judicial nod for 'khula' practice

Landmark Kerala HC verdict restores a right for Muslim women

Print edition : May 21, 2021

Celebrating the passage of the Triple Talaq Bill in the Rajya Sabha, in New Delhi on July 31, 2019. The restoration of khula two years after triple talaq was banned comes as a shot in the arm for the rights of Muslim women. Photo: PTI

A recent Kerala High Court judgment upholding the legitimacy of 'khula' strikes a blow for Muslim women by granting them the right to annul marriage through extrajudicial means under Muslim personal law.

For decades it was the best kept secret in matters of divorce among Muslims. Even as huge amounts of newspaper space were devoted to debating the issue of instant triple talaq, which finds no mention in the Quran, the right of Muslim women to annul a marriage through the practice of khula was ignored despite the fact that the Quran, in the Surah Baqarah chapter, clearly gives women the option of leaving her marriage.

At the societal level, most women have remained unaware of the right to khula, a single inalienable right to divorce that is available to them, and the case became even more complicated and ignorance spread across generations because the Dissolution of Muslim Marriages Act, 1939, denied them that right without recourse to a court of law.

Now, the old order has been reestablished with a landmark Kerala High Court judgment granting Muslim women the right to end their marriage through non-judicial divorce. In April 2021, the court overruled a 49-year-old verdict in K.C. Moyin vs Nafeesa and Others (1972) that barred Muslim women from dissolving their marriage through non-judicial modes.

The court observed: “A learned single judge of this court in unequivocal terms defined that Muslim wife cannot repudiate a marriage dehors the provisions of the Dissolution of Muslim Marriages Act.” It found that the Dissolution of Muslim Marriages Act did not contemplate the undoing of the mode of extrajudicial divorce available to women under Muslim personal law. Justices A. Muhamed Mustaque and C.S. Dias held: “All other forms of extrajudicial divorce as referred to in Section 2 of the Shariat Act are thus available to a Muslim woman. We, therefore, hold that the law declared in the K.C. Moyin case is not good law.”

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In the latest instance, wherein a young woman (name withheld) had filed a petition on the grounds that her husband was impotent and was cruel to her. When the appeal came up for consideration, the woman stood firm in her decision to dissolve her marriage while the man was prepared to subject himself to a potency test to prove the falsity of her claim. At this point, the woman’s counsel, Narayanan P., contended that it was because of the decision in K.C. Moyin that his client had to go through the ordeal of a long-drawn-out adversarial litigation and was prevented from invoking her right to extrajudicial divorce, khula, as recognised by the personal law. He sought leave for his client to pronounce khula to end her misery. If khula was held as a valid form of divorce, the woman had no objection in setting aside the impugned decree on fault grounds, he contended. Accordingly, the court granted her leave. The woman pronounced khula and produced the same as additional evidence. She was later prepared to return her mehr, or dower.

Court’s reasoning

In a 77-page ruling, the court referred to various forms of divorce recognised under the Muslim Personal Law (Shariat) Application Act, 1937, and agreed that extrajudicial divorce was recognised as legally valid in British India. “Section 2 of the Shariat Act statutorily recognised the personal law and dissolution of marriages without intervention of court through talaq, ila, zihar, lian, khula and mubaraat, etc.” The court outlined talaq-e-tafwiz, khula, mubaraat and faskh as four major forms of dissolution of marriage under Islamic law.

Talking of khula, the court called it “the form of divorce conferred upon wife similar to talaq conferred upon the husband”. It added: “The recognition of khula as a form of divorce is directly available from the Holy Quran.”Incidentally, Islamic scholars have upheld khula as a valid form of divorce. Maulana Abul Ala Maududi, the founder of Jamaat-e-Islami, has said in his book Huquq al-Zawjain: “Islamic law effects a beautiful equilibrium between the divorce rights of the men and women. It is a great folly that we have practically withdrawn from our women the right of khula, little caring for the fact that denying them the right which Shariat gives them on a footing equal to talaq is un-Islamic. It is indeed a mockery of the Shariat that we regard khula as something depending either on the consent of the husband or the verdict of the qazi. The law of Islam is not responsible for the way Muslim women are being deprived of their right in this respect.”

Ruling’s ramifications

The ruling is likely to have ramifications for the Muslim community as various Darul Qaza or Shariat courts are at different stages of hearing pleas on khula. There are many more khula cases in Darul Qaza courts in comparison to talaq cases.

Incidentally, khula is considered more powerful by some jurists in comparison to a man’s right to divorce his wife. In talaq, the man is supposed to look after her well-being for three months, and the woman continues to stay with the husband during the iddah (waiting period), while in khula the divorce is instant. In talaq, the divorce can be revoked through word or action during the iddah. However, in the case of khula, the woman leaves the husband’s home immediately.

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There are two opinions among scholars when it comes to the husband’s right to say no to khula. Like Maududi, the noted Islamic scholar Tahir Mahmood, whom the High Court quoted in its verdict, maintains that the husband cannot say no to khula. And in case he does, it is the responsibility of the qazi (personal law judge) to convince him. In the rare case of the qazi also failing, he can start the proceedings through the faskh mode of divorce.

The court referred to Dr Justice Kauser Edappagath, who has said that khula is analogous to the right of the husband to pronounce talaq, on being convinced of the irretrievable breakdown of the marriage. Dr Edappagath said: “Khula is a divorce at the instance of wife in which she agrees to give consideration to her husband from her release from the marriage tie.”

The court also quoted Mahmoud Rida Murad, who, in his book, referred to khula as an instant divorcement by which the wife redeems herself from the marriage for a ransom or a compensation given to the husband. The learned author was quoted by the court as saying: “The khula is permissible whether the wife is in her menstrual period or not.” It is permissible for the husband to remarry her with her consent after entering a new contract with new dower.

Similarly, there are two opinions on whether the woman has to forego her mehr money agreed upon at the time of marriage considering the fact that she is the one opting out of the marriage through khula.

In the absence of legal background, the Kerala Court recently quoted a hadith (saying) of Prophet Muhammad wherein he permitted a woman to go in for khula for the mere reason of not liking her husband’s looks. In this well-known instance, a woman approached Prophet Muhammad and announced her intention to divorce her husband. He asked her to reconsider her decision, whereupon the woman asked him whether it was his recommendation or instruction. Prophet Muhammad said it was merely a recommendation. Following this, the woman rejected the recommendation and went in for khula. The man was advised to accept the garden she offered and let the woman go.

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The Kerala High Court ruling reinforces the age-old norm of the woman being entitled to her inalienable right to khula, with the qazi having no right to overrule her decision or even ask her the reasons for the same. He cannot even ask her to rethink her decision. The woman needs no intermediary, no clerics to carry it out.

Khula can be orally pronounced in the presence of the qazi or through a written document called the khulnama. The qazi cannot invalidate the woman’s decision. No grounds have to be stated for divorce. If the man has not paid her mehr before the woman goes in for khula, he cannot demand it.

Some jurists do feel that in case he has paid the mehr, she should return a part of it as she is the one opting out of the marriage. However, the Quran also instructs Muslim men to be generous at the time of divorce.

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