Muslim Women Can Now Get Divorce Under Personal Law: Kerala High Court

Sherina Poyyail
·3-min read
As per Section 2 of the Shariat Act, there were four major forms of dissolution of marriages at the instance of the wife as recognised under Islamic law  — Talaq-e-tafwiz, Khula, Mubara’at, and Faskh.
As per Section 2 of the Shariat Act, there were four major forms of dissolution of marriages at the instance of the wife as recognised under Islamic law — Talaq-e-tafwiz, Khula, Mubara’at, and Faskh.

Overturning a five-decade judgment, the Kerala High Court restored the rights of Muslim women for divorce without resorting to judicial proceedings. The earlier ruling from 1972 barred Muslim women from resorting to extra-judicial modes of dissolving marriage, whereas men are allowed to do so under Talaq. If a woman wished to part ways from her husband, she would need to do so through a court as the Dissolution of Muslim Marriages Act of 1939 (DMMA) requires.

The historic verdict was passed by a Bench comprising Justice A Muhamed Mustaque and Justice C S Dias. They observed that the DMMA intends to extend judicial divorce to all Muslim women irrespective of the sect they come under. They noted that as per Section 2 of the Shariat Act, there were four major forms of dissolution of marriages at the instance of the wife as recognised under Islamic law — Talaq-e-tafwiz, Khula, Mubara’at, and Faskh. Talaq-e-tafwiz allows the wife to end the marriage if her husband fails to keep up his end of the marriage contract while Khula facilitates unilateral divorce. Mubara'at allows for dissolution by mutual consent while Faskh allows dissolution with the intervention of a third person.

The court also overruled an earlier verdict that outlined that Muslim women could only resort to divorces under the provisions of the Dissolution of Muslim Marriage Act and did not grant them the right to invoke the provision of their personal law.

“Better late than never,” says Zeenat Shaukat Ali, founder and director general of The World Institute of Islamic Studies for Dialogue, Organisation of Mediation and Gender Justice (Wisdom Foundation), commenting on the judgement. She underlined that it is a ‘positive and Islamic step.’ She explains that when the Sharia law was being developed, they called the man’s side of the divorce ‘talaq’ and the woman’s side of it ‘khula’. “As mentioned in the Quran, the proceedings are no different from either party,” she remarks.

Ali explained that in the divorce process, an arbitration council is appointed with two people on either side, the couple is given a three-month reconciliation period during which they must reside under the same roof but without conjugal relations. At the end of the period, if there is no reconciliation, a qazi (judge) facilitates the divorce and decides the division of wealth and custody of children.

She stressed that this judgement sets a precedent for Muslim’s women’s right to initiate divorce. She cited two examples from the Quran when women were granted the right to end their marriages. One story is that of Baria who told the Prophet Mohammed that she did not wish to continue her marriage and the other was Jameela who was allowed to divorce despite resistance from her husband.

“This judgement sets a precedent for Muslim women across India,” says Ali, “Whether a man or woman begins the proceedings, this law should cut across India.” She stressed the importance of fair, balance and equal rights in this matter. Due to this progressive move, Muslim women no longer have to depend on their husbands for the dissolution of marriage. “It is a huge and welcome step that should have been taken long ago,” she remarks.

(Edited by Amrita Ghosh)

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