In an extraordinary, path-breaking, unprecedented and a very revolutionizing judgment titled X v Y and connected petitions in Mat. Appeal Nos. 89/2020, 72/2021 & O.P.(FC).Nos.372/2020, 124/2021 & 133/2021 the Kerala High Court has as recently as on 9 April 2021 overruled a 49-year-old judgment titled KC Moyin vs Nafeesa And Ors delivered on 6 September 1972 that effectively barred Muslim women from resorting to extra judicial modes of dissolving marriage and instead has upheld the validity of these modes. It must be mentioned here that the Kerala High Court’s judgment comes in the context of a clutch of petitions that were filed before it by aggrieved partners in marriages where extra-judicial modes of dissolution had been resorted to. While finding that the governing law titled “The Dissolution of Muslim Marriages Act, 1939 did not contemplate the undoing of the modes of extra-judicial divorce available to women under personal law, the two Judge Bench of Justice A Muhamed Mustaque and Justice CS Dias held that, “All other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to a Muslim women. We, therefore, hold that the law declared in KC Moyin’s case (supra) is not good law.”
To start with, the two Judge Bench of Justice A Muhamed Mustaque who has authored this extremely learned, laudable, landmark and latest judgment for himself and Justice CS Dias of Kerala High Court sets the ball rolling by first and foremost putting forth in para 1 that, “Have Muslim women lost their right to invoke extra-judicial divorce, after the coming into force of the Dissolution of Muslim Marriages Act, 1939 is the short and straight forward question rising for consideration in these cases.”
While dwelling on the bunch of cases, the issues involved and sorry plight of Muslim women, the Bench then observes in para 2 that, “These bunch of cases arise out of different proceedings before the Family Courts seeking varied reliefs. The issue involved in as above is inextricably connected to ultimate justice which women involved in all these cases seek. These cases speak in abundance about the patriarchal mind-set followed in the Society for decades depriving Muslim women their right to invoke extra-judicial divorce. While there was a huge clamour to retain the practice of ‘triple talaq’, an un-Islamic practice; no such open and apparent demand seems to exist to restore the right of Muslim women to invoke extra-judicial divorce. The above sketch the miseries of women despite the promise guaranteed under Article 14 of the Constitution of India.”
To be sure, the Bench then while stating about what forms the core of Islam spells out in para 3 that, “Islam lays great emphasis on the stability of family. According to the Holy Quran (In the judgment, translation of Quaranic verses are from The Meaning of The Glorious Qur’an – An explanatory translation by Marmaduke Pickthall) “God did create you from dust” then from sperm drop, then he made you in pairs [Surah (Chapter) XXXV Verse 11]. God’s declaration that men and women are created in pairs is repeatedly stated in several verses to acknowledge the spirit of marriage. They are made as a mate to find comfort and purify their inner soul. It is also stated that male and female together make a single self, which symbolises raiment. Chapter II Verse 187 Quran states: ‘you are raiment for her and she is raiment for you’, which highlights the closeness of a mate, like cloth; for protection and comfort etc. The spirit of marriage lies in the closeness and bonding between the partners.”
Quite remarkably, the Bench then brings out in para 4 that, “Chapter IV Verse 28 Quran states that man was created weak, to mean that his decisions are vulnerable. The very concept of institutionalizing marriage in Islam through a contract is to remind that the parties to the marriage may error in their decision and they may fall apart in conflict to remain as united. Marriage as a contract guarantees both parties permanent rights and obligations. The Holy Quran, therefore, recognizes the right to divorce equally for both men and women. However, the dilemma of Muslim women, particularly in the State of Kerala, came into the fore when a learned Single Judge of this Court in K.C.Moyin v. Nafeesa & Others [1972 KLT 785] negated the right of Muslim women to invoke extra-judicial divorce in light of the Dissolution of Muslim Marriages Act, 1939, (in short ‘Act’). It is held that under no circumstances, a muslim marriage can be dissolved at the instance of wife, except in accordance with the provisions of the Act.”
Truth be told, the Bench then brings out in para 9 that, “These cases have been brought to this level in light of Mat.A.No. 89 of 2020, wherein a young woman, hereinafter referred to as ‘Y’ (name withheld to protect her privacy) was granted a decree of divorce by the Family Court, Thalassery. ‘Y’ had instituted the petition under the Act, on the grounds that her husband ‒ ‘X’, was impotent and treated her with cruelty. Challenging, the decree ‘X’ has preferred the appeal.”
As we see, the Bench then points out in para 10 that, “When the appeal came up for consideration, we directed the parties to appear in person. ‘Y’ stood firm in her decision to dissolve her marriage with ‘X’. On the other hand, ‘X’ stated that he is prepared to subject himself to a potency test to prove the falsity in ‘Y’ case.”
Simply put, the Bench then brings out in para 11 that, “Sri.Narayanan.P, the learned Counsel for ‘Y’ contended that it is because of the decision in K.C.Moyin (supra), ‘Y’ has been made to go through the ordeal of a long drawn adversarial litigation and is being prevented to invoke her right for extra-judicial divorce vis-a-vis Khula, as permitted and recognised under the personal law. Hence, K.C.Moyin (supra) requires reconsideration. He also submitted that ‘Y’ may be granted leave to pronounce Khula, so that her miseries may not get prolonged. If Khula is accepted as valid, ‘Y’ has no objection in setting aside the impugned decree on fault grounds and the appeal can be disposed recording Khula.”
As a corollary, the Bench then puts forth in para 12 that, “Accordingly, without prejudice to the rights of the parties, we granted leave. ‘Y’ pronounced Khula and produced the same as additional evidence in the appeal, which was accepted on board.”
Be that as it may, the Bench then states in para 13 that, “Again when the appeal was taken up for hearing, on 03/03.2021, ‘Y’ stated that she was prepared to return the dower to ‘X’. However, on 17/03/2021, Sri.Babu Karukapadath submitted that ‘X’ had declined to accept the dower. Be that as it may, we will discuss about the validity of Khula invoked by ‘Y’ at a later stage.”
Moving on, the Bench then points out in para 14 that, “In Mat.A.No.72/2021, Muhammad Musthafa B.K. challenges the decree of the Family Court Kalpetta in O.P.No.300/2019. While the above matter was pending, the parties were referred for mediation. In the mediation proceeding, Muhammad Musthafa B.K. agreed to divorce his wife Harsha M.A. ‒ The Family Court based on the mediation agreement, granted a decree of divorce on mutual consent. This decree is challenged on the ground of lack of consent on the part of Muhammad Musthafa B.K. The validity of divorce granted by the Family Court on mutual consent of the parties under Islamic law is also questioned.”
Going forward, the Bench then observes in para 15 that, “O.P.No.372/2020 is filed by Farhana, the petitioner before the Family Court, Malappuram, seeking dissolution of her marriage with her husband Noufal P.P under the Act. She seeks for an expeditious disposal of her case. Her counsel submitted that Farhana may be granted the liberty to invoke extra-judicial divorce available to a Muslim wife.”
What’s more, the Bench then brings out in para 16 that, “O.P.Nos.124 and 133 of 2021 are filed by Raseena Pareekunju challenging the proceedings of the Family Court, Ernakulam against returning joint petitions filed with her husband-Mohammed Asif for dissolution of their marriage by mutual consent and to declare that their marriage stands dissolved as per their personal law. According to them, their marriage has been dissolved by mutual consent invoking Mubaraat, an extra-judicial form of joint divorce, applicable to Muslim husband and wife. The Family Court refused to accept their petitions stating that there is no substantial law to entertain such petitions.”
It is worth noting that it is then states in para 18 that, “As seen from the Shariat Act extra-judicial divorce was in vogue and recognized as legally valid in British India. Section 2 of the Shariat Act statutorily recognized the personal law and dissolution of marriages without intervention of court through talaq, illa, zihar, lian, khula, and mubaraat etc; There are four major forms of dissolution of marriages as recognized under Islamic Law and protected under the Shariat Act at the instance of the wife, they are ;
i. Talaq-e-tafwiz
ii. Khula
iii. Mubara’at
iv. Faskh
Briefly stated, the Bench then while dwelling on Talaq-e-tafwiz kind of divorce holds in para 19 that, “This kind of divorce at the instance of wife is based on a contract. In the contract, the party can agree the terms upon which marital life has to be regulated. The learned authors state that the above right can be exercised if the husband marries another woman without her consent or neglects or deserts her in violation of the marriage conditions. According to the learned author Asaf AA Fyzee, a stipulation in the contract that on certain specific conditions the wife can pronounce divorce is valid, provided that the option is not absolute and unconditional and the conditions are reasonable and not opposed to public policy. The essence of this form of divorce is that the husband authorizes the wife to divorce him in the event of breach of any of the conditions agreed at the time of marriage.”
Coming to Khula form of divorce, the Bench then deals with it in para 20 stating that, “Khula is the form of divorce conferred upon wife similar to talaq conferred upon the husband. The recognition of Khula as a form of divorce is directly available from the Holy Quran. In Chapter II Verses 228-229, Quran confers rights on both husband and wife to unilaterally divorce the spouse. It is apposite to refer to verses 228-229:
C.II V.228: Women who are divorced shall wait, keeping themselves apart, three (monthly) courses. And it is not lawful for them that they should conceal that which Allah hath created in their wombs if they are believers in Allah and the Last Day. And their husbands would do better to take them back in that case if they desire a reconciliation. And they (Women) have rights similar to those (of men) over them in kindness, and men are a degree above them. Allah is Mighty, Wise.
C.II.V229. Divorce must be pronounced twice and then (a woman) must be retained in honour or released in kindness. And it is not lawful for you that ye take from women aught of that which ye have given them; except (in the case) when both fear that they may not be able to keep within the limits (imposed by) Allah. And if ye fear that they may not be able to keep the limits of Allah, in that case it is no sin for either of them if the woman ransom herself. These are the limits (imposed by) Allah. Transgress them not. For who so transgresseth Allah’s limits: such are wrongdoers.”
While dwelling on Mubarat form of divorce, the Bench then points out in para 27 that, “Mubaraat is a form of separation by mutual consent. Dr.Justice Kauser Edappagath(‘Divorce and Gender Equity in Muslim Personal Law of India’) after referring to many authorities refers to ‘mubaraat’ as dissolution of marriage by common consent of the spouses. The learned author further states thus:
The word mubaraat indicates freeing of each other (from the marriage tie) by mutual agreement. No formal form is insisted upon for mubaraat by the Sunnis. The offer may come from either side. When both the parties enter into mubaraat, all mutual rights and obligations come to an end. Both Shia and Sunni laws hold it an irrevocable divorce. Iddat is compulsory after mubaraat as after khula. Under Sunni law, when both the parties enter into mubaraat, all matrimonial rights which they possess against each other fall to the ground.”
While referring to the Faskh form of divorce, the Bench then maintains in para 30 that, “Faskh is a form of judicial divorce. This mode of divorce is effected through the intervention of court or through the authority at the instance of wife.”
More accurately, the Bench then very rightly holds in para 46 that, “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 a Muslim women. We, therefore, hold that the law declared in K.C.Moyin’s case (supra) is not good law.”
While dwelling on khula form of divorce, the Bench then stipulates in para 47 that, “The right to invoke khula conferred upon a married Muslim women is an absolute right; akin to talaq conferred upon the married Muslim men. In the matter of other modes of divorce at the instance of wife, a clear procedure is available to hold its validity. In the matter of khula, there are differences of opinion in regard to procedures, methods etc. In the leading case i.e. Mat.A.No.89 of 2020, consolidated in this judgment, one of the issues is the validity of khula invoked by ‘Y’. ‘X’ refused to receive the dower offered by her. The learned Amicus Curiae Shri Mayankutty Mather submitted that a wife should have some genuine reason for seeking divorce from her husband. It is further submitted that like talaq, there are no specific stages or procedures to be complied by the wife before seeking divorce invoking khula. According to the learned Amicus Curiae, the scholars state that it is the husband who should divorce his wife when it was sought by the wife invoking her right of khula. It is also submitted that the husband cannot refuse to accede to the request of the wife. The learned Amicus Curiae Smt. Vaheeda Babu referring to a malayalam authority Islam, Vol 3, submitted that khula is a form of talaq at the instance of the wife against the husband; and the husband is entitled to demand from the wife what was given by him to her. In Quran, in unequivocal terms, the right of wife to invoke khula is declared in absolute terms without any fixed conditions. However, the Prophet in a pragmatic approach directed the wife to return what she obtained from her husband. Interpretation of the Quranic precepts resulted in understanding the khula in different ways. As a result of this, khula and mubaraat are often misunderstood as the same. A Division Bench of this Court in Binu P.A. v. Ashla N.A. [ILR 2017 (2) Kerala 466] declared that the Family Court can grant divorce on the basis of the agreement executed between the parties, referring khula and mubaraat as a divorce based on mutual consent. A learned Single Judge of this Court in Mohammed v. Sainaba Umma [1987 (1) KLT 712] recognized khula as a ground of divorce as referable under Section 2 of the Dissolution of Muslim Marriages Act. This judicial declaration also added to the confusion to understand khula as a ground of divorce.
The learned author Dr.Mufti Samiya Tabasum(16) refers to the formalities of khula as follows:
There is an offer by the wife to release her from the matrimonial tie. The offer is made to the husband. The offer for Khula must also be accepted, the divorce is not complete and it may be revoked by the wife. But once the offer has been accepted, the divorce is complete and becomes irrevocable. Offer and acceptance may either be oral or in writing. The offer and acceptance must be made at one sitting, i.e. at one place of meeting.
Under Sunni law the presence of witnesses is not necessary. But under Shia law, the offer and acceptance of Khula must be made in the presence of two competent witnesses. Further, under Shia law the Khula is revocable by wife during Iddat.
According to the learned author, once the offer is accepted, divorce becomes irrevocable.”
While dwelling on the jurisdiction of family courts in matters related to extra-judicial divorce, the Bench then envisages in para 76 that, “The Family Courts Act, 1984 provides for the establishment of the Family Courts to exercise the jurisdiction excercisable by District Courts or any subordinate civil courts under law in regard to the matters specifically referred to in Section 7 of the Family Courts Act. Explanation (b) of Section 7(1) of the Family Courts Act, confers the Family Court with the jurisdiction to declare the matrimonial status of any person. Therefore, there is no difficulty for the Family Court to endorse an extra-judicial divorce to declare the matrimonial status of a person. In the matter of talaq, khula, mubaraat, talaq-e-tafwiz, the Family Courts shall entertain such applications moved by either of the parties or both parties to declare the marital status of such parties. In the matter of unilateral dissolution of marriage, invoking khula and talaq, the scope of inquiry before the Family Courts is limited. In such proceedings, the court shall record the khula or talaq to declare the marital status of the parties after due notice to other party. If any person want to contest the effectiveness of khula or talaq, it is open for such aggrieved person to contest the same in appropriate manner known under law. In the matter of mubaraat and talaq-e-tafwiz, on being satisfied that the dissolution is being effected on mutual consent, the Family Court without further inquiry shall declare the marital status. We notice Family Courts are overburdened with 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 in appropriate manner. The Family Court in such matters shall endeavour to dispose the cases treating it as uncontested matter, without any delay by passing a formal order declaring the marital status.”
While dwelling on different appeals and the relief given, the Bench then observes in para 77 that, “Mat Appeal 89 of 2020: As afore noted, in this appeal, ‘X’ challenged the decree of divorce granted on the grounds of impotency and cruelty as referable under the Dissolution of Muslim Marriages Act. As already discussed, pending the appeal we permitted ‘Y’, the wife of ‘X’ to invoke khula to dissolve the marriage. She invoked khula and has communicated the same to ‘X’, which has been accepted in evidence by this Court. ‘Y’ has expressed her stand that if khula is accepted by this Court, she is willing to unconditionally withdraw all allegations in the original petition with respect to impotency and cruelty and confine her case to declaration of marital status on the basis of khula invoked by her. As we already noted, the Family Court has the necessary power under Explanation (b) of Section 7(1) of the Family Courts Act to declare the matrimonial status. Though ‘Y’ had instituted the petition to dissolve the marriage under the aforesaid grounds, in view of the present circumstances, we have no hesitation to declare that she has validly divorced ‘X’ on the basis of the khula, as the appeal is a continuation of the original petition. An attempt for conciliation was made before this Court as well as before the Family Court. ‘Y’ also offered to return the dower but ‘X’ was not prepared to accept the same. In the light of the law declared by us on procedure of valid khula, we declare that khula invoked by ‘Y’ is valid. No doubt, if ‘X’ wants any compensation, or return of any valuables he gave to ‘Y’ during the subsistence of marriage, we reserve the liberty to ‘X’ to approach the competent Family Court. Thus, we hold that marriage between ‘Y’ and ‘X’ have come to an end consequent to the invocation of khula by ‘Y’. Thus we set aside the impugned decree and judgment and dispose the original petition filed by ‘Y’ recording the Khula. The Mat. Appeal is accordingly disposed of.”
Furthermore, the Bench then mentions in para 79 that, “Mat. Appeal No.72/2021: This Mat Appeal is filed by Muhammad Musthafa B.K. challenging a decree of divorce granted by the Family Court, Kalpetta, on mutual consent. In a petition filed by the respondent wife Harsha M.A., under the Dissolution of Muslim Marriages Act, the parties were referred for mediation. In the mediation proceedings, Muhammad Musthafa agreed to divorce Harsha. It is based on the said agreement, the Family Court granted a decree of divorce. Though the Family Court had not adverted to it as a divorce based on mutual consent (mubaraat) as recognised under Islamic law, it can be very well seen that such a decree was passed, based on settlement arrived at between the parties in the mediation. In such circumstances, there is a bar under Section 19(2) of the Family Courts Act for this Court to entertain the appeal from a decree passed on the consent of parties. Muhammad Musthafa has now contended that his consent was obtained by committing fraud. However, he does not dispute the signature in the settlement agreement. Muhammad Musthafa is a literate person. We, therefore, are of the considered view that decree of divorce granted by the Family Court, Kalpetta, have to be treated as divorce in the form of mubaraat. And decree granted is only a declaration of status of the parties based on such extra-judicial divorce. Accordingly, we dismiss this appeal as not maintainable. However we make it clear that dismissal of appeal will not preclude Muhammad Musthafa challenging the decree in appropriate forum on the ground of fraud.”
Going ahead, the Bench then enunciates in para 80 that, “OP (FC) 372/2020 : This original petition was filed by a Muslim wife seeking for expeditious disposal of O.P.No.286/2020 instituted by her under the Dissolution of Muslim Marriages Act. In the light of the declaration that Muslim women have the right to invoke extra-judicial divorce, we reserve the liberty to the petitioner to resort to extra-judicial divorce. We have already issued necessary guidelines to the Family Court in regard to disposal of pending matters through the judgment in O.P.(FC).No.352/2020 and connected cases dated 23/3/2021. If the petitioner wants to pursue the case under the Dissolution of Muslim Marriages Act, the Family Court shall dispose the case in accordance with the said guidelines. The original petition is disposed of as above.”
As it turned out, the Bench then observes in para 81 that, “O.P.(FC).Nos.124/2021 and 133/2021: These original petitions were filed by same persons, namely, Raseena Pareekunju. She along with her husband Muhammed Asif, filed a petition for dissolution of marriage by Mutual consent under Section 9(2) of the Dissolution of Muslim Marriages Act. The Family Court refused to entertain the petition stating that there is no substantial provision under the Muslim law to grant divorce on mutual consent. That is challenged in O.P. (FC).No.124/2021. Thereafter, it appears the the petitioner filed O.P. before the same Family Court for declaration of marital status based on mubaraat. This was returned with an endorsement as follows:
Quote the relevant provision of Muslim Marriage. Ad. Refused – 7 days.
The above is challenged in O.P.(FC).No.133/2021. We have already adverted that mubaraat is a form of an extra-judicial divorce based on mutual consent under Islamic law and same is valid as it remains untouched by the Dissolution of Muslim Marriages Act. The Family Court in such circumstances is neither called upon to adjudicate nor called upon to dissolve the marriage by decree of divorce. On the other hand, the Family Court only has to declare the marital status by endorsing the mubaraat invoking jurisdiction under Explanation (b) of Section 7(1) of the Family Courts Act. Once a declaration of joint divorce invoking mubaraat is produced before the Family Court, the Family Court has to pass a decree declaring the matrimonial status of the parties. The inquiry in such cases is limited to the extent to find out whether both parties have agreed upon to dissolve such marriage invoking mubaraat. Once the Family Court is satisfied that mubaraat is executed by both the parties, it shall declare the matrimonial status of such parties. We are therefore, of the considered view that the Family Court is bound to entertain a petition for declaration of the status based on mubaraat. The Family Court shall dispose such matter, if both the parties have filed petition, after making a formal inquiry without any further delay treating it as an uncontested matter in the light of the guidelines issued by us in the judgment in O.P. (FC).No.352/2020 and connected cases dated 23/3/2021. The original petitions are disposed of as above.”
Finally, the Bench observes in final para 82 that, “Before parting with the judgment, we place on record our appreciation for the valuable assistance rendered by Shri Mayankutty Mather K.I., Smt. Vaheeda Babu M.A. and Smt. Shajna M. for the commendable articulation of the legal issues involved.”
To conclude, we thus see that the Kerala High Court has very rightly upheld the right of a Muslim women to invoke extra judicial divorce. In doing so, it has overruled a 49 year old judgment as stated in the beginning which is certainly a giant step in the right direction that will ensure that women too like men are also able to speak up for their rights instead of just suffering endlessly in silence and divorce men when they feel that they are being subjected to untold sufferings by husband without any reasonable cause. This brief, brilliant, blunt and bold judgment has set a new precedent espousing the unfettered right of a woman just like men to divorce men when she finds that her needs are not being met adequately and that divorce is the only option left!
Sanjeev Sirohi