The Madras High Court opined that while Muslim women have the absolute right to pronounce unilateral divorce through Khula under Muslim personal law, the same can be exercised only through a statutory court and not private bodies like the Shariat Council.
Brief Facts:
Respondent No. 3 was married to the Petitioner and had a male child out of wedlock. Respondent No.3 decided to dissolve the marriage under the Muslim Personal Law (Shariyat) by way of “Khula”. Respondent No. 2 was granted a Khula certificate. Hence, the present petition has been preferred.
While the proceedings were pending before Respondent No.2, the Petitioner filed for restitution of conjugal rights and the suit was decreed ex-parte. Since the couple had a baby boy, the Petitioner had filed a petition under the Guardians and Wards Act of 1890 too, and obtained favourable orders. At present, a petition for executing the decree is pending before an Additional Family Court.
The contention of the Petitioner:
It was submitted that a "fatwa" has no legal sanction and cannot be enforced by the parties. It was argued that the parties have to be governed by respective personal laws which are formulated as a consequence of the Dissolution of Muslim Marriages Act, 1939. It was further contended that in the case of Khula, it has been recognized as a mode of divorce on a no-fault basis.
Contentions of the Respondent No. 2:
It was submitted that the right of a Muslim woman to resort to the extra-judicial divorce of Khula allowing her to terminate her marriage has been recognized by the Indian Judiciary.
Observations of the Court:
The primary issue to be ascertained was whether the writ petition was maintainable against Respondent No.2, a private body.
It was observed that even though it is not a state as per Article 12 of the Constitution, the powers of the courts under Article 226 have an expansive application, to include a body exercising power as that of a public body under the writ jurisdiction.
Since Respondent No.2 has wide powers over the members of Jamath, the High Court noted that it gives the impression that of a public body and therefore, jurisdiction under Article 226 was exercised and the writ petition was held to be maintainable against Respondent No.2
Further, it was noted that notwithstanding any customs or usage to contrary, the Muslim Personal Law has precedence when parties are Muslims. Coming to Tamil Nadu, it was observed that there is an amendment to Section 2 of the Muslim Personal Law (Shariat).
It was opined by the Bench that Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939 is a residuary clause that gives Muslim women a right to obtain a dissolution of marriage on any other grounds that are valid under the Muslim Law and hence, Khula which is recognized under Muslim Personal Law is not a statutorily recognized mode of divorce under the Dissolution of Muslim Marriages Act.
It was expounded that the Courts are not exercising any extra-judicial power to grant a divorce under Section 2 of the Dissolution of Muslim Marriages Act.
Considering the issue of whether the Khula certificate can be obtained for a Shariat Council, a registered society under the Tamil Nadu Societies Registration Act, 1975, like Respondent No.2, it was propounded that private bodies like Respondent No.2 are not courts or arbitrators and hence, cannot pronounce divorce/dissolution of marriage.
Therefore, while a Muslim woman can exercise her inalienable right to dissolve the marriage by Khula, the same can be done by approaching the Family Court.
The decision of the Court:
The Kerala High Court thus, observed that the Khula certificate cannot be issued by a body like Respondent No.2 and accordingly, quashed the certificate. The writ petition was hence, allowed.
Case Title: Mohammed Rafi v The State
Coram: Hon’ble Justice A. Badharudeen
Case No: W.P.No.35688 of 2019
Advocate of the Petitioner: Adv. Mr.R.Abdul Mubeen
Advocate of the Respondent: Adv. Mr.S.Ravikumar
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