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Kerala High Court rules "Islamic law recognizes a Muslim woman has right to demand divorce"

Kerala High Court rules "Islamic law recognizes a Muslim woman has right to demand divorce"

The Kerala High Court observed that Islamic law recognises a Muslim woman's right to demand a divorce and that the will of the wife cannot be "related to the will of the husband," who may not agree to the divorce.

Dismissing a review petition against a judgment wherein the court had recognized a Muslim woman's right to resort to Khula, the division bench of Justice A. Muhamed Mustaque and Justice C. S. Dias said that "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"

"Istihsan is a doctrine for the Courts to adopt and apply, if there are no other methods to streamline the rights conferred on believers to act upon. So, assuming that the argument of the review petitioner holds good, 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." Said the court.

The court had said a Khula would be valid if certain conditions are met.

1. A declaration of repudiation or termination of a marriage by the wife.

2. An offer to return her dower or any other material gain received during her marriage.

3. An effective attempt for reconciliation was preceded by the declaration of khula.

The Court further held that "The intersection of the moral injunction and the legal right shows the accountability to the Almighty in the life hereafter as per the faith, but it cannot be a determination of the validity of the legal right in a court of law in a secular country,

The review petition arose from an appeal challenging a divorce decree granted to a Muslim wife under the Dissolution of Muslim Marriages Act of 1939.

The court ruled in the appeal that a Muslim wife's right to divorce at the request of her husband is an absolute right granted to her by the Holy Quran and is not subject to her husband's acceptance or will.

It was also noted that, aside from the husband who filed the review petition, the courtroom was packed with people who were interested in the outcome. The Court decided to allow all interested parties, including a Muslim scholar, turned lawyer, and advocate Hussain CS, to make submissions. After hearing from all parties, the court determined that there was no reason to reconsider its decision and dismissed the plea.

However, it made several interesting observations about the case's legal quandary. According to the Court, this is not a new issue and has evolved over many years as scholars of Islamic studies, who have no training in legal sciences, began to elucidate the point of law in Islam, based on a mixture of belief and practice.

The Court did, however, point out that Islam has a legal code in addition to rules governing beliefs and practices. It stated that legal norms are the cornerstones of establishing a social and cultural order within the Muslim community.

 

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