Kerala High Court Rules That Muslim Women Have the Right to Claim Extra Judicial Divorce, Overruling A Half-Century Old Precedent

Overruling a 49-year-old judgment that effectively barred Muslim ladies from resorting to further judicial modes of dissolving weddings, the court has upheld the validity of those modes. Finding that the governing law, The Dissolution of Muslim Marriages ct failed to ponder the undoing of the modes of extra-judicial divorce accessible to ladies beneath personal law, the bench of Justices A Muhamed Mustaque and atomic number 55 Dias command, The Court’s judgment comes within the context of a clutch of petitions filed before it by aggrieved partners in marriages wherever extra-judicial modes of dissolution had been resorted to.


“The issue concerned in as on top of is inextricably connected to final justice that ladies concerned altogether these cases get. These cases speak in abundance concerning the patriarchal mindset followed within the Society for many years.


Depriving Muslim ladies of their right to invoke extra-judicial divorce. whereas there was an enormous clamor to retain the application of ‘triple talaq’, AN un-Islamic practice; no such open and apparent demand looks to exist to revive the correct of Muslim ladies to invoke extra-judicial divorce. The on top of the sketch the miseries of ladies despite the promise warranted beneath Article fourteen of the Constitution of India”.


In the judgment, the Court intricately discusses the varied modes of dissolution of the wedding. before its ruling, the Bench 1st discusses the modes of dissolution in Muslim personal law typically and so income to debate the modes specifically accessible to ladies. The modes accessible to ladies, the Court explains is,


– Talaq-e-tafwiz, wherever the spouse will dissolve the wedding if her husband fails to stay his finish of the wedding contract,

– Khula, wherever a spouse will unilaterally divorce her husband by returning his dower,

– Mubara’at, dissolution by mutual consent, and

– Faskh, dissolution with the intervention of a 3rd person like a qazi.


The Court noted that the previous legislation governing Muslim marriages and alternative practices, The Shariat Act of 1937, specifically recognized all modes of extra-judicial divorce except Faskh. light this, the Court discovered that Section two of the Shariat Act specifically recognized all modes of extra-judicial divorce except Faskh.


How the court of domestic relations square measure to adjudicate further judicial modes of dissolution The Bench observed that there’s no issue for the Family Court to endorse AN extra-judicial divorce to declare the married} status of someone.


The Court directed that within the matter of talaq, khula, mubaraat, talaq-e-tafwiz, the Family Courts shall entertain such applications emotional by either of the parties or each party to declare the legal status of such parties.


Where unilateral modes of dissolution like khula and talaq, the Court declared that the scope of inquiry before the Family Courts would be restricted. In such proceedings, the court insisted that the court record the khula or talaq to declare the legal status of the parties once due notice to a different party.


Where accordant modes of dissolution were involved, like through the invocation mubaraat and talaq-e-tafwiz, on being glad that the dissolution is being accomplished on mutual consent, the court of domestic relations while not more inquiry shall declare the legal status, the Court mandated.


The Bench specially tutored Family Courts to not adjudicate upon extra-judicial divorce unless it was known as upon therefore acceptably, since the Courts were burdened with a sizable amount of cases.


The court of domestic relations in such matters shall endeavor to dispose of the cases treating it as uncontested matter, with none delay bypassing a proper order declaring the matrimonial status”, the Court said.

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