Muslim Women Can File for Divorce in Family Courts Only: Madras HC

GG News Bureau

Chennai, 2nd Feb. The Madras High Court has ruled that a Muslim woman may exercise her inalienable right to dissolve marriage by ‘Khula’ (divorce proceeding initiated by wife) by approaching a family court rather than private bodies such as a Shariat Council.

Khula cannot pronounce or certify the dissolution of a marriage by private bodies.

“They are not courts or arbitrators of disputes. The courts have also frowned upon such practice…,” the court held.

Hence, such Khula certificates issued by private entities are invalid. “Khula is the form of divorce conferred upon the wife similar to talaq conferred upon the husband.”

In his decision on a writ petition filed by a man seeking the revocation of his wife’s Khula certificate, Justice C Saravanan quashed the impugned certificate issued in 2017 by the Shariat Council, Tamil Nadu Towheed Jamath here.

The Madras High Court granted an interim stay in Bader Sayeed Vs Union of India, 2017 and restrained bodies such as the respondents in that matter (Kazis) from issuing certificates certifying dissolution of marriage by Khula, the judgment said.

“Thus, while it is open for a Muslim woman to exercise her inalienable rights to dissolve the marriage by Khula recognized under the Muslim Personal Law (Shariat) Application Act, 1937 by approaching a family court, it cannot be before a self declared body consisting of few members of Jamath.”

The impugned Khula certificate issued by the Shariat Council is quashed. The High Court directed the petitioner and his wife to seek resolution of their disputes through the Tamil Nadu Legal Services Authority or a family court.

In this case, the petitioner relied on a Supreme Court decision in Vishwa Madan Lochan vs Union of India and others (2014), which held that whatever the status of a “fatwa” was during Mughal or British rule, it has no place in independent India under the Constitutional Scheme.

The Madras High Court, in an order on a writ petition, referred to a body, Makka Masjid Shariat Council, and stated that the impression conveyed to the public is of a ‘court functioning,’ according to the petitioner.

The petitioner also filed a suit for restitution of conjugal rights, which was also dismissed ex parte. The woman chose not to appear in the writ plea proceedings.

In 2015, a male child was born to them out of wedlock. They married in 2013, and she left the marriage in 2016.

The petitioner also filed another petition under the Guardians and Wards Act, which was granted, and a plea for execution of the decree is pending before a family court.