Understanding Khula, Muslim Women’s Right to Divorce

In the realm of family law in India, the rights of Muslim women regarding extrajudicial divorce have been a subject of legal scrutiny. The Kerala High Court’s 2021 ruling affirming a Muslim woman’s absolute right to pronounce extrajudicial divorce through “khula” has sparked a significant legal debate. This article delves into the historical context, the concept of khula, and the various forms of extrajudicial divorce available to Muslim women, shedding light on the 1939 Act and its implications.

Khula, Right to Extrajudicial Divorce

Definition and Origins of Khula

Khula refers to the right of a Muslim woman to divorce her husband unilaterally. This is similar to the right of talaq conferred upon Muslim men under Sharia law. The recognition of khula as a form of divorce stems directly from the Holy Qur’an.

However, scholars differ on the manner in which khula has to take place.

While some, like the followers of the Hanafi school of Islamic jurisprudence, believe that the husband’s consent is a prerequisite for a valid khula, others, like the sitting Kerala H C judge Dr. Justice Kauser Edappagath, have said that a wife’s right to khula is analogous to the husband’s right to pronounce talaq, on being convinced of the irretrievable breakdown of the marriage.

In his book, ‘Divorce and Gender Equity in Muslim Personal Law of India’, Dr. Justice Edappagath has also said that in Khula, the wife agrees to give consideration to her husband for her “release from the marriage tie”.

Interpretations and Controversies

Divergent opinions exist among scholars on the prerequisites of a valid khula. While some insist on the husband’s consent, others, like Justice Kauser Edappagath, assert the wife’s right to khula without spousal approval. The article navigates through these varied interpretations, offering a comprehensive understanding of the controversy.

Conditions of Khula

Khula refers to the right of a Muslim woman to divorce her husband unilaterally. This is similar to the right of talaq conferred upon Muslim men under Sharia law. The recognition of khula as a form of divorce stems directly from the Holy Qur’an.

The 2021 Kerala High Court ruling emphasized the absolute nature of a Muslim woman’s right to khula, irrespective of her husband’s consent. The conditions and considerations involved in the khula process will be explored, shedding light on the legal nuances.

Forms of Divorce for Muslim Women

Talaq-e-Tafwiz

This is a contract-based divorce. Since Islam views marriage as a contract, the parties are free to choose the terms of their contract and decide how their marital lives will be regulated. If a husband violates any condition agreed upon at the time of marriage, the wife will be entitled to divorce without the court’s intervention.

MUBARA’AT

This is a form of separation by mutual consent. The offer to dissolve the marriage may come from either side. Once both parties enter into mubara’at, all mutual rights and obligations of the spouses end. Both Shi’a and Sunni sects deem this form of divorce to be irrevocable.

FASKH

This is divorce through the intervention of the court or an authority like a qazi. While khula is given by one of the spouses and mubara’at by both spouses, faskh is decided by a third party or external authority like an arbitrator, mediator, or judge.

Shariat Act and Dissolution of Muslim Marriages Act, 1939

Muslim Marriages Act, 1939

The 1939 Act was passed to clarify and consolidate the provisions of the law relating to the dissolution of marriage by Muslim women, and to remove doubts with respect to the effect of married Muslim women renouncing their faith.

The Act extended the right to extrajudicial divorce to all Muslim women, regardless of the school of Islamic jurisprudence they followed. It also aimed to clarify the law around the faskh route of extra-judicial divorce.

Section 5 of the Shariat Act was repealed and replaced with Section 2 of the 1939 Act, which laid down nine grounds for Muslim women to obtain a decree for the dissolution of marriage. These grounds included cruelty, desertion, and the husband’s imprisonment for seven years or more.

The 1939 Act recognized the faskh route of extrajudicial divorce. Section 2(ix) of the 1939 Act allowed a divorce decree to be obtained on “any other ground which is recognized as valid for the dissolution of marriages under Muslim law”.

All other modes of extrajudicial divorce under Section 2 of the Shariat Act remained untouched.

Muslim Personal Law (Shariat) Application Act, 1937

The Muslim Personal Law (Shariat) Application Act, of 1937, recognizes both judicial and extrajudicial divorce. However, faskh is not recognized. Section 2 of the Act recognizes all forms of extrajudicial divorce except Faskh.

Section 5 of the Act, which allows the dissolution of marriage by a court in certain circumstances, allows a district judge to dissolve a marriage based on the woman’s plea.

However, despite the existence of the Sharia Act, the Hanafi school did not allow women to obtain a decree from the court to dissolve their marriage.

To resolve this situation, two years after the passage of the 1937 Act, the Dissolution of Muslim Marriages Act, 1939, was enacted.

2021 Kerala High Court Ruling and Its Implications

Background of the Legal Proceedings

This section provides a contextual background of the legal proceedings leading to the Kerala High Court’s 2021 ruling. A specific case will be highlighted to illustrate the challenges faced by Muslim women in invoking their right to extrajudicial divorce.

Rejection of the 1972 Verdict

Kerala High Court’s rejection of the 1972 verdict that negated Muslim women’s right to invoke extrajudicial divorce under the 1939 Act. Citing an Allahabad HC ruling in ‘Sofia Begum vs. Syed Zaheer Hasan Rizvi’, the court said that the 1939 Act’s objective is to enlarge the rights of Muslim women, and the courts must give effect to that.

1939 Act in Favor of Women’s Rights

1939 Act as a progressive step to enlarge the rights of Muslim women. The implications of such interpretations on future legal proceedings will be explored.

Conclusion: Balance in Muslim Family Law

In conclusion, the complexities surrounding Muslim women’s right to divorce in India reflect the evolving nature of family law. The intersection of religious principles, legal interpretations, and societal expectations necessitates a delicate balance. The 2021 Kerala High Court ruling, by affirming the absolute nature of khula, contributes to a more inclusive and gender-equitable legal landscape. As legal discourse progresses, it is imperative to continue navigating the intricacies of Muslim family law, ensuring that rights are not only recognized but also protected, fostering a legal framework that aligns with contemporary notions of justice and equality.

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