Deciding point of law pertaining to demand of divorce by Muslim Women, the Kerala High Court remarked that Court which manned by trained legal minds shall not let it viewpoint affected by Islamic Priests who lack knowledge in legal sciences.
The Division Bench comprising of Justice A. Muhamed Mustaque and Justice C. S. Dias break down in detail on the failure of Islamic Clergy to distinguish between the legislative authority of the Quran and the executive power of the Islamic ruler to meet particular
"We have narrated the above aspect only to bring home the point that the Islamic clergy who have no legal training or knowledge in legal sciences, cannot be relied upon by the Court to decide on a point of law involved, relating to the personal law applicable to the Muslim community. The Courts are manned by trained legal minds. The Court shall not surrender to the opinions of the Islamic clergy, who have no legal training on the point of law. No doubt, in matters related to beliefs and practices, their opinion matters to the Court and the Court should have deference for their views."
Brief Facts of the Case
Reviewing the ruling, the Court stated that it is a typical review portraying that Muslimwomen are subordinate to the will of their male counterparts and that it 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.
The appeal from which the review arose was filed challenging a divorce decree granted to a Muslim wife under the Dissolution of Muslim Marriages Act, 1939. In the appeal filed by the husband, the Court had asserted the existence of the Right of Muslim Women to resort to the extrajudicial divorce of khula, allowing her to terminate her marriage. The appeal was thus disposed of, recording khula and also delineating the different methods of extra-judicial divorce applicable to Muslim spouses.
The Court had declared that the right to terminate the marriage at the instance of a Muslim wife is an absolute right, conferred on her by the holy Quran and is not subject to the acceptance or the will of her husband.
Contentions in the Case ;
The husband in the review petition did not dispute the authority given to the Muslim wife to invoke khula, but rather raises, as a ground of review, the procedure acknowledged by the Court to invoke the remedy of khula by the Muslim wife.
It was contended that if a Muslim wife wishes to terminate her marriage with her husband, she has to demand talaq from her husband and on his refusal, she has to move the qazi or Court. The petitioner averred that though a Muslim woman has a right to demand divorce of her own will, she has no absolute right to pronounce khula like the right of her counterpart to pronounce talaq. It was submitted that, as a consequence of the declaration of law by this Court, a large section of Muslim women are resorting to khula in derogation of the Sunnah.
It was also argued that the Court is not competent to decide on religious beliefs and practices and the Court ought to have followed the opinion of Islamic Scholars. It was submitted that almost all across the globe, it is recognised that on demand of the wife to terminate the marriage, the husband has to pronounce talaq, obliging her demand. In countries where qazis are recognised, on refusal of the husband, the qazis would terminate the marriage. It was argued that nowhere in the world, a Muslim wife is allowed to unilaterally terminate the marriage. It was further submitted that in the absence of qazis, the competent civil court in India have to terminate the marriage.\
Relying upon Article 25 of the IndianConstitution read with the Shariat Act 1937, Adv. Hussain C.S. argued that the Muslim Personal Law is the rule of decision in questions relating to marriage, dissolution of marriage, maintenance, etc. of the Muslim community. Citing numerous judgments, the counsel vehemently submitted that the verses of the Quran cannot be the subject matter of interpretation of secular courts. He submitted that the Shariah is based onfour sources, namely, the Quran, Sunnah, Qiyas (analogy) and Ijma (consensus). When the Quran is silent on any aspect, attention must be turned to the Sunnah of the Prophet, thereby using it to supplement the verses of the Quran. He quoted the verses of the Quran and the Hadeeth to buttress this point. Sura Al Hahr, verse 7.
The counsel submitted that all Muslim scholars, irrespective of their schools of thought, are unanimous in their opinion that khula is a divorce by mutual consent or agreement, with the acceptance of the husband being an essential element for a valid khula.
Submitting that although khula is an extra-judicial form of divorce, when the husband refuses to give consent, it takes the form of faskh (a judicial divorce), thereby forcing the woman to seek the intervention of a qazi (judge). The learned counsel then, however, went on to submit that the judge has no discretion in the matter and has to give effect to the khula, if the wife insists.
High Court's Observation
Referring to holy Quran, Chapter II, verse 229, the Court at the outset recognised the existence of the right.
"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 moral injunction so stipulated in the above verse has to be read in the context of the Prophet’s warning to the believers that divorce is “the most hated of the permissible things to Allah”
The Court was of the view that legal conundrum in the case, is not an isolated one. It has evolved over the years as the scholars of Islamic studies, who have no training in legal sciences started to elucidate on the point of law in Islam, on a mixture of belief and practice.
Noting that the dilemma that persisted, in this case, is, perhaps, more related to the practice that has been followed for years, overlooking the mandate of the legal norm conferring on Muslim women the right to terminate the marriage without the conjunction of the husband, the Court stated that in such circumstances it shall look at the legal norm, if the same relies upon Quranic Legislations and the sayings and practices of the Prophet (Sunnah).
The Court opined that the underlying distinction between Fiqh and Shariah needs to be stressed here. (Fiqh has been loosely translated to English as Islamic law and literally means ‘the understanding of what is intended’. Shariah means ‘a straight path. Fiqh refers to the science of deducing Islamic laws from thr evidence found in the sources of Islamic law.)
"Ordinary scholars and the Islamic clergy, who have no formal legal training find it difficult to deduce Islamic law from its sources. Fiqh denotes the true intentions and objects of Islamic law. It requires a legal mind to deduce Islamic law from the sources. The dilemma faced by the Islamic clergy in understanding triple talaq was based on the practice followed in society for centuries, on the footing that a single pronouncement of triple talaq would constitute a valid talaq. This was related to the decree of the Caliph Umar, who was one of the successors to the caliphate, after the demise of the Prophet Mohammed. Noting the misuse of the authority given to the husband, who invariably invoked talaq and revoked talaq thereafter, causing miseries and hardships to the women; on a complaint made by the women and acting on their behalf, the Caliph decreed that such pronouncement of talaq would be a valid divorce. This decree, though, does not look in tune with the Quranic legislation that refers to cyclic pronouncement of talaq at different intervals,was devised to meet a particular situation in the society at that point in time. Caliph Umar resolved to exercise his executive power to meet a particular exigency, to redress the grievances of women. This power of the ruler is akin to the power exercised by the executive in the modern State. That executive power was so exercised, to tide over a particular situation. This practice, allowed at a particular time, was relied upon by the Islamic clergy to justify instantaneous triple talaq, overlooking Quranic injunctions."
The Quranic verse relating to khula found inChapter 2, verse 229, in unequivocal terms, declares that a Muslim wife has the right to terminate her marriage, the Court said pointing out that the problem they face in the present case is infact based on a reported Hadith,
illustrating an instance of termination of marriage at the instance of a wife during the lifetime of the Prophet Mohammed. In almost all the authorities related to Islamic law, this instance of divorce by a Muslim wife has been reported.
True Meaning of Kulha
The Court traced back to the evolution of the right of women to obtain a divorce, from the pre-Islamic period onwards and noted that as per the Holy Quran, it has been named as the of ignorance.
"Many of the laws that were in existence in the pre-Islamic period were modified, adapted or abrogated during the Islamic period. Marriage in pre-Islamic Arabia was a recognised institution for creating a family which was the primary unit of society. Without marriage, there would be no family and no ties to unite different members of a community. Marriage in pre-Islamic society was one way to increase the strength of the tribe, by begetting more children who would be the next generation of the tribe."
In the post-Islamic period, the Court stated that the Islam emphasised on conciliation as the preferred mode of resolution of all disputes between the believers. The believers, at the first instance, were have to resort to conciliation, before resorting to the authority given to them to terminate any sort of legal relationship.
Reflecting on termination of marriage between Jamila and Thabit, at the instance of Jamila, the Court concluded that Talaq is considered as a unilateral termination by the husband and the Quran casts an obligation upon the husband to provide fair provisions for the wife’s future, subject to his means.
The Court disagreed with the Counsel for petitioner's view and stated that obligation of the wife to return the property she obtained from the husband forms part of the substantial law.
"The mandate of conciliation and the involvement of third-party, as referred to in the various instances noted above by us, cannot be overlooked. It was more of a conciliatory situation where the prophet or ruler, as the case may be, decided the termination of marriage at the instance of the wife, as it also involved the return of property to the husband. In those circumstances, the intervenor could demand that the husband pronounce talaq and terminate the marriage. The pronouncement of talaq by the husband partakes the acknowledgment of the materials he is entitled to receive in return, bringing an end to the marital tie. No doubt, this procedure is most desirable for believers to follow for termination of marriages at the instance of the wife."
Whether this procedure is itself the law for effecting khula? To understand this, the Court said one needs to distinguish between Hadith and Sunnah. (Hadith refers to the narration of the conduct of the prophet in a situation)
The Court also weighed on the distinction between legal and non-legal Sunnah.
Women Have Right To Terminate Marriage On Their Own
The Court on the arguement of learned Adv. Hussain C.S., that if the husband refuses to pronounce talaq on the request of the wife, a qadi has the power to pronounce talaq, and in the absence of a qadi, the modern Courts can exercise the power of qadi, noted that a qadi cannot be equated with a Court in the modern State.
"The reference to the qadi in this context is to exercise his authority as a guardian rather than an adjudicator. It is acknowledged by Islamic law that the Muslim wife has the right to demand termination of marriage. The argument that if the husband refuses, she has to move the Court stares at us. For what purpose she has to move the Court, begs the question. The Court is neither called upon to adjudicate nor called upon to declare the status, but simply has to pronounce termination of marriage on behalf of the wife. The Court in our country is not a guardian of an adult and able woman. If there is nothing for a Court to adjudicate, the Court cannot assume the role of a guardian and pronounce termination of marriage at the instance of a woman. Conferring authority upon the court is an exercise in futility, inasmuch as the court cannot entertain the request as there is no dispute to be resolved between the parties. The relief of declaration of status based on divorce can be given only when divorce is effected through an extra judicial method. If the court treats such a request for termination in the like manner of faskh, there would be no obligation on the part of the wife to return the materials she obtained from her husband. It is to be remembered that in judicial divorce in the nature of faskh, the courts are deciding the cause on the premise of fault."
The Court was of the view that if the arguments of the review petitioner is accepted that the court will have to pronounce termination of marriage, then the claim for khula would turn on fault.
"The very nature of khula has always been recognised as a mode of divorce on a no-fault basis. This is exactly the reason, in the judgment under review, we interpreted that the residuary ground as referred under Section 2(ix) of the Dissolution of Muslim Marriages Act, 1939 cannot be equated with khula. Dissolution of Muslim Marriages Act only contemplates dissolution of marriage at the instance of Muslim women on fault grounds. If the Qur'an, in unequivocal terms, permits spouses to terminate their marriage on their own will, it cannot be said that the Sunnah further qualifies it, subjecting it to the will of the husband, in the case of khula."
The Court reiterated that Sunnah cannot override or abrogate the primary legislation.
"Sunnah is the second source of legislation. The first and primary source is the Quran itself. The Sunnah cannot be interpreted in such a way as to either abrogate or reduce the scope of the command of the Lawgiver in the primary legislation. To understand the scope of discussion in this, it is necessary to understand the nature and varieties of law given in the primary legislation."
Conclusion
The Court concluded that the nature of khula is in the form of a ‘permissible’ action, to the Muslim wife who seeks to exercise the option of terminating her marriage.
"This reflects the autonomy of choice exercised by the wife. The will of the wife so expressed cannot be related to the will of the husband who has not expressed his choice to terminate the marriage. The very idea of categorization under the law, of an action as permissible, is to retain that action within the domain of the person who exercises the option, by relating it with his or her autonomy. Extending such actions to the will of another would certainly keep the action out of the category of ‘permissible’. The law being categorized so, it cannot be whittled down or constricted by the will of her husband upon whom no authority is conferred to enforce such permission. It is relevant to note that, there is no qualifying obligation on the husband in the form of the five categories of defining law, either in the Quran or the Sunnah, to accept or repudiate the will expressed by the wife to make the permissible activity contingent or dependant upon any qualifying factors."
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