A single judge bench of the Madras High Court comprising of Justice S. M. Subramaniam, in a Writ Petition filed before the Hon’ble High Court praying for Writ of Certiorari to call for the records of the Shariat Council pertaining to the Khula Certificate, held by quashing it that the Shariat Council is not a Court or arbitrating authority under law.
Brief Facts:
The present writ petition refers to a matter of dissolution of marriage wherein the “Khula” Certificate was issued by the Shariat Council. The petitioner was in process of dissolution of his marriage with Respondent 3, who filed for a grant of “khula” before Shariat council while the petitioner filed suit for “restitution of conjugal rights” which was decided ex-parte. The petitioner challenged the order of Khula by the Shariat Council in the present petition.
Contentions of the Petitioner:
The learned counsel for the petitioner stated that a Kazi(s) in Tamil Nādu do not have the power to certify talaq while the action of the Shariat council issuing the khula certificate could be regarded as Fatwa which has no legal standing and hence held illegal. While also contending that the Shariat council is not kazi under the meaning of the Kazis Act, 1880, it was contended that certificates issued by Shariat Council give the impression that marriage stood dissolved and that it is an extra-judicial mechanism under the law. It was also emphasized that Khula is a kind of divorce and not a mode of dissolution of marriage.
Contentions of the Respondents:
The Learned counsel for Shariat Council asserted that Muslim women have the right to resort to extra-judicial divorce mechanisms allowing to terminate the marriage. Hence, the current writ petition is not maintainable.
Observations of the Court:
The Hon’ble Court laid the question of maintainability of the present writ petition against the Shariat Council which is a private body. Prima facie, it is not a State within the meaning of Article 12 of the Constitution of India. Therefore, it is not amenable to jurisdiction under Article 226 of the Constitution of India. As the Shariat Council is a society registered under the Tamil Nadu Societies Registration Act, 1975, it exercises overwhelming power over the members of the Jamath, which gives an impression as that of a public body. While relying on Supreme Court judgments, it was asserted that a private body exercising the power as that of the public body is amenable to the jurisdiction under Article 226 of the Constitution of India and hence petition was maintainable.
The Court acknowledged that the parties are to be governed by respective personal law. The judge also said that Muslim Women have a right to dissolve their marriages under Muslim Personal Law but also before the family court. In addition, the judge held that these rights cannot be enforced before and by Shariat Council, the second respondent who is not courts or arbitrator of disputes, and such Practices are frowned upon by the courts. Muslim women have to exercise their rights to dissolve the marriage by “Khula” recognized under Muslim personal law (shariat), but also before a Family Court. It cannot be enforced before the self-declared body hence the Khula Certificate issued by shariat council cannot be held as valid.
The decision of the Court:
The writ petition was allowed and the impugned Khula Certificate dated 21.06.2017 issued by the second respondent Shariat Council was quashed.
Case Title: Mohammed Rafi vs. The State of Tamil Nadu
Coram: Honourable Mr. Justice S.M. Subramaniam
Case No.: W.P.No.35688 of 2019
Advocate for the Petitioner: Mr. R. Abdul Mubeen
Advocate for the Respondent:
- Mr. S. Ravikumar, Special Government Pleader
- M/s. J. Antony Jesus.
- No Appearance.
Read Judgment ;
Social media is young.
Social media raises questions.
Social media is not satisfied with an answer.
Social media looks at the big picture.
Social media is interested in every detail.
social media is curious.
Social media is free.
Social media is irreplaceable.
But never irrelevant.
Social media is you.
(With input from news agency language)
If you like this story, share it with a friend!
0 Comments