Divorced Muslim Woman Need Not Be Dragged To Court Of Law For Recording Talaq If It’s As Per Personal Law; Marriage Registrar Can Himself Record It: Kerala HC

The Kerala High Court held that a divorced Muslim woman need not be dragged to the court of law for recording Talaq if it is otherwise in order as per the personal law.

The Court held thus in a petition filed by a Muslim woman against Local Registrar for Births and Deaths & Marriages.

A Single Bench of Justice P.V. Kuhnikrishnan observed, “Simply because a person registered the marriage as per Rules 2008, she need not be dragged to a court of law for making entries in the Marriage Register regarding the divorce if she obtained the same as per her personal law. If there is the power to register the marriage, the power to record the divorce is also inherent and ancillary to the authority who registers the marriage, if there is a divorce under the personal law. A divorced Muslim woman need not be sent to a court of law for recording the Talaq if it is otherwise in order as per the personal law.”

Advocate K.V. Pavithran represented the petitioner while GP B.S. Syamantak represented the respondents.

In this case, a Muslim marriage between the parties was solemnized in 2012 and the same was registered before the respondent Registrar. The marital relationship between them did not last long and consequently the marriage was dissolved by the husband by pronouncing Talaq from Doha, Qatar in the presence of witnesses in 2014 and it was communicated to the wife’s father. In this light, the marriage between them was dissolved and the husband provided maintenance for the Idgah period and future maintenance as well.

The divorce was duly intimated to Thalasseri Mahal Khazi and the Divorce certificate was issued. After dissolution of marriage, the wife approached the Registrar with an application praying to make necessary entries in the Marriage Register regarding the dissolution. However, the Registrar failed to do the same and when the wife enquired about the reason for such failure, it was stated by the Registrar that the Kerala Registration of Marriages (Common) Rules, 2008 does not contain any provision authorising him to make such entry. Hence, she was before the High Court.

The High Court in the above regard noted, “A Muslim marriage is conducted in accordance with their personal law and thereafter registered under the Kerala Registration of Marriages (Common) Rules, 2008 (hereinafter referred as Rules 2008). Subsequently, if the husband pronounces talaq in accordance with his personal law, he can remarry without removing the entry in the register of marriage maintained under Rule 2008, because his personal law permits more than one marriage in certain situations, but that divorced Muslim lady cannot remarry till the marriage entry as per Rule 2008 is removed by approaching a competent court of law. Is there any other remedy to remove the entry made as per Rule 2008 is the point to be decided. If a law abiding Muslim couple registered their marriage as per Rule 2008 and subsequently the husband pronounce talaq, can the registration of marriage as per Rule 2008 be a burden to the Muslim women alone? When such discrimination is pointed out, is it not the duty of the constitutional court to step in? These are the points to be decided in this case.”

Furthermore, the Court said that in such a situation, the principle in the general power under Section 21 of the General Clauses Act, 1897 can be adopted. It observed that there is no power to record the divorce in the Rules 2008 but such power is inherent to the authority concerned and such power is ancillary to the power to register the marriage.

The Court also noted that the officer concerned can record the Talaq without insisting on a court order and it was of the opinion that there is a lacuna in Rule 2008 in this regard. It said that the legislature should think about the same and directed that the registry will forward a copy of its judgment to the Chief Secretary of the State to do the needful in accordance with law.

“There is a dialogue in the Oliver twist, one of the famous novels by Charles Dickens. It is like this; "...If the law supposes that…..the law is an ass – a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience-- by experience…….”. The law is an ass is a derisive expression said when the rigid application of the letter of law is seen to be contrary to common sense. In such a situation, I am of the considered opinion that, the constitutional court should step in”, it concluded.

Accordingly, the High Court disposed of the writ petition and directed the respondent to pass appropriate orders at any rate, within a period of one month.

Cause Title- ABC v. Local Registrar for Births and Deaths & Marriages & Ors. (Neutral Citation: 2024/KER/2629)

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