Supreme Court Issues Notice In SLP Against Kerala High Court's Judgment Upholding Muslim Women's Right To Seek Extra-Judicial Divorce 'Khula'

The Supreme Court today issued notice in a Special Leave Petition moved by Kerala Muslim Jamaat against Kerala High Court's Judgments of 2021 and 2022, which upheld the rights of Muslim women to invoke unilateral extrajudicial modes of dissolving marriage. i.e. "Khula".

The Kerala High Court had held so in its judgment of 2021, and a review petition against the said judgment was dismissed by another detailed judgment in the year 2022.  

The Bench of Justice A.S. Bopana and Justice Sanjay Kumar said, "Delay condoned. Issue notice to the Respondent."

Senior Advocate Devadatt Kamat appeared for the Petitioner. Justice Bopana said, "It's a 2021 Order of the High Court." 

The Senior Counsel responded, "Yes, we are not on the individual merits of the case."

"By now she might be remarried also," Justice Kumar remarked. 

The Senior Counsel replied, "No, we are really concerned of this law; that is completely contrary to your Lordships' own Judgment of 2014. In fact, the Madras High Court also has taken a contrary view."

Taking note of the submissions, the Bench issued notice to the Respondent.

Pertinently, a Division Bench of Kerala High Court on April 9, 2021, overruled a 49-year-old Judgment titled KC Moyin vs Nafeesa And Ors delivered on 6 September 1972 that effectively barred Muslim women from resorting to extra judicial modes of dissolving marriage and instead upheld the validity of these modes. "All other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to a Muslim women. We, therefore, hold that the law declared in KC Moyin's case (supra) is not good law," the High Court had ordered. 

"These cases have been brought to this level in light of Mat.A.No.89 of 2020, wherein a young woman, hereinafter referred to as ‘Y’ (name withheld to protect her privacy) was granted a decree of divorce by the Family Court, Thalassery. ‘Y’ had instituted the petition under the Act, on the grounds that her husband ‒ ‘X’, was impotent and treated her with cruelty. Challenging, the decree ‘X’ has preferred the appeal," the High Court had noted. 

It also noted, "As seen from the Shariat Act extra-judicial divorce was in vogue and recognized as legally valid in British India. Section 2 of the Shariat Act statutorily recognized the personal law and dissolution of marriages without intervention of court through talaq, illa, zihar, lian, khula, and mubaraat etc; There are four major forms of dissolution of marriages as recognized under Islamic Law and protected under the Shariat Act at the instance of the wife; they are: Talaq-e-tafwiz, Khula, Mubara'at and Faskh."

The Court had observed that the Dissolution of Muslim Marriages Act (1939) is a declaratory regulation that does not amend all rules of Muslim law. The Court had relied on the Allahabad High Court's ruling in Sofia Begum vs. Syed Zaheer Hasan Rizvi (January 22, 1946)  that the 1939 Act’s objective is to enlarge the rights of Muslim women, and the courts must give effect to that. It had also relied on Jamila Khatun vs. Kasim Ali (1951) Bombay High Court's Judgment whereby it was held that the 1939 Act crystallized only a portion of the Muslim law and could not be applied to the provisions of the whole law. 

The High Court had held that a Muslim woman’s right to Khula is “absolute” and “does not depend upon the consent or assent of the husband”.

Cause Title: X v. Y and Kerala Muslim Jamaat v. Y [Diary No. 11727-2023 & Diary No. 16709 - 2023]