XXXXX Vs. XXXXXX

JUDGEMENT

(1.) This is a typical review portraying that Muslim women are subordinate to the will of their male counterparts. This review 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 this review arises was filed challenging a divorce decree granted to a Muslim wife under the Dissolution of Muslim Marriages Act, 1939. The appeal was filed by the husband. In the appeal, we noticed the existence of the right of Muslim women to resort to the extrajudicial divorce of khula, allowing her to terminate her marriage. Thereafter, the appeal was disposed of, recording khula and also delineating the different methods of extra-judicial divorce applicable to Muslim spouses. We 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. In the review petition filed by the husband, he does not dispute the authority given to the Muslim wife to invoke khula, but rather raises, as a ground of review, the procedure acknowledged by this Court to invoke the remedy of khula by the Muslim wife. We declared that khula would be valid if the following conditions are satisfied:

(2.) The review petition, though, was filed by the husband, the courtroom was filled with persons who have shown an interest in the outcome and we allowed all those interested to make submissions. Accordingly, we had the advantage of hearing a Muslim scholar turned lawyer, Adv.Hussain C.S.

(3.) According to the learned counsel for the review petitioner and Adv. Hussain C.S., the Court erred in recognising the procedure in effecting khula. According to them, 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. According to them, 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 sec. 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 has to terminate the marriage.