SC To Review Muslim Women's Unilateral And Absolute Right To Khula

The Supreme Court on Monday issued a notice in a petition challenging the Kerala High Court's judgement that defended a Muslim woman's unconditional and unilateral right to resort to khula which is a form of divorce under Muslim Personal Law. The Bench of Justices AS Bopanna and Sanjay Kumar were hearing the challenge posed by a Kerala Muslim Jmaat and a private individual. The duo filed two separate Special Leave Petitions (SLPs) to the judgement granted by the Kerala High Court in the Matrimonial case and to the rejection of the Review Petition against the judgement. 

The bench sought the response of the wife and said, "Permission to file SLP [Special Leave Petition] is granted. Delay condoned. Issue notice." 

The judgement of the Kerala High Court in 2021 that favoured the right to Khula

In 2021, the Kerala High Court dealt with the Matrimonial appeal challenging the divorce decree granted to a Muslim woman under the Dissolution of Muslim Marriages Act. The court said that a Muslim woman has the absolute right to terminate the marriage invoking extra-judicial divorce through khula. The court stated that the Holy Quran has conferred this right to Muslim women. The extra-judicial divorce is not subject to the acceptance or will of the husband. In short, a Muslim woman need not approach a court to seek a divorce. 

This judgement overruled the 49-year-old judgement of the KC Moyin v. Nafeesa case which barred Muslim women from resorting to any extra-judicial modes of seeking divorce and necessitated that every Muslim Marriage can be dissolved only in accordance with the Act. 

The court further added that all the forms of extra-judicial divorce mentioned in Section 2 of the Shariat Act, except Faskh, are for women. Since there is no secular law governing the right of khula, the court mentioned a few conditions on which it can khula will be valid. The conditions, as said by the court, are as follows:

(i) A declaration of repudiation or termination of marriage by the wife.

(ii) An offer to return the dower or any other material gain received by her during the marital tie.

(iii) An effective attempt for reconciliation was preceded before the declaration of khula."

The High Court had also said, "If any person want(s) to contest the effectiveness of khula or talaq, it is open for such aggrieved person to contest the same in an appropriate manner known under law." 

The review petition filed by the husband was rejected by the High Court in 2022

However, the husband filed a review petition was filed against the ruling of the Kerala High Court which was dismissed by the court in 2022. The review petition demanded that a Muslim woman terminate her marriage by asking talaq from her husband. And if the husband refuses, she should resort to court or Qazi. Even though the appellant agreed that Muslim women have the right to demand divorce on their own will, she doesn't have an "absolute right" to invoke khula.

The court upheld its judgement in 2021 and reiterated that a Muslim woman's right to invoke khula cannot be conditioned on the will of the husband who might refuse to grant a divorce. The right to khula has been granted to Muslim women by Holy Quran and it will become ineffective if subjected to the husband's will. 

Calling khula a naturally permissible action, the court added, "If the Quran, 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.”

What is the husband demanding in the current petition at the Supreme Court?

However, the appellant-husband approached the Supreme Court with his plea against the two judgements of the Kerala High Court. Senior Advocate Devadatt Kamat, representing the appellant, said that the petitioner is not challenging based on individual merits. Rather, the petitioner is concerned with the law. Kamat further added that whether the conditions of khula are satisfied are not should be decided by the courts. He said, “What we are only saying is this…that all this is accepted, but it has to be with the intervention of the court”.

After hearing Kamat's dealings and the record of the case, the bench of the Supreme Court has issued a notice.