The Madras High Court has ruled that Muslim women seeking a Khula (divorce) can only do so in a Family Court, and not in a self-declared private body like a Shariat council consisting of a few members of a Jamaath.
Privately issued Khula certificates have been declared illegal as a result of this ruling.
This was mandated by Justice C. Saravanan of the Mannady Court in Chennai, who was also responsible for nullifying a Khula certificate given by the Shariat Council of Tamil Nadu Towheed Jamath. The judge suggested the couple contact the Tamil Nadu Legal Services Authority or a Family Court to help them work out their differences.
The ruling came after a man filed a writ suit in 2019 seeking to invalidate his wife’s 2017 Khula certificate from the Shariat Council. He claimed the council’s 1975 registration under the Tamil Nadu Societies Registration Act gave it no competence to issue certifications of that sort.
Petitioner further claimed he had previously sought and been granted an ex-parte decree for restitution of conjugal rights in 2017. After marrying in 2013 and having a son in 2015, he also petitioned under the Guardians and Wards Act of 1890 and was granted favourable orders.
In Islam, a woman can divorce her husband by a process known as khula if she agrees to return the dower or any other property she received from him, or if she chooses to do so without returning any property at all depending on the couples’ agreement.
An application to have the decree carried out is currently ongoing in an Additional Family Court. Even though her husband’s writ case challenging the validity of the Khula certificate has been pending in the High Court since 2019, the petitioner’s wife has chosen to remain absent.
After hearing arguments from both the petitioner’s attorney and the Shariah Council, the court issued a ruling. The judge mentioned that in April 2021, a Division Bench of the Kerala High Court dealt with a case involving a married Muslim woman’s “absolute right” to obtain Khula without providing any justification.
The court “is neither called upon to adjudicate nor called upon to declare the status but simply has to pronounce termination of marriage on behalf of the wife,” Justice Saravanan wrote. This is because “if the husband refuses, she has to move the court in absence of any other method prevalent in this country.”
He went on to explain that, according to Section 7(1)(b) of the Family Courts Act of 1984 read with Section 2 of the Dissolution of Muslim Marriages Act of 1939 and Section 2 of the Muslim Personal Law (Shariat) Application Act of 1937, only judicial forums have the authority to issue a decree dissolving a marriage.
The Shariat Council, the second respondent in this case, is a private organisation and so cannot issue a declaration or certificate dissolving a marriage through Khula.
The judge noted that the Madras High Court had previously prohibited Kazis from issuing Khula certificates because “they are not courts or arbitrators of disputes.” This case involved the Badar Sayeed versus Union of India (2017) case.
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