Muslim women must approach courts, not Shariat Councils for divorce: Madras HC

The Khula is the right given to a Muslim woman to initiate the divorce. While doing so, she has to return the mahr given to her at the time of marriage

New Delhi, Feb 08: The Madras High Court has recently made it clear that a divorce certificate obtained from Shariat bodies is invalid and and Muslim women should approach the family court for dissolution of marriage.

The Madras HC also held that the Khula (divorce proceeding initiated by the wife) certificates issued by private bodies is invalid in law.

The court was hearing a writ petition of a man seeking a direction from the court to quash the Khula certificate obtained by the wife from the Shariat Council in 2017. Justice C Sivaraman while quashing the Khula certificate issued by the Shariat Council directed the estranged couple to approach the family court or to the Tamil Nadu Legal Services Authority to get their dispute resolved.

The judge also said that Muslim women should only approach family courts and not private bodies like the Shariat Council which comprises a few members of the Jamaat to seek Khula.

The petitioner in his plea contended that the Shariat Council registered under the Tamil Nadu Societies Registration Act of 1975 has no authority to issue such certificates. He also told the court that he had filed a petition restoring conjugal rights in 2017 and obtained an ex-parte decree.

He further contended that the petition to execute the decree is still pending before an additional family court judge.

Citing the Supreme Court's ordering the Vishwa Madan Lochan vs Union of India and others case of 2014, he said that the SC had held that whatever the status of fatwa during Mughal or British rule may be, it has no place in independent India under the Constitutional Scheme.

The petitioner had also filed a suit for restitution of conjugal rights, and it was decreed ex-parte. They also have child out of wedlock who was born in 2015. They were married in 2013 and she left the house in 2016. The petitioner also filed another petition under the Guardian and Wards Act, which was allowed, and a plea is pending before a family court for execution of the decree.

The local Shariat council however opposed the plea and said that the Kerala High Court had upheld the practice, while hearing a similar case. The council said that on these grounds, the petition by the husband is not maintainable.

The High Court heard only the husband and Shariat Council as the petitioner's wife did not appear in person or through a counsel. The High Court said that only a judicial forum is empowered to pass a decree to dissolve a marriage under Section 7(1) of the Family Courts Act of 1984.

What is Khula:

Khula is a process in Islamic law which allows Muslim woman to obtain a divorce from their husbandA Khula allows a woman to initiate a divorce if they are unable to obtain one through other means including through mutual agreements. In a Khula the woman initiates the divorce and returns the mahr or gift of payment given to the bride by the groom at the time of the marriage. This is a pre-requisite in this form of divorce of Muslim women.

The process is different in different countries. In some countries the process does not require the approach of a court. In some countries, the involvement of a court or a religious scholar is a must for Khula.

Khula too like many other Islamic practices can be controversial and is subject to interpretation in Muslim countries.