The court cannot rely upon the Islamic clergy who have no legal training or knowledge in legal sciences, when it comes to law involved relating to the personal law applicable to the Muslim community, the Kerala High Court said in a recent judgment dated October 28. A bench of Justices A Muhamed Mustaque and CS Dias made the observation while dismissing a review petition filed by a man seeking review of the Court's earlier judgment which granted a divorce decree to his wife under the Dissolution of Muslim Marriages Act, 1939.
During his appeal earlier, the court had declared that the right to terminate the marriage at the instance of a Muslim wife was an absolute right, conferred on her by the Quran and not subject to the acceptance or the will of her husband. The husband in his review petition, while not disputing the authority given to the Muslim wife to invoke khula [separation of the couple which is initiated by a woman], raised concerns about the procedure acknowledged by the Court to invoke khula by the Muslim wife.
Hearing the petition, the court said that the review portrayed Muslim women as subordinate to the will of their male counterparts. The court also added that the review petition appeared 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.”
The counsel for the petitioner argued that if a Muslim wife wished to terminate her marriage with her husband, she had to demand talaq from her husband and on his refusal, she had to move the qazi [a judge of Islamic court] or court. They also argued that though a Muslim woman had a right to demand divorce of her own will, she had no absolute right to pronounce khula like the right of her counterpart to pronounce talaq.
The counsel further argued that as a consequence of the court’s declaration, Muslim women were resorting to khula in ‘derogation’ of the Sunnah. It was also argued that the court was not competent to decide on religious beliefs and practices and the court ought to have followed the opinion of Islamic scholars. The court noted that Sunnah was the second source of legislation, and the first and primary source was the Quran. It also said that a legal mind was required to deduce Islamic law from the sources.
Pointing out to a decree of the Caliph Umar [he was said to be a senior companion of Prophet Mohammed], which was used to justify instantaneous triple talaq, overlooking Quranic injunctions, the court said, “We have narrated the above aspect only to bring home the point that the Islamic clergy who have no legal training or knowledge in legal sciences, cannot be relied upon by the court to decide on a point of law involved, relating to the personal law applicable to the Muslim community. The courts are manned by trained legal minds.”
Stating that in the absence of any mechanism to recognise the termination of marriage at the instance of the wife when the husband refuses to give consent, the court could simply hold that khula could be invoked without the conjunction of the husband. “We, therefore, find no reason to review the judgment,” the court said and dismissed the review petition.