The Madras High Court in a recent order said that a Muslim woman can exercise her rights to dissolve a marriage through the ‘Khula’ procedure by approaching a family court, but cannot do so before private bodies such as a Shariat Council, “or a self-declared body consisting of few members of Jamath.” Khula refers to a procedure for divorce in Islam, initiated by a woman. Justice C Saravanan passed the order when hearing a writ petition filed by a man seeking to quash a Khula certificate issued by the Shariat Council, Tamil Nadu Towheed Jamath in 2017.
Quashing the Khula certificate, the court stated that a Muslim woman has an inalienable right to dissolve her marriage, which is recognised under the provisions of the Muslim Personal Law (Shariat) Application Act, 1937. However, this should be done by approaching a family court and not private bodies, the court said. “While it is open for a Muslim woman to exercise her inalienable rights to dissolve the marriage by Khula recognised under the Muslim Personal Law (Shariat) Application Act, 1937 by approaching a Family Court, it cannot be before a self-declared body consisting of few members of Jamath,” the court said. The judge also directed the respondent and the petitioner to approach the Tamil Nadu Legal Services Authority or a family court to resolve their disputes.
The high court also observed that private bodies such as the Shariat Council are neither courts nor arbitrators of disputes, and therefore “cannot pronounce or certify dissolution of marriage by Khula”. Justice Saravanan observed that “the courts have also frowned upon such practice” in the past.
The writ petition was filed by Mohammed Rafi, who married the woman in 2013. However, the couple separated in 2016, and the woman dissolved the marriage through Khula. The Shariat Council granted a Khula certificate dissolving their marriage in 2017, against which Rafi filed a writ petition in the high court seeking to quash it, deeming it illegal. He had also filed another petition which is pending before a family court.