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Court says a wife’s resolve so expressed is independent of the will of the husband
Court says a wife’s resolve so expressed is independent of the will of the husband
Reiterating its declaration that Muslim women have the right to resort to the extra-judicial divorce of ‘khula’ unilaterally, a Division Bench of the Kerala High Court has held that the will of the Muslim wife so expressed cannot be related to the will of the husband, who has not expressed his choice to termination of the marriage.
The Bench led by Justice A. Muhamed Mustaque, while dismissing a review petition filed by a man against the declaration, observed that “the nature of khula is in the form of a ‘permissible’ action to the Muslim wife who seeks to exercise the option of terminating her marriage. This reflects the autonomy of choice exercised by the wife.”
The review petitioner contended that though a Muslim woman had the right to demand divorce on her own will, she had no absolute right to pronounce ‘khula’ like the right of her counterpart to pronounce ‘talaq’. It was subject to the acceptance or the will of her husband.
The court observed that it was acknowledged by Islamic law that the Muslim wife had the right to demand termination of the marriage. “The argument that if the husband refuses, she had to move the court stares at us.”
Dismissing the contention of the petitioner, the court also pointed out that Islamic clergy who had no legal training or knowledge in legal sciences could not 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 were manned by trained legal minds. The court shall not surrender to the opinions of the Islamic clergy who had no legal training on the point of law.
The court said that it was a typical review portraying that Muslim women were subordinate to the will of their male counterparts. “This review does not look innocuous at the instance of the appellant, but rather appears 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’ unilaterally,” the court added.
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