Right of Muslim women v. Extra Judicial Divorce has always been in limelight. But after the landmark judgment of the Supreme Court, Muslim women’s right was upheld.
On 9th April 2021, the two judges bench comprising of justice A. Muhamed Mustaque and Justice C.S Dias of Kerala High Court passed a judgment by overruling half a century landmark judgment of K.C Moyin V. Nafeesa that restrict women from invoking a right to initiate divorce for dissolution of the marriage under the dissolution of Muslim marriage act 1939.
Many Muslim women had advanced the high court to authorize extra-judicial divorce by obtaining a declaration to that effect.
Different Forms of Divorce Under Muslim Law
Basically, in Muslim law, there are 2 categories of divorce:
- Extra-Judicial divorce, and
- Judicial divorce
All the part which is covered under Section 2 of Shariat Act which is the part of extra-judicial divorce is thus available to all the Muslim women. According to Section 2 of the Shahirat Act, a marriage can be dissolved through talaq, ila, zihar, lian, khula, and mubaraat.
Talaq – Talaq allows women to dissolve the marriage with their husband if he fails to keep his end on her marriage contract.
Ila – In ILA, the husband swears not to have any sexual relations with his wife for at least four months. If the husband fulfills his oath then the marriage will be discontinued but if not then the dissolution of the marriage will be canceled.
Zihar – It is also a part of dissolution in which the husband compares his wife with some other women within his prohibited relationship which includes his mother or his sister.
Lian – lian is a type of divorce in marriage act in which women take a judicial talaq by the court in only one case i.e adultery.
Khula – Khula is one of the ways through which women can dissolve her marriage with her marriage by returning all the dower also known as mahr received from her husband.
Mubarat – Dissolution of marriage by mutual consent between both of the parties.
Judicial Precedent (Not a good Law)
Women can seek out the dissolution of marriage by extra-judicial means and the law that exists in this regard prohibiting women to do so in bad law. This was decided in the case of a group of writ petitions with Mat. Appeal.No.89 of 2020by the Hon’ble Justice C.S Dias and Hon’ble Justice Muhamed Mustaque in the High Court of Kerala.
In the case of K.C Moyin V Nafeesa, the judgment was passed by the High Court that women can only see remedies for dissolution of marriage under the dissolution of Muslim marriage act and could not appeal remedies under the personal law or extrajudicial remedies.
After many petitions from the Muslim women against the K.c Moyin V Nafeesa case, the two bench judges comprised of Hon’ble Justice C.S Dias and Hon’ble Justice Muhamed Mustaque gave their judgment All other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to Muslim women. As a result, the law proclaimed in K.C.Moyin’s case (supra) is not a valid law.”
In the court of justice, various mode of dissolution of marriage was discussed under the Muslim law. The bench of judges first discusses various modes of dissolution of marriage then discusses the modes which are specifically available for Muslim women. The modes which are available for the women are explained by the court are:
“Talaq-e-tafwiz, where the wife can dissolve the marriage if her husband fails to keep his end of the marriage contract.”
“Khula, where a wife can unilaterally divorce her husband by returning his dower.”
“ Mubara’at, dissolution by mutual consent, and Faskh, dissolution with the intervention of a third person such as a qazi.”
The Court noted that the previous legislature prevailing Muslim marriages and other practices, The Shariat Act of 1937, specifically known all modes of extra-judicial divorce except Faskh.
It was further detected by the court “The issue involved in as above is inextricably connected to ultimate justice which women involved in all these cases seek. These cases speak in abundance about the patriarchal mindset followed in the society for decades depriving Muslim women of their right to invoke extra-judicial divorce. While the was a huge clamor to retain the practice of ‘triple talaq, an un-Islamic practice, no such open and apparent demand seems to exist to restore the right of Muslim women to invoke extra-judicial divorce. The above sketch miseries of women despite the promise guaranteed under Article 14 of the Constitution of India.”
- Choice of Substantial Law in Arbitration
- Relationship Between Judiciary and Legislature
- Anti-arbitration injunction against foreign seated arbitration
The Legal Conundrum and K.C Moyin Case
The legal conundrum that has caused from K.C. Moyin’s case wherein the Court in clear terms declared that Muslim wife cannot reject a marriage dehors the provisions of the Dissolution of Muslim Marriages Act (the Act). The Single Judge was of the view that one-sided denial of marriage by Faskh without the intervention of court under the Dissolution of Muslim Marriages Act as opposed to the law of the land and when a particular branch of law is codified, it was not possible to travel beyond the same and decide the rights of the parties.
To assess the validity of the aforesaid decision the Bench followed to examine the reasons and objects of enactment of the Act. Accordingly, the Bench observed that Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 (the Shariat Act) specifically familiar all modes of extra-judicial divorce except Faskh for which interference of authority like Qazi was mandatory.
Section 5 of the Shariat Act provides for the District Court judge to terminate a marriage is based on a case brought by Muslim married women. It would imply that the Shariat Act sought to commit the procedure of marital dissolution by Faskh to the judiciary.
Thus, under the Shariat Act, Muslim women retained the right of all modes of extra-judicial divorce recognized under their law Shariat, except Faskh. Later on, after observing that despite Shariat Act, Hanafi women were not allowed to obtain a decree from the court to dissolve their marriage. As a result, the Dissolution of Muslim Marriages Act, 1939 was established to unify and explain the rules of Islamic laws pertaining to the action for divorce by wedded Muslim women. Section 5 of the Shariat Act, which unified the legislation pertaining to Faskh alone, was removed by that same Act, as well as the Act, 1939 never meant to abolish the practice of extra-judicial separation, which was otherwise possible to a Muslim woman. 
In the Final Judgement of the two bench judges of A Muhammed Mastaque and CS Dias analyzed the right of women in the dissolution of marriage under extra-judicial divorce and said that women have four rights or modes to dissolve her marriage that includes talaq-e-tafwiz, khula, Mubarat, and faskh.
In the judgment, they said that all the parts of extra-judicial divorce which are available under Section 2 of the SHARIAT Act are available to all the Muslim women and declared that K.C Moyin Case is not a good law on 9th April.
“On the jurisdiction of family court in matters related to extra-judicial divorce, the division bench noted that Explanation (b) of Section 7(1) of the Family Courts Act, confers the family court with the jurisdiction to declare the matrimonial status of any person.”
It said there is no trouble for the family court to sanction an extra-judicial divorce to state the matrimonial status of a person.
The division bench said in the matter of talaq, khula, Mubarat, talaq-e-tafwiz, the family courts shall interest such applications moved by either of the parties or both parties to declare the marital status of such parties.
It said in the matter of one-sided dissolution of marriage, invoking khula and talaq, the scope of inquiry before the family courts are limited.
“In such proceedings, the court shall record the khula or talaq to declare the marital status of the parties after due notice to other parties. If any person wants to contest the effectiveness of khula or talaq, it is open for such aggrieved persons to contest the same in an appropriate manner known under law,” it said. 
The family court, therefore, shall restrain from adjudicating upon such extra-judicial divorce unless it is called upon to decide its validity appropriately.”
“The family court in such matters shall endeavor to dispose of the cases treating it as uncontested matter, without any delay bypassing a formal order declaring the marital status,” the court said.
To accomplish this, we thus see that the Kerala High Court has very correctly supported the right of Muslim women to raise extra-judicial divorce. In doing so, it has domineered a 49-year-old judgment as stated in the commencement which is certainly a huge step in the right direction that will safeguard those women too like men are also able to speak up for their rights instead of just suffering infinitely in silence.
This brief, brilliant, blunt, and bold judgment has set a new precedent adopting the unconstrained right of a woman just like men to divorce men when she finds that her needs are not being met sufficiently and that divorce is the only option left!
This article is contributed by Shivam Mehta while working as a Content Writer under Legal Link India. He is an undergraduate student at Delhi Metropolitan Education, Delhi