Kerala High Court’s verdict on khula wrong interpretation of Shari’ah: Muslim Personal Law Board

New Delhi: General Secretary of All India Muslim Personal Law Board, Maulana Khalid Saifullah Rahmani said that the Kerala High Court’s decision regarding the khula and Muslim women’s right to divorce went beyond the interpretation of Islamic Shari’ah.

Reacting to the statement of Kerala High Court while dismissing a plea, the Muslim body said the Court’s decision is certainly beyond the jurisdiction of the court. It is the duty of the court to interpret what is stated in the Shariat Application Act, 1937 and apply it to the case as it arises, not that it may add to it on its part or consider itself authorized to change it.

Maulana Rahmani clarified that in Islam there are three ways of separation between husband and wife and these are proved by the Qur’an and Hadeeth.

First form is the talaq; in which husband has the right to give divorce. But he is ordered not to exercise this power unjustly.

Second form is Khula, in which wife can seek divorce. But even in this case the wife cannot unilaterally divorce, but it involves the mutual consent of the husband and the wife.

The third form is ‘fisq’ the annulment of marriage, which is done by the court. If the court feels that the woman is truly oppressed, then it can annul the marriage and if it comes to the conclusion that the woman’s claim is not valid, then it can reject the application.

However, if the husband, by way of a contract, has given the right of divorce to the wife that she can unilaterally terminate the marriage; in that case the wife can terminate the marriage without the consent of her husband. In the terminology of fiqh it is called ‘tafweez-e-talaq’.

These three forms of separation between spouses are proven from the Qur’an and Hadeeth; Therefore, the consent of the husband is also necessary in Khula.

However, the division bench of Justice A Muhamed Mustaque and Justice CS Dias of Kerala High Court has ruled that Muslim woman can terminate marriage unilaterally without the consent of her husband. This is not according to the Quran and Hadeeth and neither the reliable scholars have said such a thing. The court, exceeding its limits, has even said that the interpretation of the jurists (fuqaha) in this regard has no credibility; Rather, the interpretation of the judges is valid. The AIMPLB general secretary said.

Khula is a procedure through which a woman can seek divorce from her husband in Islam, by returning the dower (mehr).