Muslim Women Can Approach Family Courts For ‘Khula’, Self-Declared Bodies Like ‘Shariat Council’ Cannot Certify Dissolution of Marriage: Madras High Court.
Muslim Women Can Approach Family Courts For ‘Khula’, Self-Declared Bodies Like ‘Shariat Council’ Cannot Certify Dissolution of Marriage: Madras High Court.
The Madras HC on 11.01.2023 has said that the Shariat Councils are neither courts nor arbitrators and therefore they can’t pronounce or validate dissolution of marriage by Khula. This was seen in the matter of Mohammed Rafi v. State of Tamil Nadu & Others, W.P.No.35688 of 2019 the matter was presided over by The Hon’ble Mr.Justice C.Saravanan.
FACTS OF THE CASE
Justice C Saravanan quashed a Khula certificate issued by the Shariat Council and directed a woman & her husband to approach the Tamil Nadu Legal Services Authority or a Family Court to resolve their disputes.
Therefore, while it is open for a Muslim Woman to exercise her inalienable rights to dissolve the marriage by Khula recognized under the Muslim Personal Law (Shariat) Application Act, 1937 by approaching a Family Court, it can’t be before a self-declared body consisting of few members of Jamath.
The bench noted that even previously, the HC in Bader Sayeed Vs. Union of India had restrained bodies such as Kazis from issuing certificates dissolving marriages by Khula.
“The private bodies such as the Shariat Council, the 2nd respondent herein can’t pronounce or validate dissolution of marriage by Khula. They are not Courts or Arbitrators of disputes. The Courts have also frowned upon such practice as provided above,” said the bench.
The court heard the petition by Mohammed Rafi looking to quash the Khula Certificate issued by the Shariat Council, registered under the Tamil Nadu Societies Registration Act 1975.
Relying upon determination of the Apex Court in Vishwa Madan Lochan Vs. Union of India & ors, he submitted that “fatwa” has no legal sanction and can’t be enforced either by parties.
He added that as per the determination in Bader Sayed, the parties must be governed by respective personal laws which are formulated in consequence of the Dissolution of Muslim Marriages Act, 1939.
The Shariat Council, on the other hand relied upon the determination of the Kerala HC in which the court validate the right of a Muslim woman to resort to extra judicial divorce of Khula therefore allowing her to terminate her marriage
JUDGEMENT
Justice Saravanan although noted that the Kerala HC determination only validate the right of the Muslim women & did not endorse the involvement of private parties. Therefore, the court deemed it fit to set aside the certificate.
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JUDGEMENT REVIEWED BY YAKSHU JINDAL.