A Division Bench of the Kerala High Court has held that the Dissolution of Muslim Marriages Act did not do away with the practice of extrajudicial divorces available to Muslim women under Section 2 of the Shariat Act.
The Bench comprising Justice A. Muhamed Mustaque and Justice C.S. Dias observed that the intention of the Dissolution of Muslim Marriages Act was to extend judicial divorce to all Muslim women irrespective of the schools they follow. Section 2 of the Shariat Act statutorily recognized the personal law and dissolution of marriages without the intervention of court through ‘talaq,’ ‘illa,’ ‘zihar,’ ‘lian,’ ‘khula,’ ‘mubaraat’ etc.
The court pointed out that there were four major forms of dissolution of marriages as recognized under Islamic law and protected under the Shariat Act at the instance of the wife. They were Talaq-e-tafwiz , Khula, Mubara’at, and Faskh. Under the Shariat Act, Muslim women retained the right of all modes of extrajudicial divorce recognized under their personal law, except Faskh. Faskh was a form of judicial divorce effected through the intervention of a court or through the authority at the instance of wife.
The Bench observed that modes of extrajudicial divorce as referred in Section 2 of the Shariat Act of 1937 remain untouched by the Dissolution of Muslim Marriages Act. The provisions of the Act never intended to do away with the practice of extrajudicial divorce otherwise available to a Muslim woman.
The court also overruled a single judge’s verdict which had held that Muslim woman could only resort to divorces under the provisions of the Dissolution of Muslim Marriage Act and had no right to invoke the provision of their personal law.