Muslim women can approach only Family Courts and not self-declared private bodies such as a Shariat council consisting of a few members of a Jamaath, in order to seek a Khula (divorce), the Madras High Court has held. It has ruled that Khula certificates issued by private bodies are invalid in law.
Justice C. Saravanan ordered this, while quashing a Khula certificate issued by the Shariat Council of Tamil Nadu Towheed Jamath at Mannady in Chennai. The judge directed the estranged couple to approach either the Tamil Nadu Legal Services Authority or a Family Court to resolve their disputes.
The direction was issued while allowing a 2019 writ petition filed by a man to quash the Khula certificate obtained by his wife from the Shariat Council in 2017. He contended that the council, registered under the Tamil Nadu Societies Registration Act of 1975, had no authority to issue such certificates.
The petitioner also told the court that he had filed a petition for restitution of conjugal rights in 2017 and obtained an ex-parte decree too. Since the couple had had a baby boy in 2015 after their marriage in 2013, he had filed a petition under the Guardians and Wards Act of 1890 too, and obtained favourable orders.
At present, a petition for executing the decree was pending before an Additional Family Court. Though the writ petition against the Khula certificate was pending in the High Court since 2019, the petitioner’s wife chose to remain absent and did not appear either in person or through her counsel.
Hence, the judge decided the case by hearing the counsel for the petitioner and the Shariat Council. He pointed out that a Division Bench of the Kerala High Court had, in April 2021, dealt with the “absolute right” conferred on a married Muslim woman to seek Khula without citing specific reasons to invoke it.
“It further observed that if the husband refuses, she has to move the court in absence of any other method prevalent in this country and the court is neither called upon to adjudicate nor called upon to declare the status but simply has to pronounce termination of marriage on behalf of the wife,” Justice Saravanan wrote.
He further said that only judicial forums were empowered to pass a decree to dissolve a marriage under Section 7(1)(b) of the Family Courts Act of 1984 read with Section 2 of the Dissolution of Muslim Marriages Act of 1939 and Section 2 of the Muslim Personal Law (Shariat) Application Act of 1937.
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“The private bodies such as the Shariat Council, the second respondent herein, cannot pronounce or certify dissolution of marriage by Khula. They are not courts or arbitrators of disputes,” the judge said and recalled that the Madras High Court in the Badar Sayeed versus Union of India (2017) case had restrained Kazis from issuing Khula certificates.
