Muslim Women Right to Demand Divorce from Husband

The muslim law acknowledged the right of the women to demand the dissolution of marriage, the High Court of Kerala had ruled that the will of the husband and the will of the wife cannot be the same if any one of them either the husband o the wife does not want to give divorce.

The Bench of Justice A. Muhamed Mustaque and Justice C.S. Dias dismissed a review petition against the judgement in which the court recognised that if the husband have not consented to divorce the women have the right to divorce through the Khula given in the Islamic law, the court also held that the muslim women don’t need to apporach the court if the husband refuses as the process of Khula is recognised by the muslim law.

As given in the Muslim law that the muslim woman or the wife has the right to demand the marriage termination, the issue was that if the husband refuses then the woman or the wife had to move to the court, where the court neither adjudicate the matter nor called for status declaration, but simply court used to pronounce such termination on behalf of the wife.

The court also said if there is nothing to be adjudicated by the court then the court cannot assume it as the court is not the guardian of the adult women and thus it cannot pronounce termination of the marriage. This throws a light on the right of the choice of the muslim woman, the will of the wife cannot relate the will of the husband who has not given the consent for the termination of marriage.

The court declared that the wife or the muslim woman has a right to seek divorce by Khula whether or not husband gives the consent for the same but need to provide some satisfied conditions and they are:

• A declaration made by wife for the termination of marriage
• Offer made to return the material gain or dower received by the wife during her marriage
• Before the declaration of the Khula an effective attempt for the reconciliation was made before the termination of marriage

The main argument in the review petition was that if the muslim woman or the wife wants to terminate the marriage, she has to go for talaq from husband and if the husband denies such then she had to go to the court or to the Qazi.

The court in the judgement said that as mentioned in Quran in chapter 2 verse 229 related to Khula that declares that muslim women have the right to terminate her marriage, and also if the the Holy Quran permits the spouse to terminate the marriage on their own will  and it cannot be said that Sunnah qualifies it further as per the will of the husband.

In the Post-Muslim period, if there was any kind of the disputes arise among the believers they used the process of conciliation for the resolution of the dispute, the believer at the first had to settle the dispute through the process of conciliation , if not resolved then the authority is given to the particulars to terminate any kind of the legal relationship said by the court.

And thus the court dismissed the Petition after finding no reason for the review of the judgement.

Lead India 

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