In a far-reaching order, the Madras High Court has recently made it clear that a divorce certificate obtained from Shariat bodies is invalid, and they should approach the family court for dissolution of marriage. It held that the Khula (divorce proceeding initiated by the wife) certificates issued by the private bodies are invalid in law.
While hearing a writ petition of a man seeking the court to quash the Khula certificate obtained by his wife from the Shariat Council in 2017, Justice C.Sivaraman quashed a Khula certificate issued by the Shariat Council of Tamil Nadu Towheed Jamaat, Chennai. He has directed the estranged couple to approach a family court or the Tamil Nadu Legal Services Authority to resolve their disputes. The judge said that Muslim women should approach only family courts and not private bodies like the Shariat Council, consisting of a few members of Jamaat, to seek ‘Khula’.
The petitioner contended that the Shariat Council, registered under the Tamil Nadu Societies Registration Act, 1975, has no authority to issue such certificates. He also told the court that he had filed a petition restoring conjugal rights in 2017 and obtained an ex-parte decree.
The petitioner said a petition for executing the decree was pending before an additional family court judge. He cited the Supreme Court decision in Vishwa Madan Lochan Vs Union of India and others (2014), in which the court held that whatever may be the status of ‘fatwa’ during Mughal or British rule, it has no place in independent India under the Constitutional Scheme.
The petitioner had also filed a suit for restitution of conjugal rights, and it was decreed as ex parte. Out of wedlock, a male child was born to them in 2015. They were married in 2013, and she left the marital home in 2016. The petitioner had also filed another petition under the Guardians and Wards Act which was allowed, and a plea is pending before a family court for execution of the decree.
The local Shariat council opposing plea said that the Kerala high court had upheld the practice while hearing a similar case; hence, the husband’s petition wasn’t maintainable.
The High Court heard the petitioner and the Shariat Council as the petitioner’s wife chose to remain absent and did not appear in person or through counsel. The judge further said that only a judicial forum was empowered to pass a decree to dissolve a marriage under Section 7(1)(b) of the Family Courts Act, 1984.
A certificate of annulment of marriage, even under traditional law, cannot be issued by “a self-declared body consisting of a few members of Jamaat”. Judge Sivaraman also said that the Madras High Court in the Badar Sayeed versus Union of India (2017) case had restrained Khasis from issuing Khula certificates.
Justice Saravanan rejected the contention of the Shariat. He said that the Kerala high court’s judgment “upheld only the Muslim woman’s right to unilateral divorce through Khula, but has not endorsed the involvement of private bodies like the shariat council”.
It is open for a Muslim woman to exercise her inalienable right to dissolve the marriage by ‘Khula’ by approaching a family court and not private bodies such as a Shariat Council; the judge said that the Private bodies could not pronounce or certify dissolution of marriage by Khula.
Accepting the petitioner’s argument that “extra-judicial decrees such as a fatwa or a Khula certificate” had no legal sanction and could not be enforced by any individual or “private” entity, the judge said, “Only family courts are empowered under Section 7(1)(b) of the Family Courts Act, the Dissolution of Muslim Marriages Act and the Muslim Personal Law (Shariat) to dissolve marriages”.
The Madras High Court held, “They are not courts or arbitrators of disputes. The courts have also frowned upon such practice…. “Khula is the form of divorce conferred upon the wife similar to talaq conferred upon the husband”. The court has quashed the impugned Khula certificate issued by the Shariat Council.
The judge, referring to a body, Makka Masjid Shariat Council, had said that the impression conveyed to the public is of a ‘court functioning,’ the petitioner cited.