Reiterating once again, the Madras High Court stated that the Shariat council is a private (Islamic) body and not a court. The husband who pronounced talaq three times should obtain a legal declaration from the court for the dissolution of the marriage. The far-reaching order came when the court heard a civil revision petition filed by a woman challenging the validity of the talaq pronounced by her husband.
Justice GR Swaminathan of the Madurai Bench of the Madras High Court stated in his 19-page order dated October 25 that “the marriage between the petitioner and the respondent (both doctors) was solemnised according to Islamic rites and customs on April 18, 2010, at Palayamkottai. A male child was born from this wedlock. The respondent (woman) filed DVC No. 2 of 2018 before the Judicial Magistrate in Tirunelveli under the Protection of Women from Domestic Violence Act, 2005. The learned trial magistrate, by order dated February 23, 2021, directed the petitioner to pay a sum of Rs. 5 lakhs as compensation for inflicting domestic violence on the complainant, along with Rs. 25,000 per month for the maintenance of the minor child. A protection order was also granted. Aggrieved by this order, the revision petitioner filed Criminal Appeal No. 47 of 2021 before the First Additional District and Sessions Judge in Tirunelveli. The appeal was dismissed on December 2, 2022.” Challenging the dismissal, a civil revision petition was filed.
The court observed “If a Hindu/Christian/Parsi/Jew husband contracts second marriage during the subsistence of the first marriage, it would constitute cruelty besides being an offence of bigamy. It would obviously be considered an act of domestic violence entitling the wife to claim compensation under Section 12 of the Act. Will this proposition apply in the case of Muslims?. The answer is “Yes”. It is true that a Muslim male is legally entitled to contract as many as four marriages. For this legal right or liberty, there is only a limited hohfeldian jural correlative on the part of the wife. The wife cannot stop the husband from entering into a second marriage. She, however, has the right to seek maintenance and refuse to be a part of the matrimonial household”
Citing a Karnataka High Court order, the judge stated, “Once it is concluded that marrying another woman during the subsistence of the first marriage would constitute cruelty, the corollary is that the first wife is entitled to claim damages and compensation. In this case, no material has been provided by the revision petitioner/husband to show that the third talaq notice was served on the complainant/wife. The complainant has consistently asserted that her marriage to the petitioner is still in effect. A mere look at the long cause title of the complaint would reveal that the complainant has described herself as the wife of the revision petitioner.”
The court stated, “If the husband claims that he has divorced the first wife by properly pronouncing talaq three times, and this is disputed by the wife, the question arises as to whether the marriage has been validly dissolved. This issue cannot be left to the unilateral determination of the husband, as that would amount to the husband becoming a judge in his own cause. The only appropriate and legally permissible course would be to require the husband to obtain a judicial declaration that the marriage has been validly dissolved. This, of course, would be necessary only if the wife disputes the validity of the talaq pronounced by the husband.”
The judge stated, “It is evident that it was the complainant who alone stepped into the witness box and deposed at length about her woes and how she suffered at the hands of her husband. She even alleged that the revision petitioner subjected her to unnatural sex. She elaborated on other factual aspects of cruelty. The Shariat Council ultimately recorded that since the parties have been living separately for around five months and since Vasila Banu did not extend cooperation, the talaq pronounced by the revision petitioner in the presence of two witnesses, namely, Abdul Majith and Shehana, would constitute a valid divorce. I fail to understand how the revision petitioner’s father could have stood as a witness for the pronouncement of talaq before the Shariat Council. There is a saying in Tamil: ‘Velikku Onan Satchi, Vendhadhuku Chockan Satchi’—the chameleon is the witness of the hedge, and the cook boy will testify that the food is well boiled.”
The court stated, “The certificate issued by the Chief Kazi of the Shariat Council of Tamil Nadu Thowheed Jamath concludes that the Shariat judgment has been delivered accordingly. Only courts duly constituted by the State can deliver judgments. The Shariat Council is a private body and not a court. It is true that a Muslim male is legally entitled to contract as many as four marriages; however, there is only a limited Hohfeldian jural correlative on the part of the wife. I conclude that the marriage between the complainant and the revision petitioner is still valid. Therefore, I am justified in awarding compensation in the sum of Rs 5 lakhs.”
In January 2023, the Madras High Court stated that the Shariat Councils are neither courts nor arbitrators and thus cannot pronounce or certify the dissolution of marriage by Khula. Justice C Saravanan quashed a Khula certificate issued by the Shariat Council and directed the woman and her husband to approach the Tamil Nadu Legal Services Authority or a Family Court to resolve their disputes.
