Opinion Faizan Mustafa writes: Extra-judicial divorces are a better option – Muslim law points the way
There should be no insistence on granting of divorce only through family courts as it puts an unnecessary burden on women. Ideally, matrimonial disputes should be resolved through arbitration and mediation
Our judges should come out of the cultural mindset that considers divorce as bad. (Illustration by C R Sasikumar) 
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A Constitution Bench of the Supreme Court in Shilpa Sailesh v. Varun Sreenivasan (2023) has ruled that the mandatory waiting period of six months prior to consensual divorce in cases under the Hindu Marriage Act can be waived by the apex court while invoking its extraordinary power to do complete justice. The court has also said that irretrievable breakdown of marriage, though not provided by Parliament, is a valid ground for divorce as the same is consistent with public policy. This author supports a uniform civil code (UCC) in a piecemeal manner but has argued before that we should no more in every case try to save the marriage. Our judges should come out of the cultural mindset that considers divorce as bad. If home has become hell, it is better to part in a dignified way and ideally by mutual consent in an out of court settlement. Muslim law has some good provisions on extra-judicial divorces that may be included as and when the UCC is drafted.
Indian courts have been quite sympathetic to Muslim women’s causes. But the latest judgment by Justice G Saravanan of Madras High Court in Mohammed Rafi v. State of Tamil Nadu (2023) is not only against the Muslim wife in this case but would in the long run harm the interests of poor Muslim women who would now have to wait for the judicial dissolution of their marriage by the family courts. Most of them would have no means to fight the protracted and costly legal battles against their husbands. Enlightened and liberated Muslim women are already in the Supreme Court opposing uniform divorce law as at present they have better protection.
Let us first look at the facts of this case. One Rafi had married Sayeeda Begum in 2013 and the couple was blessed with a male child in 2015. The wife left the matrimonial home on September 3, 2016 and a shariat council on her initiative granted her khula (wife-initiated divorce) on June 17, 2017. This khula has now been nullified in 2023 as the court held, based on the Supreme Court’s judgment in Vishnu Lochan Madan (2014), that sharia courts’ decisions have no legal sanctity. The 20-page judgment was given ex-parte against the wife and therefore we do not know why Sayeeda Begum had left her matrimonial home and whether she had married someone else after the impugned declaration of khula by the shariat council. Interestingly, the husband had filed a petition for the restitution of conjugal rights in 2017 which too was decreed ex-parte in his favor. Rafi had also filed an application under Guardianship and Wards Act, 1890 for the custody of his son which too was allowed ex-parte.
Justice Saravanan did accept that Muslim Personal law (Shariat) Application Act,1937 and the Dissolution of Muslim Marriage Act,1939 do give a Muslim wife the right to dissolve her marriage through khula and this is her absolute right with no questions being asked. Justice Saravanan also relied on the X v.Y (2021) Divisional Bench judgment of Kerala High Court in which khula was held to be the woman’s absolute right, with her not being required to give any specific reason for invoking it. Thus, khula is basically a type of no-fault dissolution of marriage. In this author’s opinion since the Quran terms dower as “free gift”, the husband cannot make it a condition for khula. In fact, the Quran discourages husbands from taking back gifts given to wife. Moreover, declaration by the wife is most important and it does not require anybody else’s approval. It does not require any certificate to be issued by any court or shariat council. Since our courts are already over burdened with 4.5 crore cases, we should not put additional burden on them in cases of khula. Ideally, matrimonial disputes should be resolved outside the formal judicial system through arbitration and mediation. The insistence on the grant of divorce by the family courts would make the life of Muslim women far more difficult.
Sylvia Vatuk of the University of Illinois in Chicago studied family courts in Chennai and Hyderabad and examined the cases before the kazis in two cities. She found that most Muslim women prefer to use kazis rather than formal family courts and generally they are the ones who seek divorces from their husbands. She found poor infrastructure and absence of basic facilities such as women’s toilets and creches in the state’s family courts. But the coercive use of khula after triple talaq became a criminal offence is a matter of grave concern. Recently, it was found that some Muslim husbands are compelling their wives to seek khula so that they escape the punishment under the newly-enacted triple talaq law.
It is wrong to conclude that Muslim women can get a divorce only through courts under the Dissolution of Muslim Marriages Act, 1939. Though the Act uses the term “decree”, it in no way takes away a Muslim woman’s right to divorce outside the formal judicial system. What are the options available to a Muslim woman to dissolve her marriage? First, Muslim women can seek divorce under the 1939 Act through a court under the law of faskh (annulment of marriage) on certain grounds — the whereabouts of her husband being known for four years; non-payment of maintenance for two years; imprisonment of her husband for seven years; non-performance of marital obligations; impotency; insanity or suffering from diseases such as leprosy or venereal diseases; cruelty which includes the husband taking on a second wife. Hindu women had to wait till 1955 to get similar grounds to get divorce.
Second, a Muslim woman is entitled to talaq-e-tafwid, that is, delegated divorce which gives her an identical right to divorce on par with men. In Moharam Ali v. Ayesha Khatun (1915), the Calcutta High Court upheld this kind of agreement under which wife was authorised to divorce her husband in case he married any other woman.
The Madras and Kerala High Courts have rightly held that khula, the third type of divorce, is the unconditional and absolute right of the Muslim wife, is on par with husband’s right to talaq, and is not subject to his consent.
Fourth, a Muslim wife is also entitled to divorce with mutual consent (mubaraat) which too is mentioned as a distinct form of divorce in the Shariat Act of 1937. Ideally the Muslim Personal Law Board and Muslim clergy should explicitly resolve that Indian Muslims would now use only this type of divorce through a written divorce deed.
Fifth, when the husband indulges in slandering his wife’s character by alleging adultery and has no proof of it, she is entitled to divorce her husband.
Sixth, if a Muslim wife was married by her guardian when she was a child, on attaining maturity, she has a right to walk out of the marriage under the doctrine of khyar-ul-bulugh (option at puberty).
Section 89 of Civil Procedure Code itself talks of Alternative Dispute Resolution (ADR) through arbitration, mediation, conciliation etc. Arbitral decisions are given by specialist decision-makers chosen by the parties.
The writer is a constitutional law expert. Views are personal
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