SC issues notice in SLP challenging Kerala HC verdicts recognizing Muslim women’s right to unilateral and extra-judicial divorce through Khula

In a recent order, the Supreme Court (SC) of India issued notice in a petition filed against two verdicts of the Kerala High Court recognizing Muslim women’s right to unilateral and extra-judicial divorce through Khula. Under Islamic law, ‘Khula’ allows a woman to seek divorce from her husband by mutual consent. The notice was issued by a two-judge bench constituting Justice AS Bopanna and Justice PV Sanjay Kumar seeking a response from the wife. In October 2022, the Kerala HC upheld its April 2021 verdict which stated that there is no need for a Muslim woman to approach the court if her husband refuses to Khula because her right to the same is acknowledged by Islamic law. It also observed that all forms of extra-judicial divorce except Faskh referred to in Section 2 of the Shariat Act were available to Muslim women. In the 2021 verdict of the HC, it clarified that regardless of the husband’s consent, Muslim women have a right to obtain a divorce by khula provided that the following conditions were satisfied. 

• “A declaration of repudiation or termination of marriage by the wife.
• An offer to return dower or any other material gain received by her during marital tie.
• An effective attempt for reconciliation was preceded before the declaration of Khula.

If any person want(s) to contest the effectiveness of Khula or talaq, it is open for such aggrieved person to contest the same in an appropriate manner known under law.” Further, a review petition was filed against this ruling which was dismissed in 2022. The HC said, “In the absence of any mechanism in the country to recognize the termination of marriage at the instance of the wife when the husband refuses to give consent, the court can simply hold that Khula can be invoked without the conjunction of the husband.” Currently, the SC issued the notice while hearing two separate SLPs (Special Leave Petitions) by Kerala Muslim Jamaat and a private individual against the judgment delivered by the Kerala HC. In an order, the SC pronounced, “Permission to file SLP is granted, Delay condoned. Issue notice.”