Talaq-e-tafwiz allows wife to dissolve the marriage if husband fails to keep his end of the contract, khula lets her unilaterally divorce her husband by returning his dower. Mubara'at is dissolution by mutual consent, faskh allows dissolution with intervention
Kochi: Overruling a 1972 judgment, the Kerala high court has restored the rights of Muslim women for divorce without resorting to judicial proceedings. A division bench of the high court pronounced the judgment in a bunch of cases that arose out of different proceedings before the family courts seeking varied relief. Noting that the Holy Quran recognises the right to divorce equally for both men and women, the court observed that the dilemma of Muslim women, particularly in the state of Kerala, came to the fore when a single-judge bench in the "KC Moyin vs. Nafeesa and Others" case negated the right of Muslim women to invoke extra-judicial divorce in the light of the Dissolution of Mus- lim Marriages Act, 1939.
The court had then held that under no circum- stances can a Muslim marriage be dissolved at the instance of the wife, except in accordance with the provisions of the Act. In its judgment, the division bench of Justices A. Muhamed Mustaque and C.S. Dias analysed four major forms of dissolution of marriages as recognised under Islamic law and protected under the Shariat Act at the instance of the wife talaq-e-tafwiz, khula, mubara'at and faskh.
"On an overall analysis of M the scheme of the Shariat Act as well as the Dissolution of Muslim Marriages Act, we are of the considered view that the Dissolution of Muslim Marriages Act restricts Muslim women to annultheir marriage invoking faskh except through the intervention of the court," the HC said.
"All other forms of extra-ju- dicial divorce as referred in Section 2 of the Shariat Act are thus available to Muslim women. We hold that the law declared in KC Moyin's case (supra) is not good law," the court said in its judgment on April 9. The bench said there is no difficulty for the family court to endorse an extra-judicial divorce to declare the matrimonial status of a person.
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TOI
Times of India NP
15/4/21