15th April, 2021
The Kerala High Court overturned its nearly 50-year-old verdict, restoring the right of Muslim women to divorce beyond the court process. The Kerala High Court bench has given this ruling after hearing several petitions. Relief was sought in various petitions filed in the family courts. The bench overturned the 1972 decision of a single bench of the court, which prohibited the right of Muslim women to get divorced by means other than the judicial process.
The Bench underlined that the Holy Quran recognizes equal rights for divorcing men and women. The bench said that the dilemma of Muslim women, particularly in the state of Kerala, was understandable as it occurred after the judgment in 'Casey Moin v. Nafisa and others' case.
In this judgment, the right of Muslim women to seek divorce was ignored beyond the judicial process in view of the abolition of the Muslim Marriage Act, 1939. The single bench said in its judgment that under no circumstances a Muslim marriage beyond the legal process can be abolished.
At the same time, Justice A. A division bench of Muhammad Mushtaq and Justice CS Dias, in its judgment, commented on various ways to abolish nikah under Islamic law and the right to abolish nikah given to women under Sharia law. These include Divorce-e-Tafwij, Khula, Mubarat, and Fasakh.
The court said in its April 9 verdict, "After analyzing the Shariah law and the Muslim Nikah termination law, we are of the view that the Muslim Nikah Abolition Act prohibits Muslim women from getting divorced through the courts without the intervention of the court." The court said, 'All the extra-judicial divorce methods mentioned in the provisions of Sharia law are now available to Muslim women. We, therefore, believe that the law declared in the Casey Moeen case is not correct. '