Is it necessary for Muslims to dissolve the marriage only before court?

1. This question assume significance after the judgment delivered by Hon’ble Kerala High Court on 9th April 2021 in the case reported in 2021 SCC OnLine Ker 2054 ( Identity of parties not disclosed) holding that the Family Courts and the courts are having jurisdiction and directed to deal with the matters of dissolution of Muslim Marriages to entertain all matters relating to dissolution of Muslim marriages by adopting all mode permissible in Shariyat. The issue before Hon’ble Kerala High Court was regarding the right of Muslim women to dissolve marriage unilaterally by adopting the mode of “KHULA”. The observations made in Para no. 76 of the judgment read as under:-

76. The Family Courts Act, 1984 provides for the establishment of the Family Courts to exercise the jurisdiction exercisable by District Courts or any subordinate civil courts under law in regard to the matters specifically referred to in Section 7 of the Family Courts Act. Explanation (d) of Section 7(d) of the Family Courts Act, confers the Family Court with the jurisdiction to declare the matrimonial status of any person. Therefore, there is no difficulty for the Family Court to endorse an extra-judicial divorce to declare the matrimonial status of a person. In the matter of talaq, khula, mubara'at, talaq-etafwiz, the Family Courts shall entertain such applications moved by either of the parties or both parties to declare the marital status of such parties.

2. However, there is extravagant misconception regarding modes and procedure of dissolution of Muslim marriage and authority of Civil and Family Courts. Thus, it will be apposite to describe how the Family Courts or Civil Courts are having authority to deal with the matters relating to dissolution of Muslim marriages, it's modes and procedure.

I- Authority / Jurisdiction of Civil Courts or Family Courts:

3. In India, as per provisions of section 2 of Muslim Personal Law ( Shariyat) application Act 1937, the Shariyat Law is made applicable to all Muslims for deciding their personal matters, which includes the matters of dissolution of Muslim marriage. In such matters, the rule of decision is 'shariyat'. The Shariyat law is a comprehensive Code of behaviour that embraces both private and public activities of Muslims. Besides this, it also provides a complete Judicial System. The primary sources of Islamic legal system are as under:

1) The Holy Book (The Quran) ;

2) The Sunnah (Hadith / Hadees) ; [Authentic saying (including judgment and directions) and the traditions or known practices of the Prophet Muhammad (PBUH)]

3) Ijma' (Consensus) ; and

4) Qiyas (Analogy).

4 The Family Court is competent to record intention of Muslim husband or wife to dissolve the marriage, to endorse/certify and to make declaration regarding marital status as per section 7 of the Family Courts Act read with section 2 of the Muslim Personal Law ( Shariyat) Application Act 1937. In the case of Balram Yadav V s Fulmaniya Yadav reported in AIR 2016 SC 2161, the Hon'ble Supreme Court held that a declaration regarding the matrimonial status of any person has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. Likewise, where the party to the matter resides beyond the territorial jurisdiction of a Family Court, the Civil Courts are having jurisdiction as per section 15 of Civil Procedure Code.

5. However, Muslim community is still under the misconception that the Kazi appointed under Kazi Act, 1880 has power to deal with their personal matters especially matters regarding dissolution of marriage. Astonishingly, Kazis also treat themselves like Judges having power to pass the decree of dissolution of Muslim Marriages and continued to deal with the matters of dissolution of Muslim marriages certifying the pronouncement of Talaq and Khula. The person who is authorised to deal with the matters of dissolution of marriage must have Judicial powers and powers to administer the oath. Neither the kazi has powers to administer the oath nor powers to deal with the matters of dissolution of Muslim marriage, nor such matter could be assigned to them. Thus, it is necessary to understand the status of Kazi in India.

Kazi/ Qazi.

6. Administration of justice amongst the mankind is one of the basic principles of Islam. Muslims are directed to obey the authority in every dispute that arises amongst them (Holy Quran: Surat Al Nisa No 4 - Ayat 59). The Judicial System is known as Kaza’at in Islam. It is present in Islamic Rule since inception. Initially, Prophet Mohammad (PBUH) used to deliver justice as a judge. He is the first Judge and Supreme Justice of Islamic Judicial System. Every verdict or judgment or direction given by Prophet Mohammad (PBUH) is the precedent till the world lasts, for the matters having similar facts in dispute. (Holy Quran: Surat Al Nisa No 4 - Ayat 65, Surat Al Ahzab No.33-Ayat 36). Upon expansion of Islamic Rule, many other persons came to be appointed as Judge for other places where Islamic rule is established since lifetime of Prophet Mohammad (PBUH). Such appointments are evident from hadith narrated in books of Hadith Sunan-e-Tirmidhi No.1327 & Sunan-e-Abu Dawood No.3592.

Harith ibn Amr reported Some men among the companions of Mu’adh said the Messenger of Allah (peace and blessings be upon him) sent him to Yemen (appointed as Judge and Governor) and,

The Prophet said: How will you judge?

Mu’adh said: “ I will judge according to what is in the Book of Allah.” 
The Prophet said: What if it is not in the Book of Allah?

Mu’adh said: “Then with the tradition (sunnah) of the Messenger of Allah.”

The Prophet said: What if it is not in the tradition (sunnah) of the Messenger of Allah? Mu’adh said: “ Then I will strive to form an opinion (ijtihad).”

The Prophet said: All praise is due to Allah who has made suitable the messenger of the Messenger of Allah.

7. The narration of above Hadith demonstrates that the judicial system is in existence in Islamic rule since inception and the Judges were appointed in the courts of law to impart justice. Besides this, it is also evident that the proper procedure for applying Islamic guidance that would eventually develop into the discipline of the principles of Islamic jurisprudence (usul-al-fiqh) was in existence since inception. During the “Caliphate” judicial system is extended by appointing Judge for every province/ zone and cities brought under Islamic rule. They are designated as Kazi and their office as kaza’at. The kazi/ judge use to deliver judgment according to Shariyat for all types of matters, that is, civil, criminal and matrimonial matters.

8. Islamic judicial system / kaza'at is in existence in many Muslim countries in this modern age, like Saudi Arabia, etc (see BASICS OF SAUDI ARABIAN LEGAL SYSTEM Basics of Saudi Family Law System | The Law Office of Jeremy D. Morley (internationaldivorce.com) The Hon'ble Kerala High Court has reffered the application of shariyat law of Khula in various Muslim countries across the Globe.

9. In case of Lily Thomas Etc. V/s Union Of India and Ors. reported in 2000 SCC 6 224, Hon’ble supreme Court glorifying the Islamic system quoted the observation of Sir Ameer Ali made in his book Mohammedan Law, Tagore Law Lectures IV Edition, Volume I, that the Islamic system, from a historical point of view was the most interesting phenomenon of growth. The small beginning from which it grew up and the comparatively short space of time within which it attained its wonderful development marked its position as one of the most important judicial system of the civilised world.

Kazi in India

10. In India Muslim Rulers introduced legal system of kaza'at for civil and criminal matters, but the personal matters of non-Muslims used to be dealt with according to their religion. However, after the introduction of British Rule, the Judges and Magistrates started playing judicial role then played by Kazis. Introducing the Act XI of 1864, the British Government repealed the laws relating to the offices of Hindu pandit and Muhammadan Law officers (Kazi-ul-Kazaat and Kazi). After the Act XI 1864 is passed repealing the office of kazi, several representations were received by the Government from the Muslim community depicting the inconvenience caused to Muslim population by the repeal of the regulations empowering the State to appoint Kazis as Judge, in that backdrop, Kazis Act, 1880 was brought on to the statute book. But the role of Kazi came to be confined to sit over marriage and religious ceremony, the British India Government regulated law relating to appointment of Kazi without having judicial power. Thus, till repeal of the law relating to the offices of Hindu and Muhammadan Law officers and to the offices of Kazi-ul-Kuza'at and of Kazi, by the Act XI of 1864 the Kazi were discharging their duties as Judge of court of law for civil and criminal matters as well as for personal matters of Muslims. But after the enactment of Kazi Act 1880 the role of kazi switch over as a religious person and his role become restricted to preside over the marriage or religious ceremonies in British India. The appointment of Kazi continued till the date under the provisions of Kazi Act 1880 in Independent India.

11. It is clear from the government resolution No: Kazi/ 2014/iz-d-123/dk-4 dated 14 June, 2019 issued by Maharashtra Government having guidelines for appointments of Kazi, that these kazis are neither having judicial power nor authorised to endorse or certify the dissolution of Muslim Marriages. Their job is restricted to sit over the marriage ceremony for the purpose of registration. The appointment of Kazi by government does not make such Kazi as sole authority to perform duties under appointment and sit over marriage ceremony. The Hon’ble Andhra Pradesh High Court, in case of Quazi Mohd. Najmuddin Hussain v. State of A.P reported in 2005 SCC OnLine AP 607 and Hon’ble Bombay High Court, in case of Kazi Ahmed Mohiuddin Farooqui v. State Of Maharashtra & Ors. reported in 2009 SCC OnLine Bom 455, have observed that neither the presence of Kazi appointed by state, in the Muslim marriages is mandatory, nor he could prevent any private Kazi from discharging duties as Kazi.

12. The Registrar appointed under Muslim Marriage and Divorce Registration Act do not have power to adjudicate the matters relating to dissolution of Muslim marriage, which is in force in six States providing for voluntary registration of marriages and dissolution of marriage amongst the local Muslims. These States are as follows: (i) West Bengal (ii) Bihar (iii) Jharkhand (iv) Assam (v) Orissa (vi) Meghalaya. This Act empowers the local government to license suitable persons in various areas authorizing them to register marriages and dissolution of marriage amongst the local Muslims. These persons, to be known as “Mohammedan Marriage Registrars”, have to act as per the procedure laid down at length in the Muslim Marriage and Divorce Registration Act.

13. It is pertinent to note that some private Muslim persons are also discharging the job of Kazi working as member of Dar-ul-kaza established under the authority of a Non-Government Muslim body known as Amarat-e-Shariya under Muslim Personal Law Board, a body of Muslim scholars, across the country claiming that it is aimed to bring about amicable settlement of matrimonial disputes between the parties. When matter went before Hon’ble Supreme Court, in the case of Vishwa Lochan Madan v. Union Of India reported in 2014 SCC 7 707. It was observed thus in para No.13“

… Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore, the opinion or the fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication of dispute by an authority under a judicial system sanctioned by law. A Qazi or Mufti has no authority or powers to impose his opinion and enforce his fatwa on anyone by any coercive method. In fact, whatever may be the status of fatwa during Mogul or British Rule, it has no place in independent India under our constitutional scheme. It has no legal sanction and cannot be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody…..”

14. The Hon’ble Supreme Court further restrained private persons/kazi from enforcing their opinion/ Fatwa against the wish of parties and warn them in para no. 17 in the following terms – 

“ …. Further, such an adjudication or fatwa does not have a force of law and, therefore, cannot be enforced by any process using coercive method. Any person trying to enforce that by any method shall be illegal and has to be dealt with in accordance with law.”

15. The legal position about the status and authority of Kazi become clear from observations of various High Courts. In the case of Sayed Ahamedkoya Thangal v. Administrator reported in 1997 SCC ONLINE KER 310, the Hon’ble Kerala High Court has observed that, the position of Kazi in Muslim Law is that of a judge or a judicial officer. An office like that of Kazi, the functions of which was judicial at its inception, but later turned to be holy/religious.

16. In the case of Meriza Khatun D/o Lt. Ajgar Ali V/s State [WP(C) 346/2017 (Jun 22, 2018)] the Hon'ble Gauhati High Court observed that, no power invested with Kazi or registrar of marriage and divorce, to issue notice. In case of Kalloo v. Mt. Imaman reported in 1949 AIR ALL 445 the Hon'ble Allahabad High Court has opined that the present functions of the Court were discharged by the Kazi.

17. Thus, it is crystal clear that the Kazi appointed in the Mughal rule and British rule till 1864 were Judge of the Court of Law of that period, having authority to enforce their decisions. They used to deal with all matters of civil nature, so also matters of Muslims relating to their Personal Law i.e., Marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs etc. The Kazi appointed after year 1880 as per the provisions of Kazi Act 1880, are having no judicial powers, cannot adjudicate any dispute like a Judge. Since the year 1864, the Civil and Criminal Court established by British are having powers to adjudicate all matters, and after the independence the Courts established under constitutional scheme are having jurisdiction to deal all the matters which were being dealt by Kazi before 1864. But it is noticed that all matters except dissolution of marriage are filed before civil court and the matters of dissolution of marriage are being dealt with by Kazi, who are appointed for the purpose of registration of marriage only. Thus, choice of forum as per convenience, that too, before such person who has no authority cannot be justified. Therefore, all the matters covered under section 2 of Muslim Personal Law (Shariat) Application Act, 1937 are to be dealt with by civil court only. Now, the matters relating to marriage and dissolution of marriage of Muslims have to be adjudicated by Civil Court or Family Court as per territorial jurisdiction. These courts have now replaced the Kazis.

II- Modes of dissolution of Muslim marriage and Efforts of Mediation:

18. According to Mulla in his Principles of Mohammadan law (21st Edition) by Professor Iqbal Ali Khan, the contract of marriage under Mohammadan law may be dissolved in any one of the following ways:- (1) by the husband at his will (by pronouncement of Talaq), without the intervention of a Court; (2) by mutual consent of the husband and wife ( Khula and Mubara'at), without the intervention of a Court; (3) by a judicial decree at the suit of the husband or wife. However, the wife cannot dissolve the marriage herself from her husband without his consent, except under a contract (Talaq-e- Tafwiz), but she may, in some cases, dissolve the marriage by obtaining a judicial decree (Caption 307).

Efforts of Mediation and reconciliation before dissolution of Muslim marriage:

19. Muslim spouses have to follow the directions and guidance of holy Quran and Hadith in their daily life. The spouses are having same right. (Holy Quran : Surat Al Baqra No 2 - Ayat 228) The Prophet (PBUH)said: The best of you is the one who is best to his Family ( Wife).( Book of Hadith-Ibne- Maja No. 1977). In case there is dispute between husband and wife, it is suggested to husband to ignore the mistakes of wife, if he sees a thing to dislike wife, he may find that Allah makes in her much good. (Holy Quran: Surat Al Nisa No 4 - Ayat 19) If dispute persists, they should sort out privately. (Holy Quran: Surat Al Nisa No 4 - Ayat 128). Even then also, if the dispute continues, it is expected that the spouse should try to redress the dispute by appointing arbitrators consisting of one relative each from both side.(Holy Quran: Surat Al Nisa No 4 - Ayat 35). Thus, concept of mediation and reconciliation is in existence in Islam since inception. In case of Shamim Ara v/s Union of India reported in (2002) 7 SCC 518, the Honourable Supreme court emphasized upon necessary requirement of reconciliation before dissolution of Muslim marriage as envisaged in shariyat.

20. The efforts of mediation and reconciliation may result in the reunion of spouses. However, expecting that every matter should result in reunion is against the human nature and any compulsion would ruin the concept on which the edifice of family system and society is built. If in any case, efforts to reunite the spouses is not successful, the spouses may be convinced to arrive at a settlement to dissolve marriage by mutual consent. If the efforts of mediation do not bring them together to arrive at a settlement, spouses may opt for any mode of dissolution of marriage as a last resort.

The modes of dissolution of marriage;

* Dissolution of Marriage by Mutual Consent; (“Mubarat” and “Khula with consent of husband”) (Holy Quran : Surat Al Baqra No 2 - Ayat 229, Caption 319 of Mohammadan law by Mulla)

21. “Mubara'at” means the dissolution of marriage by Mutual consent. It has the effect of instantaneous and irrevocable single Talaq as soon as accepted by the spouses. The Mubara'at (Dissolution of marriage by Mutual Consent) is recognized in shariyat, the spouse is having right to dissolve the marriage by mutual consent. The Mubara'at takes effect as soon as the spouses admit and affirm their intention to dissolve marriage with mutual consent. It provides same procedure as provided in the provisions of section 13-B of Hindu Marriage Act, but without restriction of filing petition after one year of separation and there is no need to wait for six-months cooling period. Upon the affirmation of intention to dissolve the marriage by mutual consent, court has to endorse the intention and to declare that the marriage is dissolved on agreed terms. The proposal of Mubara’at may come from either spouse. It is astonishing to note that large number of Muslims are not aware of this mode of dissolution of marriage. In case of Shaikh T aslim V/S T he S tate of Maharashtra and other reported in 2022 LiveLaw (Bom) 121, decided on 29/03/2022 the Hon’ble Bombay High Court have held that a family court can dissolve the marriage of a Muslim couple by mutual consent under the Muslim Personal Law.

22. “Khula with consent of husband” means the dissolution of marriage at the instance of the wife and with the consent of husband. In this mode, she gives/retuns or agrees to give/return the consideration to the husband or offers to relinquish her right against husband for her release from the marital tie. In this mode of dissolution, the wife generally gives offer and husband accepts the offer. If husband accepts the offer of wife, the procedure like Mubara'at is required to be followed. No iddat period is provided for woman, where marriage is dissolved adopting mode of Khula but if she had intercourse with husband during tuhr, iddat period is until she menstruates. (Sunnan e Nisai- Hadit No-3528 , Sunnan-e-Ibn-e-Maja- Hadit No-2058, Sunnan e Abu Dawood - Hadit No-2230)

** Dissolution of Marriage by wife unilaterally (“Khula without consent of husband” and “Talaq-etafwiz”)

23. “Khula without consent of husband” where the wife gives offer for dissolution of marriage but husband refuses to accept the same, the wife may approach to the court for dissolution of marriage upon her attempt to dissolve marriage by “Khula”. The Hon’ble Kerala High Court in the case reported in 2021 SCC OnLine Ker 2054 (Identity of parties not disclosed) (indiank a noon.org), after considering the provisions of Shariyat and the opinions of Islamic Jurists held that wife is entitled to dissolve the marriage by adopting the mode of Khula even husband has refused her offer. Hon'ble High court has culled out the requirements to be satisfied by wife to avail unilaterally the mode of Khula in para no 75. It reads thus:

1. A declaration of repudiation or termination of marriage by wife. (Her intention to avail mode of Khula)

2. An offer to return dower or any other material gain received by her during marital tie.

3. An effective attempt for reconciliation was preceded before the declaration of khula. 

24. The authority of court to direct husband to accept offer of Khula and on disobedience to dissolve the marriage, is derived from hadith narrated in books of Hadith Sahi Bukhri No. 5273, 5275 and 5276, Mansad Ahmed No. 7173, Sunnan e Nisai- Hadit No-3493 and Sunnan ibn e Maja- Hadit No-2057. Reference has been to this hadith by the Hon’ble Kerala High Court in the above-mentioned judgment –

Narrated Ibn `Abbas: The wife of Thabit bin Qais came to the Prophet and said, O Allah's Apostle! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in unIslamic manner (if I remain with him). On that Allah's Apostle said (to her), Will you give back the garden which your husband has given you (as Mahr)? She said, yes. Then the Prophet said to Thabit, O Thabit! Accept your garden, and divorce her once.

25. Thus, in case husband refuses offer of khula, wife may file petition for declaration that her marriage stood dissolved as she has availed the mode of khula for dissolution of marriage. The court, on being satisfied that the above mentioned requirements have been fulfilled, has authority to direct the husband to accept the offer of khula, and upon his refusal, the court shall declare that the marriage stood dissolved and accordingly pass a decree of dissolution of marriage. The Islamic principles are meant to provide justice to all humans as well as respect and equality to women. A wife cannot be left at whims and wish of husband, who has refused to accept the offer of khula deliberately to make her life miserable. The principle of analogy based on the holy Qur'an and Hadith empowers the Court to pass a decree for dissolution of marriage upon refusal of husband to accept the offer of Khula.

26 “Talaq-e-tafwiz” means the pronouncement of talaq by Muslim wife, in the delegated manner, to whom power of pronouncement of talaq is delegated by her husband. Same procedure is applicable which applies to the pronouncement of Talaq by Muslim husband. This mode of dissolution of marriage is not generally in use in India.

*** Dissolution of Marriage by Judicial Decree.

27. The wife has right to seek dissolution of marriage under the provisions of The Dissolution of Muslim Marriages Act, 1939. The court may grant a decree in favour of the wife for dissolution of marriage if she makes out a case under the provisions of the Dissolution of Muslim Marriages Act, 1939. There can be dissolution of marriage by Judicial decree under other modes like Lian, ila and zihar but these are neither largely known nor in use in Muslim community in India. However, it is disscussed for information and knowledge.

(a) ILA : ( Caption 317 of Mohammedan law by mulla)

It is constructive divorce. In ILA, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, ILA is cancelled and the marriage does not dissolve. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband.

Hadith

Narrated Nafi`: Ibn `Umar used to say about the Ila (which Allah defined (in the Holy Book), If the period of Ila expires, then the husband has either to retain his wife in a handsome manner or to divorce her as Allah has ordered. (Book of Hadith Sahih Bukhari = Hadith No 5290)

(b) Zihar: (Caption 318 of Mohammedan law by mulla)

In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete.

AFTER THE EXPIRY OF FOURTH MONTH THE WIFE HAS FOLLOWING RIGHTS:

(i) She may go to the court to get a decree of judicial divorce.

(ii) She may ask the court to grant the decree of restitution of conjugal rights. 

Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. It can be revoked if: (i) The husband observes fast for a period of two months, or, (ii) He provides food at least sixty people, or, (iii) He frees a slave.

(Holy Quran: Surat-ul-Mujadala No. 58 - Ayat No 3 and 4 = Book of Hadith Jam-e- Tirmizi- Hadith No 3299)

(c) Lian:

(Holy Quran: Surat – un - Noor No. 24 - Ayat No 6 to 9 : Caption 333 of Mohammedan law by mulla)

If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian.

Hadith

Narrated Ibn `Umar: Allah's Apostle separated (divorced) the wife from her husband who accused her for an illegal sexual intercourse, and made them take the oath of Lian. (Book of Hadith Sahih Bukhari = Hadith No 5313)

**** Dissolution of Marriage by husband unilaterally

28. Talaq :- means voluntary pronouncement of Talaq ( reciting or uttering word Talaq ) by Muslim husband with intention to dissolve the marriage either oral or written or in electronic form or in any other manner whatsoever, in any mode in clause (i) to (v) described below; (See Caption 311 of Mohammedan law by Mulla)

(i) “Talaq-e-ahsan” means a single pronouncement of Talaq by a Muslim husband made during tuhr (Period between two menstruation) having no sexual intercourse, followed by abstinence from sexual intercourse for the period of Iddat, revocable within the period of Iddat.

(ii) “Talaq-e-hasan” means and consists of three pronouncements of Talaq made by a Muslim husband during successive tuhr (Period between two menstruation) having no sexual intercourse, followed by abstinence from sexual intercourse, revocable within period of Iddat before the third pronouncement.

(iii) “Talaq-e-bain” means the pronouncement of Talaq (one or more) by Muslim husband having the effect of instantaneous and irrevocable Talaq. 
(iv) "Triple talaq" means three pronouncements of Talaq at once having the effect of instantaneous and irrevocable Talaq; and which becomes Talaqe-Mugallaza.

(v) “Talaq-e-biddat” means the pronouncement of Talaq by Muslim husband adopting any mode other than Talaq-e-ahasan or Talaq-e-hasan.

29. After the enactment of The Muslim Women (Protection of Right on Marriage) Act 2019 (popularly known as Triple Talaq Act), three pronouncement of Talaq at once is an offence in India. Considering the definition of Talaq provided in section 2 of this Act, the husband should adopt only mode of talaq-e-ahsan ( best Mode) to dissolve his marriage, to avoid complications. However, there is a misconception among the Muslims that there cannot be dissolution of marriage by husband until he pronounces talaq three times either at once or one after another having gap of some period or once in a month. They are unaware of the correct procedure to pronounce Talaq. Thus, it is necessary to understand the origin, nature and concept of dissolution of marriage on pronouncement of Talaq by husband.

Origin and concept of pronouncement of talaq by husband

30. Where the efforts of mediation by arbitrators do not bring positive result, then husband can opt to pronounce single talaq. When husband decides to pronounce talaq, he should pronounce during tuhr (Period between two menstruation) having no sexual intercourse, followed by abstinence from sexual intercourse for the period of Iddat. Husband may revoke the talaq within Iddat period (Next three successive menstruation period). (Holy Quran: Surat Al Baqra No 2 - Ayat 228) This mode of pronouncement of talaq is called Talaq-e Ahsan or Talaq-e-Rajai. During the period of Iddat neither the husband should drove the wife out of house not she should leave, unless they are committing a clear immorality. (Holy Quran: Surat Al Talaq No 65 - Ayat 1). He may revoke talaq expressly or impliedly. The wife may try to attract husband, so that he could think for revoking talaq. (Holy Quran: Surat Al Talaq No 65 - Ayat 1, exegesis of Tafheem-ul-Quran by Syed Abul Ala Maududi.). In case, talaq is not revoked within Iddat period, it will become final and irrevocable. Now talaq-e-ahsan converts as Talaq-e-bain, and marriage would stand dissolved.

31. It is the best mode of unilateral dissolution of marriage by husband. Now wife is free from marital tie and she can marry with anyone, including the same husband again. Thus, they can remarry for fresh mahar amount without HALALA. (Holy Quran: Surat Al Baqra No 2 - Ayat 232). It is evident from an incident happened in the early days of Islam. A man pronounced Talaq (Talaq-e-ahsan) and did not revoke within Iddat period. Thereafter, he approached for marrying her again. At that time, the brother of wife raised objection. Thus, the Ayat No. 232 of Surat Al Baqra was revealed. This incident is reported in book of hadith- Sahih Bukhari -No 5130,

Narrated Al-Hasan: concerning the Verse: 'Do not prevent them' (2.232) Ma'qil bin Yasar told me that it was revealed in his connection. He said, I married my sister to a man and he divorced her, and when her days of 'Iddat (three menstrual periods) were over, the man came again and asked for her hand, but I said to him, 'I married her to you and made her your bed (your wife) and favored you with her, but you divorced her. Now you come to ask for her hand again? No, by Allah, she will never go back to you (again)!' That man was not a bad man and his wife wanted to go back to him. So, Allah revealed this Verse: 'Do not prevent them.' (2.232) So I said, 'Now I will do it (let her go back to him), O Allah's Apostle. So, he married her to him again.

32. After marrying second time ( First remarriage) the spouses are supposed to live as per teachings of the holy Quran and Hadith. In case of dispute, they have to follow the procedure mentioned above. If the process of reconciliation is not successful, the husband may pronounce single talaq (Talaq-eAhsan). It will be second pronouncement of talaq, the husband may revoke talaq within Iddat period. The wife may try to attract husband but if he does not revoke talaq, it will become final talaq (Talaq-e-Bain) after Iddat period. Even then they can marry again third time without HALALA.

33. Again on marrying third time (second time re-marriage), they are supposed to avail this opportunity to live happy life. But, if the dispute arose once again between them, they have follow the same procedure as enumerated for pronouncement of talaq for first time. However, if the dispute cannot be resolved, the husband may pronounce talaq which will be third pronouncement of talaq. Now husband cannot revoke talaq. Soon after pronouncement of talaq, it would become Talaq-e-bain, being the third pronouncement of talaq though it was pronounced at three different time. The husband can revoke Talaq only twice (Holy Quran: Surat Al Baqra No 2 - Ayat 229) Thus, the talaq pronounced for the third time becomes Talaq-e-bain and also Talaq-e-Mugallaza. Thereafter, husband can neither revoke talaq nor can re-marry her. Consequently, wife become free from marital tie and she is free to marry anyone other than the husband who has given three Talaq to her.

34. Upon marrying with other person (second husband) they both are required to live as per shariya. However, after consummation of marriage, if any dispute arose between these two, they have to follow the same procedure to resolve the dispute as mentioned above. In case, dispute is not settled and marriage is dissolved by adopting any mode permisssible in shariyat, for instance , second husband pronounces talaq and does not revoke within Iddat period, the Talaq attains finality and converts to Talaqe-bain, the wife would become free from her second husband, and would be free to marry anyone including her first or second husband. (Holy Quran: Surat Al Baqra No 2 - Ayat 232). If she marries with her first husband, such marriage is termed as marriage after HALALA. Halala is the procedure by way of which a husband can remarry his ex-wife to whom he has given three Talaq. It provides that the wife should marry with other man and their marriage should get dissolved in normal course, then he can marry with his ex-wife again. The chronology of pronouncement of talaq by first husband, marriage with second husband and dissolution of marriage with him should not be planned. Adopting this procedure deliberately is strictly prohibited and cursed by Prophet Mohammad (PBUH). it is reported in book Jam-e-tirmazi-Hadith No.1120, Sunnan -e- Ibn-e-Maja Hadit No-1936, Musnad Ahmed - Hadith No.5954, Musnad Ahmed - Hadit No-6997, Mishkat ul Masabeeh - Hadith No.3296, Sunnan-e-Abu-Dawood Hadit No-2076;

The Prophet Mohammad (PBUH) said: Curse be upon the one who marries a divorced woman with the intention of making her lawful for her former husband and upon the one for whom she is made lawful.

35. The dissolution of marriage, every time, by adopting mode of Talaq-e-Ahsan does not require to observe HALALA for re-marriage between the same couple, until that dissolution of marriage is of third time. While dealing with requirement to observe HALALA on dissolution of marriage by pronouncement of single talaq under the written agreement, the Hon'ble Bombay High Court has opined in the case of Sabah Sami Khan v/s. Adnan Sami Khan reported in AIR 2010 Bom 109 : 2010 (4) ALL MR 171, in Para no 18 and 19 that –

18. Thus, in our opinion, where Talak becomes irrevocable through any mode between the parties, for re-marriage between them, it is not necessary that the Halala must be observed. In other words, merely because a talak has become irrevocable, does not mean that in case of every irrevocable Talak, irrespective of its mode, for remarriage between the same couple, it is necessary that the Halala formality must be complied with by the wife.

19 ...... In other words, in case of a Talak in the Hasan mode and a Talak in Talak-ibadai by the three pronouncements mode, remarriage is possible only if Halala is observed by the wife. ....36 In Islam, marriage is a civil contract, wife is an independent party to marriage, no one can pressurise her, woman is free to refuse or to give consent for marriage. The world has not seen any such incident where women has agreed to marry with a person who has already performed marriage with her thrice, and pronounced talaq after every marriage. No woman will give consent to marry with such a person. This misconception spread due to the misuse of the procedure pronouncement of talaq to dissolve the marriage. The pronouncement of talaq is restricted to thrice but it does not mean that husband has right to pronounce talaq thrice at once. It is restriction imposed upon husband, but some husband presumed it is their right to pronounce talaq thrice at once.

36. To understand the object of restricting the pronouncement of talaq to thrice, we have to understand the social condition of the world at the time of birth of Prophet Mohammad (PBUH), there was no concept of dissolution of marriage in any religion but the procedure of pronouncement of talaq to dissolve the marriage was in existence in the Arabs only that too outlandishly. The husband was having unlimited power to pronounce talaq as per his choice and to revoke the same. The husband in the Arab community used to pronounce Talaq and to revoke the same thousand time, they neither used to discharge their conjugal duties nor let wife free from their clutches. Thus, women were being subjected to cruelty. To relieve the pain and sufferings of women, the right of husband to pronounce Talaq came to be restricted to thrice by Islam. As soon as husband pronounces the talaq for the third time, the wife becomes free from the marital tie.

37. The three pronouncements of Talaq at once is against the teachings and the spirit of Islam. It is the consensus (Ijma) among the Muslim scholars that in the event of pronouncement of talaq, husband should adopt the mode of Talaq-e-Ahsan (the best Mode) for dissolution of marriage. In Shia Community three pronouncement of Talaq at once is not recognised. In Sunni community, three pronouncements of Talaq at once is not appreciated. But if three Talaq at once is pronounced, it is treated as one pronouncement by a section of Sunni community in many Muslim countries. However, in India the effect of three pronouncement of Talaq at once is accepted as three pronouncement having effect of Talaq-e-mugallaza, among a large section of Muslim community. Had the Talaq been pronounced of talaq in the proper way and true sense, no one would have raised finger. It is seen that much efforts have not been made for the awareness of the Muslim community regarding correct procedure of pronouncement of talaq. The misconception has lead the Government of India to enact a law to prohibit the practice of three pronouncements of Talaq at once, popularly known as Triple Talaq Act. The provisions of the said Act are not only penal but the Act also invalidates pronouncement of triple Talaq at once holding that marriage would be in subsistence even after such pronouncement. Being confused about the effect of Triple Talaq Act, husbands are forcing wives to offer khula by deserting them. Consequently, it is noticed that the complications have been increased in matrimonial matters. Thus the Act has failed to achieve the purpose of providing relief to Muslim women.

38. It is therefore necessary that there should be an appropriate procedure to be adopted by the courts and litigants to remove misconceptions and to encourage the Muslims to adopt the correct legal procedure in consonance with shariyat. The courts should facilitate the Muslim community to remove misconceptions regarding Court procedure. According to me, following procedure may help to deal with the matters of talaq, khula, mubarat, talaq-e-tafwiz.

III Following procedure is to be adopted before dissolution of Muslim Marriage.

Mediation / reconciliation.

39. In the case of Srinivas Rao V/s D. A. Deepa reported in AIR 2013 SC 2176 the Hon'ble Supreme Court has recognised mediation as an effective method of alternative dispute resolution in matrimonial matters and advised the parties to explore the possibility of settlement through mediation in matrimonial dispute, directing all mediation centre to set up pre-litigation desks / clinic and to give them wide publicity and make efforts to settle matrimonial disputes at pre-litigation stage. Therefore, Maharashtra State legal Services Authority has issued directions to all the Chairman of the District Mediation Monitoring Committees under District Legal Services Authority and all Principal Judge, Family Court of all district in Maharashtra to set up pre-litigation desks/clinics for matrimonial disputes vide its letter no. Mediation/2019/360 dated 30/05/2019. Now in all district of Maharashtra a pre-litigation desk / clinic for matrimonial disputes is in existence. If a spouse feels that the matrimonial dispute cannot be resolved privately, he or she may apply for mediation of the matrimonial dispute by pre-litigation desk/clinic.

40. In case of matrimonial dispute, Muslim spouse shall approach and shall apply, in writing, to the pre-litigation reconciliation desk/clinic of District Legal Services Authority or Taluka legal services committee or Family Court, of the area in which wife resides, for mediation. Such application shall be registered by the office of concern authority and it shall then be the duty of the mediator/counsellor to make attempt to effect a reconciliation between such husband and wife with the help of the relatives of the parties and of the elders and other respectable persons of the area.

41. Upon settlement of the dispute, the draft of compromise shall be prepared in triplicate with certification that matters is compromised. One copy each be given to spouses and one copy shall be kept for office record. The settlement arrived may be of reunion or regarding dissolution of marriage. Where spouse Dissolution of Muslim Marriage. 35 Article arrived at dissolution of marriage in mediation, the copy of compromise terms endorsed by the mediation center / authority shall be annexed with petition of khula or Mubara'at. However, of mediation fails the concern authority shall issue letter/certificate that the efforts of mediation have been failed.

Procedure to be adopted before court.

42. Declaration of status on pronouncement of Talaq-e- ahsan and Talaq-e-Tafwiz

i) Upon failure of efforts of mediation, if husband desires to pronounce talaq-e-ahsan, he should file a petition for pronouncement of talaq-eAhsan requesting court to endorse the pronouncement and to declare the status. The petition shall having annexed the copy of report of mediation conducted as pre-litigation dispute. The husband shall file his affidavit and affidavit of two witnesses regrading pronouncement. The Court shall forthwith endorse the pronouncement of talaq-e-ahsan. In case, wife is not present, the court shall cause notice be served upon the her. On her appearance, the court would make efforts for reconciliation and mediation with consent of parties and the petition be kept pending for three months from the date of single pronouncement of talaq.

ii) If efforts of mediation and reconciliation resulted once again in failure, the husband should file an affidavit that he has not revoked the Talaq, during three months, after pronouncement. Thereafter, the court shall declare that the marriage is dissolved.

iii) The same procedure as mentioned in clauses (i) and (ii) shall be followed where wife is intending to pronounce Talaq-e-Tafwiz. The wife should follow the procedure of pronouncement of talaq-e-ahsan only.

43. Declaration of status on Mubara'at and khula

(i) Where the spouse arrived at settlement and decided to dissolve the marriage either by Khula or Mubara'at, a joint petition for dissolution of marriage by mutual consent i.e. mubarat or khula shall be presented to the Court by spouses, stating that they have been living separately, that they have not been able to live together and that they have mutually agreed or husband accepted the proposal of khula, on agreed terms. The petition shall annex the copy of settlement with report issued by the mediation centre.

(ii) On presentation of petition by both the parties the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit record that the averments in the petition are true and voluntary and declare that the marriage has been dissolved with effect from the date of the order.

(iii) where it is found that there are elements of compromise/reunion, the court may at any stage of the proceedings direct the husband or the wife, either singly or jointly, to undergo mediation, with consent of parties.

(iv) Where in any other pending proceeding of civil nature, if spouses arrived at settlement for dissolution of marriage by mutual consent (Mubarat or khula), the court shall allow the parties to convert the pending petition to mutual consent petition for dissolution of marriage (Mubara'at or khula ), and court shall declare that the marriage has been dissolved.

44. Procedure where husband refuses the proposal of Khula.

(i) In case where the husband refuses the proposal of khula, the wife may file a petition for declaration of dissolution of marriage by adopting mode of khula, as held in para no. 75 in supra judgment delivered on 9th April 2021 by Hon’ble Kerala High Court. The petition shall annex the copy of settlement, if any, with the report issued by mediation centre. Upon filing such petition, the court shall examine whether following conditions are satisfied:

(a) Intention of wife to dissolve the marriage by Khula. 
(b) An offer by wife to return dower or any other material gain received by her during marital tie. 
(c) An effective attempt for reconciliation was preceded before the filing the petition.

(ii) The court shall cause notice be served upon the husband. On his appearance, the court would make efforts for reconciliation and mediation with consent of parties. However, if no settlement is carved out, having satisfied that above conditions are fulfilled, the court shall direct the husband to accept the offer of wife within stipulated period ( maximum one month). Upon failure to obey the order, the court shall endorse the repudiation or termination of marriage by wife and shall grant a decree of dissolution of marriage.

Scope of enquiry by Court.

45 The Hon’ble Kerala Hight Court directed that the Family Court ( or any subordinate civil courts under law ) shall restrain from adjudicating upon such matters unless it is called upon to decide its validity in appropriate manner. The Family Court ( or any subordinate civil court under law ) in such matters shall endeavour to dispose of the cases treating it as uncontested matter, without any delay by passing a formal order declaring the marital status. The Hon’ble Kerala Hight Court also explained the scope of inquiry in such matters as under :-

A) Talaq and Khula :- In the matter of unilateral dissolution of marriage, invoking khula and talaq, the scope of inquiry before the Family Courts is limited. In such proceedings, the court shall record the khula or talaq to declare the marital status of the parties after due notice to other party. If any person wants to contest the effectiveness of khula or talaq, it is open for such aggrieved person to contest the same in appropriate manner known under law.

B) Mubara'at and talaq-e-tafwiz :- In the matter of mubara'at and talaq-e-tafwiz, on being satisfied that the dissolution is being effected on mutual consent, the Family Court without further inquiry shall declare the marital status.

46. Considering the supra directions , I am of the view that the proceeding regarding Dissolution of Muslim Marriages by adopting mode of talaq, khula, mubara'at, talaq-e-tafwiz are required to be treated as a proceeding not requiring judicial enquiry like proceedings mentioned in para no. 342 of Civil Manual issued by Hon'ble Bombay High court. The court fee on petition filed for dissolution of Muslim marriage should be same as required to be affixed on a petition for dissolution of marriage under the Hindu Marriage Act.

47. In the matter of talaq, khula, mubaraat, talaqe-tafwiz, the court has no power to intervene or restrain the spouses to act upon according to their intention. In no case, the intention of parties shall be turned down. The court shall verify the voluntary intention of parties and endorse the dissolution of marriage, declaring the status.

48. The presence of non-Applicant/respondent husband or wife is not necessary in the matter of talaq, khula, and talaq-e-tafwiz, but for the purpose of mediation or to decide validity in appropriate manner. The absence of non-Applicant /respondent husband or wife shall not be hurdle for certifying talaq, khula, and talaq-e-tafwiz and declaration to that effect, though served with notice. In the case of dissolution of marriage by pronouncement of Talaq, or Talaq-e- Tafwiz or by mutual consent i.e. Khula and Mubaraat, the spouse are not require to seek grant of decree of dissolution of marriage like decree of dissolution of marriage under Hindu Marriage Act. When any spouse or both approach the court, the court has to verify voluntary intention to dissolve the marriage and to endorse it. Thus, the court has to declare the status of marriage as per the mode of the dissolution of marriage according to her or his intention. Therefore, the Hon’ble Kerala High Court termed the matters of talaq, khula, mubara'at, talaq-e-tafwiz as extra judicial mode of dissolution of marriage. The court should not insist to bring any proof of dissolution of marriage recorded by Kazi appointed under Kazi Act 1880.

Guidelines of Hon’ble Kerala High Court

49. In the case of Asbi K.N. D/o Nasser K.P. Vs. Hashim, reported in 2021 SCC OnLine Ker 3945 : (2021) 6 KLT 292 in OP (FC) NO. 476 of 2021, decided on 12th October, 2021, the Hon’ble Kerala High Court hold that courts are having authority to deal such type of matters and issued guidelines for dealing such types of matters as under;

(i) On receipt of the petition, the Family Court shall issue notice to the respondent.

(ii) After service of summons or appearance of the respondent, as the case may be, the Family Court shall formally record the statement of both parties. The parties shall also be directed to produce talaq nama/khula nama (if pronouncement / declaration is in writing)/ mubaarat agreement.

(iii) The Family Court shall thereafter on perusal of the recitals in talaq nama/khula nama/ communication of talaq, khula or talaq- e-tafweez (if available) and the statement of the parties, ascertain whether there was validpronouncement of talaq / khula / talaq-etafweez. In the case of mubaarat, the Family Court shall ascertain whether the parties have executed and signed mubaarat agreement.

(iv) On prima facie satisfaction that there was valid pronouncement of talaq, khula, talaq-etafweez,as the case may be, or valid execution of mubaarat agreement, the Family Court shall proceed to pass order endorsing the extrajudicial divorce and declaring the status of the parties without any further enquiry.

(v) The enquiry to be conducted by the Family Court shall be summary in nature treating it as an uncontested matter.

(vi) The Family Court shall dispose of the petition within one month of the appearance of the respondent.The period can be extended for valid reasons.

(vii) If any of the parties is unable to appear at the Court personally, the Family Court shall conduct enquiry using video conferencing facility.that the Court is required to record the statement of the petitionerhusband formally so as to ascertain prima facie that there was valid pronouncement of Talaq and to pass order endorsing the extra judicial pronouncement of Talaq declaring the status of the parties without any further inquiry.

Awareness

50. It is need of the hour that awareness should be made in society regarding modes and procedure of dissolution of Muslim marriage and the authority of Civil and Family Courts. The awareness should be on following points.

(i) In case of dispute, spouse should approach to pre-litigation desk/clinic of mediation centre of the area where they resides, information regarding the procedure of mediation be given to public at large, that relatives of both side can take part in mediation process. No dissolution of marriage should take place without mediation. The private mediation should be avoided, if any person or organisation is facilitating the private mediation, they should be encouraged to conduct mediation of pre-litigation through mediation centres established or constituted by legal services authorities.

(ii) In case, dispute persists even after mediation, efforts be made that there can be dissolution of marriage by mutual consent by adopting mode of Mubara'at or khula as per shariyat.

(iii) It is most important to make awareness that there can be dissolution of marriage on pronouncement of single Talaq ( Talaq-eahsan). The Muslim husbands need to be made to unlearn all other modes of pronouncement of talaq.

(iv) It should be made clear that only family court and civil court, as per jurisdiction of area, are having authority to endorse the dissolution of Muslim marriage and to declare status to that effect and not the Kazi.

(v) The misconception about pronouncement of talaq be deleted from the memory of the society and the correct and best procedure of dissolution of marriage be brought to the knowledge of the Muslim community.

51. The responsibility of awareness should not be restricted to the Muslim scholars but also on the government. Awareness through the legal services authorities/ committees across the country on this topic should be made part of common minimum programe of National legal services authorities. It should also be included in curriculum of education of law for study in detail.

Benefits of Dissolution of marriage before court

52. It may be the argument that Shariyat law does not require for the parting spouses who have amicably settled their dispute or in case the wife did not dispute the talaq pronounced upon her, to appear before the Court, like Hindu spouses. It is necessary to understand that, requiring to appear before the Court does not meant to curtail the extra-judicial right of spouses to dissolve the marriage, but to adopt the correct procedure for dissolution of marriage. The reasonable restrictions alike embodied under Article 19 of the Indian Constitution, by setting specific procedure is a legitimate aim to put embargo on whimsical and unconstitutional use of right to dissolve marriage. The requirement to appear before court ensures that the mode to dissolve marriage adopted by the spouses is proportional to the object and needs sought to be fulfilled by the Shariyat law. In the interest of the general public and benefit of society, the spouses may be required to adopt specific procedure and to appear before court to dissolve marriage. Following few benefits may be mentioned, which the society will receive of adopting procedure mention supra.

Benefits

(i) The spouses will have a valid and authorised document of dissolution of their marriage with them.

(ii) The decree of court will be admissible before all government department and authorities as a valid proof of dissolution of marriage, without further burden to prove the same.

(iii) The spouses will become conversant with correct procedure, and to exhaust remedy of mediation first and to dissolve the marriage as last resort, that too only after the failure of all the steps to reconcile the differences.

(iv) The terms of settlement agreed in mediation before pre-litigation desks/clinics constituted for matrimonial disputes or court will be binding on parties to compromise.

(v) The parting spouses will be encouraged at pre-litigation stage to dissolve their marriage by mutual consent adopting Mubara'at or Khula mode which would remove possibility of future litigations.

(vi) The practice of the pronouncement of Talaq by Muslim husband adopting any mode other than Talaq-e-ahasan would be deprecated and become unknown to society.

(vii) The spouses will get resolved their dispute free of costs at pre-litigation stage. The wife will be provided legal assistance on demand free of costs by District/Taluka Legal Services Authority /Committee, and husband is also entitled for the same if required criteria is satisfied.

(viii) The trampling role of meddle man, touts, unauthorized persons will be eliminated, which would diminish the hardship and gives further chance of reconciliation in future to spouses even after dissolution of their marriage.

53. In conclusion, the question posed in beginning is answered in affirmative. It can be said that the only way to deprecate the misuse of Shariyat law in the matrimonial dispute is to make awareness among the Muslim community, encouraging them to adopt the correct procedure to reconcile the dispute, facilitating to mediate their dispute before pre- litigation desk/ clinic constituted by legal services authorities across the country as per direction of Hon’ble Supreme Court. Even after exhausting the remedy of mediation, if settlement is not worked out, the spouses should be appreciated to dissolve the marriage before family court/ civil court by adopting any of mode as provided by Muslim Personal Law ( Shariyat) application Act 1937.

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