The petitioner-husband argued that extra judicial decrees such as a fatwa or a Khula certificate has no legal sanction and cannot be enforced by any private persons or bodies.
The lawyer for the Shariat Council, however, cited a 2020 judgement of the Kerala High Court that had upheld the right of a Muslim woman to resort to the extra judicial divorce proceedings of Khula.
The Shariat Council argued that in light of the Kerala High Court judgement, the present writ petition was not maintainable.
The Madras High Court, however, said that the Kerala High Court judgement had upheld only the Muslim woman’s right to initiate unilateral divorce through Khula and had not endorsed the involvement of private bodies such as the Shariat Council.
“The Courts are empowered under Section 7(1)(b) of the Family Courts Act, 1984 read with Section 2 of the Dissolution of Muslim Marriages Act, 1939 and Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 to pass a decree to dissolve a marriage. The private bodies such as the Shariat Council, the second respondent herein cannot pronounce or certify dissolution of marriage by Khula. They are not Courts or Arbitrators of disputes. The Courts have also frowned upon such practice as mentioned above,” the Madras High Court said.
