Self-Declared Bodies Like Shariat Council Are Not Courts To Certify Dissolution Of Marriage By Khula- Madras HC
The Madras High Court has quashed the Khula Certificate issued by the Shariat Council and said that the Shariat Councils were neither Courts nor arbitrators so as to pronounce or certify the dissolution of marriage by Khula.
The Bench of Justice C. Saravanan observed that “Thus, while it is open for a Muslim Woman to exercise her inalienable rights to dissolve the marriage by Khula recognized under the Muslim Personal Law (Shariat) Application Act, 1937 by approaching a Family Court, it cannot be before a self declared body consisting of few members of Jamath.”
Advocate R. Abdul Mubeen appeared for the petitioner and Special Government Pleader S. Ravikumar appeared for the respondent.
In this case, a writ petition was moved by the husband who had sought to quash the Khula Certificate issued by the Shariat Council, registered under the Tamil Nadu Societies Registration Act, 1975, as illegal.
- The first question dealt with was with respect to the maintainability of the Writ Petition against the Shariat Council, which was a private body.
The Court observed that prima facie, Shariat Council was not a State within the meaning of Article 12 of the Constitution and therefore, was not amenable to the jurisdiction under Article 226 of the Constitution. However, the scope of power under Article 226 had widened by several decisions of the Hon'ble Supreme Court and private body exercising the power as that of the public body had been made amenable to the jurisdiction under Article 226.
Therefore, the Court held that the writ petition was maintainable and thus, was inclined to exercise the jurisdiction under Article 226.
- The second question dealt with was whether married Muslim Women could obtain Khula Certificate from Shariat Council.
The Court referred to its decision in the case of Bader Sayeed Vs. Union of India, 2017 SCC OnLine Mad 74 and noted that the High Court had restrained the bodies such as the Kazis from issuing such Certificates certifying dissolution of marriage by Khula.
The Court observed that “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.”
Therefore, the Court quashed the Khula Certificate and directed the petitioner and the respondent-wife to approach the Tamil Nadu Legal Services Authority or a Family Court to resolve their disputes.
Accordingly, the Writ Petition was allowed.
Cause Title- Mohammaed Rafi v. The State of Tamil Nadu