Author
Prof Noor Ameena
Organisation/Institution
National Law School of India University
Country
INDIA
Panel
Family Law
Title
Women Initiated Divorce in Islamic Law- Developments from an Indian State
Abstract
This paper examines the developments in women-initiated divorce (khula) in Kerala, India. The right to extra-judicial divorce for Muslim women in Kerala was abolished by K.C. Moyin v. Nafisa (1972), which is overruled in X v. Y (2021), reviving Muslim women’s right to divorce by khula. Khula is a mode of extrajudicial divorce permissible under Islamic law, wherein the woman can initiate the divorce by offering to compensate the husband. The predominant understanding of khula involves two factors: i) it is considered complete only when the husband agrees to it, ii) it has to be done at the instance of the qazi. This created a legal vacuum: i) attaching the right of women to divorce to the consent of the husband undermines the right itself, ii) the overhaul of qazi system by state system has curtailed the avenues for women to secure khula, thereby, a procedural abnormality is preventing the enjoyment of a substantive right. In the Kerala High Court judgment, the court states that khula could be done by women themselves after making effective attempts at reconciliation, by offering to return their mehr or any other compensation. The khula is complete once the offer is made. If the spouse has an objection about the quantum of the compensation, they can file a separate petition in the civil court. In this process, the High Court engages in an interpretative process that practically equates khula to talaq, marking a first in the history of South Asia. The judgment delves into the sources and interpretative traditions in Islamic law, presenting a position that could be described as neo-ijtihad, making it an important case for study by Islamic scholars and reformists worldwide. The paper also presents multifaceted responses to the judgment from different sections of the community through ethnographic reflections from the field.
Biography
I, Dr. Noor Ameena, am an interdisciplinary researcher/faculty trained in law, social sciences, and development, with a particular interest in the intersections of law, gender, religion, and society. I completed my MA Development Studies (TISS Mumbai), LLM & PhD from NALSAR University of Law. In my doctoral research, titled - Muslim Law and Legal Pluralism- Intersections of State and Society in Matrimonial Dispute Resolution in Kerala, I examine the operationalisation of Muslim Personal Law through Mahal Committees, Qazi Offices, and Family Courts, offering critical insights into the lived realities of legal pluralism in India. I have contributed to several field-based research projects as a Research Associate and Field Researcher, including Challenges in Establishing Functional Family Courts in Andhra Pradesh, Telangana, and Kerala and The Role of Open Prisons in the Rehabilitation and Reintegration of Prisoners. These projects were funded by the Ministry of Law and Justice and the Ministry of Home Affairs, Government of India, respectively. I have also served as a Legislative Assistant to a Member of Parliament -LAMP Fellow- under the Legislative Assistants to Members of Parliament Fellowship, offered by PRS Legislative Research, New Delhi, where I gained firsthand experience in legislative research and policy analysis. My research interests include law and legal pluralism, gender and religion, labour and migration, minority rights, and equity in higher education.
