Sunday, June 9, 2013

Muslim marriage is a civil contract: Kerala high court

Uncoupling the institution of marriage from sacred or religious connotations conveniently used to deny women their due, the Kerala high court has ruled that Muslim marriage is primarily a civil contract to legalize sexual intercourse. In the same vein, the court held that denying a woman her conjugal rights for an extended period amounts to "cruelty''.

The ruling by a division bench comprising justices Pius C Kuriakose and PD Rajan was in response to an appeal by Sanjan S of Alappuzha against a family court's decision to grant divorce to his wife on the ground that she was denied sex by him for over three years. The profound implications of the March 21st ruling are only beginning to sink into public consciousness.

The judgment authored by Justice Rajan says, "The concept of 'marriage' among Muslims from the very beginning itself (is) regarded as a contract. Muslim marriage has been defined as a civil contract for the purpose of legalizing sexual intercourse and procreation of children. It is not a sacrament but a contract, though solemnized generally with the recitation of certain verses from the Quran. Muslim law does not prescribe any religious service essential for solemnization. Justice Krishna Iyer in 'Islamic Law in Modern India' considered the concept of Muslim marriage and stated that "in its legal connotation, Muslim marriage is essentially a contract, though marriage as a social institution is regarded solemn all over the civilized world, including the Muslims."

Sanjan got married on May 16, 1999 according to Muslim religious rites and his wife delivered a child in August 2004. After February 2004, he avoided sexual contact with his wife, despite her insistence, for more than three years. In 2006 his wife left Sanjan's home and filed for divorce in 2007 in the family court.

Upholding the family court's decision granting divorce, the high court held, "We are of the opinion that if husband refuses to (have) sex with his wife, when she demands for the same, (it) is a ground for "cruelty". As a wife, she is expecting a healthy sexual relationship with her husband for the persistence of happy and harmonious married life."

Sanjan's counsel at the high court, K Ramakumar, contended that the alleged cruelty of denying conjugal relations is not pleaded and proved in this case. There is no allegation that the matrimonial relationship was broken irretrievably, he argued. Advocate PK Ibrahim, who appeared for the wife, opposed this, arguing that the totality of the pleading and evidence show that the marriage was irretrievably broken and that the emotional bond between the couple is extinct.

While deciding the case, the high court cited section 2 of Dissolution of Muslim Marriage Act, 1939, which states various grounds for divorce. According to section 2, divorce can be granted if "the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years."

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