Saturday, September 10, 2016

US court upholds divorce by 'khula'

A United States family law court has upheld divorce by 'khula' granted by a qazi in Mumbai to a Muslim woman and re-opened her case for divorce against her second husband there. 'Khula' is divorce initiated by a woman.

The judge of the circuit court of Cook County, Chicago, allowed her plea to reconsider his earlier order dismissing her petition for a divorce saying he "had entered an error in the appreciation of the law in India". Judge John Carr relied on the expert opinion of Mumbai-based advocate Neelofar Akhtar to conclude that the woman's first marriage was validly dissolved. "The verdict is significant. Khula is not well known among Muslim women as a means to get out of a troubled marriage," 

The woman (now 34) took an ex-parte 'khula' from her first husband in Mumbai on April 29, 2007.

She remarried on June 19, 2008 and joined her husband (now 40), a software engineer, in the United States. She filed a petition for divorce in April 8, 2014 seeking, among others, temporary and permanent maintenance commensurate with her needs and the standard of living enjoyed during the marriage.

Her husband contested it saying their marriage is not valid because she got divorce from her first husband through 'khula' executed by a Qazi instead of a family court. Accepting his contention that her first marriage subsists and the second marriage is illegal, Judge Carr dismissed her case on April 6, 2015.

The judge then had relied on the expert opinion of Vinaykant Bhatt, former principal judge of the Ahmedabad family court and now a foreign legal consultant in Chicago. Citing Supreme Court's July 2014 judgment in the Vishwa Lochan Madan case, Bhatt said the only forum to deal with such cases is the family court and there cannot be parallel courts like Dar-ul-Qazas. He said The Dissolution of Muslim Marriage Act, 1939 has provided grounds on which Muslim women can seek divorce. Also, while Dar-ul-Qazas exist for educational or religious purposes or at the most to bring about an amicable settlement between parties, it cannot take the place of a court.

After the verdict, Mohammed Hamed, a social activist of the Des Plaines community in Chicago, organized a legal team to file a review. The case was reopened on July 30, 2015. Akhtar, in her opinion said, the uncodified Muslim Law provides various modes of dissolution of marriage and is applicable to Muslims worldwide. It recognizes out-of-court divorce at the instance of the wife and the husband. Divorce at the instance of the wife is 'khula' which is parallel to talaq, which is effected by the husband. She said the woman was entitled to 'khula' without her husband's consent. She also relied on verdicts of the SC in Juveria Abdul Majid Patni and Bombay High Court in Dagdu Pathan where the procedure of 'khula' has been settled.

Bhatt, in his second opinion on the woman's plea for reconsideration, said it was for the first time she took the plea for 'khula' from her first husband which was not there in her application to the Qazi. He said the required ingredients for 'khula' were not satisfied by the wife, which is consideration in the form of compensation and consent of the husband. Akhtar countered that consent of the husband is not required and if he consents it becomes 'mubarrah,' which is divorce by mutual consent. Bhat reiterated that the Qazi is not conferred with any judicial power to grant divorce and such divorce is not legally binding.

In his June 28, 2016 verdict, Judge Carr termed Bhatt's interpretation of the law as "confusing." Bhat told TOI, "I stand by my opinion. I respect the verdict."

The community in Chicago is thrilled that the case will be a helpful reference in future in the US for Muslim women seeking divorce through 'khula.' Hamed said, "The husband basically misrepresented the legal status of a Qazi and Muslim Personal Law in India solely to avoid his obligations towards his wife as per US family law."

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