Monday 19 January 2015

Muslim divorcee files writ petition in Kerala High Court challenging direction of passport authorities to produce divorce decree; claims 'talaq' is a valid form of divorce



A Muslim divorcee has approached the Kerala High Court challenging the insistence of the passport authorities for production of divorce decree to prove her claim in her passport application that she is a divorcee.
  
The petitioner, Nehmath Kunju Mohamed of Mattanchery has sought a declaration of law that divorce by her husband by pronouncing 'talaq' should be accepted as legally valid even without the necessity of a divorce decree. 

The petitioner contends that 'Talaq' is a permitted and recognized form of dissolution of marriage in Islam and Muslims are entitled to dissolve their marriages by 'talaq' or mutual consent without approaching any court or obtaining any formal decree or order from a court of law. Therefore, the demand of passport authorities to produce a formal divorce order is unwarranted, illegal, improper, and arbitrary, says the petitioner. 

It is alleged by the petitioner that the stance of the passport authorities is against the decision of the Kerala High Court reported in Shemi P Ali v. State of Kerala [2009 (3) KLT 167]

In Shemi P Ali v. State of Kerala (supra), the High Court of Kerala had declared the legal position thus : "Authentication of divorce by competent court is one of the methods of proving a divorce or even the existence of a re-marriage. But it is not the only method. Divorce resultant upon a 'talak' pronounced by her husband is a mode of divorce that is accepted in the Muslim Community. An affirmation of the state of affairs by a sworn affidavit in the form 'Annexure A' would suffice going by Clause 7 of Ext. R1(a) (Passport Information Booklet)." 

The petition filed through Adv: Muhamed Shemeem is expected to come up for admission before the High Court on Tuesday.

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Editor's note: The decision reported in Shemi P Ali v. State of Kerala (supra) has been followed in some other decisions of the Kerala High Cout, including in K.A. Thansi v. Regional PassportOfficer and Sajila v. Regional Passport Officer


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