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Supreme Court: A bench headed by Chief Justice Ranjan Gogoi dismissed a plea of a Kerala-based outfit challenging the constitutional validity of an ordinance which makes the practice of instant ‘triple talaq’ a punishable offence. The Court said that it would not like to interfere.

The Muslim Women (Protection of Rights on Marriage) Ordinance was first notified on September 19 last year, hours after the Union Cabinet had cleared it.

Instant ‘triple talaq’, also known as ‘talaq-e-biddat’, is an instant divorce whereby a Muslim man can legally divorce his wife by pronouncing ‘talaq’ three times in one go.

The ordinance making the practice of instant ‘triple talaq’ a punishable offence was issued for the third time in less than a year on February 21.

(Source: PTI)

Also read:

In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice set aside by a 3:2 majority

Lok Sabha passes Bill making Triple Talaq unconstitutional

‘Triple Talaq Ordinance’ promulgated in wake of ending the arbitrary custom of oral unilateral divorce

The Triple Talaq Bill passed in Lok Sabha

Triple Talaq ordinance re-promulgated

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of P.D. Rajan, J. declared the election of one K.M. Shaji as void, for having used corrupt practices and unduly influencing voters by creating a religious divide.

Petitioner filed the instant petition to challenge the election of respondent to the Azheekode Assembly Constituency. His case was that: (i) respondent, being a Muslim candidate, had appealed to voters belonging to Muslim community to vote for him on the ground of religion, and (ii) he had distributed pamphlets accusing petitioner of having an extra-marital relationship with Ms. Saritha (an accused in the solar scam case – a major issue in 2016 Kerala General Assembly Election).

The Court noted that the respondent had appealed to Muslim voters to refrain from voting for petitioner on the ground that he was a non-Muslim. Pamphlets as to petitioner’s personal life were false and published with the intention to defame him. It was observed that publication of such pamphlets had created misunderstanding among the voters and affected petitioner’s election prospects.

The Court noted Apex Court’s opinion in Krishnamoorthy v. Sivakumar, 2015 (3) SCC 467 where it was held that any direct or indirect interference/attempt to interfere on part of a candidate amounts to undue influence.

It was opined that the basic principle underlying Section 123(3) of the Representation of People Act, 1951 (RP Act) is elimination of divisive factors such as religion, caste etc. from the electoral process. Candidates cannot tell the electors that their rivals are unfit to act as representatives of people on the ground of their religion as such an appeal would be on the ground of religion.

In view of the above, the petition was allowed and respondent’s election was set aside under Sections 100(1)(b) and 100(1)(d)(ii) of the RP Act for having committed corrupt practice under Sections 123(3) and 123(4) of the RP Act. He was also disqualified from contesting in any election for a period of six years and subjected to payment of Rs. 50,000 as cost to the petitioner.

Lastly, the Court directed its finding in relation to respondent’s corrupt practice to be forwarded to the President of India for appropriate action under Section 8A of the RP Act; and also directed the High Court to intimate substance of its decision to the Election Commission and the Speaker of the Kerala Legislative Assembly.[M.V. Nikesh Kumar v. K.M. Shaji,2018 SCC OnLine Ker 4953, decided on 09-11-2018]

Case BriefsSupreme Court

Supreme Court: In the petition highlighting the erosion of the Mahakaleshwar Jyotirlingam, Ujjain due to the religious offerings, the bench of Arun Mishra and UU Lalit, J held that the Court cannot dictate or prescribe or restrain the religious practices and Pujas to be performed in temple as they are required to be performed in accordance with the ancient rituals and practices, however, at the same time, it has to be ensured that no damage is caused to the lingam.

The Court, hence, directed that in order to prevent further erosion of Lingam, a should be prepared Plan by the Temple Committee and other stakeholders within reasonable time, regarding the entire offering materials on the lingam to be manufactured and provided by temple itself as is done in several famous temples in the Southern part of India and other places. The Court said:

“By pouring the adulterated Milk, Ghee, Kumkum, Gulal, Abir containing chemicals due to adulteration is improper and cannot be permitted to be part of the ritual. Lingam cannot be permitted to be destroyed by chemical reactions of impure materials or by pouring of the dirty water such acts of offerings cannot be allowed and as are done innocently by the people unaware of ill effect on lingam.”

Regarding the practice of offering of Bhang (Cannabis), the Court said that it is for the Temple Committee to decide on these rituals and which material to be used by it and in which quantity for purpose of Puja by Temple and for how much time, in what manner Bhang should be applied and in what rituals.  The Court also asked the Temple Committee to invite and consider various views for further improvement of the temple.

Noticing that the Mritunjaya Mahadev temple is most ancient Jyotirlingam in one of the ancient cities of India, Ujjain & ‘Simhast’ is also organised 6 years and 12 years which has international importance visited by several millions of people on which thousands of crores of rupees is spent by the Government,  the Court said:

“Puja   is   to be   performed   in   such   a   manner   which   should   be befitting to the deity and not to cause erosion itself of lingam for which so   much   infrastructure   exists.   Lingam   is   known   as ‘Mrityunjaya Mahadev’, who prevents from destruction, it cannot be permitted to be destructed.”

[Sarika v. Administrator, Shri Mahakaleshwar Mandir Committee, 2018 SCC OnLine SC 490, decided on 02.05.2018]

Case BriefsSupreme Court

Supreme Court: After conducting a 6-day hearing during summer vacations, the historic verdict on the validity of Triple Talaq is out and this is what the 5-judge Constitution Bench has held:

“In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside.”

The 395-pages long judgment begins with the dissenting opinion of JS Khehar, CJ and SA Nazeer, J where the judges asked the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’ and requested the different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation. CJI, writing the judgment for himself and Nazeer, J said that till the time a law comes into force, the Muslim husbands should be injuncted from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction will be operative for a period of six months and if the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-ebiddat’ (three pronouncements of ‘talaq’, at one and the same time) – as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.

Stating that while examining issues falling in the realm of religious practices or ‘personal law’, it is not for a court to make a choice of something which it considers as forward looking or non-fundamentalist, the 2 judges said,

“It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’, must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be.”

CJI and Nazeer, J also took note of the fact that the AIMPLB has undertaken to issue an advisory through its website, to advise those who enter into a matrimonial alliance, to agree in the ‘nikah-nama’, that their marriage would not be dissolvable by ‘talaq-e-biddat’.

Nariman, J, writing down the majority judgment for himself and Lalit, J noted that given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. It was held that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. The Court, hence, held that the Muslim Personal Law (Shariat) Application Act, 1937, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. After going through the Hanafi jurisprudence, the Court noticed that very jurisprudence castigates Triple Talaq as being sinful. The Court said that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq, it was held that:

“the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice.”

It was, hence, held that Triple Talaq was not a part of Article 25(1) of the Constitution and hence, the Muslim Personal Board that the ball must be bounced back to the legislature does not hold good as Article 25(2)(b) would only apply if a particular religious practice is first covered under Article 25(1) of the Constitution.

Joseph, J, writing down a separate judgment but agreeing with the majority opinion, said,

“Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.”

He said that the purpose of the Muslim Personal Law (Shariat) Application Act, 1937 was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq and therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible and hence, there cannot be any Constitutional protection to such a practice. [Shayara Bano v. Union of India, 2017 SCC OnLine SC 963, decided on 22.08.2017]

 

Case BriefsSupreme Court

Supreme Court: Giving the Haji Ali Dargah Trust two weeks’ time to restore status-quo ante in regard to women pilgrims entering the sanctum sanctorum at par with men, the Court said that in case there is any default or neglect on the part of the Trust in complying with the direction of the Bombay High Court, the respondents-writ petitioners shall be free to approach the High Court for appropriate redress in the matter.

Gopal Subramanium, appearing for the Trust, had submitted that the Trust has not only decided to restore the status-quo ante and permit women to enter the sanctum sanctorum at par with men but passed a specific resolution to that effect on 11th October, 2016. It was also submitted that the Trust has also decided to relay the flooring on both sides of the sanctum sanctorum inside the Dargah meant for men and women pilgrims. The 3-Judge Bench of T. S. Thakur, C.J.  and D. Y. Chandrachud and L. Nageswara Rao, JJ, agreed to the submissions and hence, held that the Trust will be free to relay the flooring and complete the entire process within a period of four months.

The Bombay High Court, had earlier on 26.08.2016, held that the ban imposed by the Trust preventing the entry of women devotees in the sanctum sanctorum of the Haji Ali Dargah was violative of Articles 14, 15 and 25 of the Constitution. It was held that under the guise of providing security and ensuring safety of women from sexual harassment, the Trust cannot justify the ban and prevent women from entering the sanctum sanctorum of the Haji Ali Dargah. The Trust is always at liberty to take steps to prevent sexual harassment of women, not by banning their entry in the sanctum sanctorum, but by taking effective steps and making provisions for their safety and security e.g. by having separate queues for men and women. [Haji Ali Dargah Trust v. Dr. Noorjehan Safia Niaz, 2016 SCC OnLine SC 1199, decided on 24.10.2016]

Case BriefsHigh Courts

Allahabad High Court: Dismissing the PIL filed by Spokesperson of Bhartiya Janta Party  seeking quashing of appointment of a retired judge on the basis of religion and seeking a direction for appointing a Judge who is well versed with Hindu Dharma, the division bench comprising of Suneet Kumar and Shri Narayan Shukla, JJ fined the petitioner with a sum of Rs. 25000 for filing frivolous, mischievous petition and also directed the Bar Council of Uttar Pradesh to initiate disciplinary proceedings against Advocate for the Petitioner for filing and drafting reckless petitions.  The Learned Judge was appointed for holding the enquiry into the Jawaharbagh incident in which  two police officers and several common citizens were murdered.

The petitioner later sought permission to not press issue relating to appointment of retired judge  and pleaded that “That the petitioner is praying for the quashing of the Justice Imtiaz Murtaza Commission for the reason that the matter relates to a dispute with respect to a Hindu religious outfit and so it is improper to appoint a Muslim Judge to enquire into a purely religious matter related with Baba Jai Gurudev and so in place of Sri Imtiaz Murtaza, some Judge well versed with Hindu culture and Dharma should be appointed to enquire the matter.”

The Bench further observed that it is a serious issue on communal lines has been pleaded tarnishing the image of the Judge merely for the reason of his religion, and that the  tone and tenor of the advocate of the petitioner while addressing the Court is of arrogance and threat which is also reflected from his body language. Hence, the Court ruled  that the petition styled as PIL is a frivolous, mischievous petition filed for personal gains instituted at the behest of a person seeking publicity, therefore, deserves to be dismissed with cost assessed at Rs. 25,000/- by the petitioner to the Collector Lucknow and for the Conduct of the advocate of the petitioner, the court slammed that his conduct of  filing and drafting reckless petitions containing scandalous pleadings and being motivated by personal agenda hence, the Bar Council of Uttar Pradesh was directed to initiate disciplinary proceedings against him to adjudge his suitability to continue practice as an Advocate and sent a copy to the  Chairman, Bar Council, U.P., Allahabad. [Indra Pal Singh v. State Of U.P. 2016 SCC OnLine All 398, decided on 13th June, 2016]

Case BriefsHigh Courts

Allahabad High Court: Deciding on the matter of whether construction of a religious structure (Temple) and attempting to encroach upon the public land is a fundamental or legal right, the division bench comprising of Sudhir Agarwal and Rakesh Srivastava, JJ gave directions to the Uttar Pradesh Government and other officials, that no religious structure in any form, shall be allowed/ permitted to be raised on public roads and to remove any religious structure that were raised in public places from January, 2011 and to be shifted to Private Lands donated by beneficiaries.

The petitioners who were 19 in number filed an appeal stating that in the garb of constructing religious structures, like Temple, Mazar, Samadhi, Mosque, Gurudwara, Church etc., public roads (including highways), streets, pathways etc. are encroached upon, obstructing or creating hindrance in smooth movement of public including vehicular traffic. The Court observed that, “There is no fundamental or legal right to encroach upon a public road (including highway), street etc. and raise construction of any kind thereon. These unauthorized and illegal activities cause hindrance and interruption in free flow and movement of traffic including foot walkers. Every citizen has a fundamental right of movement and this cannot be allowed to be infringed by a few violators in public and apathy of State authorities.”

Therefore, the Court while disposing off the writ petition gave following directions:

  • Uttar Pradesh Government and other officials to ensure that no religious structure in any form, whatsoever, shall be allowed/ permitted to be raised on public road, street, pathway, lane etc. which is part and parcel of road etc. and belong to State.
  • If any such structure is existing and has been raised in the last five years, the same shall be removed forthwith and a compliance report shall be submitted by Collectors etc. of concerned Districts to Principal Secretary/Secretary of concerned department shall submit a comprehensive report to the Chief Secretary within next two months.
  • If any such religious structure has been raised encroaching upon public road (including highways), street, lane etc., before 01.01.2011, a Scheme shall be worked out and executed to shift the same to a private land offered by beneficiaries of such religious structures or persons responsible for its management or to remove it, within six months.
  • If any encroachment is made on roads, lane etc. after the judgment is passed on 10.06.2016 then the Deputy Collectors and Superintendent of Police of that area shall be responsible. The disobedience of the same shall be treated a deliberate and intentional disobedience to lower down authority of Court and would amount to criminal contempt.
  • District Magistrate directed to take immediate steps and take appropriate action within two weeks

 [Lavkush v. State of Uttar Pradesh,2016 SCC OnLine All 394 decided on 10.06.2016]

Case BriefsForeign Courts

Supreme Court of Pakistan: While upholding the conviction and sentence of the appellant in the high profile assassination of Salman Taseer, the then Governor of Punjab province, on allegations of blasphemy, the 3 Judge Bench of A.S.K. Khosa, Mushir Alam and D.M. Khan, JJ., observed that seeking reforms in a manmade law in respect of a religious matter for its better enforcement does not ipso facto amount to criticizing the religious aspect of such law i.e. demanding reforms in religious laws does not amount to blasphemy.

As per the facts of the case, Salman Taseer was brutally assassinated by the appellant who was his security guard, for openly standing up in support for a Christian lady accused of blasphemy and calling the blasphemy laws enforced by General Zia-ul-Haq as “black law”. The counsel for the appellant Mian Nazir Akhtar argued before the Court that, the appellant’s act was in sync with the religious obligations imposed on a devout Muslim to kill an apostate. It was further contended that a murder committed by the appellant was due to extreme provocation by the deceased Governor, therefore the act does not fall under the ambit of Section 302(b) of Pakistan Penal Code (PPC). Advocate-General Mian Abdul Rauf, appeared before the Court on behalf of the State.

The Bench perused the concerned verses of Holy Quran and Section 295-C of PPC dealing with blasphemy and observed that, in a democracy the citizens have right to express their voices over laws that they feel to be regressive or violative of rights. Seeking reformation in religious laws does not amount to criticism of the religious laws of the land. The Court further cited that how the Hudood laws enacted in 1979 were amended in the wake of severe protests over their misuse against religious minorities. A bare reading of the definition of blasphemy contained in Section 295-C of PPC shows that the statutory definition restricts blasphemy to defiling the sacred name of Prophet Muhammad. The Court further observed that a false accusation of blasphemy is detestable and culpable legally and as well as under the tenets of Islam. The Court further added that the appellant had no authority to take the law in his hands especially when he himself was a police officer who had full knowledge of the legal remedies available for his grievances, therefore the appellant does not deserve any sympathy from the Court. [Malik Muhammad Mumtaz Qadri v. The State, decided on 07.10.2015]

High Courts

Allahabad High Court: Speaking on the recent issue of conversion and  dismissing the several clubbed petitions where Hindu girls converted into Islam for the sole purpose of marriage, the Court held that conversion of religion to Islam by girls without their faith and belief in the of tenets of Islam, cannot be said to be a valid conversion. The Court further explained that only those conversions of religion to Islam will be considered bonafide which will done by a major person of sound mind who embraces Islam with his or her free will.

In the case where petitioners are represented by M.S. Ansari, the Court discussed extensively with the help of case laws the meaning of “religion”, Mahomedan, conversion of religion, and when it is bonafide, and evolved principles of conversion of religion into Islam such as

  1. Conversion to another religion requires change of faith and beliefs in the new religion;
  2. Change of heart and honest conviction in the tenets of new religion in lieu of tenets of the original religion;
  3. Conversion into a new religion for worldly gain or benefit, would be religious bigotry;
  4. If a person purposely undertakes the conversion of another person to his religion, it would encroach upon the freedom of conscience guaranteed to all the citizens under Article 25 of COI.   

The Court further held that in the instant case, marriages done by the petitioners are against Sura II Ayat 221 of the Holy Quran which prohibits marriage with the women who do not have faith and belief in Islam. Smt. Noor Jahan Begum @ Anjali Mishra v. State Of U.P., Decided on 16.12.2014

High Courts

Bombay High Court: In a landmark judgment, a bench comprising of A.S. Oka and A.S. Chandurkar, JJ declared that by virtue of Article 25 of the Constitution, every individual has the right to claim that he does not practice or profess any religion and thereby directed the state that they cannot compel any individual to declare or specify his religion in any form or in any declaration.

In the present case the petitioners were members of a registered organization “Full Gospel Church of God”.  Though they believed in the existence of Lord Jesus Christ but they did not believe in any religion, much less Christianity. According to their belief, Lord Jesus Christ desired to have a kingdom of heaven and not to form any religion. Therefore, they wanted a gazette notification to be issued recording that they were not Christians and that they belong to ‘no religion’. This application was rejected by Government Printing Press against which they filed a public interest litigation in Court.

The Court took into consideration various judgments including Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004) 12 SCC 770  where it was stated that ‘man’s relation to his God is no concern of the State’. The Bench also observed that Article 25 (1); of the Constitution is in two parts. The first part confers fundamental right to freedom of conscience whereas the second part confers a right on a citizen to freely profess, practice or propagate any religion. The Court clarified that as freedom of conscience confers a fundamental right to entertain a religious belief, it also confers a right on an individual to express an opinion that he does not belong to any religion. Therefore, no authority which is a state within the meaning of Article 12 or any of its agency or instrumentality can infringe the fundamental right to freedom of conscience and thereby, the Court set aside the order of the Government Printing Press.Dr. Ranjeet Suryakant Mohite vs. Union of India, Public Interest Litigation No. 139 of 2010, decided on  23.09.2014