Hot Off The PressNews

Supreme Court: The bench of NV Ramana and Ajay Rastogi, JJ has agreed to examine the validity of a newly enacted law which makes the practice of instant divorce through triple talaq among Muslims a punishable offence entailing imprisonment of up to three years. It issued notice to the Centre on a batch of petitions seeking to declare The Muslim Women (Protection of Rights on Marriage) Act 2019 as “unconstitutional” on grounds that it allegedly violates the provisions of the Constitution.

Senior advocate Salman Khurshid said there were many dimensions, including making the practice a punishable offence and jail term of up to three years, which need to be examined by the top court. He said the petitioners were concerned about making the practice of triple talaq among Muslims an offence as the apex court had already declared it to be null and void. Referring to a five-judge Constitution bench verdict which had declared the practice of triple talaq among Muslims as null and void,

“If there is no such thing as triple talaq then what are they making an offence,”

To this the bench asked, suppose if a religious practice is declared as null and void and it is declared as an offence like dowry and child marriage, but if it still goes on then what is the remedy. Responding to the query, Khurshid said several aspects have to be examined and in the triple talaq matter the Constitution bench had already said the practice is void. He said it has to be examined whether the religious practice denies the rights to the woman.

The bench, while agreeing to examine the validity of the 2019 Act, observed that petitioners have also raised the issue of punishment of up to three years and grant of bail to the husband only after the woman is heard by the court.

In the plea filed through advocate Ejaz Maqbool, Jamiat Ulama-I-Hind has claimed that since the pronouncement of talaq by a Muslim husband upon his wife had already been declared “void and illegal”, there was no requirement to enact the law.

“However, the impugned Act criminalises the act of pronouncement of talaq by a Muslim husband and makes it a cognizable offence, without appreciating that such pronouncement had already been declared unconstitutional and amounted to nullity in the eyes of law,”

Referring to the provision of the Act which stipulates punishment of up to three years jail along with fine, the plea said it is an “ill-conceived provision which imposes excessive and disproportionate punishment.”

It claimed that “criminalising a mode of divorce in one particular religion while keeping the subject of marriage and divorce in other religions only within the purview of civil law, also leads to discrimination, which is not in conformity with the mandate of Article 15”.

Article 15 of the Constitution deals with prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

(Source: PTI)


Also read:

Triple Talaq void & illegal | Parliament passes the Muslim Women (Protection of Rights on Marriage) Bill, 2019!

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

Hot Off The PressNews

The First Session of the Parliament after the 2019 General Elections, the most productive session in the longest time was conducted. In total 30 Bills have been passed this session in 35 sittings.

Bills passed by both the houses of the Parliament are listed below:

  1. The Special Economic Zones (Amendment) Bill, 2019
  2. The Jammu and Kashmir Reservation (Amendment) Bill, 2019
  3. The Homoeopathy Central Council (Amendment) Bill, 2019
  4. The Central Educational Institutions (Reservation in Teachers’ Cadre) Bill, 2019
  5. The Indian Medical Council (Amendment) Bill, 2019
  6. The Dentists (Amendment) Bill, 2019
  7. The Aadhar and Other Laws (Amendment) Bill, 2019
  8. The Central Universities (Amendment) Bill, 2019
  9. The National Investigation Agency (Amendment) Bill, 2019
  10. The New Delhi International Arbitration Centre Bill, 2019
  11. The Appropriation (No. 2) Bill, 2019
  12. The Finance (No. 2) Bill, 2019
  13. The Protection of Human Rights (Amendment) Bill, 2019
  14. The Right to Information (Amendment) Bill, 2019
  15. The Banning of Unregulated Deposit Schemes Bill, 2019
  16. The Muslim Women (Protection of Rights on Marriage) Bill, 2019
  17. The Companies (Amendment) Bill, 2019
  18. The Insolvency and Bankruptcy Code (Amendment) Bill, 2019
  19. The Arbitration and Conciliation (Amendment) Bill, 2019
  20. The Protection of Children from Sexual Offences (Amendment) Bill, 2019
  21. The Unlawful Activities (Prevention) Amendment Bill, 2019
  22. The Codes on Wages, 2019
  23. The Repealing and Amending Bill, 2019
  24. The Airport Economic Regulatory Authority of India (Amendment) Bill, 2019
  25. The Motor Vehicles (Amendment) Bill, 2019
  26. The National Medical Commission Bill, 2019
  27. The Consumer Protection Bill, 2019
  28. The Public Premises (Eviction of Unauthorised Occupants) Amendment Bill, 2019
  29. The Jammu and Kashmir Reorganisation Bill, 2019.
  30. The Supreme Court (Number of Judges) Amendment Bill, 2019

Legislations relating to almost all walks of socio and economic activities have been passed. 30 Bills have been passed by both the Houses of Parliament in this Session which is a record in single first/effective Session after the constitution of new Lok Sabha.

Most important business transacted during this Session is the abrogation of certain provisions from Article 370 and Presidential Orders thereunder.  This will ensure equal opportunities to all sections of Society in Jammu & Kashmir particularly with the restoration of applicability of the provisions of the Constitution of India and all socio-economic legislations thereby ensuring rule of law and equity.  Further, for ensuring better administration and for curbing terrorism, the State of Jammu & Kashmir has been reorganized with the formation of two Union Territories – Jammu &Kashmir and Ladakh. 

Amendments to existing lawsLegislation Updates

Parliament passed the Muslim Women (Protection of Rights on Marriage) Bill 2019, yesterday, i.e. 30-07-2019 and it would replace Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019.

The practice of instant divorce by Muslim men will be punishable by a jail term of up to three years.

This Bill will protect the rights of married Muslim women and prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.

Talaq to be void and illegal Section 3 Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.
Punishment for pronouncing talaq Section 4 Any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.
Subsistence allowance Section 5 A married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance, for her and dependent children, as may be determined by the Magistrate.
Custody of minor children Section 6 A married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate
Offence to be cognizable, compoundable, etc. Section 7
  • offence punishable under this Act shall be cognizable, if information relating to the commission of the offence is given to an officer in charge of a police station by the married Muslim woman upon whom talaq is pronounced or any person related to her by blood or marriage
  • offence punishable under this Act shall be compoundable, at the instance of the married Muslim woman upon whom talaq pronounced
  • no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail

The Home Minister congratulated Muslim women by saying, “On the passage of this Bill, I congratulate the Muslim sisters across the country on getting rid of the Triple Talaq curse. This act will free Muslim women from the curse of this regressive practice


UPDATE: President gave assent to Muslim Women (Protection of Rights on Marriage) Act, 2019 on 31-07-2019.

*Please refer to the Act here: The Muslim Women (Protection of Rights on Marriage) Act, 2019


[Press Release dt. 31-07-2019]

Source: PIB

Hot Off The PressNews

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 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]

 

Hot Off The PressNews

Supreme Court: A Constitution Bench of the Supreme Court has held by by 3:2 majority that the practice of Triple Talaq is unconstitutional and violative of Articles 14 and 15 of the Constitution. The decision was rendered by the Bench comprising of  JS Khehar, CJI along with Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and Abdul Nazeer, JJ. While Nariman and  Lalit, JJ. held that Triple Talaq is unconstitutional and violative of Article 14, Justice Joseph struck down the practice on the ground that it goes against Shariat and the basic tenets of the Quran.

While Kurian Joseph, R F Nariman and U U Lalit, JJ. said triple talaq needs to go  JS Khehar,  CJI and Abdul Nazeer, J. dissented. Chief Justice Khehar and Justice Nazeer in their dissenting opinion held that the practice cannot be struck down on the ground of being violative of Articles 14, 15 and 21 since there is no State action and hence a law should be brought in 6 months.  The Court put a six-month stay on the practice, directing the union government to enact an appropriate law in this regard within the given time period.

During the hearings, the Court had clarified that it would only deliberate whether the practice of ‘triple talaq’ is part of an “enforceable” fundamental right to practice religion among Muslims and not on the practice of polygamy. The Bench while deliberating the issue, heard several pleas filed by Muslim women who had challenged the practice of instant triple talaq, where a man divorces his wife by pronouncing the word ‘talaq’ thrice.

Detailed report to follow.

 

Hot Off The PressNews

On 22.05.2017, the All India Muslim Personal Law Board (AIMPLB) filed an affidavit before the Supreme Court stating that it would issue an advisory through its website, publications and social media platforms asking Qazis to tell the bridegrooms at the time of performing Nikah (marriage) that in case of differences leading to talaq the bridegroom/man shall not pronounce three divorces in one sitting since it is an undesirable practice in Shariat.

The affidavit that will be placed before the 5-judge constituion bench of  J.S. Khehar, CJI and Kurian Joseph, U.U. Lalit, R.F. Nariman and Abdul Nazeer, JJ, mentioned that “at the time of performing ‘Nikah’, the person performing the ‘Nikah’ will advise both the bridegroom/man and the bride/woman to incorporate a condition in the ‘Nikahnama’ to exclude resorting to pronouncement of three divorces by the husband in one sitting.”

The bench had reserved it’s decision in the Triple Talaq matter on 18.05.2017 after a 6-day long hearing.

Source: PTI

Case BriefsHigh Courts

Allahabad High Court: While considering an application filed under Section 482 CrPC the Single Bench of Surya Prakash Kesarwani, J. has observed that Talaq by a Muslim husband to his wife cannot be made in a manner which may infringe her fundamental rights guaranteed under Articles 14 and 21 of the Constitution.

In the instant case, the opposite party had moved a complaint before Addl. Chief Judicial Magistrate against her husband, mother-in-law and father-in-law for beating her, ousting her from their house, and demanding dowry from her parents. Consequently, Addl. Chief Judicial Magistrate, passed an order under Section 204 of CrPC summoning the applicants under Section 498-A, 323, 504, 506 of IPC and Sections 3 and 4 of Dowry Prohibition Act. The applicant contended that since he had divorced his wife by way of Triple Talaq and the same has been approved by a Fatwa, the complaint case proceedings were null and void.

The Court observed that the Articles 14 and 21 of the Constitution entitle Muslim Women to live with dignity and to oppose the arbitrary exercise of the power of Talaq by her husband, such as the mere pronouncement of the word ‘Talaq’ thrice at a time, as allegedly done by the applicant-husband. The Court further added that since a ‘Fatwa’ does not emanate from any judicial system recognized by law, it is not binding on anyone. Therefore, the complaint case proceedings could not be challenged on the basis of the alleged divorce or the fatwa. Moreover, the statements of the opposite party and the witnesses recorded under Section 200 and 202 of CrPC made out a prima facie case against the applicants. Hence, the exercise of the power under Section 482 of CrPC was not warranted. [Aaqil Jamil v. State of Uttar Pradesh, 2017 SCC OnLine All 1325, decided on  19.04.2017]

Hot Off The PressNews

Supreme Court: The Constitution bench of 5 judges belonging to 5 different faiths started hearing the Triple Talaq matter on 11.05.2017. The Bench comprising of J.S. Khehar, CJI and Kurian Joseph, U.U. Lalit, R.F. Nariman and Abdul Nazeer, JJ is hearing the matter on day-to-day basis.

Day 6, May 18th, 2017

  • Amit Chadha, appearing for Shayara Bano: In my opinion, Triple Talaq is a sin and is between me and my maker.
  • Kapil Sibal to SC: Only Legislation can interfere in the matters relating to sinful practices in any religion, not you.
  • AIMPLB: We will, within a week, issue an advisory to Qazis to inform every bride her right to specifically mention in the Nikahnama that she will not accept instant triple talaq.
  • SC reserves it’s judgment after 6 day long hearing.

Day 5, May 17th, 2017

  • J.S. Khehar, CJI to AIMPLB: Is it possible to give bride the right that she will not accept instant triple talaq and whether the board’s advisory will be followed by the Qazi at the ground level? Can’t there be a modern and model Nikah Nama to provide for talaq? New Nikah Nama can also do away with instant Triple Talaq and Nikah Nama.
  • Yousuf Muchala, appearing for AIMPLB: Board’s advisory is not mandatory for all Qazis to follow, however, AIMPLB accepts the suggestions in all humility and will look into it. AIMPLB also showed a resolution passed on 14.04.2017 which says Triple Talaq is a sin and community should boycott person doing it.
  • Yusouf Muchala: A Muslim woman has every right to pronounce Triple Talaq in all forms, and also to ask for very high ‘mehr’ amount in case of talaq.
  • SC: Triple Talaq is not a part of Quran. It came later. So if biddat is a sin then why not Talaq-e-biddat i.e. Instant triple talaq? (Note:- Biddat or Bid’ah refers to innovation in religious matters & evil innovations are forbidden under Islamic law.)
  • Senior Advocate V. Giri: Triple Talaq is a part of religion and hence, it is protected by Article 25 of the Constitution.
  • SC: If you yourself say triple talaq is the worst form of divorce and sinful, how does it then become essential to religion? Protection of Article 25 is applicable only when it is about a practice which is essential to your religions and not for what is not essential.
  • V. Giri: Talaq-e-Biddat finds mention in para 230 of Surah 65 of the Quran.
  • SC (after reading out the versus from the Quran): There is absolutely no mention of Talaq-e-Biddat in the Quran, and only two other forms of talaq,  i.e. Talaq-e-Ehsan and Talaq-e-Ahsan, are mentioned in the holy book. You have to read all the paras before and after to give a complete picture. This book says that in every Friday prayers, you say that biddat is bad and should not be practised by any means and now you say it is part of your 1400-year-old faith.
  • Senior Advocate Raju Ramachandran: Judiciary cannot dictate to a religious community what personal law practices and norms to follow. A community follows practices that it finds relevant for itself and not what an outsider tells it. India has an express reservation in Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). It says that the State follows a policy of non-interference with the personal law practices of any community, unless the community itself takes the initiative to change.
  • Indira Jaising, appearing for Bebak Collective, a Muslim women organisation: But Article I of the CEDAW defines “discrimination against women” and Article 2 obliges the State to act against all forms of discrimination against women.
  • Advocate General Mukul Rohatgi: Issue of Triple Talaq is not an issue of majority or minority. It is an issue of a minority community and that of women within that community.  If Triple Talaq is not present in 25 countries then it cannot be said to be essential to Islam. Rights governed by Article 25 of Constitution are not absolute. Sati, Devdasi etc were once part of Hinduism and were later abolished.
  • CJI: But which one them was set aside by the Court? The were all abolished by bringing in legislation.
  • Mukul Rohatgi: Government will do what is necessary but the Court must step in.
  • Indira Jaising: The key question would be whether personal laws will have to stand scrutiny of fundamental laws. At the end of the day, all the systems will have to comply with the Constitution.
  • Day 5 hearing concludes.

Day 4, May 16th, 2017

  • Kapil Sibal on behalf of AIMPLB: Triple Talaq is a 1400 year old practice. Who are we to call it un-Islamic? He adds that Triple Talaq is not a matter of equity of or good conscience. It is a matter of faith just like the Hindu belief that Lord Rama was born in Ayodhya. Just like the Hindus’ faith about Rama’s birth at Ayodhya cannot be questioned, similarly Triple Talaq which is also a matter of faith for Muslims should not be questioned. There is no question of Constitutional Morality involved. Why should Court interfere?
  • R.F. Nariman, J: You mean we shouldn’t hear the matter?.
  • Kapil Sibal: “Yes, you shouldn’t”. In a Hindu majority country, Muslims have to be protected and vice-versa.
  • Kapil Sibal: The dispute is not just the issue of triple talaq but the prevalence of patriarchy among communities. All patriarchal societies are partial. Is it better for a woman to apply for divorce and fight for 16 years and get nothing?
  • Kurian Joseph, J: Are e-divorces also taking place?
  • Kapil Sibal: Divorces are happening even through whatsapp.
  • Kapil Sibal: We are not saying that Triple Talaq is good and should continue permanently. We also want to change but somebody else should not interfere & force the change on us.
  • Kapil Sibal ended his submissions for the day by saying the issue of Triple Talaq cannot be decided in 6 days.

Day 3, May 15th, 2017

  • Attorney General Mukul Rohatgi suggests the hearing of the issues relating to polygamy and Nikah Halala along with Triple Talaq. The bench says that the said matters will be taken up in future. The present hearing will be limited to the issue of Triple Talaq sue to time constraint.
  • Arguing on behalf of the Government, Attorney General: Most radical countries like Pakistan and Bangladesh are moving towards reforms but we, as a secular State, are still debating. You are guardians of the constitution. Examine if Triple Talaq is permissible under the constitution. The Government will bring a law if Triple Talaq is abolished. people will not be left in lurch.
  • J.S. Khehar, CJI: We are the guardians of minority as well as the majority. We will strike down Triple Talaq if Government can establish that it is not an integral part of Islam
  • Mukul Rohatgi: Supreme Court is not an ecclesiastical court to check whether Triple Talaq is essential to Islam or not. Stating that the Court was looking to the problem from wrong abgle, he said that Issues of Muslim marriage and divorce were separated from religion in Shariat Act way back in 1937 itself. The matter should be decided on the basis of fundamental rights of gender equality & human rights under Arts 14, 15, 21 & 51A of the Constitution.
  • J.S. Khehar, CJI: The tenets of religion can neither be tested on scientific grounds or on other grounds.
  • Mukul Rohatgi: Why is the matter being argued before the Constitution Bench then?. Matters are referred to the Constitution Bench because they have something to do with the Constitution. Nothing, no advocacy by man, will help cover something that is wrong by the Constitution.
  • Mukul Rohatgi: Women lived in fear of Sati until the law declared it illegal. Muslim women want freedom to live without fear of Triple Talaq.
  • J.S. Khehar, CJI: Women should be equal, but within the particular religion.
  • Mukul Rohatgi: A constitution bench cannot shut eyes to a Muslim woman’s constitutional rights of equality and gender justice.

Day 2, May 12th, 2017:

  • Court resumes the hearing.
  • R.F. Nariman, J.: One should see difference between theory & practicality at present context in the context of Nikah & Talaq in Islam.
  • Salman Khurshid: Triple Talaq is not practiced anywhere except India.
  • SC: Why all other countries say it is not valid in Islam?
  • Salman Khurshid: Triple Talaq is sinful and is discouraged. But still, it is valid in law.
  • SC: Is it like death penalty, which for some is sinful but legal. If lawful man can be sinful? What is sin in the eyes of God, can it be valid in law?
  • Salman Khurshi: It cannot be.
  • SC: We have to understand the religion from the point of view of what religion says not what you understand in order to test it on the principle of Article 25 (freedom to practice religion) of the Constitution. Tell us whether Triple Talaq is a custom/usage or fundamental to Islam. Where does it lie, Shariat or customs and usage?
  • Senior Advocate Ram Jethmalani, appearing for Forum for Awareness of National Security: Triple Talaq violates Article 14 as it gives the right to terminate marriage only to men and not to women.
  • J.S. Khehar, CJI: The Court is dealing with Personal Law in the present matter and  Article 15 of the Constitution talks about State law.
  • Ram Jethmalani: Triple Talaq makes a distinction on the ground of sex & this method is abhorrent to the tenets of holy Quran and no law can allow a wife to become an ex-wife at the fancy of the husband. No amount of advocacy can or will save this sinful, repugnant practice which is contrary to the constitutional provisions.
  • SC: There are some school of thoughts which say that Triple Talaq is legal but it is the worst and an undesirable form of marriage dissolution.
  • The matter is listed for further hearing on 15.05.2017 as part heard.

Day 1, May 11th, 2017:

  • Amit Singh Chadha, appearing for one of the petitioners Shayara Bano: The practice of Triple Talaq is not fundamental to Islam and hence can be done away with. Islamic countries like Pakistan and Bangladesh have also declared it to be invalid.
  • SC: We would peruse the prevalent laws in various Islamic countries on the issue.
  • Senior Advocate Indira Jaising, appearing for petitioners: In case of divorces being granted through extra-judicial mechanism, there should be a “judicial oversight” to deal with the consequences.
  • Senior advocate Salman Khurshid, assisting the Court in his personal capacity and Senior advocate Kapil Sibal, appearing on behalf of the All India Muslim Personal Law Board: Triple Talaq is a non issue.
  • Kapil Sibal: No prudent Muslim would wake up one fine morning and say talaq, talaq and talaq. Salman Khurshid said Triple Talaq not considered complete without conciliation efforts between the husband and the wife.
  • SC: Is the reconciliation after the pronouncement of triple talaq in one go codified?
  • Salman Khurshid: No, it’s not
  • Kapil Sibal: Triple Talaq issue is outside the ambit of judicial review.
  • SC: The issue is, in fact, prima facie related to fundamental rights.
  • SC: If Triple Talaq is declared invalid, what will be the procedure available to husband for seeking divorce? Will it not create a vacuum?

It is important to note that recently on 19.04.2017, the Allahabad High Court has termed triple talaq as unconstitutional, observing that the practice is violation of a woman’s rights. The Constitution bench is hearing the matter during the summer vacations of the Court, in the suo motu proceedings initiated by the Court in In Re: Muslim Women’s Quest for Equality v. Jamiat Ulma-I-Hind, SMW(C) No. 2/2015 with a bunch of related petitions being merged with the case.

Source: PTI & ANI

Hot Off The PressNews

As reported by Firstpost, the Allahabad High Court has termed triple talaq as unconstitutional, observing that the practice is violation of a woman’s rights. Coming down strongly on the issue of Triple Talaq while hearing a case involving a divorce granted through the contentious practice of triple talaq, the Court observed that all citizens, including Muslim women, have fundamental rights under the Constitution, and they cannot be violated under the garb of personal law. Striking out at practices that violate the fundamental rights of women,  Surya Prakash Kesarwani, J. held  that the human rights of women and of girls are an “inalienable, integral and indivisible part of universal human rights”.

The Court also said that personal law may be applicable only within the purview of the Constitution, and that a fatwa, which is contrary to the justice system, is not valid. No fatwa can be contrary to someone’s rights, the Court said.

The Constitution Bench of the Supreme Court comprising of 5 Judges will hear the triple talaq matter from 11.05.2017 [In Re: Muslim Women’s Quest for Equality v. Jamiat Ulma-I-Hind, SMW(C) No. 2/2015].

 

News

As per the Circulars dated 05.05.2017, the Constitution bench of 5-judges will hear the below mentioned matters during summer vacations that are commencing from 11.05.2017:

  • In Re: Muslim Women’s Quest for Equality v. Jamiat Ulma-I-Hind, SMW(C) No. 2/2015  – The Triple talaq matter from 11.05.2017. The Circular, however, did not mention the names of the 5-judges who will be hearing the matter.
  • Karmanya Singh Sareen v. Union of India, SLP(C) No. 804/2017 – The Whatsapp Data Privacy matter from 15.05.2017. Dipak Misra, Dr. A.K. Sikri, Amitava Roy, A.M. Khanwilkar and M.M. Shantanagouda, JJ are hearing the matter.
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal, Lucknow: The Division Bench comprising of D.P Singh, J and Air Marshal Anil Chopra stating that Constitution is the mother of all the laws and has overriding effect over Personal Law as well as other provisions, practices or usage which offend the constitutional right of persons, collectively or individually, held that Triple Talaq by ex parte is Un-Islamic, inhuman and unconstitutional.

By observing all the aspects of the Muslim Personal Laws in relation to marriage and divorce in the relation to Constitutional Principles. The Court stated the following findings:

  • Nikah is based on offer and acceptance between man and woman. Unless both agree, there can’t be Nikah and on the same analogy, the declaration of talaq must be done in the presence of wife and only if both agree, talaq would be executed. In the disagreement, wife is left with the option to file the Regular suit for divorce where the court may accept or refuse the grant of talaq by looking into the grounds of both the parties.
  • The sweep of Article 14 and 21 of the Constitution covering rationality and fairness along with dignity and quality of life shall override the right conferred by Article 25 and 26 of the Constitution. A lady cannot be compelled to marry again to another person before marrying her husband again after talaq as a condition. It is humiliating and against the dignity of a lady.
  • In Muslim Law, marriage is a contract and Constitution of India doesn’t entitle the husband to rescind contract, orally, by notice or by ex parte decisions, hence seems to be unsustainable.
  • In appropriate case, a person may be charged under the Penal Code (supra) for abusing his position as husband whether it is for the purpose of divorce or remarriage.
  • The Collective Rights of the Citizens protected by the Part III of the Constitution may not be infringed under grab of the Personal Laws.
  • The declaration of the oral triple talaq by ex parte proceedings may not be given force by government machinery or the courts hen the subject matter being contrary to the constitutional ethos.
  • The Army Authorities ordered for the grant of maintenance to wife in pursuance to power conferred by Section 96 of the Army Act, 1954 read with Army Orders is perfectly within jurisdiction and calls for no interference.
  • Women of every religion of the country are protected by the Constitution of India. No one has right to go against it in the shadow of personal law.

The Applicant had filed a petition under Section 14 of the Armed Forces Tribunal Act, 2007 being aggrieved with payment of maintenance to his wife, allegedly divorced under the Muslim Personal Law and had contended that his wife was entitled to maintenance for the period of Iddat only. The Tribunal rejected the claim of the applicant for lack of merit. [Lance Naik v. Chief of Army Staff, Original Aplication No. 287 of 2012, decided on 25-05-2016]

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