'Personal law not above Constitution': Read Allahabad HC observation on Triple Talaq

The Allahabad High Court on Thursday called the practice of triple talaq among Muslims as 'unconstitutional'. Saying that no personal law board is above the Constitution, the court held that triple talaq violates the fundamental rights of Muslim women.

Here is the operative part of Allahabad High Court's observation: 

The question which disturbs the Court is should muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Whether the personal law can be amended suitably to alleviate their sufferings? The judicial conscience is disturbed at this monstrosity. The first wife has to live life for no fault of her but for the reason that her husband got attracted to a lady half of her age which is the reason for being divorced. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict evil instant divorce does not accord with Islamic injunctions. It is a popular fallacy that a Muslim male enjoys, under the Quaranic Law, unbridled authority to liquidate the marriage. The whole Quoran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him. The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously. In other Islamic State, where the husband must satisfy the court about the reasons for divorce.

Representational image. AFP

Representational image. AFP

However, Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quoran laid down and the same misconception vitiates the law dealing with the wife's right to divorce. The divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of the marriage by 'Talaq' or by 'Khola'. The statement that "the whimsical and capricious divorce by the husband is good in law, though bad in theology" cannot be approved as the correct law. The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters- one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected. (Ref: Pathayi v. Moideen 1968 KLT 763; A. Yousuf Rawther Vs. Sowramma, AIR 1971 Kerala 261; referred to with approval by the Supreme Court in Shamim Ara vs State Of U.P. & another : 2002 (7) SCC 518). The decision in Shamim Ara was rendered in 2002, wherein, the observation of the Division Bench judgment of the Kerala High Court was noticed and approved, which was rendered 20-30 years before.

Country has in recent times marched steps ahead in all walks of life including progressive interpretation of laws which cannot be lost sight of except by compromising with regressive trends.... "Law is dynamic and its meaning cannot be pedantic but purposeful." (Refer-- Bai Tahira Vs. Ali Hussain AIR 1979 SC 362).

The purpose of Law in a modern secular State based upon the Constitution is to bring about social change. The muslim community comprise a large percentage of Indian population, therefore, a large section of citizen, in particularly women, cannot be left to themselves to be governed by archaic customs and social practise under the garb of personal law purportedly having divine sanction. The women of the community continue to suffer bias, deprived of the protection, they should otherwise get through provisions in the Constitution that provide for equality and non discrimination.

India is a nation in the making, geographical boundaries alone do not define a nation. It is to be adjudged, amongst others, on the parameter of overall human development and how the society in particular treat their women; leaving such a large population to the whims & fancy of personal law which perpetuate gender inequality and is regressive, is not in the interest of society and the country. It impedes and drags India from becoming a nation. The instant divorce (Triple Talaq) though has been deprecated and not followed by all sects of muslim community in the country, however, is a cruel and the most demeaning form of divorce practised by the muslim community at large. Women cannot remain at the mercy of the patriarchal setup held under the clutches of sundry clerics having their own interpretation of the holy Quoran. Personal laws, of any community, cannot claim supremacy over the rights granted to the individuals by the Constitution.

I would not like to say anything further for the reason that the Supreme Court is seized with the matter.

In Shamim Ara, a statement merely made in the pleadings "written statement" though unsubstantiated that the wife was divorced upon delivering copy of the written statement, was not accepted by the Supreme Court and the subsequent marriage contracted by the husband was held void.

In the facts and circumstances of the present case, the petition stands dismissed. The legality of the marriage/divorce and rights of parties is kept open.

No cost.


Updated Date: Dec 08, 2016 13:23 PM

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