Triple Talaq: Constitutional Validity

The constitutional validity of “Triple Talaq” has been referred to Constitutional bench in case of Muslim Women’s Quest for Equality Vs Jamiat Ulma-I-Hind (Suo Moto W.P. (Civil)-2 of 2015) along with host of other petition by Apex Court for regular hearing from 11th May, 2017.
Earlier, the All India Muslim Personal Law Board (AIMPLB) has filed the affidavit in above stated Suo moto petition and also identical affidavit in other bunched case (including W.P. (Civil)- 118/2016) inter alia opposing that Personal Law cannot be challenged as violative of Part III of the Constitution.
However, the Union Government through its affidavit had submitted the following questions to be considered by the Apex court:

Whether the impugned practices of talaq-e-biddat, nikah halala and polygamy are protected under Article 25(1) of the Constitution of India
— Whether Article 25(1) is subject to part III of the Constitution and in particular Articles 14 and 21 of the Constitution of India
— Whether personal law is law under Article 13 of the Constitution
— Whether the impugned practices of talaq-e-biddat, nikaah halala and polygamy are compatible with India’s obligations under International treaties and covenants to which India is a signatory

The Article 25(1) reads as follows:

25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

The Supreme Court clarified that it would decide issues pertaining to legal aspects of the practices of triple talaq, ‘nikah halala’ and polygamy among Muslims and would not deal with the question whether divorce under Muslim law needs to be supervised by courts as it falls under the legislative domain. The bench had however, made it clear that it was not dealing with the issue of Uniform Civil Code (UCC), which is currently being examined by the Law Commission of India.
It is interesting to delve upon the available citation which may form basic ingredient for final judgment of the Hon’ble Supreme Court. One of the earliest judgment on this subject is Pathayi v. Moideen (1968 KLT 763), where following was stated:

The only condition necessary for the valid exercise of the right of divorce by a husband is that he must be a major and of sound mind at that time. He can effect divorce whenever he desires. Even if he divorces his wife under compulsion, or in jest, or in anger that is considered perfectly valid. No special form is necessary for effecting divorce under Hanafi law. The husband can effect if by conveying to the wife that he is repudiating the alliance. It need not even be addressed to her. It takes effect the moment it comes to her knowledge.

The three Judges Bench of the Supreme Court speaking through Justice V.R. Krishna Iyer as early as in Fuzlumbi vs. K. Khader Vali (AIR1980 SC 1730) had referred to the need to have a re-look at the die hard view of Batchelor, J. in (1906) ILR 30 Bom. 537 that such an arbitrary divorce “is good in law, though bad in theology.
The Apex Court in case of Shamim Ara Vs State of U.P. & Anr. (Appeal (crl.) 465 of 1996) has dealt extensively on the “Talaq” (quoting various citations and books) and its mode and manner.
In case of Smt. Hina and other vs State Of U.P. and others (WRIT -C No. ¬ 51421 of 2016 ), stage has been set by the Hon’ble Allahabad High court in following words:

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 person 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 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 Quaran 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 reason for divorce.

The Hon’ble Kerala High Court in case of Nazeer @ Oyoor Nazeer Vs Shememma (W. P. (Civil). No. 37436 of 2003(F)) and various other bunched petitions stated the following:

In these writ petitions question of validity of triple talaq does not arise. However this question was considered in larger perspective for the reason that if court grant any relief based on admission of the parties as to the repudiation of marriage by triple talaaq, that would amount to recognition of a triple talaq effected not in accordance with law, as this court has no mechanism to find out the manner in which talaq is effected. The Court cannot become a party to a proceedings to recognise an ineffective divorce in the guise of directions being given to passport authorities to accept the divorce. The legal effect of such divorce has to be probed by a fact finding authority in accordance with the true Islamic law. Stamp of approval being given by the court by ordering passport authority to accept divorce effected not in accordance with the law, will create an impression that court transgressed its limits while directing a public authority to honour an act which was done not in accordance with law. Though in these writ petitions, considering the urgency of the matters, this court granted interim order directing the passport authorities to act upon the request of the petitioners. Considering the large number of similar reliefs sought before this court in various writ petitions, this court is of the view that the issue can be resolved only through a larger remedy of codification of law in the light of the discussion as above. In the light of interim order, these writ petitions are disposed of.

In Javed & Ors vs State Of Haryana & Ors (Writ Petition (civil)-302 of 2001) the Hon’ble Supreme Court held the following in context of Article 25 of the Constitution and religious practice:

A bare reading of this Article deprives the submission of all its force, vigour and charm. The freedom is subject to public order, morality and health. So the Article itself permits a legislation in the interest of social welfare and reform which are obviously part and parcel of public order, national morality and the collective health of the nation’s people. The Muslim Law permits marrying four women. The personal law nowhere mandates or dictates it as a duty to perform four marriages. No religious scripture or authority has been brought to our notice which provides that marrying less than four women or abstaining from procreating a child from each and every wife in case of permitted bigamy or polygamy would be irreligious or offensive to the dictates of the religion.
In our view, the question of the impugned provision of Haryana Act being violative of Article 25 does not arise. We  may have a reference to a few decided cases. The meaning of religion – the term as employed in Article 25 and the nature of protection conferred by Article 25 stands settled by the pronouncement of the Constitution Bench decision in Dr. M. Ismail Faruqui and Ors. Vs. Union of India & Ors.(1994) 6 SCC 360. The protection under Articles 25 and 26 of the Constitution is with respect to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential and integral part of practice of that religion. The latter is not protected by Article 25.

In Adi Saiva Sivachariyargal Nala Sangam & Ors. Vs The Government of Tamilnadu & Anr. ( W. P (Civil) No. 354 of 2006) following was held by Hon’ble Apex Court

2. Before highlighting the issues that confronts the Court in the present case the relevant Constitutional provisions in Part III of the Constitution may be taken note of. Article 13, in clear and unequivocal terms, lays down that all laws including pre-constitution laws which are inconsistent with or in derogation of the fundamental rights guaranteed by Part III are void. Sub-Article (3) brings within the fold of laws, all Rules, Regulations, Notification, custom and usage having the force of law. While the several provisions of Part III would hardly need to be re-emphasized, specific notice must be had of, in the context of the present case, the provisions contained in Articles 25 and 26 of the Constitution. While Article 25 makes the freedom of conscience and the right to profess, practice and propagate the religion to which a person may subscribe, a fundamental right, the exercise of such right has been made subject to public order, morality and health and also to the other provisions of Part III. Article 25(2)(b) makes it clear that main part of the provisions contained in Article 25 will not come in the way of the operation of any existing law or prevent the State from making any law which provides for social welfare and reform or for throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Similarly, Article 26 while conferring the right on every religious denomination to manage its own affairs makes it clear that the right to manage the affairs of any religious denomination is restricted to matters of religion only.

In Ahmedabad Women Action Group (AWAG) & Ors. Vs. Union of India (W. P. (Civil- 196, 494 and 721 of 1996)) it was prayed “to declare Muslim Personal Law which enables a Muslim male to give unilateral Talaq to his wife without her consent and without resort to judicial process of courts. as void, offending Articles 13. 14 and 15 of the Constitution” , the Hon’ble Supreme Court held Following:

At the outset. we would like to state that these Writ Petitions do not deserve disposal on merits inasmuch as the arguments advanced by the learned Sr. Advocate before us wholly involve issues of State policies with the Court will not ordinarily have any concern. Further. We find that when similar attempts were made, of course by others, on earlier occasions this Court held that the remedy lies somewhere else and not by knocking at the doors of the courts.
In the result and having regard to the earlier decisions of this Court noticed above, we decline to entertain these writ petitions. Accordingly, these writ petitions are dismissed.

The Supreme Court reiterated that it would decide issues pertaining to legal aspects of the practices of triple talaq, ‘nikah halala’ and polygamy among Muslims and would not deal with the question whether divorce under Muslim law needs to be supervised by courts as that falls under the legislative domain.
Rajni Sinha
Advocate Bombay High Court,
Mobile: 7738080174

An Advocate’s diary- A trip down the memory lane (Adentrarse en el mundo de los recuerdos)

Just like any other profession, Lawyer’s profession too has many interesting incidences. These incidences or happenings either enhance your chances of winning a suit or the suit being dismissed by the court completely on one or the other legal ground as pointed out by you. I, being a litigation lawyer encounter many such events and incidents which I have decided to pen down from now onwards to share with my friends & colleagues.
Few days back a person (Indian) from USA contacted me to represent his Divorce & Maintenance suit filed by his wife in a District court of Mumbai as wife along with their daughter was staying in Mumbai to which I agreed naturally and filed my vakalatnama (Advocate’s Authorization). When I received the copy of the Petition filed by opposite lawyer, I was surprised to find that the whole Petition was wrongly drafted by the lawyer who was a well-known lawyer of that area and everyone knew of the Lawyer and the Law Firm representing the wife (opposite party) as compared to my known status.
It was a Divorce cum Maintenance Petition filed on the basis of “The Hindu Marriage Act, 1955”. Off course, both the parties (husband & wife) were Hindu by birth and remained so even after and at the time of filing the instant Petition. However, their marriage was a “Registered Marriage” (Court Marriage) and no traditional rituals were performed as admittedly accepted in the instant Petition. A “Registered Marriage” falls under “The Special Marriage Act,1954” even between two Hindus, which is entirely different Act than “The Hindu Marriage Act,1955”. For a “Hindu Marriage” one has to marry according to Hindu Traditions and Rituals and also perform ‘Saptapadi’ (saat phera) in majority of the cases. The most important legal point is that when one marries according to “The Hindu Marriage Act”, he/she will have to seek Divorce under this Act only and when one marries under “The Special Marriage Act”, he/she will have to take Divorce under this particular Act and no other Act. A Registered Marriage before designated Marriage Registrar is always performed under “The Special Marriage Act, 1954”.
I have pointed this legal Defect in my “Reply”, and requested the Hon’ble Court to order for filing a fresh suit (dismissing the present one) since amendment of the Petition for using a “Different Act” (which is a legal defect) under provisions of CPC should not be allowed. Now it is entirely Court’s discretion to allow amendment or order for filing a fresh suit.
Rajni Sinha
Advocate Bombay High Court

Woman as Respondent in DV case

Whether women could be made respondents in the cases under the Protection of Women from Domestic Violence  Act, 2005 (the DV Act) has been settled by the Hon’ble Supreme Court in Sou. Sandhya  Manoj Wankhade  Vs. Manoj  Bhimrao Wankhade and Ors. (CRIMINAL APPEAL NO.271 OF 2011 (Arising out of SLP (Crl.) No.2854 of 2010)). The Supreme Court held following:

12. From the above definition it would be apparent that although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint, which may be filed by an aggrieved wife or a female living in a relationship in the nature of a marriage.

13. It is true that the expression “female” has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression 12 “relative”, nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.

14. In such circumstances, it is clear that the legislature never intended to exclude female relatives of the husband or male partner from the ambit of a complaint that can be made under the provisions of the Domestic Violence Act, 2005. 

Earlier the two judge bench of Hon’ble Delhi High Court in  Varsha Kapoor vs Uoi & Ors (WP (Crl.) No. 638 of 2010) had also held that the complaint   is maintainable even against a woman in the situation contained in proviso to Section 2(q) of the DV Act. Similarly other High Court has also held that female can be made as respondent under proviso clause of section 2(q) of the Protection of Women from Domestic Violence  Act, 2005.

However, there is gap in understanding of the judgement of apex court as well as the High Court. Whether all category of female can be made respondent in a DV case ?

The answer lies in the section 2 (q) of the DV, Act.

(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

The “aggrieved wife or female in living  relationship in nature of marriage” as complainant can only make female relative of her husband or male partner as respondent. It flows from here that the complainant or aggrieved wife or female  in living relationship must implicate her husband  or male partner as one of respondent, so as to establish herself as aggrieved wife or female in live in relationship. Incidentally the supreme court judgement and High Court judgement cited above has essential ingredient of husband or male partner as one of the respondent.

In view of above, the popular perception that all category of female  can be made respondent is misplaced. Even though both the  judgement do not deal in this aspect, it is sine qua non  that complainant must be  “aggrieved wife or female in living  relationship in nature of marriage” and not all category of “aggrieved person” as defined in section 2(a) of the Protection of Women from Domestic Violence  Act, 2005. There are plethora of cases pending before various competent authority where a female has complained against only another female i.e without implicating her husband. The majority of this complaint is by mother in law against daughter in law only (without implicating her husband) or vice versa.

Rajni Sinha (Advocate, Bombay High Court), Mobile No. 9820553390

B-3/13:04, Sector-3, Vashi, Navi Mumbai-400703.