The Allahabad high court has observed that triple talaq is unconstitutional and that it violates the fundamental rights of Muslim women. The high court has also said that no Personal Law (such as the Muslim Personal Law) is above the law and constitution.
The above observations of the high court came in the case of Smt. Hina And Another v. State of U.P. And 2 Others [WRIT C No. 51421 of 2016] in order dated 5 November 2016 by a single judge bench of Justice Suneet Kumar.
In this case, the first petitioner, the lady was aged about 23 years, whereas, the second petitioner, male, was aged about 53 years; both are illiterate. They married after the second petitioner gave instant talak (Triple Talaq) to his first wife. The second petitioner admitted before the Court that from his first marriage, he had two minor children, one residing with the wife and other with him. On being asked why the triple talaq was effected, he stated that to contract second marriage he had divorced his wife. Both petitioners wanted protection.
Speaking about triple talaq, the high court observed as under:
“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 Court further observed:
“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.”
The high court dismissed their petition seeking protection.
It is noteworthy that “triple talaq” is defined as a divorce which is pronounced thrice by a Muslim husband to his wife, i.e., when man says: “I divorce you, I divorce you, I divorce you.” It is believed that when triple divorce is pronounced, the wife will become totally alienated from the husband and he cannot remarry her. She becomes haram (totally prohibited) for him. Moreover, neither can he take her back nor can he go for fresh nikahwith her. As per the Muslim traditions, he can go for nikah with her only after she marries another person and that person divorces her on account of marital conflict or if she becomes a widow.
It is ironical that the observations that triple talaq is unconstitutional came about 66-67 years after the Constitution coming into existence, in spite of the fact that there are crores of Muslim women in India whose fundamental right was adversely affected due to the practice of triple talaq. It reflects poorly on the judiciary’s track record as also on the so-called progressive elements within Indian society.
It is also noteworthy that petitions challenging triple talaq are presently pending in the Supreme Court, and even the Law Commission of India is seeking public opinion on the issue of uniform civil code (which may mean a ban on triple talaq).
Read full order of the court:
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