Triple talaq unilateral : Says Allahabad HC

Hit Brother

8 years ago

ALLAHABAD: Referring to the practice of triple talaq, the Allahabad high court has observed that under Muslim personal law, marriage is a contract which cannot be rescinded unilaterally.The HC made this observation in the last week of April while dismissing a petition by Aaqil Jamil, whose wife had filed a criminal complaint against him alleging that he had tortured her for dowry and when his demands were not met, he gave her triple talaq. The court’s order in the case was uploaded on the HC’s website on Tuesday, two days before the Supreme Court begins hearing a clutch of petitions challenging the validity of triple talaq.

Justice Surya Prakash Kesarwani observed that personal law or the Constitution does not entitle a husband to rescind the contract of marriage orally or by giving a notice or by ex parte decision. “Hence, such a practice is unsustainable and bad in the eyes of law,” the judge said. The HC said all forms of discrimination on grounds of gender violate fundamental freedoms and human rights.

The human rights of women and of girls are an inalienable, integral and indivisible part of universal human rights, the court said.

Hence, talaq by a Muslim husband to his wife cannot be made in a manner which may infringe her fundamental rights guaranteed under Article 14 (right to equality) and Article 21 (right to life) of the Constitution, it added.

The court also made an important observation on the practice of ‘nikah halala’, an Islamic marriage ritual which involves a woman divorcee marrying someone else, consummating the marriage and then getting a divorce in order to make it permissible to remarry her previous husband.

“No lady can be compelled to marry some other person in case she wants to marry her husband again after talaq.

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This condition to marry another person before remarriage with earlier husband is humiliating and against the dignity of a lady protected by Article 21 of the Constitution of India,” the judge said.

Kesarwani further said: “All citizens, including Muslim women, have fundamental rights guaranteed by the Constitution. Under the garb of personal law, rights of the citizens protected by the Constitution cannot be infringed on.”

Jamil had filed the petition asking for the quashing of his wife’s complaint maintaining that he had given triple talaq to her in 2015. Thereafter, he obtained a fatwa from the city mufti of Agra, in which the latter affirmed the talaqnama and pronounced that her former wife, after being divorced, has become impure (haraam) for the petitioner. Hence, the subsequent complaint filed by his wife must be quashed because as per Islamic personal law, no marriage existed between the parties on the date of filing of complaint, the petition said.