Even as a Constitution bench of the Supreme Court is to commence hearing from May 11 a clutch of petitions filed by Muslim women seeking declaration of triple talaq, halala and polygamy as both unconstitutional and un-Quranic, the Allahabad High Court has ruled that triple talaq is a violation of the Indian Constitution and that the rights of women cannot be taken away in the name of any personal law.
The court observed that all forms of discrimination against women violate fundamental freedoms and human rights.
"Under the garb of personal law rights of citizens protected by the Constitution cannot be infringed", ruled Justice Surya Prakash Kesarwani.
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The court also noted that marriage in Islam is a contract which cannot be terminated unilaterally.
The high court’s observations were made while dismissing a petition filed by Aaqil Jamil from Varanasi. His wife had filed a criminal complaint alleging that he had tortured her for dowry and resorted to “talaq, talaq, talaq” when his demands were not met.
While passing the order, Justice Kesarwani observed that neither personal law nor the Constitution gives a husband the right to rescind the marriage contract orally or simply by a notification or ex-parte decision. Hence such a practice was “bad in law”.
Making a reference to the inalienable, integral and indivisible part of universal rights stipulated under the UN’s 1948 Declaration, Justice Kesarwani ruled that a woman cannot be divorced in a manner that fringes on her fundamental rights guaranteed under Article 14 (right to equality) and Article 21 (right to life with dignity) of the Indian Constitution.
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Though apparently not related to the petition of Aaqil Jamil, Justice Kesarwani also held that nikaah halala was humiliating and against the dignity of a woman. Nikaah Halala is a shameful practice where a divorced woman may not remarry her husband unless she marries another man, the marriage is consummated, and then divorced.
“No lady can be compelled to marry some other person in case she wants to remarry her husband after divorce. This condition to marry another person before remarriage with earlier husband is humiliating and against the dignity of a lady protected under Article 21,” the judge said.
Jamil had petitioned the high court seeking a quashing of the criminal complaint against him filed by his wife claiming he had already divorced her (through talaq-talaq-talaq) in 2015. In support of his contention, Jamil produced a fatwa from the mufti of Agra city to prove that the complaint was not tenable since he had already divorced her before her complaint.