Triple talaq: Allahabad HC says personal law can’t infringe basic rights

“All forms of discrimination on the ground of gender is violative of fundamental freedoms and human rights," the court said.

By: Express News Service | Lucknow | Updated: May 10, 2017 8:58 am
 triple talaq, triple talaq-islam, islam, muslim, human rights, wife-triple talaq, allahabad high court, human right violation, divorce, triple talaq divorce, india news, indian express The observations of Justice Surya Prakash Kesarwani, in an order passed April 19 and now available in the public domain, come at a time when a Constitution Bench is to start hearing the triple talaq matter.

Rejecting a petition by a man who had given his wife talaq and wanted proceedings against him quashed in an alleged dowry harassment case, the Allahabad High Court has said that talaq “cannot be made in a manner” that it infringes a Muslim woman’s fundamental rights “under the garb of personal law” which “can always be superseded by legislation”.

The observations of Justice Surya Prakash Kesarwani, in an order passed April 19 and now available in the public domain, come at a time when a Constitution Bench is to start hearing the triple talaq matter.

Aaqil Jamil of Agra had sought directions from the Allahabad High Court to quash proceedings of a case filed against him under various sections, including Dowry Prohibition Act, in the court of the Additional Chief Judicial Magistrate, Agra.

In his petition, Aaqil claimed that he divorced his wife on November 8, 2015 by saying thrice that “I divorce you Sumaila Afgani” and also obtained a fatwa two days later from Darool Ifta Jama Masjid, Agra. Sumaila filed a complaint in the Agra ACJM court on November 19, 2015, alleging torture by her husband and in-laws for dowry and for divorcing her. The ACJM court issued summons to Aaqil on November 28, 2016, following which he approached the High Court, seeking directions to quash the proceedings.

Rejecting his petition, Justice Kesarwani said: “Talaq by a Muslim husband to his wife cannot be made in a manner which may infringe her fundamental rights guaranteed under Article 14 and 21 of Part III of the Constitution. The personal law operates under the authority of legislation subject to constitutional limitation, and not under the religion. The personal law can always be superseded by legislation.”

“The adjudication by a legal authority sanctioned by law is enforceable and binding and meant to be obeyed unless upset by an authority of law itself. The power to adjudicate must flow from a validly made law. One may not object to issuance of ‘fatwa’ on a religious issue or any other issue so long it does not infringe upon the rights of individual guaranteed under law. The ‘fatwa’ issued by whatever body not emanating from any judicial system recognised by law, is not binding on anyone including the person who had asked for it,” the court said.

Justice Kesarwani also observed: “A society that does not respect its women, cannot be treated to be civilised. It is the need of the present day that people are made aware that it is obligatory to treat women with respect and dignity so that humanism in its conceptual essentiality remains alive.”

“All citizens, including Muslim women, have fundamental rights under Articles 14, 15 and 21 of the Constitution. Under the garb of personal law, individual or collective rights of the citizens protected by Part III of the Constitution may not be infringed.”

“All forms of discrimination on the ground of gender is violative of 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.

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  1. V
    May 10, 2017 at 10:16 am
    Triple talaq Later.It is a problem for the Muslims.we do not care about it.But first put an end to the loudspeaker menace from their mosques.Early morning at 5am its too irritating.It disturbs everyone. Don't understand why the govt stead of proving relief to members of other communities is after this triple talaq.
    1. Nitin Deolekar
      May 10, 2017 at 9:55 am
      Pseudo?Secular??Nehru-Ambedkar gifted un-due facilities to Muslims in India? Who did not go to Pak and opted to remain in India. Mr.Ambedkar failed to do even common civil code?? He forced 1-wife act by Law for poor Hindu? forcing Hindu to go to courts even for simple mutual divorce; wasting Money as well as Prime Time in Life.. Due to Delay no child after 2nd marriage. So Hindu population is growing very slow compared to Muslims. However same Nehru-Ambedkar allowed 4-shadi Verbal Talak for Muslims !! so their population is growing 50 faster!! so their poverty and then few of them become ISIS terrorists, due to education in Madrassah, teacher ry paid by Great Govt at cost of we Majority Hindu tax payers!! Now better reverse Mr.Ambedkar wrong laws? Dare to Apply 1-wife Law to Muslims and allow 2-shaadi written Talak for Hindu!! Apply China family planning law to Muslims for next 70 years 1-family-1-child!! after 70 years may be 2. in turn give muslim women reservation in BC Quota!
      1. L
        Lalit Mohan
        May 10, 2017 at 6:22 am
        What does it mean when our leaders are promoting islam from back door for black money only.