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Wednesday, March 03, 2021

‘Muslim man can marry more than once without divorcing earlier wife, same does not apply to Muslim lady’

Protection plea as couple not maintainable, says HC. Can approach police for help as individuals if they apprehend any threat, says bench.

Written by Jagpreet Singh Sandhu | Chandigarh |
February 9, 2021 9:32:15 am
law, court, gavelThe plea, filed through advocates Satish B Talekar and Madhavi Ayyapan, had claimed that the decision was “politically motivated”.

Holding the protection plea of a Muslim couple as not maintainable, the Punjab and Haryana High Court said, “A Muslim man may get married more than once without divorcing his earlier wife, but the same does not apply to a Muslim lady.”

The bench of Justice Alka Sarin, was hearing the plea of a Muslim couple, who had approached the high court seeking protection to their life and liberty.

The couple in the plea had stated that they are Muslims and adults. The plea said both petitioners have been in love with each other since many years and have performed nikah on January 19, 2021, as per nikahnama. However, the woman’s relatives are against the relationship. It was also submitted that this is the second marriage for both petitioners, who were earlier “forcefully married” (to different people), and the woman had filed a case against her earlier in-laws.

On a query put to the counsel regarding the couple’s marital status, it was stated that being Muslim, the petitioners can both contract a second marriage, and thus seek protection of life and liberty.

Justice Sarin after hearing the matter held, “Petitioner no.1 is a Muslim lady and who admittedly was married earlier. No details are forthcoming about when she was married earlier and to whom. Further, there is no averment as to whether she divorced her first husband either under the Muslim Personal Law or under the provisions of the Muslim Marriages Act, 1939. There is also no averment that her first marriage stands dissolved and thus her first marriage subsists in the eyes of law. The learned counsel has also not been able to show as to how this court can provide protection to the petitioners as a couple when petitioner no.1 has not legally divorced her earlier spouse. The petitioners have got married without petitioner no.1 obtaining a legally valid divorce from her first husband.”

“A Muslim man may get married more than once without divorcing his earlier wife, but the same does not apply to a Muslim lady. A Muslim lady has to divorce her first husband, either under the Muslim Personal Law or under the provisions of the Muslim Marriages Act, 1939, before contracting a second marriage. In fact, the alleged marriage itself between petitioner no.1 and petitioner no.2 would be illegal in as much as this marriage has been contracted without the petitioner no.1 being legally divorced,” held Justice Sarin.

The HC thus stated that the petitioners have approached this court for protection of their life and liberty to live as a couple, which cannot be considered in the facts and circumstances of the present case. However, as individuals, either of the petitioners, if they apprehend any threat to their life or liberty, would be entitled to approach the police for redressal of their apprehensions regarding threats to their life and liberty.

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