Muslim marriages are contracts, can’t be ended by husband alone: HC
The Allahabad high court has said that the Islamic practice of triple talaq is unsustainable and bad in law as Muslim marriages are contracts that cannot be unilaterally rescinded by the husband.
The observation was made by justice SP Kesarwani while hearing a petition by Aquil Jamil, whose wife had filed a criminal case against him for allegedly torturing her for dowry and divorcing her when she refused to pay.
The court dismissed the man’s plea to scrap criminal proceedings against him. Hearing in the case ended on April 19 and details of the judgment were made public on Tuesday. The court said discrimination on the basis of gender violated fundamental freedom and human rights. “Personal law or the Constitution of India does not entitle the husband to rescind marriage contract orally by giving a notice or by ex-parte decision,” the court observed.
“Personal law operates under the authority of legislation subject to constitutional limitation, and not under the religion. Personal law can always be superseded by legislation,” the court observed.The rights of women and girls were inalienable, integral and indivisible part of universal human rights, the court said, adding that a Muslim man could not divorce his wife in a manner which might infringe on her fundamental rights guaranteed under Articles 14 and 21 of the Constitution.
On the practice of nikah halala, the court observed that no woman could be compelled to marry some other person, if she wanted to marry her husband again after talaq.
The court said the condition laid down for a woman to marry another man before reuniting with her husband was humiliating and against her dignity protected by Article 21 of the Constitution.
Nikah halala is an Islamic ritual which lays down the condition before a divorced woman that she should marry someone else, consummate the marriage and then get a divorce from him to make it permissible to remarry her first husband.
The petitioner contended that he gave talaq to his wife on November 8, 2015 and obtained a fatwa from Agra’s mufti on November 11 which affirmed the talaqnama (divorce letter).
He said the complaint filed against him on November 19, 2015, should be quashed as the marriage ceased to exist at that time.
Dismissing Jamil’s plea, the court said, “All citizens, including Muslim women, have fundamental right guaranteed by the Constitution. The rights of the citizens cannot be infringed under the garb of personal law.”
On the legal sanctity of the fatwa, the court said, “One may not object to a fatwa on a religious issue or any other matter so long it does not infringe on the rights of an individual. A fatwa, issued by a body not emanating from any judicial system recognised by law, is not binding on anyone including the person who asks for it.”