The Allahabad High-Court has again touched the critical issue of Triple Talaq and had said that as per the Muslim personal law, marriage is a sort of contract and thus cannot be annulled unilaterally.
The High Court while hearing a case in the last week of April, made the observation. The case was a petition filed by Aaqil Jamil, against a criminal complaint filed by his wife according to which Aaqil physically harassed his wife and demanded dowry. When his demands were not met, he gave her triple talaq.
The final verdict of the high court was uploaded on the High Court’s website on Tuesday, two days before the Supreme Court is to start hearing the petitions that challenge the validity of triple talaq.
Justice Surya Prakash Kesarwani, in his judgment, said that he observed that the Muslim personal law, describes marriage as a contract and this does not offer the husband any right to annul the contract of marriage by giving a notice or orally or by ex parte decision. “Hence, such a practice is unsustainable and bad in the eyes of law,” the judge said.
The high court also added that such all sorts of discrimination grounds are a direct violation of human rights and fundamental freedom.
The human rights of women and of girls are an inalienable, integral and indivisible part of universal human rights, the court added.
This clearly states that a Muslim husband my means of triple talaq cannot get a valid divorce. The talaq cannot be made in a manner that infringes the fundamental rights of the lady as guaranteed under Article 14 (right to equality) and Article 21 (right to life) of the Constitution.
The court also talked about the practice of ‘Nikah Halala’. It is a Muslim marriage practice under which a lady after divorcing her husband has to marry another man to consummate her marriage before she could finally 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.
This condition to marry another person before remarriage with the earlier husband is humiliating and against the dignity of a lady protected by Article 21 of the Constitution of India,” the judge said.
Judge 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 has filed a petition to quash the complaint of her wife stating that he has given her triple talaq in 2015. He also added that after the talaq he received a Fatwa from the city mufti of Agra, that affirmed that his wife is now impure as he has given her talaq along with a confirmation of the talaq Nama.
He thus stated that the complaint of her wife must be quashed as on the date when the report was filled they were no more husband and wife as per the Islamic personal law.