Analysis of Triple Talaq Judgment Passed by Indian Supreme Court

8 Pages Posted: 19 Nov 2019

See all articles by Nasir Qadri

Nasir Qadri

Shariah & Law International Islamic University Islamabad

Date Written: December 8, 2018

Abstract

The petitioner-Shayara Bano, approached this Court, for assailing the divorce pronounced by her husband Rizwan Ahmad on 10.10.2015, wherein he affirmed in the presence of witnesses saying that I gave talak, talak, talak, hence like this I divorce from you from my wife. From this date there is no relation of husband and wife. From today I am haraam, and I have become naamharram. In future, you are free for using your life . The aforesaid divorce was pronounced before Mohammed Yaseen (son of Abdul Majeed) and Ayaaz Ahmad (son of Ityaz Hussain) the two witnesses. The petitioner sought a declaration, that the talaq-e-biddat pronounced by her husband on 10.10.2015 be declared as void ab initio. It was also her contention, that such a divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as, the Shariat Act), be declared unconstitutional. During the course of hearing, she submitted, that the talaq-e-biddat (-triple talaq), pronounced by her husband is not valid, as it is not a part of Shariat (Muslim personal law). In the said petition, the Supreme Court passed several orders including the one dated 28.03.2016, asking the central Govt. to furnish a copy of the “2015 High-Level Committee report recommending ban on Triple Talak and polygamy in Muslim Personal Law”. The Govt. of India has filed its affidavit in the aforesaid case, in which it has stated that Muslim Personal Law, is a “law” within the meaning of Article 13 of the Constitution of India and as it is violative of right to equality between men and women, guaranteed by Part III of the constitution of India, therefore, the Muslim Personal Law, in so far it recognizes the Triple Talak is void. It has also invoked the UN Charter of 1945 and has stated that since the said charter reaffirms the faith in the equal rights of men and women, as such to achieve the said objective, the Triple Talak has to be declared invalid. It has also sought reconsideration of 1952 judgment of the Bombay High Court, which has held that Personal Law is not a “law” with the meaning of Article 13 of the constitution of India and as such cannot be assailed on the ground of its repugnancy with the fundamental rights. The Law Commission has also in the meanwhile stepped in and has asked for the response to implementing a common civil code.

Keywords: Triple Talaq, Shah Bano Judgment, Shariat Act,Part III Indian Constitution

Suggested Citation

Qadri, Nasir, Analysis of Triple Talaq Judgment Passed by Indian Supreme Court (December 8, 2018). Available at SSRN: https://ssrn.com/abstract=3483509 or http://dx.doi.org/10.2139/ssrn.3483509

Nasir Qadri (Contact Author)

Shariah & Law International Islamic University Islamabad ( email )

India
3432117349 (Phone)

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