4th
INTRA MOOT COURT COMPETITION
BEFORE
THE
HON’BLE
SUPREME COURT OF INDIA
Writ
Jurisdiction
Under
Article 32 of
Constitution of India
IN
THE MATTER OF
Sana Khan……………………………….…………Petitioner
Versus
Union
of India……………………………………….Respondents
UPON
SUBMISSION TO THE HONOURABLE CHIEF JUSTICE AND HIS
COMPANION
JUSTICES OF HONOURABLE SUPREME COURT OF INDIA
TABLE OF CONTENTS
·
ABBREVIATION…………………………………………………………………..….3
·
INDEX
OF AUTHORITIES………………………………………………………..…4
·
STATEMENT
OF JURISDICTION…………………………………………..……...5
·
STATEMENT
OF ISSUES……………………………………………………...……..6
·
SYNOPSIS
OF FACTS…………………………………………………………….....7-8
·
ARGUMENTS
ADVANCED………………………………………………..…………9
·
The PIL filed by petitioner under Art 32
Constitution of India is maintainable before Supreme Court of India…………………………………………………………………..9
·
Art 32 of Constitution- Remedies for
enforcement of rights conferred by this part……..9
·
1.1 Public Interest Litigation- Who can
Apply……………………………………….…..9
·
1.2 How the Public Interest Involved……………………………………………………10
·
Art 13 of Constitution- Laws
inconsistent with or in derogating of the fundamental rights……………………………………………………………………………………..11
·
1.3 Personal laws to be ‘laws in force’
under Article 13 of the Constitution of India…..12
·
2. Triple-Talaq (Talaq-e-biddat) is not
in conformity with Quran……………………....13
·
2.1 Triple Talaq not a part of Shariat
or Holy Quran…………………………………….14
·
2.1.1 Evolution of Concept of
Triple-Talaq……………………………………………...15
·
2.2 Triple Talaq (Talaq-ul-biddat)-
Disapproved mode of Talaq………………………..16
·
Triple Talaq(talaq-e-biddat) is not
constitutionally valid………………………………..16
·
3.1 Constitutional Validity of Triple
Talaq………………………………………………17
·
Art 14 Right to Equality………………………………………………………………….17
·
Art 15 Prohibition against
discrimination………………………………………………..17
·
Art 21 Right to life and personal
liberty………………………………………………....17
·
Art 25 Right to Religious Freedom………………………………………………......17-18
·
Prayer…………………………………………………………………………………….19
ABBREVIATIONS USED
Sec : Section
Art. :
Article
Sc : Supreme Court
Anr. :
Another
& : And
v. /vs. : Versus
Hon’ble : Honorable
SCC : Supreme Court
Cases
Ors. : Others
INDEX OF AUTHORITIES
STATUTES:
·
The constitution of India, 1950
·
Shariat Act, 1937 Akil Ahmad.
Cases
Referred:-
1- S.P
Gupta & Ors. V. President of India & ors: AIR 1982 SC 149
2- Shamim
Ara V. State of U.P & Anr. : AIR 2002 SC 3551
3- Sant
Ram & Ors. V. Labh Singh & Ors. : AIR 1965 SC 314
4- Builders
Supply Corporation V. Union of India :
AIR 1956 Cal 26
5- Rahmatullah
V. State of U.P & Ors : 1994 (12) Lucknow CD.
6- Yusuf
V. Sowramma AIR
1971 Ker 261
7- Shayara
Bano V. Union of India & Ors. : MANU/SCOR/33018/2016
Books
Referred:
·
Dr. J.N Pandey, The CONSTITUTIONAL LAW
OF INDIA, CENTRAL LAW AGENCY
·
P.M Bakshi, The Constitution of India,
12th Edition, Universal Law Publishing Company Pvt. Ltd, 2013
·
Shariat Act, 1937 Akil Ahmad.
Websites
referred:
STATEMANT OF JURISDICTION
The petitioner Sana Khan has filed PIL under Article
32 of Constitution of India challenging the constitutional validity of instant
triple talaq.
The present memorandum sets forth the facts,
contentions and arguments on the behalf of petitioner.
STATEMENT OF ISSUES
1. WHETHER THE WRIT PETITION FILED BY THE
PETITIONER UNDER ART. 32 ARE MAINTAINABLE OR NOT
Ø
WHETHER MUSLIM PERSONAL LAW FALLS UNDER THE PURVIEW OF
TERM "LAW IN FORCE" UNDER ART.13 OF CONSTITUTION OR NOT?
Ø
WHETHER TRIPLE
TALAQ IS PART OF SHARIAT OR NOT?
Ø
WHETHER INSTANT TRIPLE TALAQ IS CONSTITUTIONALLY VALID OR
NOT?
SYNOPSIS OF FACTS
1-Sana Khan, belonging to the Muslim community, married to Salman Khan
according to the rituals of the Muslim community on 20th September, 2010. The
matrimonial relationship between Sana and Salman led to the birth of two
children.
2-In March 2013, Salman saw his wife with some other man in a restaurant, when about the incident; Sana denied being with any person in that restaurant but later she admitted that person to be his friend, since then there were regular quarrels between them.
3-On 29th January, 2014 Sana left the house of her husband and started living in parent’s house, children were in the custody of her husband.
4-Salman visited Sana’s place many times for giving her maintenance money and asking her to come back and start living with him but Sana refused to do so.
5-On 20 October, 2015 Salman approached the Court of the Principal Judge, Family Court at Lucknow, with a prayer for restitution of conjugal rights.
6-Sana khan asserted that Salman khan, his husband had continuously made dowry demand for cash and car and also beaten her, due to which she left her husband house and start living with her father.
7-In view of the above averments of Sana, Salman felt that his wife was not ready for reconciliation, and therefore, he withdrew the suit (for restitution of conjugal rights), preferred by him at Lucknow, and divorced Sana on 20 January 2016.
8-Sana has approached Supreme Court of India for assailing the divorce pronounced by her husband Salman Khan , 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 the two witnesses.
8-Sana has sought a declaration, that the ‘talaq-e-biddat’ pronounced by her husband be declared as void abinitio. She also contended, 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.
9-It was also submitted by her, 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’) also, that divorce of the instant nature, cannot be treated as “rule of decision” under the Shariat Act.
2-In March 2013, Salman saw his wife with some other man in a restaurant, when about the incident; Sana denied being with any person in that restaurant but later she admitted that person to be his friend, since then there were regular quarrels between them.
3-On 29th January, 2014 Sana left the house of her husband and started living in parent’s house, children were in the custody of her husband.
4-Salman visited Sana’s place many times for giving her maintenance money and asking her to come back and start living with him but Sana refused to do so.
5-On 20 October, 2015 Salman approached the Court of the Principal Judge, Family Court at Lucknow, with a prayer for restitution of conjugal rights.
6-Sana khan asserted that Salman khan, his husband had continuously made dowry demand for cash and car and also beaten her, due to which she left her husband house and start living with her father.
7-In view of the above averments of Sana, Salman felt that his wife was not ready for reconciliation, and therefore, he withdrew the suit (for restitution of conjugal rights), preferred by him at Lucknow, and divorced Sana on 20 January 2016.
8-Sana has approached Supreme Court of India for assailing the divorce pronounced by her husband Salman Khan , 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 the two witnesses.
8-Sana has sought a declaration, that the ‘talaq-e-biddat’ pronounced by her husband be declared as void abinitio. She also contended, 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.
9-It was also submitted by her, 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’) also, that divorce of the instant nature, cannot be treated as “rule of decision” under the Shariat Act.
Argument Advanced-
1.
The
PIL filed by petitioner under Art 32 of Indian Constitution is maintainable before
Supreme Court of India
Art 32 of Constitution-
Remedies for enforcement of Rights conferred by this part
1) The
right to move the Supreme Court by appropriate proceedings for the enforcement
of the right conferred by this part is guaranteed.
2) The
Supreme Court shall have power to issue directions or orders or writs,
including the writs in nature of Habeas Corpus, mandamus, prohibition, quo
Warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this part.
3) Without
prejudice to the powered conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme
Court under clause (2).
4) The right guaranteed by this article shall not
be suspended except as otherwise provided by the constitution.
It is humbly submitted that the petitioner Sana Khan
had filed PIL under Art 32 of Constitution of India, challenging the
constitutional validity of Triple-Talaq (Instant Divorce). She had been
pronounced Triple-Talaq by the Respondent Salman khan in the presence of 2
witnesses. Therefore, the petitioner Sana has sought a declaration, that the
‘talaq-e-biddat’ pronounced by her husband be declared void abinitio.
It is humbly submitted that the PIL filed by
petitioner shall be held maintainable before the Hon’ble Supreme Court of
India.
1.1-
Public Interest Litigation- Who Can Apply-
The courts permits public interest litigation or
Social Interest litigation at the instance of Public Spirited Citizens for
enforcement of Constitutional and other legal rights of any person or group of
persons under Art 32 of Constitution.
In S.P GUPTA & OTHERS V.
PRESIDENT OF INDIA & ORS[1] S.C
held that any member of public having sufficient interest can approach the
court for enforcing the constitutional or other legal right of other person or
group of person.
Therefore, the PIL filed by petitioner Sana khan
shall be held maintainable before the Hon’ble Supreme Court of India.
1.2
How the Public Interest Involved-
In the present case, the petitioner has challenged
the constitutional validity of Triple-Talaq (Talaq-e-biddat). As it clearly
violates the Fundamental Rights of all Muslim women in India which is
guaranteed under Art 14, 15, 21 of Constitution of India. In India, Triple
Talaq is the strangulation or violation of Substantial Justice of all Muslim
women in the name of non-existent technical considerations. Instant Triple
Talaq is the unrestrained power of husband, which disturbs and conflicts with
the constitutional values of equality and dignity. Unequal power equation
affects the psyche of women and they remain in constant fear of instant
triple-talaq. “This form of Talaq is manifestly arbitrary in the sense that the
marital tie can be triple talaq. “This form of Talaq is manifestly arbitrary in
the sense that the marital tie can be broken capriciously and whimsically by a
Muslim man without any attempt at reconciliation so as to save it. This form of
Talaq must, therefore, be held to be violative of Art 14 of Constitution.
In Shamim Ara V. State of U.P. & Anr2, [2]the Supreme Court approved of the views of
Justices Krishna Iyer and Baharal Islam and declared triple talaq as
unconstitutional.
Indian constitution empowers the state to adopt
measures to uplift the status of women. India has ratified several international
conventions and instrument which commits to secure a dignity of a woman. One
such convention is the convention of elimination of all forms of discrimination
against women (CEDAW) which India is
signatory. Triple Talaq is violative of convention on elimination of all forms
of discrimination against women (CEDAW). Under CEDAW, India has the obligation
to enact legislation to protect Muslim women from the unilateral form of
divorce and provide them equal status as men. Under Art 51 India is obliged
under this convention to make special provisions in order to eliminate the
discrimination of women. Under article
253 of the Indian Constitution, the parliament has the power to any law in
order to give effect to international conventions and treaties.
A survey by Bhartiya Muslim Mahila Andolan (BMMA), of
around 5000 Muslim women across India, found that over 90% wanted an end to
triple talaq and halala. Of the 525 divorced women surveyed in whom 78% had
been given triple talaq; 76% of these women had to consummate a second marriage
so that they could go back to their former husbands. No lady can be compelled
to marry another man and consummate that marriage in case she wants to remarry
her former husband after talaq. This
condition is humiliating and against the dignity of women as protected under
Article 21.
Though the Muslim personal law (triple-talaq) is
governed and administered by Kzazis, Maulvis but it is the obligation of the
State to ensure that the Fundamental Rights of Muslim women shall not be
violated by them in the name of religion. Therefore, the PIL filed by
petitioner shall be held maintainable before the Hon’ble Supreme Court. Laws
governing the nation must be equal for all. This will further strengthen the
rule of law, which is the basic structure of the Constitution. The government
and citizens have a duty to uphold it. Democracy matures when equality,
fraternity, liberty are celebrated as constitutional festivities.
Art
13 of Constitution- Laws inconsistent with or in derogation of the Fundamental
Rights
1)- All laws
in force in the territory of India immediately before the commencement of this
constitution, in so far as they are inconsistent with the provisions of this
part, shall to the extent of such inconsistency, be void.
2)-The state shall not make any law which takes away
or abridges the rights conferred by this part and any law made in contravention
of this clause shall, to the extent of the contravention, be void.
3)-In this article, unless the context otherwise
requires law includes any ordinance, order, by law, rule, regulation,
notification, custom or usages having in the territory of India the force of
law; laws in force includes laws passed or made by legislature or other
competent authority in the territory of India before the commencement of this
constitution and not previously repealed, notwithstanding that any such law or
any part thereof may not be then in operation either at all or in particular
areas.
4) - Nothing in this article shall apply to any
amendment of this constitution made under article 368 Right of Equality.
1.3.
Personal Laws to be ‘laws in force’ under Article 13 of the constitution of
India.
Section
2 of the Muslim Personal Law (Shariat) Application Act, 1937, provides
“notwithstanding any custom or usage
to the contrary, in all questions (save questions relating to agricultural
land) regarding intestate succession, special property of females, including
personal property inherited or obtained under contract or gift or any other
provision of Personal Law, marriage, dissolution of marriage, including talaq,
ila,zihar, lian, khula and mubaraat, maintenance,dower, guardianship, gifts,
trusts and trust properties, wakfs(other than charities and charitable
institutions and charitable and religious endowments) the rule of decision in
cases where the parties are Muslims shall be the Muslim Personal Law
(Shariat)’’
Thus, the 1937 Act seeks to recognize and enforce
talaq-e-biddat through Section 2 of the Muslim Personal Law (Shariat)
Application Act, 1937, as only word talaq is included in it. So, all forms of
talaq existing in Muslim societies were sought to be enforced by section 2 of
the 1937 Act. Therefore, the Muslim Personal Law (Shariat) Application Act,
1937, can be bracketed as ‘laws in force’ within the meaning of Article
13(3)(b) and therefore, judicial review of this Act of 1937, may be carried out
by higher judiciary, if it is inconsistent with fundamental rights.
It is humbly submitted that all personal laws
(un-codified laws) are to be declared as ‘laws in force’ under Article 13. This
is the only panacea against all forms of discrimination existing in personal
laws of all religious communities. Personal laws have to pass the test of
constitutionality.
·
The
Supreme Court in Sant Ram & Ors V. Labh Singh & Ors[3]
stated
that custom or usage having in the territory of India the force of law must be
held to be contemplated by the expression ‘all laws in force’..to hold
otherwise would restrict the operation of the first clause in such a way that
none of the things mentioned in the first definition would be affected by the
fundamental rights.’’
·
In
Builders Supply Corporation V. Union of India[4]
Sc has now clarified that the expression “laws in
force’’ used in Article 13 includes not statutory law but also custom, usage
and even common law in England.
Therefore, the personal law comes within the ambit
of Art 13 of constitution and is capable of judicial review by Hon’ble Supreme
Court. Thus, triple-talaq which makes a blatant violation of the fundamental
rights of Muslim Women shall be declared as unconstitutional and void.
THEREFORE,
IT IS HUMBLY SUBMITTED THAT THE PIL FILED BY PETITIONER SHALL BE HELD
MAINTANABLE BEFORE THE SUPREME COURT OF INDIA.
2.
Triple-talaq (talaq-e-biddat) is not in conformity
with Quran
It is humbly submitted that the petitioner Sana
Khan, belonging to the Muslim community, married to Salman khan according to
the rituals of the Muslim Community on 20th September, 2010.
In March 2013, Salman saw his wife with some other
man in a restaurant, when about the incident. Sana denied being with any person
in that restaurant but later she admitted that person to be his friend, since
then there were regular quarrels between them.
On 29th January, 2014 Sana left the house
of her husband and started living in parent’s house, children were in the
custody of her husband.
On 20th October, 2015 Salman approached
the court of the Principal Judge, Family court at Lucknow, with a prayer for
restitution of conjugal rights.
Sana Khan asserted that Salman Khan, his husband had
continuously made dowry demand for cash and car and also beaten her, due to
which she left her husband house and start living with her father.
In view of the above averments of Sana, Salman felt
that his wife was not ready for reconciliation, and therefore, he withdrew the
suit (for restitution of Conjugal Rights),
Preferred by him and gave her Instant triple talaq
in the presence of 2 witnesses on 20 January 2016.
Therefore, the petitioner Sana khan had filed the
PIL under Art 32 of Constitution of India challenging the constitutional
validity of Triple-Talaq (Instant Divorce).
2.1 Triple Talaq not a part of Shariat or Holy
Quran:
“What is held
to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what
is bad in theology is bad in law as well’’
Muslim law rests on the four-fold pillars of the fiqh, namely: the Quran (Kitab), the
Sunnah ( Hadiths), the Ijma
and Qiyas. A ‘principle’ to become ‘law’ must find a
place in the above mentioned sources. If the solution of a problem given in the
Quran then it is the final ruling of Shariah. If there is no clear exposition
in the Quran, we look at the traditions of the prophet documented in the form
of hadis by his companions. If the
problem has no solution in either of the two then only is resort taken to Ijma.
There is no Quranic basis to establish that three divorces on a
single occasion will amount to an irrevocable divorce; in fact the Prophet
(PBUH) despised divorce and described marriage as his Sunnat. The Quran lays
down only two kinds of divorces i.e Talaq-Ahsan and Talaq-Hasan the same being
in conformity with the dictates of Prophet (PBUH). The above two forms are
considered to be the most proper form of pronouncing the divorce. The third
form i.e Talaq-ul-Biddat, is considered to be the most sinful, innovated form
of divorces as it is against the letter and spirit of Quran and was disallowed
by the Prophet (PBUH) himself.
According to the Quran, a person is not supposed to
divorce his wife when she is menstruating. When a Muslim divorces his wife, he
has to divorce them for the period of their iddad and wait for three courses
(menstruation). The prescribed time period of iddah is about three months and
in case of pregnant women, the iddah period is till delivery. During this
period, the husband can take them back if they wish to (reconciliation). Divorce
given for two times is revocable but is not so when made for a third time. As
stated by prophet (PBUH) and narrated by Aisha “Once a Muslim woman has been
divorced by her husband thrice, she cannot remarry him unless and until she is
married to another man ( and such
marriage consummated compulsorily ) and divorces her so as to free her. It is
only after this, she can marry her former husband.”
·
In
Rahmattullah V. State of U.P & Ors[5],
H.N Tilhari observed
that talat-ul-biddat i.e.
giving an irrevocable manner without allowing the period of waiting for
reconciliation or without allowing the will of Allah to bring about reunion, by
removing differences and helping the two in solving their differences, runs
counter to the mandate of holy Quran and has been regarded as by all under
Islam-sunnat, to be sinful.
2.1.1
Evolution of Concept of Triple-Talaq
Triple-talaq is
recognized but disapproved form of divorce. It commands neither the sanctions
of holy Quran nor the approval of the holy prophet. It was also not in practice
during the life time of first Caliph Abu Bakar. Later, Hazrat Umar
permitted it on account of certain peculiar situation. When Arabs conquered
Syria, Egypt, Persia etc. They found that the women
there were much beautiful as compared to Arabian women and hence were attracted
to marry them. But the Egyptian and Syrian women insisted that in order to marry
them, they should divorce to their existing wives instantaneously by
pronouncing three divorce in one sitting. The condition was readily acceptable
to the Arabs because they knew that in Islam divorce is permissible only twice
in 2 separate period of Tuhr and
its repetition at one sitting is unislamic, void and
shall not be effective. In this way, they could not only marry the beautiful
women but can also retain their existing wives. Thus, in order to prevent the
misuse of the religion by unscrupulous husbands Caliph Umar decreed that even
repetition of the word "talaq-talaq-talaq" at
one sitting would dissolve the marriage irrevocably.
During
Caliph Umar time period, people started reverting back to the wife after
swearing to their intention of giving a single divorce. Thus, Caliph Umar
decreed that triple talaq would
become effective, refusing to allow the couple to revert to each other in order
to stop people from wanton repetitions of divorce and from treating the matter
of divorce in a light and non-serious way. It must have suited the needs of his
own time, but practice in modern times has resulted in a great deal of harm.
It was
however a more administrative measure of Caliph Umar to meet an emergency
situation and not to make it a law permanently. But unfortunately the Hanafi
Jurist later on at the strength of this instant administrative order of Caliph
declared this form of divorce valid and also paves religious sanction to it. At
present much inconvenience is being felt by the Muslim community, especially
women, so far as this law of triple divorce is applied in India.
In Quran
there is no trace that the 'three divorce' pronounced at one occasion would be
treated as three divorce or irrevocable footing. The holy Quran only provides
the procedure for pronouncing talaq and
it is emphasized that every possible attempt must first be made for
reconciliation between the married couples before the completion of the
prescribed period. Thus, Triple talaq goes
against the very spirit of procedure of divorce as laid down in holy Quran as
well as Hadiths as Triple-Talaq is a
final divorce in which no opportunity is given to spouses for reconciliation.
The triple talaq was an exception rather than a
rule under special circumstances. Thus, in no manner triple talaq is a
part of Quranic Shariat.
·
In Yusuf
V. Sowramma[6], justice Krishna Iyer observed
that it is a popular fallacy that in a Muslim male enjoys, under Quranic law,
unbridled authority to liquidate the marriage. He further observed that Muslim
law as applied in India has taken a course contrary to the spirit of what the
holy Prophet or the Holy Quran lay down and the same misconception vitiates the
law dealing with wife's right to divorce.
2.2
Triple Talaq(Talaq-ul-biddat)-
Disapproved mode of Talaq-
"Talaq-Talaq-Talaq". When
pronounced by the husband, the marriage automatically ends at that particular
moment. When a husband pronounced "I divorce you" thrice to his wife,
both of them are free from each other. Talaq-e-biddat means
sinful divorce where husband pronounces talaq thrice
for the completion of the divorce process. The pronouncement of talaq thrice
is known as Triple Talaq.
Being a
sinful of a talaq, Hanafis(Sunnis)
allow triple talaq system and makes it a valid
one. Shias and Malikies do
not recognize this form of divorce. Once talaq is
pronounced thrice, divorce will take place and wife will become totally
separated from husband in terms of responsibilities and relationship. She
becomes prohibited (Haram) from him. The process during
the iddat period and also without
stating any further reasons behind it.
Triple, instantaneous, verbal talaq: an institution under Islamic
religion where the husband reserves to himself the exclusive right to grant
irrevocable talaq to his wife without the
necessity of a single reason. It is the irregular mode of Talaq introduced
by Omeyyads in
order to escape the strictness of law. Such an institution is repugnant to the
spirit of Islam and more importantly, to the very spirit of humanity. The fact
that a Muslim man can render his wife a stranger by one stroke of his tongue as
opposed to the deliberately lengthy procedure of 'Khula' a Muslim
woman has to undergo in order to liberate herself from a cruel husband has been
lamented time and over.
Therefore,
It is humbly submitted that triple-talaq is
neither the part of Holy Quran nor Hadiths, it is only contained in Ijma and
Qiyas which contains the opinions of Muslim jurist
which has no universal application and the Shariat is
not a codified law and is subject to judicial scrutiny as regards their
constitutionality.
3.
Triple Talaq(talaq-e-biddat) is
not constitutionally Valid-
There are
22 Muslim countries, including our neighbours like Pakistan, Bangladesh
and Sri Lanka, have
either banned It, but the biggest tyranny is that We are a nation which proudly
profess to be the world's largest democracy, guaranteeing the protection of
equal rights to all our citizens while boldly holding the flag allot of
being a secular nation, still debating on it. In this modern era where right to
life with dignity is sine qua non, divorce through Skype, WhatsApp and text
messages is beyond and comprehension. Thus, striking down instant triple talaq is
in consonance to the modern constitutional values.
3.1
Constitutional Validity of Triple Talaq-
·
Article 14 Right to
Equality- “Equality is one of the most significant
corner-stones of our democracy.” It is therefore highly ironic that the most
abominable aspect of triple talaq is its prima facie inequality. The explicit
power of irrevocable talaq given to a Muslim husband is solely based on the
fact that he is a man and absolutely no another rational basis. A Muslim
husband can give divorce to his wife by simply saying the words
“Talaq,talaq,talaq” where he is not responsible for providing any reasons for
such divorce. Whereas a Muslim wife has to file a petition in the competent
court to get a divorce and also liable to provide reasonable grounds for the
divorce which clearly violates Art 14 of the Constitution. The right of the
Muslim Women at the hands of the unscrupulous misinterpretations of the Quranic
Shariah, particularly with the respect to their right to divorce, has been
constantly brought out.
·
Article 15
Prohibition Against Discrimination- Art15(1) specifically prohibits gender
discrimination and thus, no ground referable to any custom, usages or personal
laws, contrary to equality principle enshrined in the constitution should be
enforced, more particularly, in relation to secular matters. A muslim man can
marry four women, but a Muslim woman can have only one husband at a time, this
element of personal law directly goes against the concept of a
non-discriminatory clause in the constitution.
·
Article 21 Right to
life and Personal Liberty- The institution of triple talaq is grossly
violative of Right to Life as provided under Article 21 of the constitution.
Once a woman divorced who is without any source of income has to completely
stay dependent on her parents for her survival. This violates Right to live
with dignity, granted under article 21 of the constitution. This right has
constantly evolved and has now come to be liberally interpreted as something
more than mere survival and animal existence. It includes finer graces of human
dignity, culture and civilization. One must live with dignity, free from
physical and mental harassment and exploitation.
·
Aricle 25 Right to
Religious Freedom- Triple
Talaq clearly violates Article 25 of the Constitution as it clearly provides
that religious freedom is subject to the fundamental rights. A sharp
distinction must be drawn between religious faith and belief and religious
practices run counter to public order, morality, health or policy of social
welfare upon which the state has embarked, then the religious practices must
give way before the good of the people of the state as whole.
·
Shayara Bano v. Union
of India & ors[7] – Shayara, a Muslim woman was married
to a property dealer of Allahabad Rizwan. Husband used to give a lot of threats
to give her talaq every time, he has dissatisfied with her work or behaviour.
When she became very seriously ill, Rizwan sent her to her father’s residence
in uttrakhand. After some time he sent a Talaq-Nama to Shayara from Allahabad.
In May, 2016 she
approached to the Hon’ble Supreme Court to abolish triple talaq. Shayara Bano
alleged that she only wished to secure life with dignity, unmarred by
discrimination on the basis of gender or religion, Two Judges bench of the
Supreme Court held that there is a gender discrimination against Muslim woman
by practicing arbitrary divorce and triple talaq.
In August, 2017 the
hon’ble Supreme Court held that the
practices of triple talaq under Muslim personal laws are illegal and
unconstitutional.
Therefore, the need
of the time is that codified law of Muslim marriage and divorce should be
enacted keeping pace with the aspirations of the constitution, so that the
self-appointive leaders could be removed and a specified family law could be
followed without any discrimination. There is a need of reformation in the
Muslim personal law which violates the Muslim women Fundamental Rights. Triple
Talaq should be declared discriminatory, unconstitutional and contrary to the
prevalent Islamic Law.
IT IS HUMBLY
SUBMITTED THAT TRIPLE TALAQ IS NOT CONSTITUTIONALLY VALID AND SHALL BE DECLARED
AS UNCONSTITUTIONAL AND VOID.
PRAYER
Wherefore, in the light
of the fact used, issue raised, arguments advanced and the authorities cited,
it is most humbly and respectfully prayed that this Hon’ble court may be
pleased to adjudge and declare that:
a. The PIL filed by Sana Khan under
Article 32 of Constitution of India is maintainable in the Hon’ble Court.
b. To declare the Instant triple talak pronounced by
respondent be void ab initio.
c. This Hon’ble court may be pleased declare the
Instant triple talaq as unconstitutional.
According
to what is just and good, it is an appeal of the counsel to Hon’ble Court to
adjudge the above prayers, and grant any other relief which the Hon’ble Court
may be pleased to grant and as deemed fit in the interest of justice, equity
and Good Conscience.
All of which respectfully submitted
For the act of kindness, the appellants shall be
duty bound forever.
All of which is most humbly prayed
(Counsel for the petitioner)
[3] Sant Ram & Ors V. Labh Singh
& Ors. AIR 1965 Cal 26
[4] In Builders Supply Corporation
V. Union of India, AIR 1956 Cal 26
[5] In Rahmattullah V. State of U.P
& Ors, 1994(12) Lucknow Civil Decision, p. 463
[7] Shayara Bano v.
Union of India & ors, MANU/SCOR/33018/2017
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