No personal law can be outside Constitution's purview: Allahabad HC on Triple Talaq

The Allahabad High Court, which in December last year had observed that triple talaq was unconstitutional has now said that the Muslim women’s fundamental rights cannot be violated in the name of personal law as it was against the equality of women.

The court's observation came while dismissing a man’s plea seeking dismissal of criminal proceedings against him. Hearing in the case ended on April 19 but the judgment was made public on Tuesday. The accused was charged with torturing his wife for dowry and on her refusal to give dowry divorced her by uttering the dreaded word thrice at one go.

Observing that no personal law can be outside the purview of the Constitution, the court also said that fatwa being outside the justice system was not legally valid. “No fatwa can be contrary to someone’s rights,” the court observed while adding that “judicial conscience is disturbed at the monstrosity” of the “demeaning” practice.

In December 2016 the court had observed that “triple talaq is unconstitutional as it violates the right of Muslim women”.

Justice SP Kesarwani, who delivered the judgment said, “the rights of women and girls are an integral part of universal human rights” and cannot be violated by any personal law.

Despite the All India Muslim Personal Law Board starting a campaign to bring awareness on triple talaq, there have been instances of Muslim men divorcing their wives using Facebook, WhatsApp, on phone and through letters.

After the issue snowballed, AIMPLB member Maulana Khalid Rasheed Firangimahali announced in Lucknow that those Muslim women who misused the triple talaq practice will face social boycott. He also said that a code of conduct was being issued for those who were intent on talaq. The board asked imams of mosques to read out the code of conduct in their khutbas after the Friday prayers to remove the wrong impressions about triple talaq so that the practice could be stopped.

Law Minister Ravi Shankar Prasad said that he would like the practice abolished while the Union government’s argument is that triple talaq is not among Islam’s “essential” practices.

The high court’s observation does not have significance as the Supreme Court is already seized of the matter. A five-judge Constitution Bench is to examine the legality of triple talaq, nikah halala and polygamy.

The AIMPLB has opposed what it calls “judicial legislation” and has contended that the court cannot interfere with personal laws on grounds that they violated fundamental rights of an individual. In its affidavit filed in the Supreme Court the AIMPLB has argued that the personal laws of Muslims are protected under Articles 25, 26 and 29 (freedom to practice religion) and hence cannot be rewritten in the name of social reform.

In the 69-page affidavit the AIMPLB has stated that the Code of Criminal Procedure, Protection of Women from Domestic Violence Act and the Muslim Women (Protection of Rights on Divorce) Act provided enough safeguard to Muslim women.

Prime Minister Narendra Modi recently urged political parties not to politicise the triple talaq issue and said that it shouldn't be made into a Hindu-Muslim issue. However, the BJP has always found triple talaq been a useful political issue against 'secular parties' and of late it has consistently been raising the pitch.

Reacting to the high court’s observation, AIMPLB’s convener Zafaryab Jilani said that he will wait for the order before commenting on it. “When the Supreme Court is looking into the Constitutional validity of the practice, the observations of the high court do not carry much weight. I will rather wait for the Supreme Court’s decision than say anything on this observation,” Jilani said.