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1
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
(ORDER XXXVIII, S.C.R, 2013)
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
WRIT PETITION (CIVIL) No.
OF 2016
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VERSUS
Petitioner
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1. Union of India,
Represented by the Secretary,
Ministry of Women and Child Development,
Shastri Bhawan, A Wing,
Dr. Rajendra Prasad Road,
New Delhi - 110 001
Respondent No. 1
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Respondent No. 2
Respondent No. 3
Respondent No. 4
Respondent No. 5
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WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION
OF INDIA SEEKING A WRIT OR ORDER OR DIRECTION IN THE
NATURE OF MANDAMUS DECLARING THE PRACTICES OF
TALAQ-E-BIDAT, NIKAH-HALALA AND POLYGAMY UNDER
MUSLIM PERSONAL LAWS AS ILLEGAL, UNCONSTITUTIONAL
FOR BEING VIOLATIVE OF ARTICLES 14, 15, 21 AND 25 OF THE
CONSTITUTION, AND TO PASS SUCH FURTHER ORDERS AS
THIS HONBLE COURT MAY DEEM APPROPRIATE TO PROVIDE
A LIFE OF DIGNITY UNMARRED BY ANY DISCRIMINATION TO
MUSLIM WOMEN
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TO,
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INDIA
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2.
The Petitioner has not approached any other court for the
reliefs claimed in the present Writ Petition. No representation
has been filed with any authority since the constitutional
validity of a statute is under challenge and the reliefs claimed
can only be granted by this Honble Court.
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support of doctors and medicines, and requires to be
financially supported by her father. The Petitioner-wife was
divorced by triple-talaq, which was confirmed by a divorce
deed dated 10.10.2015 issued by Respondent No. 5.
A true translated copy of the divorce deed dated 10.10.2015
issued to the Petitioner-wife by Respondent No. 5 is attached
as Annexure P-1 (Pages 40 to 42).
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BACKGROUND
This Honble Court has not only observed that gender
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during the currency of first marriage notwithstanding the
guarantees of the Constitution, may be registered as a public
interest litigation and heard separately.
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8 SCC 439, this Honble Court has also taken the view that
practices permitted or not prohibited by a religion do not
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but not practices which may run counter to public order,
morality or health.
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messages. There is no protection against such arbitrary
divorce. Muslim women have their hands tied while the
guillotine of divorce dangles, perpetually ready to drop at the
whims of their husbands who enjoy undisputed power. Such
discrimination and inequality hoarsely expressed in the form
of unilateral triple-talaq is abominable when seen in light of
the progressive times of the 21st century. Further, once a
woman has been divorced, her husband is not permitted take
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state and wanted her back the next morning when he realized
he had committed a terrible mistake. Unfortunately, she was
prevented by her communitys leaders who forcibly sent her
with her three children to her fathers house suggesting she
will have to undergo nikah halala before she can re-unite with
her husband.
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recognising divorce as irrevocable. Noted Islamic scholars
like Asghar Ali Engineer have opined that talaq-e-ehsan, in
which a married Muslim couple is given three months to
separate if they wish, and also offers an opportunity to
reconcile their differences, is the only acceptable and valid
form of talaq. In any event, the social, economic,
humanitarian and moral significance of making attempts over
a period of time to reconcile marital disputes is widely
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10.
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and Fyzee and expressed disapproval of the notion that the
whimsical and capricious divorce by a husband is good in
law though bad in theology and even observed that such a
statement is based on the concept that women were chattel
belonging to men, which the Holy Quran does not brook.
Similarly, in Must. Rukia Khatun v. Abdul Khalique Laskar,
(1981) 1 GLR 375 (DB), Baharul Islam, J. stated that the
correct law of talaq as ordained by the Holy Quran is that
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husband and the wife by two arbiters, one chosen by the wife
from her family and the other by the husband from his. It is
submitted that this view was referred to with approval by this
Honble Court in Shamim Ara versus State of Uttar
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liquidate their marriage under Quranic law and the view that
Muslim men enjoy an arbitrary unilateral power to inflict
instant divorce does not accord with Islamic injunctions. It
was also observed in this case that commentators on the
Holy Quran have rightly observed that the husband must
satisfy the Court about the reasons for divorce, which view
tallied with the law administered even at that time (almost five
decades ago) in some Muslim countries like Iraq, although
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and the same misconception also vitiates the law dealing with
a wifes right to divorce.
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evil plague similar to sati and has also been banned by law in
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chattel, thereby violating their fundamental rights enshrined in
Articles 14, 15, 21 and 25 of the Constitution.
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Sikhs and Jains by the Hindu Marriage Act, 1955 (No. XXV of
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since the State only protects religious faith and belief while
religious practices that run counter to public order, morality or
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of the class of society to which they belong. This Honble
Court further observed that solutions to societal problems of
universal magnitude pertaining to horizons of basic human
rights, culture, dignity, decency of life, and dictates of
necessity in the pursuit of social justice should be invariably
left to be decided on considerations other than religion or
religious faith or beliefs or sectarian, racial or communal
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constraints.
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has sought that certain prevalent practices be declared
illegal, including the practice of talaq-e-bidat and polygamy.
A true copy of a news article dated 28.11.2015 in the DNA
titled Muslim women write to PM Modi to make triple talaq,
polygamy illegal, where the letter to the Prime Minister from
the Bharatiya Muslim Mahila Andolan seeking ban of tripletalaq and polygamy has been reported, is attached as
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must be amended to introduce specific provisions to render
triple-talaq and polygamy void and to provide for statutory
interim maintenance to Muslim women.
A true copy of the news article dated 23.08.2014 in the
Hindustan Times titled High-level panel seeks overhaul of
family laws, in which the high-level committees
recommendations on personal laws were reported, is
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Constitution. It is, accordingly, submitted that the Muslim
Personal Law (Shariat) Application Act, 1937, which is subject
to the Constitution, is invalid in so far as it seeks to recognise
and validate the practices of talaq-e-bidat, nikah halala and
polygamy.
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and the practices of nikah halala and polygamy, is void and
unconstitutional as such practices are not only repugnant to
the basic dignity of a woman as an individual but also
violative of the fundamental rights guaranteed under Articles
14, 15, 21 and 25 of the Constitution.
A true copy of the Muslim Personal Law (Shariat) Application
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amend and repeal existing laws or pass new laws in all such
matters (including marriage and divorce) which were on
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of religion guaranteed by Article 25 is subject to the
fundamental rights guaranteed by Articles 14, 15 and 21. In
fact, Article 25 clearly recognises this interpretation by
making the right guaranteed by it subject not only to other
provisions of Part III of the Constitution but also to public
order, morality and health.
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notwithstanding the guarantees of the Constitution, needs to
be examined by this Honble Court.
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same law of divorce and polygamy is also followed by
Bangladesh.
A true copy of the Muslim Family Laws Ordinance, 1961
followed by Pakistan and Bangladesh, as available on the
electronic legal portal vakilno1.com, is attached as Annexure
P-7 (Pages 66 to 73).
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International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural
Rights (to both of which India acceded on 10.04.1979)
prohibit discrimination on the basis of gender and guarantee
women and men equality in the enjoyment of the rights
covered by the Covenants. Article 26 of the International
Covenant on Civil and Political Rights provides for equality
before the law and equal protection of the law, while Article
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30.
The Petitioner has not filed any similar Writ Petition either
before this Honble Court or any High Court praying for the
same reliefs as are claimed in the present Writ Petition.
31.
The present Writ Petition is filed bona fide and in the interest
of justice.
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Petition.
GROUNDS
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the fundamental rights guaranteed by the Constitution, but is
also based on the concept that women are chattel belonging
to men, which the Holy Quran does not brook.
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protection has been statutorily secured for Indian women
belonging to all other religions, and is to that extent violative
of Articles 14, 15, 21 and 25 of the Constitution.
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new laws in all such matters (including marriage and divorce)
which were on August 15, 1947, governed by personal laws,
and the Legislature has practically abdicated its duties and
permitted the basic fundamental rights of Muslim women to
be widely violated which also affects the entire country as a
matter of public order, morality and health.
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women.
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the Constitution.
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PRAYER
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recognise and validate talaq-e-bidat (triple-talaq) as a
valid form of divorce;
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F.
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G.
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AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN
DUTY BOUND SHALL ALWAYS PRAY.
DRAWN BY:
FILED BY:
BALAJI SRINIVASAN
Advocate
.02.2016
Filed on:
.02.2016
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Drawn on:
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ARUNAVA MUKHERJEE