Allahabad HC says personal law is not above constitution, Triple Talaq infringes basic rights


Rejecting a petition by a man who had given his wife talaq and wanted proceedings against him quashed in an alleged dowry harassment case, the Allahabad High Court has said that talaq “cannot be made in a manner” that it infringes a Muslim woman’s fundamental rights “under the garb of personal law” which “can always be superseded by legislation”.

The observations of Justice Surya Prakash Kesarwani, in an order passed April 19 and now available in the public domain, come at a time when a Constitution Bench is to start hearing the triple talaq matter.

Aaqil Jamil of Agra had sought directions from the Allahabad High Court to quash proceedings of a case filed against him under various sections, including Dowry Prohibition Act, in the court of the Additional Chief Judicial Magistrate, Agra.

In his petition, Aaqil claimed that he divorced his wife on November 8, 2015 by saying thrice that “I divorce you Sumaila Afgani” and also obtained a fatwa two days later from Darool Ifta Jama Masjid, Agra. Sumaila filed a complaint in the Agra ACJM court on November 19, 2015, alleging torture by her husband and in-laws for dowry and for divorcing her. The ACJM court issued summons to Aaqil on November 28, 2016, following which he approached the High Court, seeking directions to quash the proceedings.

Rejecting his petition, Justice Kesarwani said: “Talaq by a Muslim husband to his wife cannot be made in a manner which may infringe her fundamental rights guaranteed under Article 14 and 21 of Part III of the Constitution. The personal law operates under the authority of legislation subject to constitutional limitation, and not under the religion. The personal law can always be superseded by legislation.”

“The adjudication by a legal authority sanctioned by law is enforceable and binding and meant to be obeyed unless upset by an authority of law itself. The power to adjudicate must flow from a validly made law. One may not object to issuance of ‘fatwa’ on a religious issue or any other issue so long it does not infringe upon the rights of individual guaranteed under law. The ‘fatwa’ issued by whatever body not emanating from any judicial system recognised by law, is not binding on anyone including the person who had asked for it,” the court said.

Justice Kesarwani also observed: “A society that does not respect its women, cannot be treated to be civilised. It is the need of the present day that people are made aware that it is obligatory to treat women with respect and dignity so that humanism in its conceptual essentiality remains alive.”

“All citizens, including Muslim women, have fundamental rights under Articles 14, 15 and 21 of the Constitution. Under the garb of personal law, individual or collective rights of the citizens protected by Part III of the Constitution may not be infringed.”

“All forms of discrimination on the ground of gender is violative of fundamental freedoms and human rights. The human rights of women and of girls are an inalienable, integral and indivisible part of universal human rights,” the court said.

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