#triple talaq act

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triple talaq | triple talaq act | Aligarh News | UP news | Triple Talaq News

Father-in-law used to keep a dirty eye on daughter-in-law, the wife complained to her husband and gave triple talaq Triple Talaq News: A case of triple talaq has come to the fore in Aligarh, UP. After the matter came to light, a case has been registered against the mother-in-law and husband on the complaint of the victim. The police are currently engaged in the investigation of the case. A case…

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Ahmed Mohammed Assumes Office as PDP Acting National Chairman, Calls for North Central Zone to Nominate Chairmanship Candidate. Ahmed Yayari Mohammed has officially taken over as the Acting National Chairman of the Peoples Democratic Party (PDP). In a statement and inaugural address on Sunday, Mohammed accepted the appointment, promising to lead the party in strict adherence to its constitution. Man Divorces Wife for Attending APC Meeting, Issues Triple Talaq He urged the North Central Zone, which is constitutionally entitled to fill the vacant position of former National Chairman, Senator Iyorchia Ayu, to submit a nominee for the role. The nominee is to be prepared for consideration and approval during the upcoming National Executive Committee (NEC) meeting on October 24, 2024. Addressing recent internal challenges within the PDP, Mohammed emphasized the need for reflection on the party's management, especially in its role as the main opposition party. He highlighted concerns about personal interests superseding party interests, which has affected the PDP's performance at the national level. He acknowledged the overwhelming support from party members and pledged to strengthen the PDP through a renewed commitment to equity, fairness, and justice. Under his leadership, the PDP's National Working Committee (NWC) aims to restore confidence and rekindle hope among members, particularly the youth and critical stakeholders. Mohammed stressed that his leadership would focus on organizing the long-overdue NEC meeting to reposition the PDP as a strong opposition party, ready to play an effective role in Nigeria's democratic development. He called for cooperation from PDP governors, the Board of Trustees (BoT), National Assembly members, and other key stakeholders to ensure the party's revival and success moving forward.

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The present Criminal Appeal challenges the order passed by the Telangana High Court, upholding the interim maintenance order passed by the Family Court in favor of the Respondent-Wife, however, the amount of interim maintenance was reduced.

Mohd. Abdul Samad v. The State of Telangana

Crl Appeal 2842 of 2024

Before the Supreme Court of India

Heard by Hon'ble Madam Justice B V Nagarathna J and Hon'ble Mr. Justice Augustine George Masih J

Fact

The Appellant is the husband of Respondent No. 02, who entered into a matrimonial alliance with her on November 15, 2012. However, as their relationship deteriorated, Respondent No. 02 left the matrimonial home on April 9, 2016. Subsequently, Respondent No. 02 initiated criminal proceedings against the appellant by lodging an FIR in 2017 for offenses punishable under Sections 498A and 406 of the IPC.

In response, the appellant (husband) pronounced a triple talaq on September 25, 2017, and sought a declaration of divorce from the office of Quzath, which was eventually granted ex parte in September 2017.

The appellant attempted to send INR 15,000 as maintenance for the iddat (three months) period, which Respondent No. 02 refused to accept. Instead, she moved a petition for interim maintenance under Section 125(1) of the CrPC before the Family Court, which was consequently allowed in June 2023.

Legal Issue

Does the Muslim Women (Protection of Rights on Divorce) Act, 1986 take precedence over the General Law?

Points of Argument

Appellant’s argument

The Muslim Women (Protection of Rights on Divorce) Act, 1986 is a special law providing more comprehensive benefits than Section 125 CrPC, including provisions for mehr, dower, and return of property.

The Act, is a complete code, and it overrides Section 125 CrPC, since it includes lifelong maintenance provisions for divorced Muslim women.

It was also argued that special laws generally prevail over general laws, thus the Act should take precedence.

Sections 3 and 4 of the 1986 Act, empowers First Class Magistrates to decide matters of Maher (mandatory gift that the husband gives to his wife at the wedding) and subsistence allowances. 

The family courts lack jurisdiction as the Act mandates Magistrates to handle these issues.

The Respondent-wife didn't file an affidavit opting for CrPC provisions over the 1986 Act, as required by Section 5 of the Muslim Women Act, 1986.

The 1986 Act implicitly repealed Section 125 CrPC for Muslim women due to its specific provisions, thus barring them from seeking relief under Section 125 CrPC.

Argument by Amicus Curaie for the Respondent Wife

The 1986 Act only codifies Muslim personal law and does not negate the reliefs available under Section 125 CrPC.

He emphasized that the purpose of Section 125 is to provide quick relief to deserted or neglected women, irrespective of their religion.

Courts Observation

The Muslim Women (Protection of Rights on Divorce) Act 1986 does not bar the applicability of Section 125 CrPC, granting Muslim women the option to seek maintenance under either provision.

Order

The Criminal Appeal was dismissed. In their separate but concurring judgments, the Hon'ble Madam Justice B V Nagarathna J and Hon’ble Mr. Justice Augustine George Masih J have provided clear conclusions regarding the application of Section 125 CrPC and the Muslim Women (Protection of Rights on Divorce) Act, 1986 as well. A Muslim woman can choose both or either.

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Best Divorce Lawyers in Chennai - Attorneys | Advocates

What is Divorce under Indian law?

Divorce in Indian Law is the legal termination of marriage, regulated by statutes like the Hindu Marriage Act, Muslim Personal Law, and Special Marriage Act. It involves dissolving marital ties, addressing issues like custody and asset division through court proceedings, and allowing individuals to remarry afterward.

Types of Divorces

Mutual Consent Divorce : Both Spouses agree to end the marriage and settle terms mutually.

Consented Divorce :  One spouse seeks Divorce without the consent of the other, often based on grounds such as cruelty, adultery, or desertion.

Void and voidable Marriages : Void Marriages are considered invalid from the start. In contrast, voidable marriages are initially valid but can be annulled under specific circumstances such as fraud, impotence, or mental capacity.

Divorce Process in Chennai

The divorce process in Chennai follows the legal procedures outlined in the Hindu Marriage Act, 1955, or the Special Marriage Act, 1954, depending on the Religion under which the marriage was solemnized. A general overview of the divorce process is listed below.

Consultation with a Lawyer

The first step is to consult with a divorce lawyer who can guide you through the process and provide legal advice based on your specific situation.

Grounds of Divorce

In India, there are several grounds on which a divorce can be sought, including adultery, cruelty, desertion, conversion to another religion, mental illness, and incurable diseases. You will need to establish one of these grounds to file for Divorce.

Filing a Petition

The next step is to file a divorce petition in the appropriate family court in Chennai. The petition should include details such as the grounds of Divorce, details of the marriage, and any other relevant information.

Service of Summons

After filing the petition, the court will issue a summons to the other party, informing them about the divorce proceedings and giving them an opportunity to respond.

Meditation/ Counseling

In some cases, the court refers the parties to mediation or counseling to try to reconcile their differences and settle the Divorce amicably.

Evidence and Arguments

During the court hearings, both parties will have the opportunity to present evidence and arguments in support of their case.

Judgments

After considering all the evidence and arguments presented, the court will issue a judgment granting or denying the Divorce.

Appeal

If either party is dissatisfied with the judgment, they have the right to appeal to a higher court within a specified time frame.

Final Decree

Once the judgment becomes final, the court issues a decree of Divorce, officially ending the marriage.

Indian Laws for Divorce based on the Religion

In India, divorce laws vary depending on the parties' Religion. Here is an overview of divorce laws for the major religions practiced in India.

Hindu Marriage Act, 1955

The Hindu Marriage Act governs divorce proceedings for Hindus, Buddhists, Sikhs, and Jains. It provides various grounds for Divorce, including adultery, cruelty, desertion, conversion to another religion, mental illness, and incurable diseases.

Both Husband and Wife can file for Divorce under this act.

Muslim Personal Law

Muslim divorce laws are governed by the Muslim Personal Law (Shariat) Application Act of 1937.

The husband can initiate Divorce Muslims through various methods, including Talaq (Divorce by husband's declaration), Khula (Divorce initiated by the wife), and Mubarak (mutual Divorce).

Triple talaq, a practice where a husband can divorce his wife by pronouncing "Talaq" three times in a single sitting, was declared unconstitutional by the Supreme Court of India in 2017.

Christian Divorce Laws

Christian divorce laws are primarily based on the Indian Divorce Act of 1869.

Grounds for Divorce under this act include adultery, cruelty, and desertion for two years or more.

Both husband and wife can file for Divorce under this act.

Parsi Marriage and Divorce Act, 1936

The Parsi Marriage and Divorce Act governs divorce laws for Parsis (Zoroastrians).

Grounds for Divorce include adultery, cruelty, desertion, conversion to another religion, and insanity.

Both husband and wife can file for Divorce under this act.

Special Marriage Act, 1954

The Special Marriage Act applies to marriages where either or both parties are not governed by their laws or where the marriage is between individuals of different religions.

Divorce under this act can be sought on grounds similar to those under the Hindu Marriage Act.

Both husband and wife can file for Divorce under this act.

Grounds for Divorce

Desertion

Desertion, as a ground for Divorce, refers to one spouse abandoning the other without consent and reasonable cause for a continuous period.

Cruelty

Cruelty, as a ground for Divorce, refers to any behavior by one spouse that causes mental or physical suffering, making it unbearable for the other spouse to continue living together.

Venereal Disease

Venereal disease, as a ground for Divorce, refers to the transmission of an infectious sexually transmitted disease from one spouse to the other after marriage.

Conversion

Conversion, as a ground for Divorce, occurs when one spouse converts to another religion, leading to a fundamental change in the nature of the marriage contract.

Presumption of Death

Presumption of death, as a ground for Divorce, arises when one spouse is not heard alive for seven years or more.

Mental Disorder

Mental disorder, as a ground for Divorce, refers to a spouse suffering from a mental illness or disorder that makes it impossible to continue the marriage.

Customary Divorce

Customary Divorce refers to divorce procedures conducted according to customs and traditions prevalent in certain communities or tribes, often recognized alongside legal divorce processes.

Insanity

Insanity, as a ground for Divorce, refers to one spouse being declared legally insane or mentally ill for a continuous period, rendering the marriage untenable.

Unreasonable Behavior

Unreasonable behavior, as a ground for Divorce, refers to actions or conduct by one spouse that make it intolerable for the other spouse to continue living together.

Leprosy

Leprosy, as a ground for Divorce, refers to one spouse contracting leprosy in a communicable form after marriage, which may be considered a valid reason for Divorce under certain personal law

Mutual Consent

Mutual consent divorce refers to a situation where both spouses agree to end the marriage amicably and jointly file a divorce petition, stating their consent before the court.

Renunciation

Renunciation, as a ground for Divorce, occurs when one spouse renounces the world by entering a religious order, leading to a fundamental change in the nature of the marriage contract.

Fault Ground

Fault ground refers to specific misconduct or wrongdoing by one spouse, such as adultery or cruelty, serving as the basis for filing a divorce petition in court.

Erectile Dysfunction

Inability to achieve or maintain an erection sufficient for sexual intercourse, often influenced by physical, psychological, or lifestyle factors.

Imprisonment

The confinement of individuals against their will as punishment for breaking laws or for reasons of national security.

Irretrievable breakdown of marriage: The complete breakdown of a marital relationship beyond repair, leading to the decision to end the marriage permanently through Divorce.

Judicial Divorce is the legal termination of a marriage by a court, typically involving legal proceedings to resolve issues such as custody and property division.

Two years separation

Legal grounds for Divorce in some jurisdictions where spouses can divorce if they've lived apart for a continuous period, often two years.

Child Custody and Support

Child Custody and support arrangements in India are primarily governed by the Guardians' Wards Act of 1890 and the personal laws applicable to the parties involved.

Child Custody

The welfare of the child is the primary consideration in determining custody arrangements.

Under Hindu law, custody of children below the age of five is usually granted to the mother, and custody of older children is decided based on their best interests.

In Muslim law, custody of minor children is generally awarded to the mother until a certain age (7 years for boys and puberty for girls), after which the father may be granted custody.

In cases of interfaith marriage or marriages under the Special Marriage Act, custody is decided based on the child's best interests, considering factors such as the child's age, health, and education needs.

Child Support

Both parents are legally obligated to support their children financially.

The amount of child support is determined based on factors such as the parents' financial capacity and the child's needs.

Child support may cover expenses such as education, healthcare, and general maintenance.

Depending on the circumstances of the cases, the court may order periodic payments or a lump-sum amount as child support.

Failure to provide child support can result in legal consequences, including enforcement measures by the court.

Division of Assets and Alimony

In India, the division of assets and payment of alimony (maintenance) upon Divorce is governed by various personal laws and the provisions of the Indian legal system.

Division of Assets

Upon Divorce, the assets acquired during the marriage are typically divided between the spouses.

Assets may include property, bank accounts, investments, vehicles, and any other jointly owned assets.

The division of assets is usually based on principles of fairness and equity, considering factors such as the financial contributions of each spouse, their respective needs, and the welfare of any children involved.

Specific laws and procedures governing the division of assets may vary depending on the personal laws applicable to the parties involved.

Alimony (Maintenance)

Alimony, also known as maintenance, is financial support provided by one spouse to the other after Divorce.

Alimony ensures that the financially disadvantaged spouse can maintain a reasonable standard of living after the Divorce.

The amount of alimony and the duration of payments are determined based on factors such as the income and financial resources of each spouse, their respective earning capacities, the duration of the marriage, and the standard of living during the marriage.

Alimony may be awarded as a one-time lump-sum payment or periodic payments over a specified period.

The laws governing alimony vary depending on the personal laws applicable to the parties.

New Divorce Rules in 2024

Mindset shifts : Partners can freely pursue Divorce if their marriage soured. The court sets fair settlement rules guiding changes.

Section 13(B) 2 allows couples to bypass the mandatory waiting period for mutual consent divorce. The court preserves marriages and offers reassessment time. After 6 months, the couple decides on reconciliation or Divorce.

Extend maintenance Law for live-in relationships: Under India's new divorce law 2022, wives or live-in partners can seek relief under the Protection of Women from Domestic Violence Act, 2005, surpassing.

How long will it take to get legal Divorce?

Obtaining a mutual consent divorce in India typically takes around 6 months to a year. Both spouses must file a joint petition for Divorce and appear before the court after a mandatory waiting period of 6 months. During this period, the court may provide opportunities for reconciliation. If both parties remain committed to the Divorce after the waiting period, they confirm their consent before the court, which then grants the divorce decree.

The actual duration may vary based on factors such as the court's workload, the efficiency of legal representation, and any complexities in the case. Delays can occur if there are disagreements over terms or if there are procedural issues. It's essential to consult with a lawyer experienced in family law to navigate the process smoothly and expedite proceedings where possible.

Both parties agree to end the marriage, known as mutual assent, as they have been living separately for a year or more. The time to obtain legal mutual assent for Divorce varies greatly depending on factors such as jurisdiction, complexity of the case, and cooperation between spouses. It can take several months to years, involving negotiation, legal proceedings, and court approval before the Divorce is finalized.

Best Divorce Lawyers in Chennai

Mr P. Prashanth is the best divorce Lawyer in Chennai and the founder of Prashanth Law Associates in Sholinganallur, Chennai. He brings a wealth of knowledge in civil, criminal, and family disputes. He is skilled in managing divorce cases and matters pertaining to cyber law. With 3 years of dedicated practice, he is committed to delivering effective legal solutions.

Best Divorce Law Firm in Chennai

Prashanth Law Associates is the best law firm in Chennai. Here, you can get the best legal solutions from experienced advocates. An unwavering pursuit of justice marks our path, as a steadfast commitment to ethical conduct and a relentless dedication to our client's well-being. Prashanth Law Associates eagerly looks forward to the opportunity to serve as your trusted legal ally, guiding you toward justice and resolution.

With a vision of empowering clients through expert legal counsel, Prashanth Law Associates aims to set the standard for trust and excellence. We envision a legal landscape where every individual receives unwavering support and tailored solutions, ensuring justice is served.

Our mission is to redefine legal representation with a dynamic blend of expertise, ethics, and empathy. Through our commitment to providing comprehensive legal services, Prashanth Law Associates strives for a better and more just future for all.

Best Lady Divorce Lawyers in Chennai

You can find the best lady Divorce Lawyers from Prashanth Law Associates in Chennai. Prashanth Law Associates has numerous lady divorce advocates with extensive experience and knowledge in this field. We will give you the best legal solutions. Reach us to get the best legal solutions.

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"Triple Talaq" and Divorced Muslim Women Rights

03 March, 2023

“Marriages are made in heaven and consummated on Earth,” Supreme Court in his recent judgment quoted John Lyly. Dissolution of one’s marriage is termed a Divorce. By the legal separation of the spouses by a Court or other competent body the sacred bond of marriage gets mutilated. To ensure a smooth parting of ways the divorce is regulated by divorce laws. The divorce laws in India mainly are the Hindu Marriage Act and the Indian Divorce Act. Apart from this, Muslims are also part of India whereas the concept of marriage and divorce in Muslims is developed from a historical point of view and ancient perspectives. In Islam, divorce is known as ‘Talaaq’ and is divided into different categories. In this article, different types or modes of talaq are briefly discussed as well as two main landmark judgments are also described that act as a key for changing the legislation in favor of Muslim women.

Types of Talaq

Let us see what are the types of talaq in Muslim law:

Talaq By Judicial decree under the Muslim Dissolution of Marriage Act, 1939

Lian: When a wife is falsely charged with adultery by her husband then she has the right to ask for a divorce by filing a regular suit under the Muslin Dissolution of Marriage Act, 1939. Marriage is revoked after passing the dissolution decrees by the court. If a husband wants to prevent divorce, he can do this by withdrawing the false assertion by his wife regarding adultery before passing the decree by the court.

Faskh: This type of divorce occurs when both husband and wife feel that they are not compatible with each other. Under Section 2 of the Muslim Dissolution of Marriage Act, 1939, certain points are highlighted based on which a wife can file for a divorce. Some of them include, husband suffering from leprosy, is impotent, treats wife with cruelty, and various others.

Talaq By Mutual Consent

Khula: It is a divorce through mutual consent between husband and wife in which the husband gives the authority to his wife. The wife, for her release, gives consideration of property to her husband as well as releases Mehr and other rights. Herein, an offer is made by the wife which is then accepted by the husband. Three days time is given to the husband for accepting or rejecting the offer, once the offer is accepted, the divorce becomes irrevocable. After this, a wife has to observe iddat. 

Mubarat: In this mode of divorce, discharge or release from martial rights is performed with mutual consent among the parties. It is somehow similar to Khula but here any individual either husband or wife can make an offer.

Talaq By Wife

Talaq-e-Tafweez: A delegated form of divorce in which the husband gave the power to pronounce divorce to his wife. While doing so, he must be above 18 years of age and should be of unsound mind. The delegated power by the husband can be temporary (irrevocable) or permanent (revocable) or absolute or conditional. This type of divorce can also be termed an agreement which is between the two parties after or before marriage. 

Talaq By Husband

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For a very long time, Muslim women are fighting legal battles for their rights. The two most important battles fought by Muslim women are mentioned below:

The Two legal battles fought by Muslim Women 

First Battle: Mohd. Ahmed Khan vs Shah Bano Begum and Ors.

In this case, Shah Bano Begum was disowned by his husband Mohd. Ahmed Khan (lawyer) and tossed out of her marital house along with her five children at the age of 62 in 1975. She filed an appeal in the Madhya Pradesh High Court seeking restoration of maintenance amount of 200 rupees which was ceased by her husband. Also, she demanded an increase in the maintenance amount which is 500 rupees per month. In 1978, her husband gave an irrevocable instant divorce (triple talaq or Talaq-ul-Biddat) and used it as a defence to not pay maintenance amount. The High Court then directed her husband to pay 25 rupees per month as maintenance in 1979, whereas she further urged to increase the amount to 179 rupees per month. The MP High Court accepted the demand and provided her with 179 rupees maintenance from her husband as at the age of 62 she was unable to earn and maintain herself. Mohd. Ahmed Khan (her spouse) approached the Supreme Court challenging the High Court’s decision. 

In 1985, the Supreme Court upheld the decision of the High Court and dismissed Mohd. Ahmed Khan’s appeal. The verdict was given by Chief Justice Y.V. Chandrachud, who said that the legal liability of the husband comes to an end if a divorced wife is capable of maintaining herself. The situation, in the Shah Bano case, was vice versa; therefore, a divorced wife is entitled to gain alimony or maintenance under Section 125 of CrPC (Code of Criminal Procedure). Due to this verdict of the Supreme Court, many Muslims criticized the judgment as they considered that the verdict is against the rules of the Quran and Islamic laws. This led to huge protests; therefore, the then-Rajiv Gandhi government passed an Act, the Muslim Women (Protection on Divorce) Act, 1986, that overturned the judgment of the top Court. It was counted as one of the most misguided decisions of Rajiv Gandhi. Further, a similar case was addressed by the Supreme Court in 2017 which was another important legal battle fought by Muslim Women for their rights. 

Second Battle: Shayara Bano vs Union of India and Ors.

In 2016, Shayara Bano was divorced by her husband Rizwan Ahmed, after 15 years of marriage, by way of triple talaq without any reason. She was one of the victims of domestic violence and dowry harassment. After receiving a divorce letter from her husband declaring instant talaq, she filed a writ petition before the Supreme Court. In the petition, she challenged the constitutionality of practices of talaq-ul-biddat, polygamy, and nikah halala. The petition also highlighted that these practices are in violation of fundamental rights including Article 14 (right to equality), Article 15 (non-discrimination), Article 21 (Protection of Life and Personal Liberty), and Article 25 (Right to Freedom of religion and conscience) of the Constitution of India. The plea was supported by women’s rights organizations including BMMA (Bhartiya Muslim Mahila Andolan) and the Bebaak Collective. All India Muslim Personal Law Board, in opposition, argued that uncodified Muslim Personal law is not subject to judicial review. Also, it urged that under Article 25 of the Constitution divorce is a religious practice and thus protected. The case was referred to a larger bench as appealed by Shayara Bano and in 2017, a five-judge bench including Justices Jagdish Singh Khehar, Rohinton Fali Nariman, K.M. Joseph, S. Abdul Nazeer, and Uday Lalit gave the decision on the matter.

The bench delivered the judgment in favor of Shayara Bano and declared triple talaq unconstitutional by a 3:2 majority. The Supreme Court also ordered the legislature to take appropriate measures to stop abuse against women. While giving the judgment, Justice K.M. Joseph observed that talaq is against the Quran and said that “What is held to be bad in the Holy Quran cannot be good in Shariat and, what is bad in theology is bad in law as well.” The other two judges, Justice Uday Lalit and Justice Rohinton Nariman said that talaq-ul-biddat is an unconstitutional practice as it is arbitrary as well as regulated by the Muslim Personal law (Shariat) application, 1937. Justices S. Abdul Nazeer and Jagdish Singh Khehar stated that it is an essential religious practice in Muslim culture and is followed by a large number of people. Lastly, the Supreme Court stated that talaq-ul-biddat violates fundamental rights under Part III of the Indian Constitution. Through this verdict, the government of India took certain measures for improving the lives of Muslim Women and passed the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Muslim Women (Protection of Rights on Marriage) Act, 2019

This Act was passed after the 2017 judgment of the Supreme Court in the Shayara Bano case focusing on the protection of the rights of married Muslim women as well as preventing instant divorce by pronouncing triple talaq. This Act introduced various changes in the context of Muslim law. Under Section 3 of this Act, it is illegal or void to pronounce triple talaq by a husband to his wife in any manner either written, verbal, or using any electronic media. According to Section 4 of this Act, any person who pronounces talaq in such a manner is subjected to imprisonment of 3 years or is fined. Moreover, Section 5 of this Act ensures Muslim women that they can seek allowance for maintaining themselves and their children from their husbands as well as Section 6 ensures that custody of a minor child is entitled to Muslim women. In addition to this, Section 7 of the Act illustrates that bail can be granted to the accused by the Magistrate on reasonable grounds. 

Conclusion

In a nutshell, there are more than one mode of divorce in Muslim law but talaq-ul-biddat is one of the most sinful and disapproved forms of divorce also known as triple talaq. Muslim women are not aware of the rights provided to them and are bound to the Muslim Personal Law. In early times, Muslim women who were disowned by their husbands were not able to reach the Court to fight for their rights. But after the Shayara Bano case, there had been various changes in the legislation for improving the lives of Muslim females. The most important legislation passed by the government after the 2017 case was the Muslim Women (Protection of Right on Marriage) Act, 2019 which declared instant talaq illegal or void. 

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Click to read # First 3 marriages, now 3 divorces... Third marriage to transgender, 6 children from first wife. Delhi News First 3 marriages, now 3 divorces Third marriage to transgender six children from first wife

In this case, the Delhi Police has launched an investigation by registering a case under the Protection of Muslim Women Act. The victim’s wife has reported domestic violence to Bhajanpura Police Station. Concept image. Image Credit source: tv9 bharatvarsh from East Delhi Bhajanpura A shocking case of triple talaq has emerged. a man beat his wife triple talak has given. being the person nika…

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Kerala Guv Arif Khan Lashes Out at CM Vijayan Over His Remarks on Triple Talaq

Last Updated: February 22, 2023, 20:20 IST File photo of Arif Mohammed Khan. (Image: News18) He also slammed Vijayan’s stand on Citizenship Amendment Act (CAA) and claimed that a plot was created to “instill fear among Muslims” Kerala Governor Arif Mohammed Khan on Wednesday lashed out at state Chief Minister Pinarayi Vijayan for defending triple talaq and called his remarks “reeks of…

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Party’s performance in the Uttar Pradesh Assembly poll next year will be key.

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With 'Muslim Mahila Adhikar Divas', BJP's 'Big' Plans for Tomorrow as Party Preps Up for Triple Talaq Bill Anniversary

With ‘Muslim Mahila Adhikar Divas’, BJP’s ‘Big’ Plans for Tomorrow as Party Preps Up for Triple Talaq Bill Anniversary

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Representative photo. (Network18 Creatives)

Union ministers Mukhtar Abbas Naqvi, Smriti Irani and Ravi Shankar Prasad would connect with women across the country through video conferencing from the party headquarters on Friday.

CNN-News18

Last Updated: July 30, 2020, 9:00 AM IST

The Bharatiya Janata Party has decided to…

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Prime Minister Narendra Modi’s government completes a historic one year of governance. A year full of historic decisions and achievements of the BJP

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Virtual Rallies, PM Modi's Letter, 1K Conferences: BJP's Grand Plans for 1 Year of Modi 2.0

Virtual Rallies, PM Modi’s Letter, 1K Conferences: BJP’s Grand Plans for 1 Year of Modi 2.0

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The first year of the second term is particularly significant for the party, as it has honoured three top promises made in its manifesto — abrogation of Article 370, the Triple Talaq Act and delivering the Ram Janmabhoomi promise.

IANS New Delhi

Last Updated: May 26, 2020, 12:03 AM IST

May 30 is a red letter day for…

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Virtual Rallies, PM Modi's Letter, 1K Conferences: BJP's Grand Plans for 1 Year of Modi 2.0

Virtual Rallies, PM Modi’s Letter, 1K Conferences: BJP’s Grand Plans for 1 Year of Modi 2.0

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File photo of Prime Minister Narendra Modi.

The first year of the second term is particularly significant for the party, as it has honoured three top promises made in its manifesto — abrogation of Article 370, the Triple Talaq Act and delivering the Ram Janmabhoomi promise.

IANS New Delhi

Last Updated: May 26, 2020, 12:03 AM IST

May 30 is a red letter day for…

[seemabhatnagar]

This is a case where the criminal appeal was dismissed by the Division Bench of the Supreme Court upholding the right of a Muslim woman to seek legal remedy of maintenance under the General (Secular) Law as provided under Section 125 Cr P C.

The remedy of maintenance on divorce as provided under the Muslim Women(Protection of Rights on Divorce)Act 1986 is in addition to Section 125 Cr PC. undoubtedly, if a “reasonable substitute” has been provided for by the husband as per their personal or customary laws at the time of their divorce, the maintenance provided for by a Magistrate or a Family Court, as the case may be, under Section 125 of CrPC 1973, can be reduced to the extent of deemed double benefit being given to a divorced wife.

Mohd. Abdul Samad v. The State of Telangana,

Crl Appeal 2842 of 2024.

Before the Supreme Court of India

Heard by Hon'ble Madam Justice B V Nagarathna J and Hon'ble Mr. Justice Augustine George Masih J

The present Criminal Appeal challenges the Order dated 13.12.2023 passed in Criminal Petition No. 12222 of 2023 moved before the High Court of Telangana. The High Court modified the Order dated 09.06.2023 passed by the Family Court by decreasing the quantum of interim maintenance payable by the Appellant herein from INR 20,000/- to INR 10,000/- per month but didn't set aside the order of maintenance to the Respondent Wife. Aggrieved with the order, appellant approached the Apex Court.

Fact

The Appellant is the husband of the Respondent No. 02 and they entered into the matrimonial consortium on 15.11.2012. However, as their relationship deteriorated, Respondent No. 02 left the matrimonial home on 09.04.2016. Subsequently, Respondent No. 02 initiated criminal proceedings against the Appellant by lodging FIR in the year 2017 for offences punishable under Sections 498A and 406 IPC.

In response, the Appellant herein pronounced a triple talaq on 25.09.2017 and moved for divorce before the office of Quzath seeking a declaration of divorce, which was eventually granted ex parte, in September, 2017. Appellant attempted to send INR 15,000/- apropos maintenance for the iddat (03 months) period, which Respondent No. 02 is said to have refused. Instead, she moved a petition for interim maintenance under Section 125(1) of CrPC before the Family Court which was consequently allowed in June.2023.

Point of Argument

Appelant's argument

The Muslim Women (Protection of Rights on Divorce) Act, 1986 is a special law providing more comprehensive benefits than Section 125 CrPC, including provisions for mehr, dower, and return of property. The Act, is a complete code, and it overrides Section 125 CrPC, since it includes lifelong maintenance provisions for divorced Muslim women.

He also argued that special laws generally prevail over general laws, thus the Act should take precedence.

Sections 3 and 4 of the 1986 Act, empowers First Class Magistrates to decide matters of Maher (mandatory gift that the husband gives to his wife at the wedding) and subsistence allowances. 

The family courts lack jurisdiction as the Act mandates Magistrates to handle these issues.

The Respondent-wife didn't file an affidavit opting for CrPC provisions over the 1986 Act, as required by Section 5 of the Muslim Women Act, 1986.

The 1986 Act implicitly repealed Section 125 CrPC for Muslim women due to its specific provisions, thus barring them from seeking relief under Section 125 CrPC.

Argument by Amicus Curaie for the Respondent Wife

The 1986 Act only codifies Muslim personal law and does not negate the reliefs available under Section 125 CrPC.

He emphasized that the purpose of Section 125 is to provide quick relief to deserted or neglected women, irrespective of their religion.

Legal Issue

Whether the The Muslim Women (Protection of Rights on Divorce) Act, 1986 should take precedence over the General Law ?

Courts Observation

Section 3 of the 1986 Act, which begins with a non-obstante clause, provides an additional remedy rather than derogating from Section from Section 125 CrPC.

Justice Masih remarked that the 1986 Act does not bar the applicability of Section 125, allowing women the choice to seek relief under either provision.

This right of a Muslim woman is in addition to the right under the Muslim Women (Protection of Rights on Divorce) Act 1986.

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Constitutional Morality And Judicial Justice

The dimensions of judicial justice and constitutional morality are the same. Without judicial justice, constitutional morality is insufficient for the advancement of Indian society; both indirectly contribute to the expansion of social fairness. Constitutional morality gives the judge the authority to consider and apply moral principles to constitutional provisions. The constitutional morality serves as a motivator for the court to change the law to satisfy social needs.

The judiciary and constitutional morality in India both exist to eliminate injustices and unconstitutional aspects from society because the Indian constitution incorporates moral and legal principles.

Also Read: Purpose and Powers of the Court to Issue Commissions

A number of legislation recently passed by the judiciary contradict the idea of constitutional morality, including:

In the Shreya Singhal Case, 2015, the decriminalisation of Section 377 of the Indian Penal Code (1860) nullified the provisions of Section 66 of the Information Technology Act (2000).

Opening of the Sabarimala shrine to women of all ages in the case of the Indian Young Lawyers Association under the Medical Termination of Pregnancy Act and the Criminal Law Amendment Act, 2006

In the 2017 Shayara Bano case, the Triple Talaq law should be outlawed and made illegal.

This article focuses on the overall idea of constitutional morality in the context of judicial justice, including how they are related, the significance of constitutional morality in the judiciary, recent judgments passed by the judiciary in support of constitutional morality, as well as recommendations for constitutional morality that the judiciary should follow.

Introduction

As we can see, the Indian court is using the idea of constitutional morality as a basis for judicial interpretation to deal with issues in contemporary society. As evidenced by previous judgments, it serves as a transformational tool for the judiciary to protect individual interests. The Sabarimala Temple’s custom of prohibiting women in their “menstruating years” from entering was declared illegal by the Supreme Court in the case of Indian Young Lawyers Association & Ors. V. Kerala & Ors., allowing all women to enter regardless of age. In this case, Lord Ayyappa devotees adhered to their religious conviction that menstruating ladies should not visit the temple.

The judiciary, on the other hand, viewed this matter through the prism of constitutional morality and decided in favour of individual rights. The Triple Talaq (Talaq ul Biddat) was ruled to be invalid and void by the Supreme Court of India in the case of Shayara Bano v. Union of India after it examined the case in the context of constitutional morality. As a result, the Supreme Court has made sure that the supremacy of the constitution and constitutional morality always prevails above private laws and traditions in its capacity as a custodian and interpreter of the constitution.

Constitutional Morality Has Evolved

Grote introduced the constitutional morality theory. In order to establish free and peaceful administration, he described constitutional morality as a mindset that must be shared by a variety of stakeholders, including individuals, public servants, political parties, the opposition, and political institutions.

Later, on November 4, 1948, during a discussion in the Constituent Assembly, Dr. Ambedkar, the chairman of the drafting committee, shared his opinions on constitutional morality. He argued that only in communities where individuals are deeply ingrained with constitutional morality, like the one Grote described, should administrative details be included in the constitution. You could take the chance of leaving the legislature in charge of establishing administrative concerns by eliminating them from the constitution.

He quoted Grote as saying that Indians “have yet to grasp constitutional morality” and that it is not a “natural attitude.” “Democracy in India” is merely a top-dressing on an inherently undemocratic Indian soil. Therefore, in their respective opinions, constitutional morality is not being upheld in India.

How Judicial Decisions Are Transforming the Idea of Constitutional Morality

Naz Foundation v. Delhi’s NCT government (2009)

This was one of the first instances where Section 377 of the IPC — which made “canal intercourse against the order of nature” a crime — was determined to be unconstitutional. It violated the privacy of the nation’s LGBTQ people and subjected them to discrimination. In this case, it was determined that Section 377 of the Indian Penal Code, which states that “popular morality or public disapproval of certain act is not a valid justification for restriction of the fundamental rights under Article 21,” is clearly in violation of Articles 14, 15, and 21 of the Indian Constitution.

The idea of constitutional and social morality was examined in this instance, and it was held that constitutional morality would take precedence over social morality. The court was also instructed to consider “constitutional morality” and not societal or popular morality when deciding whether a law could be justified or not.

Navtej Singh Johar versus the Indian Union

The Supreme Court ruled that Section 377 of the IPC is unconstitutional because it discriminates against the LGQBT community and views sexual orientation as an integral part of their identity, dignity, and autonomy. In this case, Section 377 of the IPC was challenged because it criminalises “canal intercourse,” sexual intercourse against the order of nature.

The Supreme Court issued this ruling in accordance with constitutional morality, declaring that the court must be “directed by the theory of constitutional morality and not by the conception of society morality” and not be “remotely driven by majoritarian opinion or popular perception.”

“Public morality” and “constitutional morality” are distinct, according to Justice Chandrachud. As opposed to the latter, which “requires that an individual’s rights ought not to be affected by popular concepts of society,” the former states that “the behaviour of society is controlled by popular views extant in society.”

Kerala State v. Indian Young Lawyers Association

Due to the fact that it concerns the admission of women to the Sabarimala shrine, this litigation is sometimes referred to as the Sabarimala temple case. According to their religious principles, Lord Ayappa’s followers restrict menstruation women from entering the temple. The court decided in favour of women, holding that the Sabarimala Temple’s practise of barring entry to women in their “menstruating years” violated Articles 15, 17, 25, and 26 of the Indian Constitution and was therefore unconstitutional.

By ensuring that constitutional morality always takes precedence over traditions and religious views, the court safeguarded the range of individual rights while considering this matter from the perspective of constitutional morality.

Constitutional morality’s importance in the judiciary

The Supreme Court repeatedly invoked the Doctrine of Constitutional Morality in earlier rulings by rendering a landmark decision. It is a relatively new idea. The concept of constitutional morality and judicial principles assumes many forms and has numerous ramifications for the freedom and dignity of the individual in a democratic society. In recent years, the Indian judiciary has increasingly used this word in a variety of judgements.

Since the term “constitutional morality” isn’t mentioned explicitly in the Constitution, it too is a matter of judicial interpretation. Constitutional morality can be broken down into two subcategories in the modern era: as the spirit or power of the Constitution and as the opposite of popular morality. This progressive and revolutionary concept, as it has come to be known, has been used by the Supreme Court in a number of instances, some of which may rank among its most notable and significant rulings. Its goal was to ensure that the constitution’s principles prevailed over the populace’s malleable morality. The Delhi High Court’s judgement in Navtej Singh Johar’s case was later confirmed by the Supreme Court.

Criticisms

What cannot be done directly cannot be done indirectly is a premise that is explained by the doctrine of colorable legislation.

The Judiciary is an autonomous branch of government that is charged by the Constitution with resolving conflicts in a fair and just manner. It is dedicated to upholding law and order as well as the freedoms guaranteed by the Constitution and state laws. The primary argument against the Doctrine of Constitutional Morality as a judicial principle is that it is unmistakably in violation of a fundamental democratic principle, namely, the separation of powers between the three branches of the State’s government: the judiciary, legislature, and executive.

Another argument made by those who disagree with the idea of constitutional morality is that it has been left up to individual judges to decide what it means and how to apply it.

Furthermore, by giving the courts the authority to use a “top-down approach” in the name of the morality front concept, it obstructs the organic and natural evolution of liberalism or the correction of societal wrongs or ethical problems. A judiciary that fairly restricts its power and sparingly withdraws its jurisdiction when necessary escapes public scrutiny and lacks accountability.

Conclusion

All responsible people ought to be indoctrinated with a sense of constitutional morality. It may be argued that rather than being a means of thwarting or resolving government action, Ambedkar and Grote both considered constitutional morality as a self-imposed restriction by the people to uphold the constitutional ideals. But more than 70 years after Dr. Ambedkar delivered his presentation to the Constituent Assembly in 1948, numerous academics and courts have given the idea a number of different interpretations.

Constitutional morality must be upheld by individuals as well as the judiciary and the government. The preamble of the constitution explicitly mentions the kind of society we hope to create; it can only be realised through constitutional morality.

In the past few years, the judiciary has set forward-thinking and historic precedents where this theory has been used specifically in situations involving gender-justice, institutional propriety, social uplift, reducing majoritarianism, and other such problems. Achieving justice, social, economic, and political equality — a triune phenomenon enshrined as a pledge in the Preambular Glory of our Constitution — requires adherence to constitutional morality and judicial values, which are inalienable. The Constitution, which represents the people’s desire to be governed, is not an end in and of itself. Rather, it is a means to that end.

The two-pronged definition of constitutional morality for the time being entails: first, a legal mechanism for countering popular morality; and second, a reminder that courts should keep themselves free of, sometimes rigid, societal beliefs and opinions that need to be modernised for the benefit and overall advancement of the country. By enabling the courts to look into the spirit and intent of the Indian Constitution, it also helps keep the government accountable.

It is appropriately categorised as a second basic structural doctrine as a result. As with most other constitutional principles, which are largely dependent on the interpretation of judges while rendering judgements in various scenarios, it is appropriately vague and confusing in its definition. However, it is necessary due to the country’s judicial system and the requirement that judges fill the “empty vessels of these theories” with words derived from their years of practise and legal expertise.

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Muslim man can be accused under triple talaq law, not his mother: SC

Muslim man can be accused under triple talaq law, not his mother: SC

The offence under the triple talaq law can only be committed by a Muslim man, and his mother cannot be accused of it, the Supreme Court has ruled while granting anticipatory bail to a woman from Kerala. Section 3 of The Muslim Women (Protection of Rights on Marriage) Act 2019 renders void and illegal pronouncement of talaq by a Muslim man upon his wife and under Section 4 of the law, a Muslim man…