SYNOPSIS & LIST OF DATES This is a Writ Petition under Article 32 of the Constitution of India praying for a direction against the Union of India and others seeking a writ or order or direction in the nature of mandamus declaring the practices of talaq-e-bidat (triple-talaq), 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 for a direction to all Respondents declaring the Talaq pronounced by the Respondent No. 7 against the Petitioner herein is void abinitio for being illegal, unconstitutional, and violative of Articles 14, 15, 21 and 25 of the Constitution and to pass such further orders as this Hon’ble Court may deem appropriate to provide a life of dignity to Muslim women. This petition is filed by the Petitioner in her individual capacity. It is respectfully submitted that in the issue in question, this Hon'ble Court, comprising Hon’ble Justice Anil R. Dave & Hon’ble Justice A.K. Goel already considered and issued notice vide order dated 29.02.2016. This is a classic example of misusing sec. 2 of the Muslim personal law (Sheriyat Application Act, 1997). The 7th respondent, husband of the petitioner wife herein took away the four kids having the age of 7, 9, 10, 12 after saying talak, talak talak over phone to the Petitioner. The petitioner wife now wandering and searching for her children and the same time the husband illegally married another women and staying away from the petitioner wife herein. It is a controversial
practice
called
the talaq or
"triple-talaq."
Anytime, the husband can divorce his wife by saying, talaq.
Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 reads: “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 properly 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, and 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).” It is submitted that this provision, in so far as it seeks to recognise and validate talaq as a valid form of divorce
and
polygamy,
is
the void
practices and
of
nikah
halala
unconstitutional
as
and 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.
Further,
the
Constitution neither grants any absolute protection to
the personal law of any community that is arbitrary or unjust, nor exempts personal laws from the jurisdiction of the Legislature or the Judiciary. The Muslim personal laws of India permit the practice of talaq-e-bidat or talaq-i-badai, which includes a Muslim man divorcing his wife by pronouncing more than one talaq in a single tuhr (the period between two menstruations), or in a
tuhr
after
coitus,
or
pronouncing
an
irrevocable
instantaneous divorce at one go. This practice of talaq-e-bidat (unilateral triple-talaq) which practically treats women like chattel is neither harmonious with the modern principles of human rights and gender equality, nor an integral part of Islamic faith, according to various noted scholars. Many Islamic nations, including Saudi Arabia, Pakistan, and Iraq, have banned or restricted such practice, while it continues to vex the Indian society in general and Indian Muslim women like the Petitioner in particular. The practice also ruins the lives of many divorced women and their children, especially those belonging to the weaker economic sections of the society. According to many scholars, talaq-e-bidat is not a form of divorce recognised in the Holy Quran as the Holy Book provides for reconsideration and reconciliation before recognising divorce as irrevocable. The 7th respondent husband of the petitioner after having triple talak, forcing the petitioner to stay with his brother. By knowing all these facts, the 8th respondent married with 7th respondent. It is a fact that the petitioner approached police authorities against the illegalities and torturing and harassment from the part of her husband. However, the petitioner never challenged the practice of talak
– e-bidat, nikah- halala and polygamy under muslim personal laws. Unfortunately, in the 21st century this evil practice is happening in the Muslim community and therefore, the rights of Muslim women and their children is seriously affected. Therefore, this triple tallak is grossly injuries to fundamental rights of a muslim women and therefore it is completely violating Article
14, 15, 21 & 25
of the
Constitution of India. A perusal of the decisions of this Hon’ble Court in Prakash v. Phulavati (supra), Javed and Others v. State of Haryana and Others, (2003) 8 SCC 369, and Smt. Sarla Mudgal, President, Kalyani and Others v. Union of India and Others, (1995) 3 SCC 635 illustrates that the practice of polygamy has been recognised as injurious to public morals and it can be superseded by the State just as it can prohibit human sacrifice or the practice of sati. In fact, in Khursheed Ahmad Khan v. State of Uttar Pradesh and Others, (2015) 8 SCC 439, this Hon’ble Court has also taken the view that practices permitted or not prohibited by a religion do not become a religious practice or a positive tenet of the religion, since a practice does not acquire the sanction of religion merely because it is permitted.
This Hon’ble Court in Shamim Ara versus State of Uttar Pradesh & Another, (2002) 7 SCC 518, wherein this Hon’ble Court considered valid talaq in Islamic law and, referring to these decisions as “illuminating and weighty judicial opinion available in two decisions of Gauhati High Court recorded by Baharul Islam, J”, observed that talaq must be for a reasonable
cause
and
be
preceded
by
attempts
at
reconciliation between the husband and the wife. The observations of the Constitution Bench in Danial Latifi & Another v. Union of India, (2001) 7 SCC 740, are of utmost relevance. This Hon’ble Court stated that when interpreting provisions where matrimonial relationship was involved it has to consider the social conditions prevalent in our society, where a great disparity exists in the matter of economic resourcefulness between a man and a woman whether they belong to the majority or the minority group, since our society is male dominated both economically and socially and women are invariably assigned a dependent role irrespective of the class of society to which they belong. This Hon’ble 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 constraints. In Shamim Ara Versus State of U.P. Reported in 2002 (7) SCC 518 at page 507 para 60 clearly held “we do not agree with the view propounded in the decided cases referred to by Mulla
and
Dr.
Tahir
Mahmood
in
their
respective
commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement”. Therefore in the case in hand, even otherwise, there is not having any evidence for a valid talaq also. That
“This Hon’ble Court in Comptroller and Auditor
General of India Vs. K.S. Jagannathan, AIR 1986-2-679 SCC has held that the courts have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government” Therefore in the case in hand, even otherwise, there is not having any evidence for a valid talaq. 09.06.2001:
The
petitioner
and
respondent No.7
got
married as per Muslims Rights and custom and at the time of said marriage father of the petitioner had given gold of having value of Rs.7 lakhs to the couple. That in 2003 the father of the Petitioner also paid Rs 5 lakh as a security amount for taking a rented flat in culcutta. It is also a fact that at the time of marriage Petitioner was having about 15 years old and the Husband,
Respondent No 7 was having about 27 yers old and he was working at Dubai in a company as an emproidary worker. Out of the wedlock, they blessed with three girl children and one boy, they are: i. Shaista Khatoon (Female), 12 yrs. DOB: 09.01.2004 ii. Kahkasha Khatoon (Female),10yrs. DOB: 15.04.2006 iii. iv.
Bushra Khatoon (Female),9yrs.DOB: 13.10.2007 Mohammad Zaid Afzal (Male),7yrs.DOB: 4.10.2009
24.10.2014:
Due to continues harassment and assault the
petitioner wife filed a complaint u/s 3 and 4 of Dowry Prohibition Act, before Golabari Police Station against the Respondent No.7 Husband. However no action has been taken by the police authorities. Feb 2015 : The Respondent husband went Dubai. The husband Respondent also compelled the Petitioner to stay with his brother and fullfill his ambitions as he dont
want
to
continue
further
relation
with the
Petitioner. April 2015 : That it was surprise to the Petitioner that the 7th Respondent telephoned the Petitioner on a fine morning in the month of April 2015 and divorced the Petitioner
by saying talaq, talaq, talaq then disconnected the phone. Therefore in the case in hand, even otherwise, there is not having any evidence for a valid talaq also. 29.10.2015: The husband respondent by suppressing the fact that he is having the wife and 4 children tried for a 2nd marriage and accordingly the Barat ceremony fixed for 29.10.2015 and the petitioner restrained the same as she got the information from the reliable sources. It is a clear fact that the Petitioner restrained the said marriage as the Talaq pronounced by the Respondent No7 was illegal. 02.11.2015: The petitioner wife represented before the Police Commissioner, Howrah City for the protection from the 7th respondent and his relatives as the petitioner interfered and objected the Barat Ceremony of 7th respondent’s 2nd marriage at Bihar. Nov 2015 : That the Petitioner came to know that in the month of November 2015 the 7th Respondent husband married 8th Respondent. At this time the Petitioner or her relatives could not do anything. The 7th Respondent also took the children from the custody of the Petitioner.
It is a fact that therafter the Respondent husband never given any support or financial help to the Petitioner. 02.12.2015: The petitioner wife had to be admitted in the Calcutta National Medical college and Hospital
as the
in-laws, the brother and wife of the 7th respondent seriously assaulted her. 14.12.2015:
The
Chairperson
of
Women’s
Resistance
Committee forwarded the complaint dated 14.12.2016 of petitioner wife to the Chief Minister of West Bengal, Governor, Vice President of India, Law Minister, Chief Minister of Bihar, Home Minister, Commissioner of Police, Howrah etc. etc. with a covering letter. 28.12.2015: Following the abovesaid complaint, the Howrah Police registered an FIR u/s
341, 323, 354 & 509 of
IPC. It is a fact that the relatives of the 7th Respondent also filed false cases against the Petitioner and her relatives as a counter blast. 25.02.2016: The poor petitioner wife sent a registered legal notice to the 8th Respondent, 2nd wife of the 7th respondent and requested to bring back the children with immediate effect for giving them protection and education.
29.02.2016: In the same issue this Hon'ble Court comprising Hon’ble Justice Anil R. Dave & Hon’ble Justice A.K. Goel issued notice vide order dated 29.2.2016. 12.03.2016: The petitioner wife again sent a legal notice dated 12.3.2016 to the 7th respondent husband to give back all the articles which are taken at the time of marriage. 12.8.2016: As the main issue is pending before this Hon’ble court and the Petitioner did not approach for the same relief in any other forum or court, filed the present Writ Petition.
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
IN THE MATTER OF: Ishrat Jahan w/o Murtuza Ansari R/o 20/1 Nanda Ghosh Road, 3rd Floor, PS Golabari Howrah-1, West Bengal
… Petitioner
VERSUS 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 2. Ministry of Law and Justice, Represented by the Secretary, Department of Legal Affairs, Shastri Bhawan, ‘A’ Wing, Dr. Rajendra Prasad Road, New Delhi - 110 001
… Respondent No. 2
3. Ministry of Minority Affairs, Represented by the Secretary, 11th Floor, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi - 110 001
… Respondent No. 3
4. National Commission for Women, Represented by the Chairperson, Plot 21, Jasola Institutional Area, New Delhi - 110025
… Respondent No. 4
5. Director General of Police Police Head Quarters Calcutta, West Bengal
…Respondent No. 5
6. Director General of Police Police Head Quarters Patna Bihar
…Respondent No. 6
7. Murtuza Ansari R/o 20/1 Nanda Ghosh Road,
3rd Floor, PS Golabari Howrah-1, West Bengal
… Respondent No. 7
8. Mrs Shabana Parween W/o Murtuza Ansari C/o Nazamuddin Vill-Foauldapur Post Ratni Bazar, P S sakurabad Jahanbad District, Bihar-804422 WRIT
PETITION
UNDER
... Respondent No. 8
ARTICLE
32
OF
THE
CONSTITUTION OF INDIA SEEKING A WRIT OR ORDER OR
DIRECTION
DECLARING
IN
THE
NIKAH-HALALA
THE
NATURE
PRACTICES
AND
OF
POLYGAMY
OF
MANDAMUS
TALAQ-E-BIDAT, 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
HON’BLE
COURT
MAY
DEEM
APPROPRIATE TO PROVIDE A LIFE OF DIGNITY TO MUSLIM WOMEN. TO, The hon’ble chief justice of india and his companion judges of the supreme court of india
The humble petition of the petitioner above named MOST RESPECTFULLY SHOWETH: I.
This is a Writ Petition under Article 32 of the Constitution of India praying for a direction against the Union of India and others seeking a writ or order or direction in the nature of mandamus declaring the practices of talaq-ebidat (triple-talaq), 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 for a direction all Respondents declaring the Talaq pronounced by the Respondent No. 7 against the Petitioner herein is void abinitio for being illegal, unconstitutional, and violative of Articles 14, 15, 21 and 25 of the Constitution and to pass such further orders as this Hon’ble Court may deem appropriate to provide a life of dignity to Muslim women. This petition is filed by the Petitioner in her individual capacity. II.
The Petitioner has not approached any other court for the same 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 Hon’ble Court.
III.
The Petitioner is a female citizen of India, a Muslim by religion, and hails from Howrah, West Bengal. She is trying to continue in her matrimonial house despite the threat from her in-laws.
Today it is a trend in the
country that the poor muslim women and their children will be thrown out at any time after giving simple tallak, tallak, talak by the husband. Petitioner’s four
children
were
kidnapped
by
her
husband
inconnivance with his second wife after pronouncing triple Talak to the petitioner. Thereafter petitioner wife is forced by her husband, 7th Respondent to stay with his brother.
The petitioner wife is not much educated
and her parents are living in Bihar and she is surviving
with the help of her sister. The petitioner wife respectfully seeking an urgent interference of this Hon'ble Court as the four small children to be protected and give them education. IV.
It is respectfully submitted that the poor muslim women are suffering and thrown away from the matrimonial house by adopting evil practise of triple talaq. The Holly Quran or the Muslim scholars are not at all supporting this system. A true copy of the Article dated nil reported in Times of India , as downloaded from internet, written by shri Syeda Saiyidain Hameed , a writer, founder of the Muslim Women's Forum and former member, National Commission for Women shows the illegality of the system, is hereby annexured as Annexure P-1 (Pages
to
).
1. That on 09.06.2001, the petitioner and respondent No. 7 got married as per Muslims Rights and custom and at the time of said marriage father of the petitioner had given gold having value of about Rs 7 lakhs to the couple. That in 2003 the father of the Petitioner also paid Rs 5 lakh as a security amount for taking rented flat in Calcutta. It is also a fact that at the time of marriage Petitioner was having about 15 years old and the Husband Respondent No 7 was having about 27 years
old and he was working at Dubai in a company as an embroidery worker. Out of the wedlock, they blessed with three girl children and one boy, they are: v.
ShaistaKhatoon (Female),12 yrs. DOB: 09.01.2004
vi.
KahkashaKhatoon(Female),10yrs.DOB: 5.04.2006
vii.
Bushra Khatoon (Female), 9 yrs. DOB: 13.10.2007
viii. MohammadZaidAfzal(Male),7yrs.DOB: 14.10.2009 2. That on 24.10.2014, due to continues harassment and assault the petitioner wife filed a complaint u/s 3 and 4 of Dowry Prohibition Act, before Golabari Police Station against the Respondent No.7 Husband. However no action has been taken by the police authorities. 3. That in February 2015 the Respondent husband went Dubai. The husband Respondent also compelled the Petitioner to stay with his brother and fulfil his ambitions as he don’t want to continue further relation with the Petitioner. 4. That it was a big surprise to the Petitioner that the 7th Respondent husband telephoned the Petitioner on a fine morning in the month of April 2015 and divorced the Petitioner by
saying talaq, talaq, talaq then
disconnected the phone. Therefore in the case in hand, even otherwise, there is not having any evidence for a
valid talaq also. It is also a fact that as per the guidelines of this Hon’ble court 7th Respondent is bound to pay the maintenance to the petitioner and her children. 5. That on 29.10.2015, the husband respondent by suppressing the fact that he is having the wife and 4 children tried for a 2nd marriage and accordingly the Barat ceremony fixed for 29.10.2015 and the petitioner restrained the same as she got the information from the reliable sources. It is a clear fact that the Petitioner restrained the said marriage as the Talaq pronounced by the Respondent No7 was illegal. 6. That on 02.11.2015, the petitioner wife represented before the Police Commissioner, Howrah City for the protection from the 7th respondent and his relatives as the
petitioner
interfered
and
objected
the
Barat
Ceremony of 7th respondent’s 2nd marriage at Bihar. A true typed copy of the said complaint dated 02.11.2015 is hereby annexed as ANNEXURE P-2 (Pages
to
).
7. That the Bharatiya Muslim Mahila Andolan has written to the Prime Minister seeking codification of Muslim personal law as per a draft based on Quranic tenets prepared
by
them
and
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 triple-talaq and polygamy has been reported, is attached as Annexure P-3 (Pages
to
).
8. That the Petitioner came to know that in the month of November 2015 7th Respondent husband married 8th Respondent. At this time the Petitioner or her relatives could not do anything. The 7th Respondent also took the children from the custody of the Petitioner. It is a fact that therafter the Respondent husband never given any support or any financial support to the Petitioner.
9. That on 02.12.2015, the petitioner wife had to be admitted in the Calcutta National Medical college and Hospital
as the in-laws, the brother and wife of the 7th
respondent seriously assaulted her. A true typed copy of the medical certificate issued by the Calcutta National
Medical
College
and
Hospital
dated
02.12.2015 is hereby annexed as ANNEXURE P-4 (Pages
10.
to
).
That on 14.12.2015, the Chairperson of Women’s
Resistance Committee forwarded the complaint of petitioner wife to the Governor, Chief Minister of West
Bengal, Commissioner of Police, Howrah and Inspector of police, with a covering letter. The said covering letter dated 14.12.2015 issued by Chairperson Women’s Resistance Committee dated 14.12.2015 is hereby annexed as ANNEXURE P-5 (Pages 11.
to
).
That on 28.12.2015, following the above said
complaint, the Howrah Police registered an FIR u/s 341, 323, 354 & 509 of IPC. A true typed copy of the FIR No. 1533 dated 28.12.2015 of Howrah P.S. is hereby annexed as ANNEXURE P-6 (Pages 12.
to
).
That on 25.02.2016, the poor petitioner wife sent a
registered legal notice to the 8th Respondent, 2nd wife of the 7th respondent and requested to bring back the children immediately for giving them protection and education.
A true copy of the legal notice dated
25.02.2016 is hereby annexed as ANNEXURE P-7 (Pages 13.
to
).
That on 29.02.2016, in the same issue this Hon'ble
Court comprising Hon’ble Justice Anil R. Dave & Hon’ble
Justice A.K. Goel issued
notice vide order
dated 29.2.2016. A true copy of the said order dated 29.02.2016 passed by this Hon'ble Court is hereby annexed as ANNEXURE P-8 (Pages 14.
to
).
That on 12.03.2016, the petitioner wife sent a
registered legal notice to the 7th respondent husband
and requested to give back all the articles and money which are taken at the time of marriage. A true copy of the legal notice dated 12.03.2016 is hereby annexed as ANNEXURE P-9 (Pages
to
).
It is a fact that the relatives of the 7th Respondent also filed false cases against the Petitioner and her relatives as a counter blast. 15.
That the Petitioner filed a petition under section 12
of the domestic violence Act vide M C No.721 of 2015 before the Chief Judicial Magistrate court Howrah and the same is pending. 16.
That on 12.8.2016 as the main issue is pending
before this Hon’ble court and as, the Petitioner did not aproch for the same relief in any other forum, filed the presant Writ Petition. V.
The Petitioner has not filed any similar Writ Petition either before this Hon’ble Court or any High Court praying for the same reliefs as claimed in the present Writ Petition.
VI.
The present Writ Petition is filed bona fide and in the interest of justice.
VII.
The Petitioner has no adequate or equally efficacious remedy but to approach this Hon’ble Court by way of the present Writ Petition. GROUNDS A.
Becouse of that in the issue in question, this Hon'ble Court, comprising Hon’ble Justice Anil R. Dave & Hon’ble Justice A.K. Goel already considered and issued notice vide order dated 29.02.2016.
B. In Shamim Ara Versus State of U.P. Reported in 2002 (7) SCC 518 at page 507 para 60 clearly held “we do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement” Therefore in the case in hand, even otherwise, there is not having any evidence for a valid talaq. C. Various
eminent
Muslim
scholars,
judgments
of
eminent judges, and Muslim citizens’ groups have expressed disapproval of the notion that the whimsical and capricious divorce by a husband is “good in law though bad in theology” as well as observed that such view is not only an affront to 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. D. A life of dignity and equality is undisputedly the most sacrosanct
fundamental
right
guaranteed
by
the
Constitution and it prevails above all other rights available under the laws of India. It is therefore submitted that the 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 decided on considerations other than religion or religious faith or beliefs, or sectarian, racial or communal constraints.
E. The Muslim Personal Law (Shariat) Application Act, 1937, by providing for the application of Muslim personal law in matters relating to marriage where the parties are Muslims, conveys a wrong impression that the law sanctions the sinful form of talaq, nikah halala, and
polygamy
which
is
grossly
injurious
to
the
fundamental rights of married Muslim women and offends Articles 14, 15, 21 and 25 of the Constitution. F. That the Muslim personal laws of India permit the practice of talaq-e-bidat or talaq-i-badai, which includes a Muslim man divorcing his wife by pronouncing more than one talaq in a single tuhr (the period between two menstruations), or in a tuhr after coitus, or pronouncing an irrevocable instantaneous divorce at one go. This practice of talaq-e-bidat (unilateral triple-talaq) which practically
treats
women
like
chattel
is
neither
harmonious with the modern principles of human rights and gender equality, nor an integral part of Islamic faith, according to various noted scholars. Many Islamic nations, including Saudi Arabia, Pakistan, and Iraq, have banned or restricted such practice, while it continues to vex the Indian society in general and Indian Muslim women like the Petitioner in particular. The practice also ruins the lives of many divorced women and their children, especially those belonging to
the weaker economic sections of the society. According to many scholars, talaq-e-bidat is not a form of divorce recognised in the Holy Quran as the Holy Book provides for reconsideration and reconciliation before recognising divorce as irrevocable. G.
That the 7th respondent husband of the petitioner after having triple talak, forcing the petitioner to stay with his brother. By knowing all these facts, the 7th respondent married with 8th respondent. It is a fact that the petitioner approached police authorities against the illegalities and torturing and harassment from the part of
her
husband.
However,
the
petitioner
never
challenged the practice of talak – e-bidat, nikah- halala and polygamy under muslim personal laws. H.
That a perusal of the decisions of this Hon’ble Court in Prakash v. Phulavati (supra), Javed and Others v. State of Haryana and Others, (2003) 8 SCC 369, and Smt. Sarla Mudgal, President, Kalyani and Others v. Union of India and Others, (1995) 3 SCC 635 illustrates that the practice of polygamy has been recognised as injurious to public morals and it can be superseded by the State just as it can prohibit human sacrifice or the practice of sati. In fact, in Khursheed Ahmad Khan v. State of Uttar Pradesh and Others, (2015) 8 SCC 439, this Hon’ble Court has also taken the view that
practices permitted or not prohibited by a religion do not become a religious practice or a positive tenet of the religion, since a practice does not acquire the sanction of religion merely because it is permitted. I.
This Hon’ble Court in Shamim Ara versus State of Uttar Pradesh & Another, (2002) 7 SCC 518, wherein this Hon’ble Court considered valid talaq in Islamic law and, referring to these decisions as “illuminating and weighty judicial opinion available in two decisions of Gauhati High Court recorded by Baharul Islam, J”, observed that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife.
J.
The observations of the Constitution Bench in Danial Latifi & Another v. Union of India, (2001) 7 SCC 740, are of utmost relevance. This Hon’ble Court stated that when
interpreting
provisions
where
matrimonial
relationship was involved it has to consider the social conditions prevalent in our society, where a great disparity
exists
in
the
matter
of
economic
resourcefulness between a man and a woman whether they belong to the majority or the minority group, since our society is male dominated both economically and socially and women are invariably assigned a dependent role irrespective of the class of society to which they
belong. This Hon’ble 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 religious
on
considerations
faith
or
beliefs
other or
than
sectarian,
religion
or
racial
or
communal constraints. K. The Dissolution of Muslim Marriages Act, 1939 fails to secure for Indian Muslim women the protection from bigamy, which 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. L. The assumptions and beliefs upon which talaq-e-bidat is recognised are factually false, scientifically untenable and contrary to the spirit and provisions of the Constitution and, in any event, this form of divorce has been declared to be a spiritual offence in the Holy Quran itself. M.Giving recognition to nikah halala and to talaq-e-bidat as a valid form of divorce interferes with the Muslim women’s right to profess and practice her religion, inasmuch as it unleashes a spiritual offence on her to
say the least and is, thus, violative of Articles 14, 15, 21 and 25 of the Constitution. N. The Constitution neither grants any absolute protection to the personal law of any community that is unjust, nor exempts personal laws from the jurisdiction of the Legislature or the Judiciary. O. The freedom of conscience and free profession, practice and propagation of religion guaranteed by Article 25 of the Constitution is, in terms of Article 25(1), “subject to public order, morality and health and to the other provisions of this Part”. It is submitted that the Constitution introducing
does social
not
preclude
reforms
and
the
State
enacting
from
laws
on
subjects traditionally associated with religion, especially when such laws aim to secure public order, morality, health and the rights guaranteed by Part III of the Constitution. P. The Constitution only protects religious faith and belief while the religious practices under challenge run counter to public order, morality, and health and must therefore yield to the basic human and fundamental right of Muslim women to live with dignity, under equal protection of laws, without any discrimination on the basis of gender or religion.
Q. The Legislature has failed to ensure the basic dignity and equality of women in general and Muslim women in particular when it concerns matters of marriage and divorce and succession. R. A
complete
ban on polygamy, nikah halala and
unilateral triple-talaq has long been the need of the hour as it renders Muslim wives extremely insecure, vulnerable and infringes their fundamental rights. S. Equality should be the basis of all personal law since the Constitution envisages equality, justice and dignity for women. T. Several Islamic nations have banned or restricted the practice of talaq-e-bidat while Indian Muslims are still being compelled to follow such practice which neither has any basis in the Holy Quran nor is associated with the
practice
of
Islam
as
a
religion.
Thus,
the
fundamental rights of Indian Muslims are being violated continuously, without any basis in Islam or the Holy Quran, despite reforms introduced by Islamic nations to secure
a
life
of
dignity
unmarred
by
gender
discrimination. U. Failure to eliminate de jure (formal) and de facto (substantive) discrimination against women including by non-State actors, either directly or indirectly, violates not only the most basic human rights of women but also
violates their civil, economic, social and cultural rights as envisaged in international treaties and covenants. It is submitted that not only must the practices of polygamy, talaq-e-bidat and nikah halala be declared illegal and unconstitutional, but the actions of religious groups, bodies and leaders that permit and propagate such
practices
must
also
be
declared
illegal,
unconstitutional, and violative of Articles 14, 15, 21 and 25 of the Constitution. V. Because of that as per the latest guidelines of this Hon’ble Court, the 7th Respondent bound to pay the maintenance to the wife as well as the young children. It is also a fact that no mahar or dower given to the Petitioner till today despite the legal notice also. However, in the case of Daniel Lathifa & another Vs the Union of India reported in 2001 (7) SCC and Shamim Ara Vs State of U.P. & another reported in 2002 (7) SCC 518 also clarifies the position of the law, and therefore the Petitioner and her innocent children may have to get the benefit of the said judgment passed by this Hon’ble Court. W.Because of that, as per the judgment reported in AIR 1997 SC 3280 this Hon’ble Court held the children are entitled to get maintenance upto they become major. It
is also a fact that wife entitled the entire life time maintenance if she is not married earlier. PRAYER It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to: A.
Issue a Writ or Order or Direction in the nature of mandamus to all Respondents declaring the Talaq pronounced by the Respondent No. 7 against the Petitioner herein is void ab initio for being illegal, unconstitutional, and violative of Articles 14, 15, 21 and 25 of the Constitution;
B.
Issue a Writ or Order or Direction in the nature of mandamus to the Union of India declaring the practice of talaq-e-bidat (triple-talaq) as illegal and unconstitutional
as
it
violates
the
rights
guaranteed by the Constitution, including Articles 14, 15, 21 and 25; C.
Issue a Writ or Order or Direction in the nature of mandamus to the Union of India declaring Section 2
of
the
Application
Muslim Act,
Personal
1937
Law
(Shariat)
unconstitutional
and
violative of Articles 14, 15, 21 and 25 of the Constitution in so far as it seeks to recognise and validate talaq-e-bidat (triple-talaq) as a valid form of divorce; D.
Issue a Writ or Order or Direction in the nature of mandamus to the Union of India declaring Section 2
of
the
Application
Muslim Act,
Personal
1937
Law
(Shariat)
unconstitutional
and
violative of Articles 14, 15, 21 and 25 of the
Constitution in so far as it seeks to recognise and validate the practice of nikah halala; E.
Issue a Writ or Order or Direction in the nature of mandamus to the Union of India declaring Section 2
of
the
Muslim
Application
Act,
Personal
1937
Law
(Shariat)
unconstitutional
and
violative of Articles 14, 15, 21 and 25 of the Constitution in so far as it seeks to recognise and validate the practice of polygamy; F.
Issue a Writ or Order or Direction in the nature of mandamus to the Union of India declaring the Dissolution
of
Muslim
Marriages
Act,
1939
unconstitutional and violative of Articles 14, 15, 21 and 25 of the Constitution in so far as it fails to secure for Indian Muslim women the protection from bigamy which has been statutorily secured for Indian women belonging to other religions; G.
Issue a Writ or Order or Direction in the nature of mandamus to the Union of India declaring the practice
of
polygamy
unconstitutional
as
it
as
illegal
violates
the
and rights
guaranteed by the Constitution including Articles 14, 15, 21 and 25; H.
Issue a Writ or Order or Direction in the nature of mandamus to the Union of India declaring that a Muslim wife whose marriage has been terminated by a valid and legally recognised form of talaq by her husband may remarry her husband without an intervening halala marriage with another man;
I.
Issue a Writ or Order or Direction in the nature of mandamus to the Union of India declaring any form of divorce under Muslim personal laws as illegal and unconstitutional if the divorce is not
preceded by attempts to reconcile the marriage over three successive tuhrs, or ninety days, or any other period of time this Hon’ble Court deems appropriate; J.
Issue direction to the 5th and 6th Respondents, as the Respondent No.7 hide the children of the Pettitoner, to find out the whereabouts of the four minor children namely: 1.Shaista Khatoon (Female), 12 yrs. DOB: 09.01.2004 2.Kahkasha Khatoon(Female),10yrs.DOB: 15.04.2006 3.Bushra Khatoon (Female), 9 yrs. DOB: 13.10.2007 4.Mohammad Zaid Afzal (Male),7yrs. DOB: 14.10.2009
K.
Issue direction to Respondent No. 5 to give the
protection to the petitioner to the effect that restraining the respondent Nos. 7 and his relatives from any attack against petitioner or any effort against the petitioner from expelling the petitioner from the matrimonial house which is r/o 20/1 Nanda Ghosh Road, 3rd Floor, PS Golabari Howrah-1, West Bengal.
L. Pass any other or future order(s) as this Hon’ble Court deems fit in the facts and circumstances of the present case. AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL ALWAYS PRAY. DRAWN BY &FILED BY: V K BIJU Advocate for Petitioner Drawn on:
9.08.2016
Filed on:
12.08.2016
IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION IA NO. _________________/2016 IN WRIT PETITION (CIVIL) No.
OF 2016
IN THE MATTER OF: Ishrat Jahan
… Petitioner VERSUS
Union of India & Ors.
…Respondents
APPLICATION FOR INTERIM DIRECTIONS TO, THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUDGES OF THE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHOWETH:
I. This is a Writ Petition under Article 32 of the Constitution of India praying for a direction against the Union of India and others 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 Hon’ble Court may deem appropriate to provide a life of dignity to Muslim women. This petition is filed by the Petitioner in her individual capacity. The petitioner craves the leave of this Hon'ble Court to rely upon the pleadings of the accompanying writ petition and the same is not repeated herein for the sake of brevity. II.
It is respectfully submits that the petitioner may loss her life at any time as she is still living in the
matrimonial house without the support of her husband. There are several occasions already faced by the petitioner as the Respondent Nos. 7 and his relatives were tried to expel her from the matrimonial house. III.
It is further respectfully submits that the petitioner – a poor mother do not have idea about her four children having the age of 7, 9, 10 & 12. The petitioner
repeatedly
requested
the
7th
&
8th
respondent to bring back the children as the petitioner wanted to protect them and for doing their education etc. IV.
It is further respectfully submits that the poor children are not getting any protection from any corner and petitioner is not even aware whether they are living or not. It is a fact that the petitioner don’t have any support as her parents are living in Bihar
as she is
really surviving with the help of her sister. The police authorities are also not giving enough support to the petitioner and to find out the whereabout of her children. V.
It is most respectfully submitted that as per the settled position of law, especially in the case of Daniel Lathifa & another Vs Union of India reported in 2001(7) SCC 740 and Shamim Ara Vs State of U.P. reported in 2002(7) SCC 518 and AIR 1997 SC 3280 this Hon’ble Court held that if the Talaq pronounced illegally the wife entitled maintenance, mahar or dower. It is also held that if the wife not married for her lifetime she is also entitled lifetime maintenance, It is also held if the children are not able to maintain themselves they are also entitled for appropriate compensation till they attain majority. It is also a fact that the 7th Respondent
getting about one lakh rupees per month and he can easily protect the Petitioner and her children. VI.
In the above circumstances, urgent interim directions are required from this Hon'ble Court for the protection of the petitioner and for her four minor children.
It is
also a fact that considering the entire facts and circumstances, there is every chance to win the case of the petitioner and balnce of convenience also in favour of the petitioner. PRAYER a. Issue an interim direction to the 5th
and 6th
Respondents, as the Respondent No.7 hide the children
of
the
Pettitoner,
to
find
out
the
whereabout of the four children namely: ix.
Shaista Khatoon (Female), 12 yrs. DOB: 09.01.2004
x.
Kahkasha Khatoon (Female), 10 yrs. DOB: 15.04.2006
xi.
Bushra Khatoon (Female), 9 yrs. DOB: 13.10.2007
xii.
Mohammad Zaid Afzal (Male), 7 yrs. DOB: 14.10.2009
b. Issue an interim direction to Respondent no. 5 to give the protection to the petitioner to the effect that restraining the respondent Nos. 7 and his relatives from any attack against petitioner or any effort against the petitioner from expelling the petitioner from the matrimonial house which is r/o 20/1 Nanda Ghosh Road, 3rd Floor, PS Golabari Howrah-1, West Bengal. c. Issue an interim direction to the 7th respondent to proivide all the necessary help and mainteneane to protect the Petitioner and the children of the Petitioner.
VII. Pass any other or future order(s) as this Hon’ble Court deems fit in the facts and circumstances of the present case. AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL ALWAYS PRAY. DRAWN BY &FILED BY: V K BIJU Advocate for Petitioner Drawn on: Filed on:
09.08.2016 12.08.2016
