NEW DELHI: The Supreme Court on Monday issued notice to the Union government on a plea by a Muslim doctor for a declaration that all forms of unilateral and extra-judicial Talaq including "Talaq-e-Kinaya and Talaq-e-Bain as void and unconstitutional.
The plea claimed the practices were arbitrary, irrational and contrary to fundamental rights to equality, non-discrimination, life and freedom to practice religion.
A bench of Justices S Abdul Nazeer and J B Pardiwala sought a response also from the National Human Rights Commission and the National Commission for Women on a petition filed by
Dr Syeda Ambreen.
The court tagged her plea with other similar petitions coming up for hearing on Tuesday.
The petitioner was represented by advocate Ashwini Kumar Upadhyay who has been fighting for removing such regressive practices.
The plea also sought a direction to the Centre to frame guidelines for gender neutral and religion neutral uniform grounds of divorce and uniform procedure of divorce for all citizens.
Talaq-e-Kinaya is divorce through vague words that do not directly mean divorce.
Talaq-e-Bain is irrevocable divorce, and unlike the practice of triple talaq, requires the husband to utter 'divorce' just once.
The writ petition filed through advocate Anantha Narayana M G, the petitioner, claimed that she suffered mental, verbal, physical and financial abuse and harassment from her doctor husband and his family for dowry soon after her marriage on October 20, 2020.
The petitioner who completed MS in Obstetrics and Gynaecology from Karnataka, claimed on September 19, 2021, she was beaten up by her husband, sister-in-law, mother in law, and father in law, resulting into grievous injuries to her. She had to undergo major operation a day after.
Following her discharge from hospital on October 8, 2021, she claimed her husband dumped her at her parents home without handing over her discharge summary, medical reports and records. She was not even informed about requirment for regular dressing, due to which wound was gaped and another minor surgery had to be performed after 45 days of regular dressing in December 2021.
Meanwhile, her husband, along with all in-laws, had blocked communication with her and family. In January, 2022, a prefilled letter from 'kazi' office arrived (common letter sent to all, stating take khula or talaq will be sent). When she approached kazi, they handed over one letter, telling it is from her husband, with eight to ten generalized and vague allegations. It was also stated due to all these conditions, it is not possible to continue this relation and she is relieved of matrimonial relationship, her plea claimed.
"These words are called Kinaya words (ambiguous words or unclear form e. g. I free you, you are free now, you/this relation is haram on me, you are separated from me now, etc ) through which Talaq-e-Kinaya/Talaq-e-Bain (instantaneous and irrevocable and extra-judicial form of talaq, in single sitting, either pronounced or in written/electronic form) is given," the plea claimed.
Though time was sought for recovery of health and exams, there were still continuous pressure from in-laws and Kazi to take 'khula' or further Talaq-e-Hasan notices would be sent on monthly basis. Not a single mediation with husband and wife was attempted by Kazi and instant, irrevocable and unconstitutional talaq practice was entertained, bypassing Madhya Pradesh High Court's January 2022 guidelines stating "Kazi can just act as mediator to settle disputes but can't adjudicate them and pass orders like a decree", the plea further said.
The woman claimed she tried mediation but her husband refused to participate, forcing her to lodge an FIR on August 19, 2022.
In her plea, she sought a declaration that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 is void and unconstitutional for being violative of Articles 14, 15, 21, 25 of the Constitution, in so far as it validates the practice of Talaq-e-Kinaya and Talaq-e-Bain and other forms of unilateral extra-judicial talaq.
She also asked the court declare the Dissolution of Muslim Marriages Act, 1939, is void and unconstitutional for being violative of Articles 14, 15, 21, 25 of the Constitution in so far as it fails to secure for Muslim women from such unilateral and extra judicial talaq.
Among the grounds listed by her are:
(1) Such unilateral divorce has profound consequences on the quality of justice rendered in the country as well as ensuring a life of dignity guaranteed by Part-III of the Constitution.
(2) 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.
(3) Entry-5 of List-III in the Schedule-7 confers power on the Legislature to amend and repeal existing laws or pass new laws in all such matters (including marriage and divorce), governed by personal laws.
(4) Article 25 is subject to public order, morality and health and to the other provisions of Part-III and the Constitution does not preclude the State from introducing social reforms and enacting laws on subjects traditionally associated with religion.
(5) In Shayara Bano v Union of India (2017) (triple talaq), the SC held another portion of Section 2 of the Shariat Act ultra vires the constitution, on the ground that the practice of was manifestly arbitrary.
(6) The right to freely profess, practice and propagate ones religion is subject to the idea of equality, to which the practice of Talaq-e-Kinaya/Talaq-e-Bain and all other forms of unilateral extra judicial talaq is abhorrent.
