HC Refuses to Entertain Plea Challenging Assumed Absolute Discretion of Muslim Husband to Give Divorce to Wife

 The Delhi High Court on Monday refused to entertain two pleas, including one challenging the “assumed absolute discretion” of a Muslim husband to pronounce divorce (“talaq-ul-sunnat”) on his wife at any time without any reason or advance notice to her.

The court also said no further orders are required to be passed in another public interest litigation (PIL) matter, which had sought a declaration that bigamy or polygamy by a Muslim husband in the absence of prior written consent of the existing wife or wives and arrangements for her accommodation and maintenance is unconstitutional and illegal.

“Talaq-ul-sunnat” is a revocable form of divorce because in this, the consequences of divorce do not become final at once and there is a possibility of compromise and reconciliation between the husband and wife.

However, by simply uttering the word “talaq” thrice, a Muslim marriage comes to an end. This instant pronouncement of divorce is called “triple talaq” and is also known as “talaq-e-biddat”, the petitioner’s lawyer had said earlier.

A bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula passed the order in the two petitions filed by a married Muslim woman, after it was informed by the Centre’s standing counsel, Monika Arora, that both issues are pending before the Supreme Court.

“The central government’s standing counsel stated that the subject matter in these writ petitions is also the subject matter of petitions pending before the Supreme Court. She stated that the matter has been referred to a Constitution bench.

“In light of the aforesaid, as the matter is already pending before the Supreme Court, no further orders are required to be passed…. The writ petitions are disposed of,” the bench said.

It, however, granted liberty to the petitioner to file an application, if so desired, before the apex court in the pending matter.

The plea challenging the absolute discretion to give divorce had alleged that the practice is “arbitrary, anti-Shariat, unconstitutional, discriminatory and barbaric”.

The petitioner, represented through advocate Bajrang Vats, had sought that the assumed discretion of a husband to pronounce divorce on his wife at any time be declared as arbitrary.

It had also sought the issuance of detailed step-by-step guidelines in the form of checks and balances on the issue of assumed absolute discretion of a husband to give divorce to his wife at any time, without any reason.

The petitioner had said she was deserted by her husband, who pronounced instant “triple talaq” on her on August 8, 2021. Subsequently, she served a legal notice to her husband for the restitution of conjugal rights.

The plea had said in response to the legal notice, the man had denied pronouncing instant “triple talaq” on his wife and asked the petitioner to give him divorce within 15 days of the date of receipt of the notice.

In her petition, the woman had said such type of discretion allegedly practised by a Muslim husband to give divorce to his wife without any reason is a misuse of the process.

The other plea had sought a direction to authorities to regulate bigamy and polygamy by Muslim husbands by providing for the need of obtaining prior permission from the existing wife, a certificate from a judicial officer to certify that he has the capacity to provide equal treatment to all wives, a declaration of marital history before nikah etc.

The petitioner had also sought framing of laws for compulsory registration of Muslim marriages.

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The petitioner, whose husband was stated to be “planning to divorce” her and solemnise another marriage without her consent or making arrangements for her and their child’s maintenance, had claimed that bigamy or polygamy by a Muslim husband is allowed under Sharia law only in exceptional circumstances and ought to be regulated to curb the plight of Muslim women.

“The Holy Quran permits a Muslim man to marry more than one woman at a time (up to a maximum of four) but does not encourage such behaviour. Polygamy is only permitted in certain circumstances, such as when the death of another man has left his wife with no other means of support,” the petition had said.

The petitioner had further stated that polygamy is neither mandatory nor encouraged, but is merely allowed as part of social duty and for charitable motives and that the Quran provides that those men who choose to take multiple wives are under an obligation to treat them equally.

The Supreme Court had, in August 2017, held that the practice of “triple talaq” among Muslims is illegal and unconstitutional.

Subsequently, the Muslim Women (Protection of Rights on Marriage) Act, 2019 came into being and made the practice of “triple talaq” a punishable offence.

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