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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Muhamed Mustaque, J.
Nazeer @ Oyoor Nazeer - Petitioner
Versus
Shemeema - Respondent
W.P.(C) Nos. 37436 of 2003, 25318 & 26373 of 2015 and 11438 of 2016
Decided On : 16-12-2016
Negation of marriage is held by the husband -Marriage in Islam is more than contract -For intervention of the legislation as to regulate triple thalaq in India is done by the state.
Certainly. Based on the provided document, the following key points can be summarized:
The practice of triple talaq in India, especially when pronounced in a single utterance, is not supported by Qur'anic injunctions and is considered contrary to Islamic law as understood through scholarly interpretations (!) (!) .
Islamic teachings emphasize the importance of reconciliation and conciliation in matrimonial disputes, with the Qur'an advocating for efforts to resolve differences before resorting to divorce (!) (!) .
The method of divorce prescribed in Islam involves a structured process, including a waiting period (iddah), multiple pronouncements, and opportunities for reconciliation, which are often not followed in practice (!) (!) (!) .
Pronouncing three divorces at once or in a single session is deemed unlawful and against Islamic teachings, which advocate for a gradual process, allowing for reconciliation and ensuring fairness (!) (!) (!) .
The practice of triple talaq in one utterance is viewed as a bid'ee (innovative and improper) practice that conflicts with the core principles of justice and fairness in Islamic law (!) .
Islamic law considers divorce a last resort, with a strong emphasis on procedural fairness, mutual obligations, and attempts at reconciliation before divorce is effected (!) (!) .
The legal framework in India, including the Muslim Women (Protection of Rights on Divorce) Act, 1986, interacts with Islamic law, but there are concerns about the misuse and ignorance regarding the correct procedures for talaq (!) (!) .
There is a recognized need for legislative reform and codification of laws relating to divorce to ensure justice, protect women's rights, and align with constitutional guarantees of religious freedom and equality (!) (!) .
Islamic law is not entirely immutable; it allows for reforms and adaptations through human reasoning (fiqh) to meet changing social circumstances, provided core principles are maintained (!) (!) (!) .
The State has a constitutional obligation to regulate personal laws in a manner that respects religious freedom while ensuring justice and social welfare, which may include reforms to practices like triple talaq (!) (!) .
The practice of triple talaq, as currently observed, often involves ignorance of the correct procedures and is sometimes used arbitrarily, leading to social and gender injustices (!) (!) .
Reforms in other Muslim-majority countries have abolished or restricted the practice of triple talaq, emphasizing the importance of aligning national laws with principles of justice and equality (!) .
The overall approach advocates for a balanced reform process that respects religious doctrines but also ensures social justice, gender equity, and constitutional protections (!) (!) .
The recognition of the need for a uniform civil code is linked to promoting national integration and ensuring equality before the law, including in matters of marriage and divorce (!) (!) .
The development of Islamic jurisprudence (fiqh) demonstrates its capacity for adaptability and reform, emphasizing that divine law can be interpreted and applied in ways that meet contemporary social needs (!) (!) .
Please let me know if you need further elaboration or specific legal advice based on these points.
A. Muhamed Mustaque, J.
The Holy Quran says:"Allah desireth for you ease and desireth not hardship for you." (Chapter 2:185) and further adds: "ye hath chosen you and hath not laid upon you in religion any hardships"(Chapter 22:78). Yet, fallen creations made their professed divine law difficult for them to follow as these writ petitions depict. The practise of triple talaq denounced by this court in Mohammed Haneefa v. Pathummal Beevi, 1972 KLT 512 as "sufferings of monstrosity for Muslim wives" still resound in this court hall as State failed to soothe outcry of hapless women even after four decades.
2. These writ petitions before me were filed by different persons. Though these writ petitions are premised on different facts and are for different reliefs, a common legal question in regard to triple talaq practised in India emerges out of it justifying its disposal by a common judgment. Translation of Holy Qur'an relied on in this judgment are of
(1) Marmaduke Pickthall - The meaning of the Glorious Koran
(2) Basheer Ahmad Mohiyidin. Qur'an: The Living Truth,
(3) Ibn Kathir. Tafsir Ibn Kathir (Abridged)
3. W.P.(C) No. 37436 of 2003 is filed by a Muslim husband aggrieved by the proceedings initiated while his wife (former wife) under Section 3 of Muslim Women (Protection of Right on Divorce) Act, 1986 The petitioner was proceeded in the above case alleging that the petitioner had divorced his wife by a talaq kuri on 7.7.2001 and therefore, the wife is entitled to monetary reliefs from the petitioner including maintenance during iddat period. The precise case of the petitioner in this writ petition is that he did not dissolve the marriage. According to him, talaq kuri sent by him is not a legally valid one and it cannot be acted upon. The learned Magistrate overruling the objection of the petitioner took the view that talaq kuri is legally valid after referring to the fact his former wife observed iddat as per the law. The learned Magistrate came to a conclusion that marriage has been dissolved by talaq. By the above proceedings, learned Magistrate awarded a sum of Rs. 3,03,205 to be recovered from the petitioner. In this writ petition petitioner challenges Ext.P4 order on the ground that divorce is not in accordance with Islamic law.
4. W.P.(C) Nos. 25318 and 26373 of 2015 & W.P.(C) No.11438 of 2016 are filed by persons professing Islam and their marriages ended in divorce by triple talaq. They approached this court aggrieved by the action of passport authorities in not accepting their request to change the spouse name in the passport consequent upon dissolution of marriage by triple talaq. The parties are not disputing their dissolution of marriage by triple talaq pronounced by the husbands. The stand of the passport authorities is that they cannot merely rely upon unauthenticated documents and production of the divorce decree is necessary to correct the spouse name in the passport. The passport authority particularly takes this stand in the light of directions of Hon'ble Supreme Court in Seema v. Aswin Kumar, (2006) 2 SCC 578 The Hon'ble Supreme Court in the above case directed the State Government to compulsorily register all marriages irrespective of religious ceremonies rites under which it was performed. It is to be noted that the Kerala State has issued the Kerala Registration of Marriages (Common Rule), 2008 to register such marriage. This is equally applicable to Muslims in the State and in the country. This court by interim order directed the passport authorities to correct the spouse details based on the admission of dissolution of marriage by the other spouse. This court also as per the order dated 8.9.2015 directed the State Government to place their views for framing rules for compulsory registration of the divorce effected without the intervention of the court. However, the State Government is unable to come out with any positive response. Though the issue related to triple talaq does not directly crop up in
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