The judiciary cannot direct the legislature to enact or amend laws, maintaining the separation of powers principle in constitutional governance.

JUDGMENT

Dated this the 17^th day of September, 2020

Manikumar, CJ

Petitioner claims to be a practicing advocate and a social worker. As part of his social activities, he was elected as one of the Secretaries of the Muslim Association, Trivandrum, a socio cultural and educational society. It is submitted that this writ petition is filed for indulgence of this Court to resolve the practical difficulties faced by Muslim men in the matter of getting divorce. Talaq e bidaat or triple talaq was declared as unconstitutional by a Full Bench of the Hon'ble Supreme Court inShayara Bano and Others v. Union of India & others [ (2017) 9 SCC 1 ].

2. After the judgment ofShayara Bano's case (cited supra), Union of India, represented by Secretary (Justice), Ministry of Law & Justice, New Delhi, 1^st respondent, has brought into force the Muslim Women (Protection of Rights on Divorce) Act , 2019, and Section 2 (C) declared talaq-e-bidaat illegal and void, and imposed penal provisions. It is also submitted that by the amendment of the , 2019, No.20 of 2019, a lot of confusion has crept in, so far the divorce by men are concerned. The life of a couple may lead to divorce due to several reasons and after estrangement of the relationship. So, the conciliation talks before period of completion of talaq often fails resulting in non-redressing the grievance of the Muslim men to get divorce.

3. Muslim women can get divorce on any one of the grounds mentioned under Section 2 of the Dissolution of Muslim Marriages Act , 1939. Muslim Personal Law do not discriminate the right of the husband and wife, in the matter of matrimonial affairs. So, necessary provisions have to be enacted to protect the interest of men similar to that of the women. Appropriate amendments will have to be incorporated in the Family Courts Act , 1984, for effecting divorce by talaq, in the event of failure of successive attempts of settlement. Further, this Hon'ble Court inBinu.P.A. v. Ashla N.A [2017 KHC 3567] found that “Family Court can grant divorce on the basis of 'Khula'”. It is an agreement for divorce initiated at the instance of the wife.

4. Section 2 (ix) of the Dissolution of Muslim Marriage Act, 1939, says that wife is entitled to get divorce on any of the grounds which are recognised as valid for dissolution of marriage under the Muslim Law. It is further submitted that Dissolution of Muslim Marriage Act, 1939 is applicable only for dissolution of marriage by women married under the Muslim Law. So, the law relating to Dissolution of Muslim Marriage Act, 1939 is discriminatory to the Muslim men and as such, the provisions of the said Act is also to be made applicable to the Muslim men. Petitioner has further submitted petitions before respondents 1 and 2 to consider these issues by making suitable amendments so as to obtain divorce for Muslim men through court. Hence, this Writ Petition is filed.

5. On the basis of the averments and placing reliance on a decision of this Court inBinu.P.A. v. Ashla N.A . reported in [2017 KHC 3567] , Mr. Thoufeek Ahamed, party-in-person, sought for a writ of mandamus directing the Secretary to Government, Ministry of Law & Justice, New Delhi (1^st respondent), to make necessary amendments to the Dissolution of Muslim Muslim Marriages Act, 1939, so as to make it applicable to Muslim men. Petitioner has also sought for a writ of mandamus directing the respondents, to include divorce by talaq hasan, for dissolving the marriage of Muslim men under the Family Courts Act , 1984.

6. It is well known that after the judgment ofShayara Bano's case (cited supra), Legislature has brought about Muslim Women (Protection of Rights on Divorce) Act , 2019 and, by Section 2 (c), declared Talaq e bidaat as illegal and void. The said Act also has imposed penal provisions. Validity of the above said Act has been challenged before the Hon'ble Supreme Court. While pronouncement of 'Talaq-e-Biddat' itself has been declared as illegal and void, by an enactment, w