Bhuvana Marni
Published on: October 11, 2022 at 11:43 IST
On Monday, the Supreme Court of India bench led by Justices S. Abdul Nazeer and J. B. Pardiwala gave notice in a petition seeking to declare all unilateral extrajudicial Talaqs, including the Talaq-e-Kinaya and Talaq-e-Bain, void and unconstitutional because they are arbitrary, irrational, and in violation of Articles 14, 15, 21, and 25 of the Indian Constitution.
A Muslim doctor has petitioned the Apex Court, arguing that all types of unilateral extra-judicial Talaq, including Talaq-e-Kinaya and Talaq-e-Bain, should be unconstitutional and void since they are capricious, illogical, and in violation of the fundamental rights to equality, non-discrimination, life, and the freedom to practise religion.
Referring to Talaq-e-Kinaya and Talaq-e-Bain, the Supreme Court of India on Monday bench comprised of Advocate Ashwini Kumar Upadhyay standing for the petitioner in the issue informed the court that these Talaqs are a thing of the 21st century and are not mentioned elsewhere.
“This is very strange…. I was shocked”, Justice Nazeer expressed during the hearing.
The bench asked the counsel, “What is this extra-judicial and unilateral talaq, who has invented this?”.
The petitioner responded that some qazis devised it and that, unlike traditional talaq, when the word talaq is spoken three times to effectuate the divorce, in these practices they only say, “We free you.”
Advocate Upadhyay also apprised the court that, “this form of talaq is a new thing and it is not being followed anywhere else like Pakistan or Bangladesh”. The bench noted the situation as including the pending appeals contesting Talaq-e-Hasan and Talaq-e-Ahsan.
The petitioner, Dr. Syeda Ambreen, claimed that her parents were forced to pay a dowry and that she was subjected to physical and psychological abuse by her husband and his parents as a result of not receiving a sizable dowry.
When the petitioner’s father refused to pay the dowry, her husband unilaterally extrajudicial Talaq, also known as a Kazi or talaq-e-kinaya or talaq-e-bain, on her.
The petition mentioned that “The practice of Talaq-e-Kinaya and Talaq-e-Bain and other forms of unilateral extra-judicial talaq is neither harmonious with the modern principles of human rights and gender equality, nor an integral part of Islamic Faith.”
The petitioner has asked the Supreme Court:
- To declare “Talaq-e-Kinaya and Talaq-e-Bain” as void and unconstitutional,
- To declare Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, as void and unconstitutional as it supports this practice,
- To direct and declare the Dissolution of Muslim Marriages Act, 1939, as void and unconstitutional, and
- To instruct the Center to create guidelines for Gender Neutral.
On October 11th, the case will be tried alongside the Talaq-e-Hasan and Talaq-e-Ahsan cases.