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Synopsis

A Public Interest Litigation (PIL) has been filed in the Supreme Court seeking directions that Talaq-E-Hasan and all other forms of Unilateral Extra-Judicial Talaq be declared void and unconstitutional for being arbitrary and violative of Articles 14, 15, 21, and 25.

The plea also seeks directions to the Centre to frame guidelines for “Gender Neutral Religion Neutral Uniform Grounds of Divorce & Uniform Procedure of Divorce for all citizens”.

The plea filed through Advocate Ashutosh Dubey claims that many Islamic countries have prohibited such behavior, but it continues to vex Indian society in general, and Muslim women in particular. It further adds that the practice also wreaks havoc on the lives of many women and their children, particularly those from the poorer economic sections of society, who are unaware of their rights or legal remedies and cannot even contemplate approaching the Court, believing that this is their fate.

“The practice of Talaq-E-Hasan and other forms of unilateral extrajudicial talaq is neither in accordance with modern human rights and gender equality principles nor are they an integral part of the Islamic faith”, the plea reads.

The Plea further states that Muslim women cannot perform Talaq-E-Hasan or other forms of unilateral extra-judicial talaq, whereas Muslim men can. In light of the progressive times of the twenty-first century, such discrimination and inequality, hoarsely expressed in the form of polygamy, is abhorrent, the plea adds.

The plea further argues “that religious officers and priests such as imams, maulvis, and others who propagate, support, and authorize the Talaq-E-Hasan and other forms of unilateral extra-judicial talaq are grossly abusing their position, influence, and power by subjecting Muslim women to such heinous practice that treats them as chattel, thereby violating their fundamental rights guaranteed by Articles 14, 15, 21, and 25”.

The plea adds that the Muslim Personal Law (Shariat) Application Act, 1937, which is subject to the Constitution, is unconstitutional insofar as it seeks to recognize and validate Talaq-E-Hasan and other forms of unilateral extra-judicial talaq.

Furthermore, the plea states that the Dissolution of Muslim Marriages Act 1939 fails to secure for Indian Muslim women the protection from Talaq-E-Hasan and all other forms of unilateral extra-judicial talaq that have been statutorily secured for women of other religions, and thus violates Articles 14, 15, 21, and 25 as well as international civil and human rights conventions.

The plea also states that the Legislature has failed to protect the dignity and equality of women in general, and Muslim women in particular, particularly when it comes to marriage, divorce, and succession. Despite the Apex Court's observations over the last few decades, the Uniform Civil Code remains an elusive Constitutional goal that the Courts have largely refrained from enforcing through directions and the Legislature has largely ignored except as a way of paying lip service, it adds.

“In light of changes in laws in various Islamic countries that either restrict or prohibit extra-judicial talaq, as well as the development of international laws, the Supreme Court is the only hope not only for Muslim women but also for the Muslim community as a whole, which has suffered as a result of personal laws that violate the fundamental rights guaranteed by the Constitution”, the plea reads.

It is to be noted that a PIL is already pending before the Top Court seeking similar relief. That PIL plea has been filed by one Benazeer Heena through Advocate Ashwini Upadhyay.

Case Title: Nazreen Nisha Qadir Shaikh v. Union of India and Ors.