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The Jammu and Kashmir High Court recently observed that the Supreme Court judgment in the Shayara Bano Case, 2017 would be applicable to ‘Triple Talaq’ pronounced prior to passing of the said judgment.

This means that the judgment of the Constitution Bench which declared that the practice of instantaneous Triple Talaq is unconstitutional, shall apply even to those instances of Triple Talaq which come under challenge prior to the passing of the judgment.

It must be noted that the present petition was filed under Section 482 IPC by the petitioner (Showkat Hussain). The plea sought to recall the judgment dated 07.11.2019 passed by the present Court to the extent that it had relied upon and applied the judgment of Hon’ble Supreme Court rendered in the case of ‘Shayara Bano vs. Union of India and others, (2017) 9 SCC 1 with regard to the ‘triple talaq’ pronounced in the year 2014 by the petitioner.

The Single Bench of Justice Sanjeev Kumar while dismissing the plea as being devoid of merits, observed that,

“The Hon’ble Supreme Court, while declaring the ‘triple talaq’ as null and void in the eye of law in the case of Shayara Bano (supra) did not specifically make the judgment to operate prospectively and that being the position, the law declared by the Hon’ble Supreme Court in Shayara Bano’s case (supra) would apply equally to the ‘triple talaq’ pronounced prior to passing of the said judgment. “

It was contended by the petitioner that the said Judgment was pronounced in the year 2017, whereas in the instant case, the divorce (Triple Talaq) was pronounced in the year 2014.

It was further contended that,

“The judgment in the case of Shayara Bano (supra) could not have been applied to declare the validity of ‘triple talaq’ pronounced in the year 2014.”

Taking the above stated grievance in account the Bench noted that,

“The argument raised is not tenable for the reason that the judgment rendered in the case of Shayara Bano (supra), if not made to operate prospectively specifically is to be treated as retrospective and applicable even to the pending cases.”

“For this reason, no case is made out to recall the judgment dated 07.11.2019 passed in CRM(M) No. 254/2019,” observed Bench.

[Case Title – Showkat Hussain v. Nazia Jeelani]