Triple Talaq un-Islamic, inhuman and unconstitutional: Armed Forces Tribunal bench

By Raqib Hameed Naik,

Lucknow (UP): In a significant decision, the Lucknow Bench of Armed Forces Tribunal has ruled that the declaration of oral triple Talaq is un-Islamic, inhuman and unconstitutional.
The bench said that the Constitution is the mother of all law and has overriding effect over personal law as well as other provisions, practices or usage which offend the constitutional right of persons, collectively or individually.

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The Judgment was delivered by a Bench comprising of Justice D.P. Singh and Air Marshal Anil Chopra in the case of Lance Naik/Tailor Mohammad Faroor @ Farooq Khan vs. Chief of the Army Staff and Others, who had filed a petition under Section 14 of the Armed Forces Tribunal Act, 2007 after being aggrieved with payment of maintenance to Ms. Arsey Jahan his wife, allegedly divorced under the Muslim Personal Law.

While giving reference from ancient manuscripts like Rig Veda, the bench cited the bright picture of ancient India, where there was no gender discrimination between man and woman, and women were duly respected and educated with emphasis on knowledge and character, both equal in status, sharing life from beginning to end. “Rig Veda is substantially creation of women, which is oldest manuscript according to UNICEF (1500-2000 BC.). It was Lopmudra, wife of Sage August with the assistance of 64 literary women, who wrote major portion of Rig Veda. Rig Veda contains discussion between husband and wife, i.e. Sage August and Lopmudra, with regard to several aspects of worldly and spiritual affairs,” the Bench was quoted as saying in its 119-page judgement.

The bench also termed introduction of wearing sari with closed face (Ghoonghat) after women were frightened on account of persecution, kidnapping, forcible marriage, keeping concubine and forcible conversions to other religions, divided kingdoms,

The bench while considering various aspects of Muslim Personal Law relating to marriage and divorce in the light of Constitutional Principles, said, “Under the Muslim Law, marriage is a contract and contract cannot be rescinded unilaterally…Personal Law or Constitution of India does not entitle the husband to rescind contract, orally, by notice or by ex parte decisions, hence seems to be unsustainable, otherwise also it shall be bad in law.”

“In appropriate case, a person may be charged under the Penal Code (supra) for abusing his position as husband whether it is for the purpose of divorce or remarriage,” the bench added.

The bench further reiterated the Government as well as the Court to protect fundamental rights of the citizens, including compliance of principles of natural justice affecting civil rights, quality, dignity and other facets of life necessary for human living.

While dealing with the subject matter being contrary to constitutional ethos, particularly Part III of the Constitution, the bench said, the declaration of oral triple talaq by ex parte proceedings, action or otherwise may not be given force by Government machinery or the courts.

“Women of every religion of the country are protected by Constitution of India and no person has right to go against constitutional spirit in the shadow of Personal Law. The method and manner of worship of God Almighty or the Prophet is the pith and substance of every religion. It may not be interfered by the courts subject to conditions flowing from Articles 25 and 26 of the Constitution. But so far as custom, tradition or usage is concerned, it may be interfered in case it is violative of fundamental rights guaranteed by Part III (Articles 14 and 21) of the Constitution,” said the bench.

The armed forces tribunal bench declined to grant any relief to the applicant, terming it as lacking merit and said that his wife is entitled for maintenance in terms of order passed by the Army along with arrears of maintenance, in case already not paid.

Muslim Women’s rights and media coverage of Triple Talaq