Courts cannot restrain Muslim men from pronouncing Talaq or marrying more than one woman as per personal law: Kerala High Court

The Kerala High Court recently held that courts cannot restrain a Muslim man from invoking irrevocable Talaq as it is an act in accordance with the Muslim law and doing so would violate his rights under Article 25 of the Constitution of India [Anvarudeen v Sabina].

A division bench of Justices A Muhamed Mustaque and Justice Sophy Thomas said that if the talaq or any religious act is not done in accordance with personal law, the same can be challenged before a court of law after the act but a court cannot restrain a person from performing it in the first place.

“The Court should not forget the mandate of Article 25 of the Constitution of India, which not only allows one profess religion but also to practice.I n essence, if any orders are passed restraining one from acting in accordance with the personal belief and practice, that would amount to encroaching his constitutionally protected rights. No doubt, aggrieved can challenge any action emanates out of exercise of faith and practice; if it was not done in accordance with the personal law, belief and practice but that stage would arise only after the performance of the act. The jurisdiction of the Court is limited in these kinds of processes. The Family Court cannot restrain a person performing his act in accordance with the personal law,” the High Court held

It further stressed that courts cannot restrain Muslim men from marrying more than once because as the same is permitted under the religious practices in Muslim law.

“The right to marry more than one person at a time is prescribed under the personal law. If the law ensures such protection, it is not for the Court to decide that one person should not act in accordance with the personal conscious and belief in accordance with his religious practices. The Court has no role to restrain or regulate one's behavior or decision in accordance with the personal law guarantied," the judgment stated.

The Court was considering a petition filed by a Muslim married man challenging the temporary injunction passed by the Family Court order restraining him from pronouncing irrevocable talaq against his wife.

The Family Court had also allowed his wife's application restraining him from getting married a second time.

The High Court found that the husband's actions were in accordance with Muslim personal law and, therefore, set aside both the orders of the Family Court.

However, it clarified that the wife can approach the competent court to address her grievance if Talaq is not exercised at the appropriate time.

The petitioner was represented by advocates Majida S and Ajikhan M. The respondent was represented by advocates Suresh Kumar MT, Smitha Philipose, Manjusha K, Sreelakshmi Sabu and R Renjith.

[Read Judgment]