Muslim woman moves Delhi High Court opposing petition to declare Talaq-ul-Sunnat unconstitutional, anti-Shariat

A Muslim woman has approached the Delhi High Court opposing a petition seeking a declaration that the practice of Talaq-Ul-Sunnat is unconstitutional.

An impleadment application has been filed by a 35-year-old woman in a pending plea filed by another Muslim woman named Reshma, who has challenged the provision of Talaq-Ul-Sunnat as unconstitutional and anti-Shariat as it gives a Muslim husband absolute discretion to divorce his wife without prior notice.

A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla issued notices on this application on Monday and listed the matter for further hearing on August 23.

The applicant has argued that the practice of Talaq-ul-Sunnat is an Essential Religious Practice and is therefore entitled to protection under Article 25(1) of the Constitution.

It has been stated that the courts have held that Muslim marriage is a contract, and therefore, this principle of optional termination (Talaq) of marriage is necessary.

“To not be able to annul/terminate the contract at a valid instance would be grave injustice to either party and against the law of contract,” it said.

The woman said that she had herself suffered from a bad marriage but, at the same time, benefited from the operation of Islamic Law which permits divorce without recourse to the formal judicial process.

The application argued that Reshma’s petition is not about empowering women, but seeks to disempower men and that it failed to “appreciate that so called power of men is already severely controlled and constrained – which forms law of the land”.

“It is stated that there is equality between the sexes, and the manner in which the right to end the relationship operates works differently. Thus, the unqualified right of man in Islamic law is called Talaq Sunnat/Ahsan, and the unqualified right of the wife is called the right to seek "Khula". The right of the wife to seek khula is unconditional and the husband cannot refuse to divorce if the wife asserts her right/khula. Thus, there is complete parity in the power to divorce and the difference lies only in the way of operation. Additionally, subject to contract, the husband can delegate the direct right to divorce which is recognized as talaq-e-tafweez or talaq by delegation.”

The application also challenged the maintainability of the main petition, stating that the reliefs sought are in the domain of the legislature and it is settled law that there cannot be any direction to legislate, directly or indirectly.

Advocates Talha Ur Rahman and Sitwat Nabi and argued by Shahrukh Alam filed the application.

Meanwhile, after it was pointed out that the Central government was yet to file its response to the main petition even though notice was issued in January, the Court has now given the government a last opportunity to bring its counter affidavit on record.

The case will now be heard along with another petition filed by Reshma dealing with the issue as to whether a Muslim man has to obtain written permission from his wife/wives before contracting another marriage. Notice was issued in that petition on Monday as well.