Courts cannot restrain a Muslim man from pronouncing irrevocable talaq and doing so would violate his constitutional right to freedom of religion, the Kerala High Court has held, reported Bar and Bench on Wednesday.
The High Court said that if talaq was not invoked in accordance with Muslim personal law, the wife could approach the court. However, the court cannot bar a person from carrying out the act in the first place, a bench comprising Justices A Muhamed Mustaque and Sophy Thomas said.
In August 2017, the Supreme Court had struck down instant triple talaq, calling the Islamic practice unconstitutional and in violation of Article 14 of the Indian Constitution, which provides for equality before the law.
In July 2019, Parliament passed the Muslim Women (Protection of Rights on Marriage) Act that criminalises the practice of instant triple talaq. However, other forms of talaq – or divorce given by the husband – that are not instant remain valid as per Muslim personal law.
In the present case, the husband had pronounced the first and second Talaq but was stopped by a family court from pronouncing the final, irrevocable talaq, according to the order. The petition to restrain him was filed by his wife before the family court.
The Kerala High Court, in its judgement on August 17, also held that courts cannot restrain Muslim men from marrying more than once, as the practice is permitted under Muslim personal law.
“The right to marry more than one person at a time is prescribed under the personal law,” the court said. “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 [conscience] and belief in accordance with his religious practices.”
Besides moving the family court against the talaq, the wife of the petitioner had also sought to restrain him from getting married for a second time, Live Law reported. The family court had also allowed the prayer.
The husband had then filed the petition before the High Court under Article 227 of the Constitution. The Article gives High Courts the power of superintendence over all courts within its jurisdiction.