Right To Divorce Inherent Under Contractual Marriage In Islam: Muslim Woman Opposes Plea In Delhi HC To Declare 'Talaq-Ul-Sunnat' As Unconstitutional

The practice was challenged by a 28-years old Muslim woman stating that the impugned practice enables a Muslim husband to give divorce to his wife at any time without any reason or advance notice to her, leading to vagrancy.

Whereas, the instant impleadment application has been filed by a Muslim woman who claims that she suffered a bad marriage, however, at the same time benefitted from the operation of Islamic Law (Talaq-ul-Sunnat) which permits divorce without recourse to formal judicial process.

A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla has issued notice on the application and directed the Petitioner to file its affidavit in opposition.

The application states that Talaq ul Sunnat is part of an "Essential Religious Practice" in Islam and is entitled to protection of Article 25 (1) of the Constitution.

It states that restricting or invalidating the free agency of the parties to dissolve their marriage in a matter that pertains to bodily integrity and conjugal company, would in fact, be violative of Article 17 and 21 of the Constitution.

At the outset, the applicant avers that the nature of marriage in Islam is a "contract" and not a sacrament. Thus, there is complete parity in the power with Muslim men and women to divorce; and to not be able to annul/terminate the contract at a valid instance would be a grave injustice to either party and against the law of contract.

"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 difference lies only in the way of operation," the plea states.

On the ground raised by Petitioner that Talaq ul Sunnat enables divorce without advance notice to Muslim wife, the applicant states such a mandate is not contemplated under any personal law.

"In any event, the first pronouncement of Talaq by the Muslim husband under Talaq ul Sunnat can be regarded as a due notice intimated to the wife, the very moment it is pronounced. It is capable of being waived if parties get back together. Talaq attains only after three menstrual cycles or three pronouncements whichever is earlier," it adds.

Other grounds:

Writ Petition is not maintainable

The applicant states that the writ seeks relief which is in the domain of the legislature and therefore the Writ Petition is not maintainable. It is settled law that, there cannot be any direction to legislate, direct or indirect.

It is also argued that there cannot be a writ petition against a person seeking to prevent him or even her to not exercise his or her contractual rights. The plea states,

"The issue of marriage is so close and private that in addition to being a matter of autonomy it is also matter of conscience. Thus, the legal right to divorce or to terminate the contract is inherent in the contract of marriage, and therefore cannot be any restraint on the same."

Furthermore, it is alleged that the Petitioner is seeking to espouse a public interest whereas being an interested person she ought not to be allowed to raise a public interest issue in her personal circumstances.

Muslim women have complete parity in terms of granting divorce

It is submitted that Muslim personal law offers many options to a Muslim women through which she can divorce her husband and seek the benefit of the Islamic laws;

• Talaq-e-Tafweez (talaq by delegation);
• Khula (divorce by way of a matrimonial settlement deed);
• Mubarrat (Divorce by mutual consent);
• Fask (annulment through Shariat Court),
• Dissolution of Muslim Marriage Act, 1939; and
• Muslim Women (Protection of Rights on Divorce) Act, 1986.

Lastly, it cites long pendency of cases in Family Courts as a reason for not relegating Muslim couples to judicial forums for divorce.

"It can be easily construed from the large number of pending cases that there is a need to reduce the burden of the courts which is provided by the extra -judicial method of divorce."

The application is filed though Advocates Talha Abdul Rahman and Sitwat Nabi.

The matter will next be heard on August 23.