"Talaq by a Muslim husband to his wife cannot be made in a manner which may infringe her fundamental rights guaranteed under Article 14 and 21 of part III of the Constitution", said the Bench.
Allahabad High Court has recently held that under the garb of personal Law, individual or collective rights of the citizens protected by Part III of the Constitution may not be infringed. The Court also held that the personal law operates under the authority of legislation subject to constitutional limitation, and not under the religion.
“All citizens including Muslim women have fundamental rights under Articles 14, 15 and 21 of the Constitution. Under the garb of Personal Law, individual or collective rights of the citizens protected by Part III of the Constitution may not be infringed”.
Justice Surya Prakash Kesarwani was hearing an application under Section 482 Cr.P.C. filed by husband to quash the entire proceeding of Criminal Complaint filed by wife under Sections 498-A, 323, 504, 506 IPC and Section 3/4 Dowry Prohibition Act.
In the application husband claimed that he divorced his wife on 08.11.2015 and also obtained a 'Fatwa' from “Darool Ifta Jama Masjid, Agra” on 10.11.2015, whereby the Mufti has affirmed the Talaqnama and pronounced that the wife after being divorced, has become impure (Haraam) for husband. Hence, the subsequent complaint filed wife must be quashed as no marriage existed between the parties on the date of filing of complaint.
Justice Surya Prakash Kesarwani considered the following question in the case;
"Whether in view of the alleged Talaq dated 08.11.2015 and the Fatwa dated 10.11.2015, the complaint case filed by the opposite party no. 2 is malicious and abuse of process of court and consequently the entire proceedings of Complaint Case No. 2393 of 2016 deserves to be quashed?
After quoting various Judgments, Justice Kesarwani made the following conclusions;