Talaq/Bigamy-Courts Have No Role In Restraining Parties From Invoking Their Personal Law Remedies: Kerala High Court

The Kerala High Court recently, while setting aside two orders restraining a Muslim man from invoking irrevocable Talaq and from conducting a second marriage, held that the Courts have no role in restraining the parties from invoking their personal law remedies as otherwise, it would be violative of their rights protected under Article 25 of the Constitution of India. 

Division Bench consisting of Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that the Court have no role in restraining the parties from invoking their personal law remedies as otherwise, it would be an encroachment of their constitutionally protected right. 

The Court have no role in restraining the parties invoking their personal law remedies. 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. In 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.

The Court, however, clarified that an aggrieved person can challenge an action emanated out of the 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 and that the jurisdiction of the Court in these cases are limited. 

In this case, the Petitioner-husband who had initiated steps to pronounce Talaq was restrained by an order of temporary injunction by the Family Court at the instance of the wife. The wife has also filed an application restraining him from conducting a second marriage. Advocates Majida S and Ajikhan M appeared for the petitioner in the matter and the respondent was represented by Advocates Suresh Kumar M.T, R. Ranjith, Smitha Philopose, Manjusha K and Sreelakshmi Sabu. 

The husband challenged the Family Court's order before the High Court in an original petition filed under Article 227 of the Constitution.

When the matter came before the High Court, the Court observed that the Family Court cannot restrain a person from performing his act in accordance with personal law, and only after the completion of the process and procedure of Talaq can it be determined whether it was in accordance with the procedure as prescribed under the personal law or not.

The Division Bench remarked that it is unfortunate that the man was restrained from acting in accordance with his personal believes and practice. 

It is unfortunate before that exercise is being done he has been restrained from acting in accordance with the personal belief and practice.

Furthermore,since the right to marry more than one person at a time is prescribed under personal law, the Court observed that if the law ensures such protection, it is not for the Court to decide that one person should not act in accordance with their personal conscience and beliefs in accordance with his religious practices.

The right to marry more than one person at a time is prescribed under the personal law. The Court has no role in restraining or regulating one's behaviour or decision in accordance with the personal law guaranteed.

The Court thereby set aside the impugned orders of the Family Court as it is without any justification and jurisdiction. 

However, the Court clarified that at the appropriate time, if the Talaq is not exercised in accordance with the Law, the respondent-wife can approach the competent Court to redress her grievances. 

Case Title: Anuvarudeen v. Sabina

Citation: 2022 LiveLaw(Ker) 450

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