Triple Talaq Pronounced Prior To 'Shayara Bano' Judgment Also Null & Void: Jammu & Kashmir High Court

The Jammu and Kashmir High Court held that the Supreme Court judgment in Shayara Bano case would apply to 'triple talaq' pronounced prior to passing of the said judgment.

In this case, a 'husband' had approached the High Court seeking to quash proceedings initiated under Domestic Violence Act against him contending that he had already divorced his wife. It was further contended that a divorced wife was not "an aggrieved person" to maintain the petition under Section 12 of the Act. Dismissing his petition, the court held that he failed to prove factum of divorce and that the form of divorce i.e triple talaq in one go is null and void in view of the law laid down by Supreme Court in case of Shayara Bano and Ors vs. Union of India.

Thereafter, he filed a petition seeking recall of this judgment on the ground that the Supreme Court Judgment was pronounced in the year 2017, and in this case, the divorce i.e., triple talaq' was pronounced in the year 2014. According to him, the judgment in the case of Shayara Bano could not have been applied to declare the validity of 'triple talaq' pronounced in the year 2014.

Rejecting this contention, Justice Sanjeev Kumar observed that a judgment if not made to operate prospectively specifically is to be treated as retrospective and applicable even to the pending cases. 

"The Hon'ble Supreme Court, while declaring the 'triple talaq' as null and void in the eye of law in the case of Shayara Bano (supra) did not specifically make the judgment to operate prospectively and that being the position, the law declared by the Hon'ble Supreme Court in Shayara Bano's case (supra) would apply equally to the 'triple talaq' pronounced prior to passing of the said judgment.", the court observed and dismissed the petition.

In Shayara Bano, the Supreme Court, by 3:2 majority, held that the Muslim Personal Law (Shariat) Application Act, 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression "laws in force" in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.  "It is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the 393 fundamental right contained under Article 14 of the Constitution of India", the majority judgment authored by Justice RF Nariman read.

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