Triple Talaq: Under The Garb Of Personal Law Constitutional Rights Can't Be Infringed: Allahabad HC [Read Judgment]

"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;

• A society that does not respect its women, cannot be treated to be civilized. It is the need of the present day that people are made aware that it is obligatory to treat the women with respect and dignity so that humanism in its conceptual essentiality remains alive.


• 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.


• All forms of discrimination on the ground of gender is violative of fundamental freedoms and human rights. The human rights of women and of girls are an inalianable, integral and indivisible part of universal human rights.


• 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.


• The personal law operates under the authority of legislation subject to constitutional limitation, and not under the religion. The personal law can always be superseded by legislation.


• The adjudication by a legal authority sanctioned by law is enforceable and binding and meant to be obeyed unless upset by an authority of law itself. The power to adjudicate must flow from a validly made law. One may not object to issuance of 'Fatwa' on a religious issue or any other issue so long it does not infringe upon the rights of individual guaranteed under law. The 'Fatwa' issued by whatever body not emanating from any judicial system recognized by law, is not binding on any one including the person who had asked for it.


• The jurisdiction under Section 482 Cr.P.C. can be exercised to give effect to any order under the Code, or to prevent abuse of process of any court or otherwise to secure the ends of justice. While exercising jurisdiction under Section 482 Cr.P.C. the High Court would not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would not sustain. This jurisdiction has to be exercised sparingly, carefully and with caution and only when such exercise is justified with the test specifically laid down as mentioned above. The High Court cannot embark upon an inquiry whether the allegations in the complaint are likely to be established by evidence or not or whether the evidences in question are reliable or not or whether of a reasonable apprehension of it, accusation would not be sustained. Interference under Section 482 Cr.PC. to quash the proceedings would be justified only when complaint did not disclose any offence or was frivolous, vexatious or oppression. The allegation of malafide against the informant is of no consequence and cannot by themselves, be the basis to quash the proceedings. The High Court has no jurisdiction to examine the basis of allegation or its correctness. Defence of accused, even though appearing plausible, cannot be considered while exercising jurisdiction under Section 482 Cr.P.C. However, documents of unimpeachable character can be considered to decide about continuation of criminal proceedings or whether complaint has been filed only to harass the accused. If the complaint was with ulterior motive, then power under Section 482 Cr.P.C. can be exercised to prevent abuse of process of Court.


• The complaint case in question filed by the opposite party no. 2 does not satisfy any of the three tests of Section 482 Cr.P.C. Perusal of the complaint, the statement of the opposite party no. 2 recorded under Section 200 Cr.P.C. and the statement of witnesses recorded under Section 202 Cr.P., primafacie make out commission of offences by the applicants under Sections 498-A, 323, 504, 506 IPC and Section 3/4 Dowry Prohibition Act and as such I do not find any infirmity in the impugned summoning order dated 28.11.2016 in Complaint Case No. 2393 of 2016 (Smt. Sumaila Vs. Aaqil Jamil and others), passed by the learned Addl. Chief Judicial Magistrate, Court No. 10, Agra.