No personal law is above Constitution, says Allahabad High Court

The Asian Age.  | Amita Verma With Agency Inputs

India, All India

The court was hearing the petition of a Varanasi woman who had accused her husband of torturing her for dowry and then divorcing her.

Allahabad High Court

Lucknow: No personal law is above the Constitution and triple talaq is a violation of the fundamental rights given to citizens under the Constitution, the Allahabad high court ruled on Tuesday. The verdict comes amid the Centre’s push for a ban on the contentious practice on grounds of gender equality and justice.

The court said the rights of any person, including Muslim women, cannot be violated in the name of personal law or on the basis on gender, adding that triple talaq cannot infringe a woman’s fundamental rights given to her under the Constitution. Any fatwa that is against law cannot be accepted, the court also said.

“A Muslim husband cannot give divorce in such a manner which would put a question mark on the woman’s equal rights,” the court said.

A single-judge bench of Justice Surya Prakash Kesarwani said that the human rights of women and of girls were an “inalienable, integral and indivisible” part of universal human rights.

The court was hearing the petition of a Varanasi woman who had accused her husband of torturing her for dowry and then divorcing her. The husband had approached the high court against the complaint. The court dismissed his petition.

The husband had contended that he has divorced his wife and also procured a fatwa in this regard by the Darul Ifta Jama Masjid in Agra.

The court said personal law can only be applicable under the provisions of Constitution, adding that any fatwa, which is contrary to the justice system or someone’s rights, was not valid.

India’s Supreme Court is hearing a clutch of petitions for a ban on triple talaq. A five-judge Constitution bench will hear the matter on May 11.

The All India Muslim Personal Law Board has opposed a blanket ban on the practice, accusing the Modi government of trying to kill the country’s plurality.

The non-governmental body that oversees the application of Muslim personal law has said that it would end triple talaq within 18 months, but resisted any interference from the government. It said that pleas challenging the practice of triple talaq were not maintainable as the issue fell outside the realm of the secular judiciary.

The push for a ban also looks to win support from Muslim women and chip away at an important bloc of voters that has viewed Mr Modi with suspicion.

In December last year, the high court had termed the Islamic practice of divorcing a woman by uttering the word talaq thrice “unconstitutional”.

The court had said that the triple talaq practice sanctioned under Muslim personal law that governs marriage, property and divorce violates the rights of Muslim women.