Kochi: Kerala High Court has clarified that Muslim men have the right to pronounce talaq (divorce) or remarry as per the Muslim Personal Law.
The HC division bench constituting Justice A Muhammed Mushtaq and Justice Sophy Thomas observed that if the law ensures protection, the Court cannot restrain someone from remarrying as per his religious customs, faith and conscience.
The plea
The High Court was considering an appeal from youth from Kottarakkara challenging the family court’s order on his wife’s plea restraining him from pronouncing the third or final (irrevocable) talaq and remarrying.
The Family Court in Kollam ordered a stay on the third talaq on the woman’s plea against the irrevocable talaq, right after the husband has pronounced the first and second talaq. The woman had also pleaded against the man’s remarriage in another petition. This was also allowed by the Family Court.
HC's reasoning
The High Court set aside both these Family Court orders and clarified that the Family Ccourt order would be an encroachment on the constitutionally protected rights of the man.
The Court cannot restrain people from invoking personal law remedies. The Constitution not only allows one to profess religion but also to practice the same. A Family Court cannot restrain one from the following something as per the personal law.
The petitioner has not pronounced the third and final talaq. The Court can decide if it is as per the personal law only after the proceedings are complete. Remarriage too is also allowed as per personal law.
According to the division bench judgement, if the woman has complaints that it has been done illegally, she could approach the Court again after the proceedings are complete.
What Triple Talaq law envisages
The Triple Talaq (talqa-e-biddah) has been banned by Indian government as per the Muslim Women (Protection of Rights on Marriage) Act, 2019.
The law in force since August 1, 2019 makes ‘instant divorce’ of wives by Muslim men a criminal offence.
