Allahabad HC in Muslim divorce case: Personal law can be superseded by legislation

In a significant order, the Allahabad high court has held that divorce by a Muslim man cannot be in a manner which may infringe his wife's Fundamental Rights guaranteed under the Constitution, and that the personal law can always be superseded by legislation.

Justice Surya Prakash Kesarwani, in his order which began with the Sanskrit verse from the Manu Smriti, ‘yatra naryastu pujyante ramante tatra devata’ (gods reside where women are worshipped), said that all citizens, including Muslim women, have Fundamental Rights which cannot be infringed under the garb of personal law.

The order, dated April 19, 2017, assumes importance as it comes against the backdrop of the raging debate over ‘triple talaq’.

"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 The personal law can always be superseded by legislation," the court said.

It was passed on a petition filed by Aaqil Jamil and two others, who had moved the court challenging summonses issued by an Agra court in connection with a case filed by Jamil's estranged wife under the Dowry Prohibition Act and relevant sections of the Indian Penal Code.

The petitioners’ contention was that the proceedings initiated by the CJM’s court at Agra were “null and void” since the complaint was registered by Jamil’s wife a few days after he had divorced her ‘by saying thrice that I divorce you Sumaila Afgani’.

The petitioners had contended that following the divorce, Jamil had rendered his wife ‘free to lead her life in the manner she wants’ and even obtained a ‘fatwa’ whereby the mufti of Agra city “has affirmed the talaqnama”.

However, the court turned down the application observing that it did not ‘find any good reason to interfere with the impugned summoning order or the impugned proceedings’.

The court made it clear that ‘fatwa, issued by whatever body, not emanating from any judicial system recognised by law, is not binding on anyone including the person who had asked for it’.

In the concluding part of its 40-page order, the court remarked, ‘A society that does not respect its women, cannot be treated to be civilised’.

‘All citizens, including Muslim women, have fundamental rights,’ the court pointed out, adding, ‘Under the garb of personal law, individual or collective rights of the citizens’ could not be infringed.

The Supreme Court is all set to begin on May 11 its hearing on the constitutional validity of ‘triple talaq’. 

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