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Whether Miscarriage Can Become A Reason For Justifying Triple Talaq

The document discusses the validity of triple talaq (instant divorce practiced by some Muslims) under Indian law. It argues that triple talaq is valid under the Shariat Act of 1937 and that there is no requirement for grounds in talaq-e-biddat (instant divorce). It also discusses the definition of personal law in India and how personal laws are distinct from other laws, making them exempt from challenges under Articles 14, 15 and 21 of the Indian Constitution. The document makes the case that triple talaq is accepted in Islamic jurisprudence and that the petitioners are only challenging the procedure of talaq-e-biddat and not talaq itself.

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aridaman raghuvanshi
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97 views3 pages

Whether Miscarriage Can Become A Reason For Justifying Triple Talaq

The document discusses the validity of triple talaq (instant divorce practiced by some Muslims) under Indian law. It argues that triple talaq is valid under the Shariat Act of 1937 and that there is no requirement for grounds in talaq-e-biddat (instant divorce). It also discusses the definition of personal law in India and how personal laws are distinct from other laws, making them exempt from challenges under Articles 14, 15 and 21 of the Indian Constitution. The document makes the case that triple talaq is accepted in Islamic jurisprudence and that the petitioners are only challenging the procedure of talaq-e-biddat and not talaq itself.

Uploaded by

aridaman raghuvanshi
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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WHETHER MISCARRIAGE CAN BECOME A REASON FOR

JUSTIFYING TRIPLE TALAQ

It is humbly submitted before the hon’ble Court that the triple talaq given by the husband is

valid under §2 and §7 of the Shariat Act, 193

THAT THERE NEED TO BE NO GROUND FOR TALAQ UNDER TALAQ-E-

BIDDAT

It is humbly submitted before the hon’ble Court that according to §7 1 any man who wishes to

divorce his wife shall, as soon as may be after the pronouncement of talaq in any form

whatsoever, give the chairman a notice in writing of his having done so, and shall supply a

copy thereof to the wife.

In common law systems, personal law refers to the law of the person’s domicile. In civil-law

systems, it refers to the law of the individual’s nationality.

Section 112 of the Government of India Act, 1915, wherein a clear distinction was sought to

be drawn between ‘personal laws’ and ‘customs having force of law’.

Article 13, the choice of the words “custom and usage” and the
exclusion of the expression “personal law” needed to be taken due note
of.

It was pointed out, that the above position was consciously highlighted
by a Full Bench of the Andhra Pradesh High Court in the Youth
Welfare Federation case31. It was submitted, that if the term ‘personal
law’ was excluded from the definition ‘law in force’ deployed in Article
13, then matters of faith having a direct relationship to some religious
denomination (matters of ‘personal law’), do not have to satisfy the
rights enumerated in Articles 14, 15 and 21 of the Constitution.

1
Muslim Personal Law (Shariat) Application Act, 1937.
Shayara Bano and Ors. vs. Union of India (UOI) and Ors. (22.08.2017 - SC)

Article 372 - which mandates, that all laws in force in the territory of India, immediately

before the commencement of the Constitution, would continue to remain in force, until

altered, repealed or amended by a competent legislature or other competent authority. It was

submitted, that to affect a change in 'personal law', it was imperative to embark on legislation,

as provided for through entry 5 of the Concurrent List in the Seventh Schedule, which

provides - "marriage and divorce; infants and minors; adoption; wills, intestacy and

succession; joint family and partition; all matters in respect of which parties in judicial

proceedings were immediately before the commencement of this Constitution. It was

therefore urged, that 'personal laws' per se were not subject to challenge, under any of the

provisions contained in Part III of the Constitution.

Learned Counsel emphasized, that the three forms of talaq - 'talaq-e-ahsan', 'talaq-e-hasan'

and 'talaq-e-biddat' referred to by the Petitioners, during the course of hearing, were merely

depicting the procedure which a Muslim husband was required to follow, to divorce his wife.

It was pointed out, that none of these procedural forms, finds a reference in the Quran. It was

asserted, that none of these forms is depicted even in the 'hadith'. It was acknowledged, that

'hadiths' declared talaq by itself, as not a good practice, and yet - recognized the factum of

talaq, and its legal sanctity. It was submitted, that talaq was accepted by all believers of

Islam. It was therefore contended, that it was absurd for the Petitioners to have submitted that

the Quran alone, provided the details with reference to which, and in the manner in which,

talaq could be administered. It was therefore asserted, that a close examination of the

challenge raised by the Petitioners would reveal that talaq as a concept itself was not under

challenge at the hands of the Petitioners. It was pointed out, that truthfully the Petitioners
were merely assailing the course adopted by Muslim men, in divorcing their wives through

the 'talaq-e-biddat' procedure.

Shayara Bano and Ors. vs. Union of India (UOI) and Ors. (22.08.2017 - SC) :

MANU/SC/1031/2017

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