SYNOPSIS & LIST OF DATES

This is a Writ Petition under Article 32 of the

Constitution of India praying for a direction against the
Union of India and others seeking a writ or order or
direction in the nature of mandamus declaring the
practices of talaq-e-bidat (triple-talaq), nikah halala and
polygamy under Muslim personal laws as illegal,
unconstitutional for being violative of Articles 14, 15, 21
and 25 of the Constitution, and for a direction to all
Respondents declaring the Talaq pronounced by the
Respondent No. 7 against the Petitioner herein is void
abinitio for being illegal, unconstitutional, and violative of
Articles 14, 15, 21 and 25 of the Constitution and to pass
such further orders as this Hon’ble Court may deem
appropriate to provide a life of dignity to Muslim women.
This petition is filed by the Petitioner in her individual
capacity.
It is respectfully submitted that in the issue in

question, this Hon'ble Court, comprising Hon’ble Justice Anil

R. Dave & Hon’ble Justice A.K. Goel already considered and

issued notice vide order dated 29.02.2016.

This is a classic example of misusing sec. 2 of the

Muslim personal law (Sheriyat Application Act, 1997). The 7th
respondent, husband of the petitioner wife herein took away
the four kids having the age of 7, 9, 10, 12 after saying talak,
talak talak over phone to the Petitioner. The petitioner wife
now wandering and searching for her children and the same
time the husband illegally married another women and
staying away from the petitioner wife herein. It is a
controversial practice called the talaq or "triple-talaq."
Anytime, the husband can divorce his wife by saying, talaq.
Section 2 of the Muslim Personal Law (Shariat) Application

Act, 1937 reads:

“Notwithstanding any custom or usage to the

contrary, in all questions (save questions relating

to agricultural land) regarding intestate

succession, special property of females, including

personal properly inherited or obtained under

contract or gift or any other provision of Personal

Law. marriage, dissolution of marriage, including

talaq, ila, zihar, lian, khula and mubaraat,

maintenance, dower, guardianship, gifts, trusts

and trust properties, and wakfs (other than

charities and charitable institutions and charitable

and religious endowments) the rule of decision in

cases where the parties are Muslims shall be the

Muslim Personal Law (Shariat).”

It is submitted that this provision, in so far as it

seeks to recognise and validate talaq as a valid form of

divorce and the practices of nikah halala and

polygamy, is void and unconstitutional as such

practices are not only repugnant to the basic dignity of

a woman as an individual but also violative of the

fundamental rights guaranteed under Articles 14, 15,

21 and 25 of the Constitution. Further, the

Constitution neither grants any absolute protection to

 the personal law of any community that is arbitrary or

unjust, nor exempts personal laws from the jurisdiction

of the Legislature or the Judiciary.

The Muslim personal laws of India permit the practice

of talaq-e-bidat or talaq-i-badai, which includes a Muslim
man divorcing his wife by pronouncing more than one talaq
in a single tuhr (the period between two menstruations), or in
a tuhr after coitus, or pronouncing an irrevocable
instantaneous divorce at one go. This practice of talaq-e-bidat
(unilateral triple-talaq) which practically treats women like
chattel is neither harmonious with the modern principles of
human rights and gender equality, nor an integral part of
Islamic faith, according to various noted scholars. Many
Islamic nations, including Saudi Arabia, Pakistan, and Iraq,
have banned or restricted such practice, while it continues to
vex the Indian society in general and Indian Muslim women
like the Petitioner in particular. The practice also ruins the
lives of many divorced women and their children, especially
those belonging to the weaker economic sections of the
society. According to many scholars, talaq-e-bidat is not a
form of divorce recognised in the Holy Quran as the Holy
Book provides for reconsideration and reconciliation before
recognising divorce as irrevocable.

The 7th respondent husband of the petitioner after

having triple talak, forcing the petitioner to stay with his

brother. By knowing all these facts, the 8th respondent

married with 7th respondent. It is a fact that the petitioner

approached police authorities against the illegalities and

torturing and harassment from the part of her husband.

However, the petitioner never challenged the practice of talak

– e-bidat, nikah- halala and polygamy under muslim personal

laws.

Unfortunately, in the 21st century this evil practice is

happening in the Muslim community and therefore, the

rights of Muslim women and their children is seriously

affected. Therefore, this triple tallak is grossly injuries to

fundamental rights of a muslim women and therefore it is

completely violating Article 14, 15, 21 & 25 of the

Constitution of India.

A perusal of the decisions of this Hon’ble Court in

Prakash v. Phulavati (supra), Javed and Others v. State of

Haryana and Others, (2003) 8 SCC 369, and Smt. Sarla

Mudgal, President, Kalyani and Others v. Union of India and

Others, (1995) 3 SCC 635 illustrates that the practice of

polygamy has been recognised as injurious to public morals

and it can be superseded by the State just as it can prohibit

human sacrifice or the practice of sati. In fact, in Khursheed

Ahmad Khan v. State of Uttar Pradesh and Others, (2015) 8

SCC 439, this Hon’ble Court has also taken the view that

practices permitted or not prohibited by a religion do not

become a religious practice or a positive tenet of the religion,

since a practice does not acquire the sanction of religion

merely because it is permitted.

 This Hon’ble Court in Shamim Ara versus State of Uttar

Pradesh & Another, (2002) 7 SCC 518, wherein this Hon’ble

Court considered valid talaq in Islamic law and, referring to

these decisions as “illuminating and weighty judicial opinion

available in two decisions of Gauhati High Court recorded by

Baharul Islam, J”, observed that talaq must be for a

reasonable cause and be preceded by attempts at

reconciliation between the husband and the wife.

The observations of the Constitution Bench in Danial

Latifi & Another v. Union of India, (2001) 7 SCC 740, are of

utmost relevance. This Hon’ble Court stated that when

interpreting provisions where matrimonial relationship was

involved it has to consider the social conditions prevalent in

our society, where a great disparity exists in the matter of

economic resourcefulness between a man and a woman

whether they belong to the majority or the minority group,

since our society is male dominated both economically and

socially and women are invariably assigned a dependent role

irrespective of the class of society to which they belong. This

Hon’ble Court further observed that solutions to societal

problems of universal magnitude pertaining to horizons of

basic human rights, culture, dignity, decency of life, and

dictates of necessity in the pursuit of social justice should be

invariably left to be decided on considerations other than

religion or religious faith or beliefs or sectarian, racial or

communal constraints.

In Shamim Ara Versus State of U.P. Reported in 2002 (7) SCC

518 at page 507 para 60 clearly held “we do not agree with
the view propounded in the decided cases referred to by
Mulla and Dr. Tahir Mahmood in their respective
commentaries, wherein a mere plea of previous talaq taken in
the written statement, though unsubstantiated, has been
accepted as proof of talaq bringing to an end the marital
relationship with effect from the date of filing of the written
statement”. Therefore in the case in hand, even otherwise,
there is not having any evidence for a valid talaq also.

That “This Hon’ble Court in Comptroller and Auditor

General of India Vs. K.S. Jagannathan, AIR 1986-2-679 SCC
has held that the courts have the power to issue a writ of
mandamus or a writ in the nature of mandamus or to pass
orders and give necessary directions where the government or
a public authority has failed to exercise or has wrongly
exercised the discretion conferred upon it by a statute or a
rule or a policy decision of the government” Therefore in the
case in hand, even otherwise, there is not having any
evidence for a valid talaq.

09.06.2001: The petitioner and respondent No.7 got

married as per Muslims Rights and custom and at the
time of said marriage father of the petitioner had given
gold of having value of Rs.7 lakhs to the couple. That in
2003 the father of the Petitioner also paid Rs 5 lakh as a
security amount for taking a rented flat in culcutta.

It is also a fact that at the time of marriage Petitioner

was having about 15 years old and the Husband,

 Respondent No 7 was having about 27 yers old and he

was working at Dubai in a company as an emproidary

worker.

Out of the wedlock, they blessed with three girl

children and one boy, they are:

i. Shaista Khatoon (Female), 12 yrs. DOB: 09.01.2004

ii. Kahkasha Khatoon (Female),10yrs. DOB: 15.04.2006

iii. Bushra Khatoon (Female),9yrs.DOB: 13.10.2007

iv. Mohammad Zaid Afzal (Male),7yrs.DOB: 4.10.2009

24.10.2014: Due to continues harassment and assault the

petitioner wife filed a complaint u/s 3 and 4 of Dowry

Prohibition Act, before Golabari Police Station against

the Respondent No.7 Husband. However no action has

been taken by the police authorities.

Feb 2015 : The Respondent husband went Dubai. The

husband Respondent also compelled the Petitioner to

stay with his brother and fullfill his ambitions as he

dont want to continue further relation with the

Petitioner.

April 2015 : That it was surprise to the Petitioner that the 7th

Respondent telephoned the Petitioner on a fine morning

in the month of April 2015 and divorced the Petitioner

 by saying talaq, talaq, talaq then disconnected the

phone.

Therefore in the case in hand, even otherwise, there

is not having any evidence for a valid talaq also.

29.10.2015: The husband respondent by suppressing the fact

that he is having the wife and 4 children tried for a 2nd

marriage and accordingly the Barat ceremony fixed for

29.10.2015 and the petitioner restrained the same as

she got the information from the reliable sources. It is a

clear fact that the Petitioner restrained the said

marriage as the Talaq pronounced by the Respondent

No7 was illegal.

02.11.2015: The petitioner wife represented before the Police

Commissioner, Howrah City for the protection from the

7th respondent and his relatives as the petitioner

interfered and objected the Barat Ceremony of 7th

respondent’s 2nd marriage at Bihar.

Nov 2015 : That the Petitioner came to know that in the

month of November 2015 the 7th Respondent husband

married 8th Respondent. At this time the Petitioner or

her relatives could not do anything. The 7th Respondent

also took the children from the custody of the Petitioner.

 It is a fact that therafter the Respondent husband never

given any support or financial help to the Petitioner.

02.12.2015: The petitioner wife had to be admitted in the

Calcutta National Medical college and Hospital as the

in-laws, the brother and wife of the 7th respondent

seriously assaulted her.

14.12.2015: The Chairperson of Women’s Resistance

Committee forwarded the complaint dated 14.12.2016 of

petitioner wife to the Chief Minister of West Bengal,

Governor, Vice President of India, Law Minister, Chief

Minister of Bihar, Home Minister, Commissioner of

Police, Howrah etc. etc. with a covering letter.

28.12.2015: Following the abovesaid complaint, the Howrah

Police registered an FIR u/s 341, 323, 354 & 509 of

IPC.

It is a fact that the relatives of the 7th Respondent

also filed false cases against the Petitioner and her

relatives as a counter blast.

25.02.2016: The poor petitioner wife sent a registered legal

notice to the 8th Respondent, 2nd wife of the 7th

respondent and requested to bring back the children

with immediate effect for giving them protection and

education.
29.02.2016: In the same issue this Hon'ble Court comprising

Hon’ble Justice Anil R. Dave & Hon’ble Justice A.K. Goel

issued notice vide order dated 29.2.2016.

12.03.2016: The petitioner wife again sent a legal notice

dated 12.3.2016 to the 7th respondent husband to give

back all the articles which are taken at the time of

marriage.

12.8.2016: As the main issue is pending before this Hon’ble

court and the Petitioner did not approach for the same

relief in any other forum or court, filed the present Writ

Petition.
 IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
(ORDER XXXVIII, S.C.R, 2013)
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
WRIT PETITION (CIVIL) No. OF 2016
IN THE MATTER OF:

Ishrat Jahan w/o Murtuza Ansari

R/o 20/1 Nanda Ghosh Road,
3rd Floor, PS Golabari Howrah-1,
West Bengal … Petitioner

VERSUS
1. Union of India,
Represented by the Secretary,
Ministry of Women and Child Development,
Shastri Bhawan, ‘A’ Wing,
Dr. Rajendra Prasad Road,
New Delhi - 110 001 … Respondent No. 1

2. Ministry of Law and Justice,

Represented by the Secretary,
Department of Legal Affairs,
Shastri Bhawan, ‘A’ Wing,
Dr. Rajendra Prasad Road,
New Delhi - 110 001 … Respondent No. 2

3. Ministry of Minority Affairs,

Represented by the Secretary,
11th Floor, Paryavaran Bhawan,
CGO Complex, Lodhi Road,
New Delhi - 110 001 … Respondent No. 3

4. National Commission for Women,

Represented by the Chairperson,
Plot 21, Jasola Institutional Area,
New Delhi - 110025 … Respondent No. 4

5. Director General of Police

Police Head Quarters Calcutta,
West Bengal …Respondent No. 5

6. Director General of Police

Police Head Quarters Patna
Bihar …Respondent No. 6

7. Murtuza Ansari
R/o 20/1 Nanda Ghosh Road,
 3rd Floor, PS Golabari Howrah-1,
West Bengal … Respondent No. 7

8. Mrs Shabana Parween

W/o Murtuza Ansari
C/o Nazamuddin
Vill-Foauldapur
Post Ratni Bazar, P S sakurabad
Jahanbad District, Bihar-804422 ... Respondent No. 8

WRIT PETITION UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA SEEKING A WRIT OR ORDER
OR DIRECTION IN THE NATURE OF MANDAMUS
DECLARING THE PRACTICES OF TALAQ-E-BIDAT,
NIKAH-HALALA AND POLYGAMY UNDER MUSLIM
PERSONAL LAWS AS ILLEGAL, UNCONSTITUTIONAL FOR
BEING VIOLATIVE OF ARTICLES 14, 15, 21 AND 25 OF
THE CONSTITUTION, AND TO PASS SUCH FURTHER
ORDERS AS THIS HON’BLE COURT MAY DEEM
APPROPRIATE TO PROVIDE A LIFE OF DIGNITY TO
MUSLIM WOMEN.

TO,
The hon’ble chief justice of india
and his companion judges of the supreme court of india

The humble petition of the

petitioner above named

MOST RESPECTFULLY SHOWETH:

I. This is a Writ Petition under Article 32 of the Constitution

of India praying for a direction against the Union of India
and others seeking a writ or order or direction in the
nature of mandamus declaring the practices of talaq-e-
bidat (triple-talaq), nikah halala and polygamy under
Muslim personal laws as illegal, unconstitutional for being
violative of Articles 14, 15, 21 and 25 of the Constitution,
 and for a direction all Respondents declaring the Talaq
pronounced by the Respondent No. 7 against the Petitioner
herein is void abinitio for being illegal, unconstitutional,
and violative of Articles 14, 15, 21 and 25 of the
Constitution and to pass such further orders as this
Hon’ble Court may deem appropriate to provide a life of
dignity to Muslim women. This petition is filed by the
Petitioner in her individual capacity.
II. The Petitioner has not approached any other court for

the same reliefs claimed in the present Writ Petition. No

representation has been filed with any authority since

the constitutional validity of a statute is under

challenge and the reliefs claimed can only be granted

by this Hon’ble Court.

III. The Petitioner is a female citizen of India, a Muslim by

religion, and hails from Howrah, West Bengal. She is

trying to continue in her matrimonial house despite the

threat from her in-laws. Today it is a trend in the

country that the poor muslim women and their

children will be thrown out at any time after giving

simple tallak, tallak, talak by the husband. Petitioner’s

four children were kidnapped by her husband

inconnivance with his second wife after pronouncing

triple Talak to the petitioner. Thereafter petitioner wife

is forced by her husband, 7th Respondent to stay with

his brother. The petitioner wife is not much educated

and her parents are living in Bihar and she is surviving

 with the help of her sister. The petitioner wife

respectfully seeking an urgent interference of this

Hon'ble Court as the four small children to be

protected and give them education.

IV. It is respectfully submitted that the poor muslim

women are suffering and thrown away from the

matrimonial house by adopting evil practise of triple

talaq. The Holly Quran or the Muslim scholars are not

at all supporting this system. A true copy of the Article

dated nil reported in Times of India , as downloaded

from internet, written by shri Syeda Saiyidain Hameed ,

a writer, founder of the Muslim Women's Forum and

former member, National Commission for Women

shows the illegality of the system, is hereby annexured

as Annexure P-1 (Pages to ).

1. That on 09.06.2001, the petitioner and respondent No.

7 got married as per Muslims Rights and custom and at

the time of said marriage father of the petitioner had

given gold having value of about Rs 7 lakhs to the

couple. That in 2003 the father of the Petitioner also

paid Rs 5 lakh as a security amount for taking rented

flat in Calcutta.

It is also a fact that at the time of marriage

Petitioner was having about 15 years old and the

Husband Respondent No 7 was having about 27 years

 old and he was working at Dubai in a company as an

embroidery worker.

Out of the wedlock, they blessed with three girl

children and one boy, they are:

v. ShaistaKhatoon (Female),12 yrs. DOB: 09.01.2004

vi. KahkashaKhatoon(Female),10yrs.DOB: 5.04.2006

vii. Bushra Khatoon (Female), 9 yrs. DOB: 13.10.2007

viii. MohammadZaidAfzal(Male),7yrs.DOB: 14.10.2009

2. That on 24.10.2014, due to continues harassment and

assault the petitioner wife filed a complaint u/s 3 and 4

of Dowry Prohibition Act, before Golabari Police Station

against the Respondent No.7 Husband. However no

action has been taken by the police authorities.

3. That in February 2015 the Respondent husband went

Dubai. The husband Respondent also compelled the

Petitioner to stay with his brother and fulfil his

ambitions as he don’t want to continue further relation

with the Petitioner.

4. That it was a big surprise to the Petitioner that the 7th

Respondent husband telephoned the Petitioner on a

fine morning in the month of April 2015 and divorced

the Petitioner by saying talaq, talaq, talaq then

disconnected the phone. Therefore in the case in hand,

even otherwise, there is not having any evidence for a

 valid talaq also. It is also a fact that as per the

guidelines of this Hon’ble court 7th Respondent is

bound to pay the maintenance to the petitioner and her

children.

5. That on 29.10.2015, the husband respondent by

suppressing the fact that he is having the wife and 4

children tried for a 2nd marriage and accordingly the

Barat ceremony fixed for 29.10.2015 and the petitioner

restrained the same as she got the information from the

reliable sources. It is a clear fact that the Petitioner

restrained the said marriage as the Talaq pronounced

by the Respondent No7 was illegal.

6. That on 02.11.2015, the petitioner wife represented

before the Police Commissioner, Howrah City for the

protection from the 7th respondent and his relatives as

the petitioner interfered and objected the Barat

Ceremony of 7th respondent’s 2nd marriage at Bihar. A

true typed copy of the said complaint dated 02.11.2015

is hereby annexed as ANNEXURE P-2 (Pages to ).

7. That the Bharatiya Muslim Mahila Andolan has written

to the Prime Minister seeking codification of Muslim

personal law as per a draft based on Quranic tenets

prepared by them and has sought that certain

prevalent practices be declared illegal, including the

practice of talaq-e-bidat and polygamy. A true copy of a

 news article dated 28.11.2015 in the DNA titled

“Muslim women write to PM Modi to make triple talaq,

polygamy illegal”, where the letter to the Prime Minister

from the Bharatiya Muslim Mahila Andolan seeking

ban of triple-talaq and polygamy has been reported, is

attached as Annexure P-3 (Pages to ).

8. That the Petitioner came to know that in the month of

November 2015 7th Respondent husband married 8th

Respondent. At this time the Petitioner or her relatives

could not do anything. The 7th Respondent also took

the children from the custody of the Petitioner. It is a

fact that therafter the Respondent husband never given

any support or any financial support to the Petitioner.

9. That on 02.12.2015, the petitioner wife had to be

admitted in the Calcutta National Medical college and

Hospital as the in-laws, the brother and wife of the 7th

respondent seriously assaulted her. A true typed copy

of the medical certificate issued by the Calcutta

National Medical College and Hospital dated

02.12.2015 is hereby annexed as ANNEXURE P-4

(Pages to ).

10. That on 14.12.2015, the Chairperson of Women’s

Resistance Committee forwarded the complaint of

petitioner wife to the Governor, Chief Minister of West

 Bengal, Commissioner of Police, Howrah and Inspector

of police, with a covering letter. The said covering letter

dated 14.12.2015 issued by Chairperson Women’s

Resistance Committee dated 14.12.2015 is hereby

annexed as ANNEXURE P-5 (Pages to ).

11. That on 28.12.2015, following the above said

complaint, the Howrah Police registered an FIR u/s

341, 323, 354 & 509 of IPC. A true typed copy of the

FIR No. 1533 dated 28.12.2015 of Howrah P.S. is

hereby annexed as ANNEXURE P-6 (Pages to ).

12. That on 25.02.2016, the poor petitioner wife sent a

registered legal notice to the 8th Respondent, 2nd wife of

the 7th respondent and requested to bring back the

children immediately for giving them protection and

education. A true copy of the legal notice dated

25.02.2016 is hereby annexed as ANNEXURE P-7

(Pages to ).

13. That on 29.02.2016, in the same issue this Hon'ble

Court comprising Hon’ble Justice Anil R. Dave &

Hon’ble Justice A.K. Goel issued notice vide order

dated 29.2.2016. A true copy of the said order dated

29.02.2016 passed by this Hon'ble Court is hereby

annexed as ANNEXURE P-8 (Pages to ).

14. That on 12.03.2016, the petitioner wife sent a

registered legal notice to the 7th respondent husband
 and requested to give back all the articles and money
which are taken at the time of marriage. A true copy of
the legal notice dated 12.03.2016 is hereby annexed as
ANNEXURE P-9 (Pages to ).
It is a fact that the relatives of the 7th

Respondent also filed false cases against the Petitioner

and her relatives as a counter blast.

15. That the Petitioner filed a petition under section 12

of the domestic violence Act vide M C No.721 of 2015
before the Chief Judicial Magistrate court Howrah and
the same is pending.
16. That on 12.8.2016 as the main issue is pending
before this Hon’ble court and as, the Petitioner did not
aproch for the same relief in any other forum, filed the
presant Writ Petition.
V. The Petitioner has not filed any similar Writ Petition

either before this Hon’ble Court or any High Court

praying for the same reliefs as claimed in the present

Writ Petition.

VI. The present Writ Petition is filed bona fide and in the
interest of justice.
VII. The Petitioner has no adequate or equally efficacious
remedy but to approach this Hon’ble Court by way of
the present Writ Petition.

GROUNDS

A. Becouse of that in the issue in question, this

Hon'ble Court, comprising Hon’ble Justice Anil R. Dave
& Hon’ble Justice A.K. Goel already considered and
issued notice vide order dated 29.02.2016.
B. In Shamim Ara Versus State of U.P. Reported in 2002
(7) SCC 518 at page 507 para 60 clearly held “we do not
agree with the view propounded in the decided cases
referred to by Mulla and Dr. Tahir Mahmood in their
respective commentaries, wherein a mere plea of
previous talaq taken in the written statement, though
unsubstantiated, has been accepted as proof of talaq
bringing to an end the marital relationship with effect
from the date of filing of the written statement”
Therefore in the case in hand, even otherwise, there is
not having any evidence for a valid talaq.

C. Various eminent Muslim scholars, judgments of

eminent judges, and Muslim citizens’ groups have
expressed disapproval of the notion that the whimsical
and capricious divorce by a husband is “good in law
though bad in theology” as well as observed that such
view is not only an affront to the fundamental rights
guaranteed by the Constitution, but is also based on the
concept that women are chattel belonging to men, which
the Holy Quran does not brook.

D. A life of dignity and equality is undisputedly the most

sacrosanct fundamental right guaranteed by the
Constitution and it prevails above all other rights
available under the laws of India. It is therefore
submitted that the solutions to societal problems of
universal magnitude pertaining to horizons of basic
human rights, culture, dignity, decency of life, and
dictates of necessity in the pursuit of social justice
should be decided on considerations other than religion
or religious faith or beliefs, or sectarian, racial or
communal constraints.
E. The Muslim Personal Law (Shariat) Application Act,

1937, by providing for the application of Muslim

personal law in matters relating to marriage where the

parties are Muslims, conveys a wrong impression that

the law sanctions the sinful form of talaq, nikah halala,

and polygamy which is grossly injurious to the

fundamental rights of married Muslim women and

offends Articles 14, 15, 21 and 25 of the Constitution.

F. That the Muslim personal laws of India permit the

practice of talaq-e-bidat or talaq-i-badai, which includes

a Muslim man divorcing his wife by pronouncing more

than one talaq in a single tuhr (the period between two

menstruations), or in a tuhr after coitus, or pronouncing

an irrevocable instantaneous divorce at one go. This

practice of talaq-e-bidat (unilateral triple-talaq) which

practically treats women like chattel is neither

harmonious with the modern principles of human rights

and gender equality, nor an integral part of Islamic

faith, according to various noted scholars. Many Islamic

nations, including Saudi Arabia, Pakistan, and Iraq,

have banned or restricted such practice, while it

continues to vex the Indian society in general and

Indian Muslim women like the Petitioner in particular.

The practice also ruins the lives of many divorced

women and their children, especially those belonging to

 the weaker economic sections of the society. According

to many scholars, talaq-e-bidat is not a form of divorce

recognised in the Holy Quran as the Holy Book provides

for reconsideration and reconciliation before recognising

divorce as irrevocable.

G. That the 7th respondent husband of the petitioner

after having triple talak, forcing the petitioner to stay

with his brother. By knowing all these facts, the 7th

respondent married with 8th respondent. It is a fact that

the petitioner approached police authorities against the

illegalities and torturing and harassment from the part

of her husband. However, the petitioner never

challenged the practice of talak – e-bidat, nikah- halala

and polygamy under muslim personal laws.

H. That a perusal of the decisions of this Hon’ble Court

in Prakash v. Phulavati (supra), Javed and Others v.

State of Haryana and Others, (2003) 8 SCC 369, and

Smt. Sarla Mudgal, President, Kalyani and Others v.

Union of India and Others, (1995) 3 SCC 635 illustrates

that the practice of polygamy has been recognised as

injurious to public morals and it can be superseded by

the State just as it can prohibit human sacrifice or the

practice of sati. In fact, in Khursheed Ahmad Khan v.

State of Uttar Pradesh and Others, (2015) 8 SCC 439,

this Hon’ble Court has also taken the view that

 practices permitted or not prohibited by a religion do not

become a religious practice or a positive tenet of the

religion, since a practice does not acquire the sanction

of religion merely because it is permitted.

I. This Hon’ble Court in Shamim Ara versus State of

Uttar Pradesh & Another, (2002) 7 SCC 518, wherein

this Hon’ble Court considered valid talaq in Islamic law

and, referring to these decisions as “illuminating and

weighty judicial opinion available in two decisions of

Gauhati High Court recorded by Baharul Islam, J”,

observed that talaq must be for a reasonable cause and

be preceded by attempts at reconciliation between the

husband and the wife.

J. The observations of the Constitution Bench in Danial

Latifi & Another v. Union of India, (2001) 7 SCC 740, are

of utmost relevance. This Hon’ble Court stated that

when interpreting provisions where matrimonial

relationship was involved it has to consider the social

conditions prevalent in our society, where a great

disparity exists in the matter of economic

resourcefulness between a man and a woman whether

they belong to the majority or the minority group, since

our society is male dominated both economically and

socially and women are invariably assigned a dependent

role irrespective of the class of society to which they

 belong. This Hon’ble Court further observed that

solutions to societal problems of universal magnitude

pertaining to horizons of basic human rights, culture,

dignity, decency of life, and dictates of necessity in the

pursuit of social justice should be invariably left to be

decided on considerations other than religion or

religious faith or beliefs or sectarian, racial or

communal constraints.

K. The Dissolution of Muslim Marriages Act, 1939 fails to

secure for Indian Muslim women the protection from

bigamy, which protection has been statutorily secured

for Indian women belonging to all other religions, and is

to that extent violative of Articles 14, 15, 21 and 25 of

the Constitution.

L. The assumptions and beliefs upon which talaq-e-bidat

is recognised are factually false, scientifically untenable

and contrary to the spirit and provisions of the

Constitution and, in any event, this form of divorce has

been declared to be a spiritual offence in the Holy Quran

itself.

M.Giving recognition to nikah halala and to talaq-e-bidat

as a valid form of divorce interferes with the Muslim

women’s right to profess and practice her religion,

inasmuch as it unleashes a spiritual offence on her to

 say the least and is, thus, violative of Articles 14, 15, 21

and 25 of the Constitution.

N. The Constitution neither grants any absolute protection

to the personal law of any community that is unjust, nor

exempts personal laws from the jurisdiction of the

Legislature or the Judiciary.

O. The freedom of conscience and free profession, practice

and propagation of religion guaranteed by Article 25 of

the Constitution is, in terms of Article 25(1), “subject to

public order, morality and health and to the other

provisions of this Part”. It is submitted that the

Constitution does not preclude the State from

introducing social reforms and enacting laws on

subjects traditionally associated with religion, especially

when such laws aim to secure public order, morality,

health and the rights guaranteed by Part III of the

Constitution.

P. The Constitution only protects religious faith and belief

while the religious practices under challenge run

counter to public order, morality, and health and must

therefore yield to the basic human and fundamental

right of Muslim women to live with dignity, under equal

protection of laws, without any discrimination on the

basis of gender or religion.

Q. The Legislature has failed to ensure the basic dignity

and equality of women in general and Muslim women in

particular when it concerns matters of marriage and

divorce and succession.

R. A complete ban on polygamy, nikah halala and

unilateral triple-talaq has long been the need of the

hour as it renders Muslim wives extremely insecure,

vulnerable and infringes their fundamental rights.

S. Equality should be the basis of all personal law since

the Constitution envisages equality, justice and dignity

for women.

T. Several Islamic nations have banned or restricted the

practice of talaq-e-bidat while Indian Muslims are still

being compelled to follow such practice which neither

has any basis in the Holy Quran nor is associated with

the practice of Islam as a religion. Thus, the

fundamental rights of Indian Muslims are being violated

continuously, without any basis in Islam or the Holy

Quran, despite reforms introduced by Islamic nations to

secure a life of dignity unmarred by gender

discrimination.

U. Failure to eliminate de jure (formal) and de facto

(substantive) discrimination against women including by

non-State actors, either directly or indirectly, violates

not only the most basic human rights of women but also
 violates their civil, economic, social and cultural rights

as envisaged in international treaties and covenants. It

is submitted that not only must the practices of

polygamy, talaq-e-bidat and nikah halala be declared

illegal and unconstitutional, but the actions of religious

groups, bodies and leaders that permit and propagate

such practices must also be declared illegal,

unconstitutional, and violative of Articles 14, 15, 21 and

25 of the Constitution.

V. Because of that as per the latest guidelines of this

Hon’ble Court, the 7th Respondent bound to pay the

maintenance to the wife as well as the young children.

It is also a fact that no mahar or dower given to the

Petitioner till today despite the legal notice also.

However, in the case of Daniel Lathifa & another Vs the

Union of India reported in 2001 (7) SCC and Shamim

Ara Vs State of U.P. & another reported in 2002 (7) SCC

518 also clarifies the position of the law, and therefore

the Petitioner and her innocent children may have to get

the benefit of the said judgment passed by this Hon’ble

Court.

W.Because of that, as per the judgment reported in AIR

1997 SC 3280 this Hon’ble Court held the children are

entitled to get maintenance upto they become major. It

is also a fact that wife entitled the entire life time

maintenance if she is not married earlier.

PRAYER

It is, therefore, most respectfully prayed that this

Hon’ble Court may be pleased to:

A. Issue a Writ or Order or Direction in the nature of

mandamus to all Respondents declaring the Talaq
pronounced by the Respondent No. 7 against the
Petitioner herein is void ab initio for being illegal,
unconstitutional, and violative of Articles 14, 15,
21 and 25 of the Constitution;
B. Issue a Writ or Order or Direction in the nature of
mandamus to the Union of India declaring the
practice of talaq-e-bidat (triple-talaq) as illegal and
unconstitutional as it violates the rights
guaranteed by the Constitution, including Articles
14, 15, 21 and 25;
C. Issue a Writ or Order or Direction in the nature of
mandamus to the Union of India declaring Section
2 of the Muslim Personal Law (Shariat)
Application Act, 1937 unconstitutional and
violative of Articles 14, 15, 21 and 25 of the
Constitution in so far as it seeks to recognise and
validate talaq-e-bidat (triple-talaq) as a valid form
of divorce;
D. Issue a Writ or Order or Direction in the nature of
mandamus to the Union of India declaring Section
2 of the Muslim Personal Law (Shariat)
Application Act, 1937 unconstitutional and
violative of Articles 14, 15, 21 and 25 of the
 Constitution in so far as it seeks to recognise and
validate the practice of nikah halala;
E. Issue a Writ or Order or Direction in the nature of
mandamus to the Union of India declaring Section
2 of the Muslim Personal Law (Shariat)
Application Act, 1937 unconstitutional and
violative of Articles 14, 15, 21 and 25 of the
Constitution in so far as it seeks to recognise and
validate the practice of polygamy;
F. Issue a Writ or Order or Direction in the nature of
mandamus to the Union of India declaring the
Dissolution of Muslim Marriages Act, 1939
unconstitutional and violative of Articles 14, 15,
21 and 25 of the Constitution in so far as it fails
to secure for Indian Muslim women the protection
from bigamy which has been statutorily secured
for Indian women belonging to other religions;
G. Issue a Writ or Order or Direction in the nature of
mandamus to the Union of India declaring the
practice of polygamy as illegal and
unconstitutional as it violates the rights
guaranteed by the Constitution including Articles
14, 15, 21 and 25;
H. Issue a Writ or Order or Direction in the nature of
mandamus to the Union of India declaring that a
Muslim wife whose marriage has been terminated
by a valid and legally recognised form of talaq by
her husband may remarry her husband without
an intervening halala marriage with another man;
I. Issue a Writ or Order or Direction in the nature of
mandamus to the Union of India declaring any
form of divorce under Muslim personal laws as
illegal and unconstitutional if the divorce is not
 preceded by attempts to reconcile the marriage
over three successive tuhrs, or ninety days, or any
other period of time this Hon’ble Court deems
appropriate;
J. Issue direction to the 5th and 6th Respondents, as
the Respondent No.7 hide the children of the
Pettitoner, to find out the whereabouts of the four
minor children namely:
1.Shaista Khatoon (Female), 12 yrs. DOB: 09.01.2004
2.Kahkasha Khatoon(Female),10yrs.DOB: 15.04.2006
3.Bushra Khatoon (Female), 9 yrs. DOB: 13.10.2007
4.Mohammad Zaid Afzal (Male),7yrs. DOB: 14.10.2009

K. Issue direction to Respondent No. 5 to give the

protection to the petitioner to the effect that restraining
the respondent Nos. 7 and his relatives from any
attack against petitioner or any effort against the
petitioner from expelling the petitioner from the
matrimonial house which is r/o 20/1 Nanda Ghosh
Road, 3rd Floor, PS Golabari Howrah-1, West Bengal.

L. Pass any other or future order(s) as this Hon’ble Court

deems fit in the facts and circumstances of the present
case.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS

IN DUTY BOUND SHALL ALWAYS PRAY.

DRAWN BY &FILED BY:

V K BIJU

Advocate for Petitioner

Drawn on: 9.08.2016

Filed on: 12.08.2016

 IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

IA NO. _________________/2016
IN
WRIT PETITION (CIVIL) No. OF 2016

IN THE MATTER OF:

Ishrat Jahan … Petitioner
VERSUS
Union of India & Ors. …Respondents

APPLICATION FOR INTERIM DIRECTIONS

TO,
THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION
JUDGES OF THE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHOWETH:

I. This is a Writ Petition under Article 32 of the

Constitution of India praying for a direction against the
Union of India and others seeking a writ or order or
direction in the nature of mandamus declaring the
practices of talaq-e-bidat, nikah halala and polygamy
under Muslim personal laws as illegal, unconstitutional
for being violative of Articles 14, 15, 21 and 25 of the
Constitution, and to pass such further orders as this
Hon’ble Court may deem appropriate to provide a life of
dignity to Muslim women. This petition is filed by the
Petitioner in her individual capacity. The petitioner
craves the leave of this Hon'ble Court to rely upon the
pleadings of the accompanying writ petition and the
same is not repeated herein for the sake of brevity.
II. It is respectfully submits that the petitioner may loss
her life at any time as she is still living in the
 matrimonial house without the support of her
husband. There are several occasions already faced
by the petitioner as the Respondent Nos. 7 and his
relatives were tried to expel her from the matrimonial
house.
III. It is further respectfully submits that the petitioner –
a poor mother do not have idea about her four
children having the age of 7, 9, 10 & 12. The
petitioner repeatedly requested the 7th & 8th
respondent to bring back the children as the
petitioner wanted to protect them and for doing their
education etc.
IV. It is further respectfully submits that the poor children
are not getting any protection from any corner and
petitioner is not even aware whether they are living or
not. It is a fact that the petitioner don’t have any
support as her parents are living in Bihar as she is
really surviving with the help of her sister. The police
authorities are also not giving enough support to the
petitioner and to find out the whereabout of her
children.
V. It is most respectfully submitted that as per the settled
position of law, especially in the case of Daniel Lathifa
& another Vs Union of India reported in 2001(7) SCC
740 and Shamim Ara Vs State of U.P. reported in
2002(7) SCC 518 and AIR 1997 SC 3280 this Hon’ble
Court held that if the Talaq pronounced illegally the
wife entitled maintenance, mahar or dower. It is also
held that if the wife not married for her lifetime she is
also entitled lifetime maintenance, It is also held if the
children are not able to maintain themselves they are
also entitled for appropriate compensation till they
attain majority. It is also a fact that the 7th Respondent
 getting about one lakh rupees per month and he can
easily protect the Petitioner and her children.
VI. In the above circumstances, urgent interim directions
are required from this Hon'ble Court for the protection
of the petitioner and for her four minor children. It is
also a fact that considering the entire facts and
circumstances, there is every chance to win the case of
the petitioner and balnce of convenience also in favour
of the petitioner.

PRAYER

a. Issue an interim direction to the 5th and 6th

Respondents, as the Respondent No.7 hide the
children of the Pettitoner, to find out the
whereabout of the four children namely:
ix. Shaista Khatoon (Female), 12 yrs. DOB: 09.01.2004
x. Kahkasha Khatoon (Female), 10 yrs. DOB: 15.04.2006
xi. Bushra Khatoon (Female), 9 yrs. DOB: 13.10.2007
xii. Mohammad Zaid Afzal (Male), 7 yrs. DOB: 14.10.2009

b. Issue an interim direction to Respondent no. 5 to

give the protection to the petitioner to the effect
that restraining the respondent Nos. 7 and his
relatives from any attack against petitioner or any
effort against the petitioner from expelling the
petitioner from the matrimonial house which is r/o
20/1 Nanda Ghosh Road, 3rd Floor, PS Golabari
Howrah-1, West Bengal.
c. Issue an interim direction to the 7th respondent to
proivide all the necessary help and mainteneane to
protect the Petitioner and the children of the
Petitioner.
 VII. Pass any other or future order(s) as this Hon’ble
Court deems fit in the facts and circumstances of the
present case.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS

IN DUTY BOUND SHALL ALWAYS PRAY.

DRAWN BY &FILED BY:

V K BIJU

Advocate for Petitioner

Drawn on: 09.08.2016

Filed on: 12.08.2016