The Chief Justices and Judges of High Courts and Supreme Court take oath to protect the Constitution of India. This means that anything which is in conflict with our Constitution is NULL and VOID.

Hence, Judges should not care what is written in religious books. They are paid to protect the Constitution not any religion.

There are many forms of divorce in Islamic law. Though marriage under Muslim law happens with the consent of both the parties, a man can divorce his wife (unilaterally) without taking her opinion. There are 3 broad ways a man can divorce his wife(listed below):

  1. Talaq-e-biddat: This is form a divorce which is referred to as “triple talaq”. In this form of divorce, a husband just needs to say or write or email or whats-app or SMS “talaq-talaq-talaq” and the marriage is dissolved instantly. The couple become haram for one another.
  2. Talaq-e-Hasan: In this form of divorce a husband needs to say or write or email or whats-app or SMS “talaq-talaq-talaq” and he waits for 3 months (3 menstruation cycles). Within this period, he is allowed to withdraw the divorce.
  3. Talaq-e-Ahsan: In this form of divorce a husband needs to say or write or email or whats-app or SMS “talaq(once only)” and he waits for 3 months (menstruation cycles). Within this period, he is allowed to withdraw the divorce. The difference between “Talaq-e-Hasan” and “Talaq-e-Ahasan” is that in the later: the man can re-marry her wife without doing halala (making his wife marry, have sex with another man and then take divorce) for 3 times. But in “Talaq-e-Hasan” the woman has to undergo halala after one divorce.

The “The Muslim Women (Protection of Rights on Marriage) Act, 2019” passed by Modi Govt outlaws “Talaq-e-biddat” i.e. instant triple talaq. The two other forms of divorce are still lawful. If a man develops extra marital affair, he just needs to wait for 3 months to dump his wife and children.

Why these forms of unilateral divorce (which can used by men to divorce their wives) violate Articles 14, 15 and 21?

  1. Article 14 clearly states that there shall be equality before law and equal protection of law for every citizen. In any form of unilateral divorce by men, women don’t have the equal protection of law as men. An woman has to approach the Qazi for dissolving a marriage. But a husband can simply abandon his wife and children of his own whim.
  2. Article 15 clearly states that no person can be discriminate on basis of religion or sex. Here, a Muslim woman gets no protection in comparison to a Hindu or Christian woman. Also a Muslim woman has no protection for her marital life in comparison to a Muslim man.
  3. Article 21 states that no one can be deprived of his/her life and liberty except by authority of law. The Supreme Court has expanded the definition of “life”. “Life” means “leading glorious life”.  If a Muslim man dumps his wife and children in 3 months without any means of living doesn’t account to a glorious living.

Hence, it is important that Talaq-e-Hasan and Talaq-e-Ahasan are declared unconstitutional to uphold the noble values of our Constitution.

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