Arbitrary exercise of power of Talaq, a violation of fundamental rights

Allahabad High Court: While considering an application filed under Section 482 CrPC the Single Bench of Surya Prakash Kesarwani, J. has observed that Talaq by a Muslim husband to his wife cannot be made in a manner which may infringe her fundamental rights guaranteed under Articles 14 and 21 of the Constitution.

In the instant case, the opposite party had moved a complaint before Addl. Chief Judicial Magistrate against her husband, mother-in-law and father-in-law for beating her, ousting her from their house, and demanding dowry from her parents. Consequently, Addl. Chief Judicial Magistrate, passed an order under Section 204 of CrPC summoning the applicants under Section 498-A, 323, 504, 506 of IPC and Sections 3 and 4 of Dowry Prohibition Act. The applicant contended that since he had divorced his wife by way of Triple Talaq and the same has been approved by a Fatwa, the complaint case proceedings were null and void.

The Court observed that the Articles 14 and 21 of the Constitution entitle Muslim Women to live with dignity and to oppose the arbitrary exercise of the power of Talaq by her husband, such as the mere pronouncement of the word ‘Talaq’ thrice at a time, as allegedly done by the applicant-husband. The Court further added that since a ‘Fatwa’ does not emanate from any judicial system recognized by law, it is not binding on anyone. Therefore, the complaint case proceedings could not be challenged on the basis of the alleged divorce or the fatwa. Moreover, the statements of the opposite party and the witnesses recorded under Section 200 and 202 of CrPC made out a prima facie case against the applicants. Hence, the exercise of the power under Section 482 of CrPC was not warranted. [Aaqil Jamil v. State of Uttar Pradesh, 2017 SCC OnLine All 1325, decided on  19.04.2017]