New Delhi: The Supreme Court on Friday observed that if Islam allowed a man four wives, then the husband can marry a second time even without ‘talaq’.
Making this oral observation, Chief Justice T S Thakur -- heading a three-judge Bench -- indicated that prima facie there was nothing wrong in a Muslim man having four wives without divorcing the first wife.
The Bench, which also included Justice A M Kanwilkar and D Y Chandrachud said unless and until the constitutionality of the ‘triple talaq’, permitted under the Muslim personal law, is struck down by court, a man can divorce his wife by pronouncing the phrase thrice.
The CJI told V K Biju, counsel for petitioner Ishrat Jahan of Howrah, “We have seen that you have challenged the constitutionality of the ‘triple talaq’. But until it is determined, he (husband) is entitled to have four wives. Even without ‘talaq’, he can marry again.”
The CJI made the oral observation after Ishrat Jahan had complained that husband Murtuza Ansari married another woman after pronouncing ‘triple talaq’ to her from Dubai.
When counsel complained that her husband had taken away her four children and that they should be secured as the police had failed to register an FIR, the CJI asked the petitioner to file a habeas corpus petition in the Calcutta High Court.
The Bench, however, issued notice on her petition challenging ‘triple talaq’ and directed this petition be tagged with similar petitions in which the response of the Centre and the All India Muslim Personal Law Board had already been sought.
In her petition, Jahan had prayed for a direction against the Union of India and others for a declaration that practice of ‘talaq-e-bidat’ (triple-talaq), ‘nikah halala’ and polygamy under Muslim personal laws as illegal and unconstitutional.
She sought a further direction to declare the Talaq pronounced by her husband Murtuza Ansari against her as ‘invalid from the outset’ for being illegal, unconstitutional, and violative of Articles 14, 15, 21 and 25 of the Constitution. She prayed the court to pass further orders to provide a life of dignity to Muslim women.
Contending that the whereabouts of her children were not known, she sought an interim direction to the West Bengal police to find out the whereabouts of her three daughters and a son -- Shaista Khatoon, Kahkasha Khatoon, Bushra Khatoon and Mohammad Zaid Afzal.
She also sought a direction to grant her protection from any attack by her husband or his relatives and to grant maintenance for her and children.
She said this case is a classic example of misusing Sec. 2 of the Muslim personal law (Sheriyat Application Act, 1997), which provide for ‘triple talaq’. She said her husband took away the four kids between the ages 7 and 12 after saying ‘talaq, talaq talaq’ over phone to her and had remarried.
Pointing out that Muslim women suffer in view of this provision, she said 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.
She pointed out that 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.