Thursday, June 1, 2023

Supreme Court verdict in Shayara Bano case will apply to triple talaq prior to judgment: Jammu and Kashmir HC

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The Jammu and Kashmir High Court has observed that the Supreme Court judgment in the Shayara Bano case would apply to the ‘triple talaq’ pronounced prior to passing of the said judgment.

A Single Bench of Justice Sanjeev Kumar passed this order, while hearing a petition filed by Showkat Hussain.

The petition has been filed under Section 482 IPC, seeking to recall the judgment dated November 7, 2019 passed by the Court to the extent of relying upon and applying the judgment of Supreme Court rendered in the case of ‘Shayara Bano vs Union of India and others,’ (2017) with regard to the ‘triple talaq’ pronounced in 2014.

The grievance projected by the petitioner in the plea is that the Court disposed of its judgment dated November 7, 2019, relying primarily on the judgment of the Supreme court in the case of Shayara Bano.

It is contended that the said Judgment was pronounced in 2017, whereas in the instant case, the divorce or ‘triple talaq,’ was pronounced in 2014.

It is further contended that the judgment in the case of Shayara Bano (supra) could not have been applied to declare the validity of triple talaq pronounced in 2014.

The argument raised is not tenable for the reason that the judgment rendered in the case of Shayara Bano, if not made to operate prospectively specifically, is to be treated as retrospective and applicable even to the pending cases, the Court said.

“The Supreme Court, while declaring the triple talaq as null and void in the eye of law in the case of Shayara Bano, did not specifically make the judgment to operate prospectively and that being the position, the law declared by the Supreme Court in Shayara Bano’s case would apply equally to the triple talaq pronounced prior to passing of the said judgment. For this reason, no case is made out to recall the judgment dated November 7, 2019,” the Court observed.

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Accordingly, the Court dismissed the Petition.

In the matter, a ‘husband’ had approached the High Court, seeking to quash proceedings initiated under the Domestic Violence Act against him, contending that he had already divorced his wife.

It is contended that a divorced wife was not “an aggrieved person” to maintain the petition under Section 12 of the Act. Dismissing his petition, the Court held that he failed to prove the factum of divorce and that the form of divorce – triple talaq in one go is null and void in view of the law laid down by the Supreme Court in case of Shayara Bano and Ors vs Union of India.

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