The Supreme Court of India on Monday issued notice in plea filed by Muslim women living in Karnataka seeking to declare “All forms of Unilateral Extra-Judicial Talaq including Talaq-E-Kinaya and Talaq-E-Bain ” as void and unconstitutional for being arbitrary.

A Muslim doctor has approached the Apex Court requesting for declaring all forms of unilateral extra-judicial Talaq including Talaq-e-Kinaya and Talaq-e-Bain” as unconstitutional and void for being arbitrary, irrational and against the fundamental rights to equality, non-discrimination, life and freedom to practice religion.

The petition was filed by Dr Syeda Ambreen who has asked the court to direct the Centre for framing guidelines for a gender and religion neutral uniform grounds of divorce with uniform procedure of divorce for all citizens.

In the case, the the petitioner, who completed MS in Obstetrics and Gynaecology from Karnataka, moved a writ petition filed through advocate Anantha Narayana M G, statin that she suffered verbal, mental, financial and physical harassment from her doctor husband and his family for dowry soon after her marriage on October 20, 2020.

The petitioner said that last year on September 19, 2021, she was beaten up by her husband, sister-in-law, mother in law, and father in law, which resulted in grievous injuries and she had to undergo major operation a day after.

She further told her agony to Court stating that post her operation, her inlaws dumped her at her parents’ home without handing over her discharge summary, medical reports and records.

She said she was not even informed about her requirement for regular dressing, due to which wound was gaped and another minor surgery had to be performed after 45 days of regular dressing in December 2021.

While she was in the worst phase of her health, her husband, along with all in-laws, had blocked communication with her and family.

In January, 2022, she recieved a letter prefilled letter from ‘kazi’ office arrived (common letter sent to all, stating take khula or talaq will be sent). When she approached kazi, they handed over one letter, telling it is from her husband, with eight to ten generalized and vague allegations.

The Kazi also said that as per the letter due to all these conditions, it is not possible for her husband to continue this relation and she is relieved of matrimonial relationship, her plea claimed.

The plea said that these words are called Kinaya words (ambiguous words or unclear form e. g. I free you, you are free now, you/this relation is haram on me, you are separated from me now, etc ) through which Talaq-e-Kinaya/Talaq-e-Bain (instantaneous and irrevocable and extra-judicial form of talaq, in single sitting, either pronounced or in written/electronic form) is given.

Though time was sought for recovery of health there were still continuous pressure from in-laws and Kazi to take ‘khula’ or further Talaq-e-Hasan notices would be sent on monthly basis.

She also claimed that not a single mediation with husband and wife was attempted by Kazi and instant, irrevocable and unconstitutional talaq practice was entertained, bypassing Madhya Pradesh High Court’s January 2022 guidelines stating “Kazi can just act as mediator to settle disputes but can’t adjudicate them and pass orders like a decree.

In her plea, she sought for a declaration that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 is void and unconstitutional for being violative of Articles 14, 15, 21, 25 of the Constitution. She added that Section 2 of Shariat validates the practice of “Talaq-e-Kinaya and Talaq-e-Bain” and other forms of unilateral extra-judicial talaq.

The petitioner has listed the following grounds for declaring section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 void:
(1) Unilateral divorce has profound consequences on the quality of justice rendered in the country .
(2) The Constitution does not give absolute protection to the personal law of any community which is unjust, nor exempts personal laws from the jurisdiction of the Legislature or the Judiciary.
(3) Entry-5 of List-III in the Schedule-7 confers power on the Legislature to amend and repeal existing laws or pass new laws in all such matters like divorce and marriage governed by personal laws
(4) Article 25 is subject to public order, morality and health and to the other provisions of Part-III” and the Constitution does not preclude the State from introducing social reforms and enacting laws on subjects traditionally associated with religion.
(5) In Shayara Bano v Union of India (2017) (triple talaq), the SC held another portion of Section 2 of the Shariat Act ultra vires the constitution, on the ground that the practice of was manifestly arbitrary.
(6)Most important that the right to freely profess, practice and propagate one’s religion is subject to the idea of equality, to which the practice of Talaq-e-Kinaya/Talaq-e-Bain and all other forms of unilateral extra judicial talaq is abhorrent

A plea has been filed in the Supreme Court challenging the constitutional validity of the Madhya Pradesh Freedom of Religion Ordinance, passed by the Government of Madhya Pradesh. 

The petition filed by Advocate-On-Record Aldanish Rein states that the ordinance passed by the Governor bypassing the legislative process of Assembly, is not only arbitrary and violative of Article 14 of the Constitution of India but is also a fraud on the Constitution itself. 

He further states that “…the impugned Ordinance in transgressing upon the freedom to marry, freedom to profess, practice and propagate any religion, and right to privacy, has guillotined the individuals’ personal autonomy, equality under the law, personal liberty and the freedom of choice and expression, in blatant and flagrant violation of the fundamental rights of the individuals as guaranteed under Articles 14, 19, 21 and 25 of the Constitution of India, 1950.”

He points out that the impugned ordinance has adopted its basic structure from the The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 and The Uttarakhand Freedom of Religion Act, 2018 who’s constitutional validity is already under challenge before the Supreme Court.

The petition says;

“…it is unfortunate that the political and communal gimmick of ‘Love Jihad,’ which was earlier solely confined to the ‘Us vs Them’ narrative espoused by fake-propaganda machines (eg. ‘WhatsApp University,’ shady social media outlets, etc.), political rallies and societal fringes, has manifested itself as a legislation.”

“..The impugned Ordinance promulgated by the Respondents is a text book example of blatant abuse of the powers vested under Article 213 of the Constitution. The action of the Respondents in promulgating ordinances, bypassing the legislative process of Assembly, is not only arbitrary and violative of Article 14 of the Constitution but is also a fraud on the Constitution itself.”

The petitioner claims that there is no data available with any government agency or department on ‘love jihad’ and that it was not a fit case for issuing an ordinance. The ordinance was made in haste and with absolute disregard to the impact that it could have on the fundamental rights of affected parties.

The petitioner has cited various case laws pointing out the seemingly illegal provisions that are laid down in the ordinance.

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The 3 judge bench of Justices RF Nariman, Surya Kant and V Ramasubramaniam today struck down Section 87 of the Arbitration and Conciliation Act 1996 which negated the effect of the 2015 amendment to the statute on arbitral or court proceedings instituted before 2015.

The apex court held the provision ‘manifestly arbitrary’ in Hindustan Construction Company v Union of India.

Justice RF Nariman, on a previous hearing in the case, had told the Solicitor General that the provision “put the clock back,” further stating that the world over, the 2019 amendment was being criticized. He had in fact pointed out the loopholes in the amending law, at the 3rd ICC India Arbitration Day in Delhi on September 14, 2019 along with the fact that the recommendations by Justice BN Srikrishna Committee did not reflect in the 2019 Amendment Act.

Section 87 was inserted in the Act by The Arbitration And Conciliation (Amendment) Act, 2019 with retrospective effect from 23rd October, 2015. It reads:

“87. Unless the parties otherwise agree, the amendments made to this Act by the Arbitration and Conciliation (Amendment) Act, 2015 shall—

(a) not apply to––

(i) arbitral proceedings commenced before the commencement of the Arbitration and Conciliation (Amendment) Act, 2015;

(ii) court proceedings arising out of or in relation to such arbitral proceedings irrespective of whether such court proceedings are commenced prior to or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015;

(b) apply only to arbitral proceedings commenced on or after the commencement of the Arbitration and Conciliation (Amendment) Act, 2015 and to court proceedings arising out of or in relation to such arbitral proceedings.”

The insertion of Section 87 nullified the effect of the Supreme Court judgment in BCCI v Kochi Cricket Pvt Ltd.  (2018) which held that the 2015 amendment to Section 36 will apply only to:

(a) arbitral proceedings commenced on or after October 23, 2015 (date of commencement of the Amendment Act); and

(b) arbitration-related court proceedings filed on or after October 23, 2015, even where the arbitral proceedings had been commenced before the amendments came into force.

 — India Legal Bureau