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Why triple talaq is unconstitutional: A legal perspective

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Recently on the question of the constitutional validity of triple talaq and polygamous marriage, the Honourable Supreme Court (SC) has framed an issue “Whether personal laws are law within the meaning of Art 13 (1) of the Constitution of India”. In a number of earlier decisions, the SC has held that personal laws are not law within the meaning of Art. 13(1).

My humble opinion is that the view of the SC as stated above is not correct. The SC has proceeded on the premise that Art. 13(1) is the source of the protection of fundamental rights whereas the truth is that Art. 13 is not the source but merely an expression of the protection. To put it in simple words, imagine that Art. 13 was not present at all in Part III of the Constitution. In that case, could any law or law in force contravene or be inconsistent with the provisions of part III of the Constitution? The answer is simple, that the constitution is supreme and all laws are subject to the provisions of the Constitution.

To give an example, if the Parliament makes a law on a matter included in the State List of the 7th Schedule then such a law is unconstitutional. Art. 13 protects Part III from violation. However, there is no other article which protects the remaining parts of the Constitution. Yet, all parts of the Constitution are protected from contravention or violation.

Personal laws confer certain rights and obligations on individuals which are enforceable in the court of law. There is absolutely no reason to give such laws a primacy over the sacrosanct and supreme provisions of our Constitution. Moreover, The Shariat Act 1937 makes the Muslim personal law or Sharia applicable to Muslims. That gives personal law of Muslims a statutory recognition. Hence, it will come within the term “all laws in force” in Article 13(3) of the Constitution.

The definition of Law & Law in force in Art.13(3) is an inclusive definition and not an exhaustive one. Having regard to the sacrosanct nature of the fundamental rights it will be odious to hold that it was the intention of the framers of the Constitution to exclude the personal laws of any religion from the purview of the fundamental rights. Even the freedom of religion under Art.25 is not absolute, being subject to public order, health and morality. Further, the provisions of the Muslim personal law in criminal matters have long been abolished with no complaints from the community. Hence the only point for consideration remains as to whether arbitrary triple talaq and allowing 4 wives to Muslim males and denying the same right to Muslim female are violation of Articles 14 and 15 and 21 of the Constitution of India. As far as Art.25 is concerned these two rights of talaq and polygamy in favour of Muslim males are not the essential tenets of Islam.

To sum up, our Constitution is Sovereign, Supreme and Sacrosanct. There is nothing that can go against the provisions of the Constitution. The fundamental rights provided in the Constitution can only be curtailed to the extent expressly provided in the Constitution. Triple talaq gives the husband an arbitrary right to get rid of his marriage, for which he need not assign any reason whatsoever. This amounts to a violation of the Muslim woman’s right to live with dignity which is guaranteed to her under Article 21 of the Constitution. Hence, triple talaq is unconstitutional and needs to be struck down by the Honorable Supreme Court of India.

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