Talak and Article 15 Whether Discriminatory on the ground of Religion
As already noted, the Supreme Court in Zohara Khatoon, has pointed out
that Talak being a divorce imposed unilaterally by the husband on the wife is
especiaily peculiar to Mahomedan Law and in no other law has the husband got a
unilateral right to divorce his wife by a simple declaration, because other laws
contemplate only a dissolution of marriage on certain grounds brought about by
one of the spouses in a Court of law.
Were it not for the protection of Art. 25 undoubtedly the law would be in
violation of Art. 15(1) since in no other law has the husband such a despotic
power of unilateral annulment of marriage. Such a power is especially peculiar
to Muslim Law, and only in Muslim Law a wife has this especially peculiar,
pathetic and precarious lot of being externed out of wedlock at the will and
pleasure of her husband by his ex parte unilateral action.
The fact that Muslim wives alone are so adversely discriminated against is a
good ground for amending the law for their welfare and as a socially reformative
measure under Art. 25(2). An additional reason for statutory intervention is
that talak-ul-bidaat is also contrary to morality under Art. 25(1) as it is
accepted by all schools of Muslim Personal Law law that talak-e-bidaat is
sinful, and although good in law is bad in theology. Besides, the rights of
Muslim women to divorce have already been codified under the Dissolution of
Muslim Marriage Act 1939.
It would be in consonance with all Constitutional principles if the provisions,
after suitable amendments, were extended to men as well.
Talak and Article 15 Whether Discriminatory on the ground of Sex:
While a husband married under Muslim Law can unilaterally obtain a divorce
without any court proceedings by resorting to Talak, a wife married under that
law cannot unilaterally get rid of the marital tie. She can have a unilateral
extra-judicial divorce by Talak-i-Tawfeez only when such power has been
conferred on her by the husband.
She can have extra-judicial divorce by the Khula or Mubaraat mode, but that
again only when her husband consents thereto. Without any such conferment of
power by her husband entitling her to exercise Talak-i-Tawfeez, or the consent
of her husband to a Khula or Mubaraat, the only way available to her to have her
marriage dissolved is to file in Court a suit therefor on one or more of the
grounds specified in the Dissolution of Muslim Marriage Act 1939.
Therefore, in the main, the position in law is that while a husband to a Muslim
marriage can untie the marital tie at any time and anywhere, a wife to such a
marriage has been denied any such power and cannot have the marriage dissolved
except through Court and that too only on one or more of the grounds specified
in the legislation.
The discrimination is obviously grounded on sex alone, that being the only
difference between a Muslim wife and a Muslim husband and all that has been said
earlier in this Chapter in respect of polygamy for the Muslim males and monogamy
for the Muslim females being discriminatory on the ground of sex alone, would
apply here with equal force.
For More Details on Muslim Law and Muslim Marriage and Divorce Law. Consult
Adv.T.Choudhury at ph no: 09650499965
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