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Divorcee plea against talaaq mode dismissed

By A. Subramani

CHENNAI DEC. 27 . A divorcee's petition seeking to declare the Talaaq-ul-biddar form of divorce under the Shariat Act void and unconstitutional was dismissed by the Madras High Court today.

Ruling that Parveen Akthar's apprehension was based on a misunderstanding of the law, a Division Bench comprising Justice R. Jayasimha Babu and Justice E. Padmanabhan said: "Having regard to the law recently declared by the Supreme Court, talaaq in whatever form must be for a reasonable cause and be preceded by attempts at reconciliation by arbitrators from the families of each of the spouses".

Ms. Parveen contended that the talaaq-ul-biddar or talaaq-i-badal was not a mode recognised in the Quran and that the holy book provided for reconsideration and reconciliation before recognising divorce as `irrevocable'. Stating that this form of divorce resulted in untold misery and harm to the divorced wives and their children, she prayed that Section 2 of the Muslim Personal Law (Shariat) Application Act 1937 be declared illegal.

The petitioner was 27-years-old when her husband intimated, through her father, that he had pronounced talaaq in the presence of two witnesses in a single sitting in May 1991. She had married Y.Md. Ismail Farookh in February 1990. Ms. Parveen, a typist in the Public Works Department, also alleged dowry harassment by her husband.

The respondents said this form of talaaq, though sinful, had been recognised for long time and that the courts had held that talaaq-ul-biddar, though bad in theology, was good in the law. Any modification in the personal law could be done only by the statute and it could not be regarded as being violative of any right enshrined in the Constitution.

The Additional Solicitor-General of India, V.T. Gopalan, representing the Law Ministry, submitted that the personal law fell outside the ambit of the Constitution and hence declaring any part of the personal law of any section as void on account of its being `inconsistent' with the constitutional rights did not arise.

The bench said the Shariat Act was clearly legislation dealing with personal law. Hence, "having regard to the decision of the Supreme Court, Section 2 of the Act, in whole or in part, cannot be declared void or unconstitutional by reason of any inconsistency with the Constitution".

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