Armed Forces Tribunal, Lucknow: The Division Bench comprising of D.P Singh, J and Air Marshal Anil Chopra stating that Constitution is the mother of all the laws and has overriding effect over Personal Law as well as other provisions, practices or usage which offend the constitutional right of persons, collectively or individually, held that Triple Talaq by ex parte is Un-Islamic, inhuman and unconstitutional.
By observing all the aspects of the Muslim Personal Laws in relation to marriage and divorce in the relation to Constitutional Principles. The Court stated the following findings:
- Nikah is based on offer and acceptance between man and woman. Unless both agree, there can’t be Nikah and on the same analogy, the declaration of talaq must be done in the presence of wife and only if both agree, talaq would be executed. In the disagreement, wife is left with the option to file the Regular suit for divorce where the court may accept or refuse the grant of talaq by looking into the grounds of both the parties.
- The sweep of Article 14 and 21 of the Constitution covering rationality and fairness along with dignity and quality of life shall override the right conferred by Article 25 and 26 of the Constitution. A lady cannot be compelled to marry again to another person before marrying her husband again after talaq as a condition. It is humiliating and against the dignity of a lady.
- In Muslim Law, marriage is a contract and Constitution of India doesn’t entitle the husband to rescind contract, orally, by notice or by ex parte decisions, hence seems to be unsustainable.
- In appropriate case, a person may be charged under the Penal Code (supra) for abusing his position as husband whether it is for the purpose of divorce or remarriage.
- The Collective Rights of the Citizens protected by the Part III of the Constitution may not be infringed under grab of the Personal Laws.
- The declaration of the oral triple talaq by ex parte proceedings may not be given force by government machinery or the courts hen the subject matter being contrary to the constitutional ethos.
- The Army Authorities ordered for the grant of maintenance to wife in pursuance to power conferred by Section 96 of the Army Act, 1954 read with Army Orders is perfectly within jurisdiction and calls for no interference.
- Women of every religion of the country are protected by the Constitution of India. No one has right to go against it in the shadow of personal law.
The Applicant had filed a petition under Section 14 of the Armed Forces Tribunal Act, 2007 being aggrieved with payment of maintenance to his wife, allegedly divorced under the Muslim Personal Law and had contended that his wife was entitled to maintenance for the period of Iddat only. The Tribunal rejected the claim of the applicant for lack of merit. [Lance Naik v. Chief of Army Staff, Original Aplication No. 287 of 2012, decided on 25-05-2016]
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