Jammu & Kashmir and Ladakh High Court: Sanjeev Kumar, J., held that the judgment of Shayara Bano v. Union of India,(2017) 9 SCC 1has retrospective application and can be invoked to declare triple talaq pronounced before Shayara Bano’s judgment null and void.
The instant petition was filed under Section 482 Penal Code, 1860 seeking to recall the judgment dated 07-11-2019 passed by the High Court in Showkat Hussain v. Nazia Jeelani, 2019 SCC OnLine J&K 892, to the extent of relying upon and applying the judgment of Supreme Court rendered in the case of Shayara Bano v. Union of India, (2017) 9 SCC 1 with regard to the ‘triple talaq’ pronounced in the year 2014.
It was contended that the said Judgment was pronounced in the year 2017, whereas in the instant case, the divorce i.e., ‘triple talaq’ was pronounced in the year 2014. It was further contended that the judgment in the case of Shayara Bano could not have been applied to declare the validity of ‘triple talaq’ pronounced in the year 2014.
Opining that the argument raised was not tenable, the Bench stated that the judgment rendered in the case of Shayara Bano, if not made to operate prospectively specifically is to be treated as retrospective and applicable even to the pending cases. The Bench explained, while declaring the ‘triple talaq’ as null and void in the eye of law in the case of Shayara Bano, the Supreme Court did not specifically make the judgment to operate prospectively and that being the position, the law declared by the Supreme Court in Shayara Bano’s case would apply equally to the ‘triple talaq’ pronounced prior to passing of the said judgment.
In the backdrop of above, the Bench held that no case was made out recall the judgment and dismissed the instant petition.[Showkat Hussain v. Nazia Jeelani, CRM (M) 308 of 2019, 16-08-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Petitioner: Advocate Showkat Ali Khan
For the Respondent: Advocate H.U.Salati