Case BriefsHigh Courts

Dismayed as to how all of a sudden that too in the middle of an academic term the issue of hijab is generated and blown out of proportion, Court remarked that some ‘unseen hands’ are at work to engineer social unrest and disharmony in the way ‘hijab imbroglio’ unfolded.


Let’s breakdown the Hijab Case in the simplest way:


What was the issue?

The whole issue was the aftermath of a Government Order dated 5th February, 2022 issued under the Karnataka Education Act 1983 by the State of Karnataka.


What did the Government Order state?

The order directs the College Development Committees all over the State to prescribe ‘Student Uniform’, presumably in terms of Rule 11 of Karnataka Educational Institutions (Classification, Regulation & Prescription of Curricula, etc.) Rules, 1995.


What did the interim order of the Court state?

While expressing that, “Endless agitations and closure of educational institutions indefinitely are not happy things to happen”, the Bench of Ritu Raj Awasthi, CJ and Krishna S Dixit and JM Khazi, JJ., restrained all the students regardless of their religion or faith from wearing saffron shawls (Bhagwa), scarfs, hijab, religious flags or the like within the classroom, until further orders.


What did the detailed Judgment pronounce today, consist of?

Four Key questions were dealt with, the first one was:

Q.1 Whether wearing Hijab is a part of essential religious practice in the Islamic faith protected under Article 25 of the Constitution?

  • Since ages, India is a secular country. For India, there is no official religion, inasmuch as it is not a theocratic State. The State does not extend patronage to any particular religion and thus, it maintains neutrality in the sense that it does not discriminate against anyone on the basis of religious identities per se.
  • Essential Religious Practices should associate with Constitutional values. The person seeking refuge under the umbrella of Article 25 of the Constitution has to demonstrate not only essential religious practice but also its engagement with the constitutional values.
  • Holy Quran does not mandate the wearing of a Hijab or Headgear for Muslim women.

“…at the most is a means to gain access to public places and not a religious end in itself. It was a measure of women enablement and not a figurative constraint.”

  • What is not religiously made obligatory therefore cannot be made a quintessential aspect of the religion through public agitations or by the passionate arguments in courts.
  • It is not that if the alleged practice of wearing hijab is not adhered to, those not wearing hijab become the sinners, Islam loses its glory and it ceases to be a religion.

Therefore, wearing of hijab by Muslim Women does not form a part of essential religious practice in Islamic faith.


Q.2 Whether there is power to prescribe dress code in educational institutions?

  • No reasonable mind can imagine a school without a uniform.
  • The power to prescribe uniform as of necessity inheres in every school subject to all just exceptions.

“…it is impossible to instill the scientific temperament which our Constitution prescribes as a fundamental duty vide Article 51A(h) into the young minds so long as any propositions such as wearing of hijab or bhagwa are regarded as religiously sacrosanct and therefore, not open to question. They inculcate secular values amongst the students in their impressionable & formative years.”

“It is nobody’s case that the dress code is sectaraian.”

  • Stating that the Court has no quarrel with petitioners’ essential proposition that what one desires to wear is a facet of one’s autonomy and that one’s attire is one’s expression, but the same is subject to reasonable regulation.
  • It is too far-fetched to argue that the school dress code militates against the fundamental freedoms guaranteed under Articles, 14, 15, 19, 21 & 25 of the Constitution and therefore, the same should be outlawed by the stroke of a pen.
  • Adherence to the dress code is a mandatory for students.

Hence, the prescription of school uniform is only a reasonable restriction constitutionally permissible which the students cannot object to.


Q.3 Validity of Government Order dated 5th February, 2022 providing for prescription of dress codes in educational institutions?

  • The said order per se does not prescribe any dress code and it only provides for prescription of uniform in four different types of educational institutions.
  • Wearing hijab is not an essential religious practice and school uniform to its exclusion can be prescribed.

“…hardly needs to be stated that uniform can exclude any other apparel like bhagwa or blue shawl that may have visible religious overtones.”

Hence, the government has power to issue the impugned Order dated 5th February, 2022 and that no case was made out for its invalidation.

  • Prescription of school dress code to the exclusion of hijab, bhagwa, or any other apparel symbolic of religion can be a step forward in the direction of emancipation and more particularly, to access to education.

Q.4 Whether any case is made out in WP 2146 of 2022 sought the issuance of direction for initiating disciplinary inquiry against respondents 6 to 14 and for issuance of quo warranto against respondents 15 and 16?

  • The college can prescribe uniform to the exclusion of hijab or bhagwa or such other religious symbols, and therefore, the alleged act of the respondents in seeking adherence to the school discipline & dress code cannot be faltered.
  • For seeking a Writ of the said nature, one has to demonstrate that the post or office which the person concerned holds is a public post or public office.
  • The Court opined that respondents 15 & 16 do not hold any such position in the respondent school.

Hence, no case is made out in W.P. No.2146/2022 for issuance of a direction for initiating disciplinary enquiry against respondents 6 to 14. The prayer for issuance of Writ of Quo Warranto against respondents  15 and 16 is rejected being not maintainable.

[Resham v. State of Karnataka, 2022 SCC OnLine Kar 315, decided on 15-3-2022]


Hijab Row | Karnataka HC upholds Hijab Ban: Read Questions formulated by HC while pronouncing verdict

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit dismissed the petition being devoid of merits.

 The facts of the case are such that the parties are Sunni Muslims who contracted marriage in March 1991 and the marriage was a short lived one as the wife complained of dowry harassment and the petitioner husband uttered talaq and paid 5000 to her as mehr amount and additional 900 as her maintenance amount during iddat. The ex wife filed a civil suit for maintenance on grounds that the ex husband got married and has a child too wherein he was acquitted. A suit was thus instituted by the wife where the decree was given in favour for which she sought enforcement by filing an execution petition wherein the petitioner husband was sent to civil prison due to non payment but was later released. The petitioner husband then filed the instant writ petition after his interim application under Order XXI Rule 37 Civil Procedure Code, 1908 i.e. CPC seeking determination of his financial capacity got rejected.

Issues:

  1. Whether a Muslim is duty bound to make provision for his ex wife beyond iddat despite paying paltry Mehr if she remains un-remarried and is incapable of maintaining herself?
  • Contention: In Islam, Marriage is a civil contract.

The Court observed that marriage in Islam is not a sacrament unlike a Hindu marriage as it crowns the parties with status like husband, wife, in-laws, etc; if children are born, they earn the promotional status of father and mother and of grandparents and even when marriage is dissolved only the spousal tie is torn and the status comes to an end however the blood of divorced spouses flows in the veins of their children and grandsire, and demise of a spouse renders the other a widow/widower and succession also gets effected. Hence all the above shows that marriages even in Islam begins with the contract but graduates to the status as in any other community and thus gives rise to certain justifiable obligations and they are ex contractu.

Thus, even on dissolution by divorce will not annihilate all the duties and obligations of parties by lock, stock & barrel in law and new obligations may arise including providing sustenance to the ex wife who is destituted by divorce.

  • The Holy Quran also suggests to the fact that a pious Muslim owes a moral/religious duty to provide subsistence to his destitute ex wife:

“When you divorce women, and they (are  about to) fulfill the term of their (iddat), either take them back on equitable terms or set them free on equitable terms, but do not take back to injure them (or) to take undue advantage, if anyone does that, he wrongs his soul…”(Surah Al Bakhra Aiyat No.231);

“There is no sin on you, if you divorce women while you have not touched (had sexual relation with) them nor appointed them unto their Mehr, but bestowed on them (as suitable gift) the rich according to his means and the poor according to his means, a gift reasonable amount is a duty on  the doers of good” (Surah Al Bakhra Aiyat No.236). 

  • The Court relied on Danial Latifi v. UOI, AIR 2001 SC 3958, observed that in Islamic jurisprudence, ordinarily, the right of an ex-wife to maintenance does not extend beyond iddat however this norm has to be subject to the rider that the amount paid to the ex-wife, be it in the form of mehr or be it a  sum quantified on the basis of mehr, or otherwise, is not an  inadequate or illusory sum; it is a matter of common  knowledge that more often than not, mehr is fixed  inadequately, bride-side lacking equal bargaining power inter  alia because of economic & gender-related factors; this is not  to say that the inadequacy of mehr would affect the validity of nikah, that being altogether a different matter. It was further observed that for how long the right to maintenance enures to a  divorced muslim wife, largely is no longer res integra; subject  to all just exceptions, the duty of a muslim to provide  sustenance to his ex-wife is co-extensive with her requirement, the yardstick being the life essentials and not  the luxury. Hence a muslim is duty bound to make a reasonable & fair provision for the future of his divorced wife, and this duty, as of necessity, extends for a period beyond iddat.
  • The Court relied on Keshvananda Bharati v. State of Kerala, AIR 1973 SC 1461 and observed that if an illusory compensation for the public acquisition of private property is ‘no compensation’, then the reason & justice tell us that an illusory mehr cannot be the basis for the quantification of the amount of maintenance nor for limiting its duration to iddat. The analogy of “illusory compensation” is logically invocable since the payment of amount by the husband as mehr on talaq, by its very nature has compensatory elements. The tokenistic amount of Rs.5,000/- paid by the husband to the ex-wife as mehr or its quantification on  the basis of mehr, is militantly unjust and illusory; the  petitioner has paid another paltry sum of Rs.900/- to the  respondent ex-wife as maintenance during iddat i.e., for a  period of about three months, only celebrates the inadequacy & illusoriness; this amount will not be sufficient to buy a cup  of popcorn a day from the street carter too.
  1. Whether a decree for maintenance like any other money decree can be resisted on the ground of lack of financial capacity of the judgment debtor?

The Court observed that the decree in question is not a money decree and the decree holder is not a ‘money lender’ instead it is a hapless divorced woman who has secured a decree for her maintenance after years of struggle; she is relentlessly battling for its enforcement; it is a distinct case involving the jural correlatives resting on the shoulders of ex-spouses by virtue of Talaq. Hence, the maintenance jurisprudence as developed by legislative & judicial process in this country shows that this right to sustenance is not founded on contract; courts have repelled the argument of financial incapacity while awarding maintenance when the husband has an able body; therefore, the pecuniary incapacity of the judgment debtor that ordinarily avails as a ground for resisting the execution of a money decree does not come to the rescue of the petitioner.

  1. Whether a Muslim contracting another marriage and begetting children from it can resist execution of the maintenance decree obtained by his ex wife, on that ground per se?

The Court observed that a Muslim hurriedly contracting another marriage after pronouncing talaq upon his first wife, cannot be heard to say that he has to maintain the new spouse and the child begotten from her as a ground for not discharging the maintenance decree; he ought to have known his responsibility towards the ex-wife who does not have anything to fall back upon; the said responsibility arose from his own act of talaq and prior to espousing another woman; the responsibility & duty owed by a person to his ex-wife are not destroyed by his contracting another marriage.

The Court held this Writ Petition being devoid of merits, is liable to be dismissed and accordingly, it is, with a cost of Rs.25,000/-; the learned judge of Court below is requested to accomplish the execution on a war footing and report compliance to the Registrar General of this Court within three months.”

[Ezazur Rehman v. Saira Banu, Writ Petition No. 3002 of 2015, decided 08-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


For Petitioners: Mr. K N Haridasan Nambiar

For Respondents: Mrs. Rashmi C

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ has held that there is no bar on granting anticipatory bail for an offence committed under the Muslim Women (Protection of Rights on Marriage) Act 2019, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail.

Background

On 27 August 2020, a Muslim woman lodged a first information report, complaining of offences under the provisions of Section 498-A read with Section 34 of the Indian Penal Code and the Muslim Women (Protection of Rights on Marriage) Act 2019, alleging that in December 2019, her husband pronounced talaq three times at their house. Following this, he entered into a second marriage.

The Kerala High Court, on November 2, 2020, while declining to grant anticipatory bail observed:

“If the prosecution case is correct, the 1st petitioner is now enjoying with his second wife when the matrimonial relationship with the de facto complainant is in existence.”

However, the order of the High Court contained no reason why the appellant, i.e. the mother-in-law of the complainant, was being denied anticipatory bail.

The first petitioner is the spouse of the complainant and second petitioner is the mother of the first petitioner. Supreme Court had, on December 3, 2020, refused to entertain the Special Leave Petition by the first petitioner and he was granted time to surrender before the competent court of jurisdiction and apply for regular bail.

The Court was now called upon to decide whether the High Court was right in refusing to grant anticipatory bail to the appellant i.e. the mother-in-law of the complainant.

Analysis

Who is punishable for the offence of pronouncement of triple talaq?

The Muslim Women (Protection of Rights on Marriage) Bill 2019 was introduced in the Parliament to give effect to the ruling of this court in Shayara Bano v. Union of India, (2017) 9 SCC 1, and “to “liberate” Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq) by Muslim men.”

The provisions of Section 7(c) apply to the Muslim husband. The offence which is created by Section 3 is on the pronouncement of a talaq by a Muslim husband upon his wife. Section 3 renders the pronouncement of talaq void and illegal. Section 4 makes the Act of the Muslim husband punishable with imprisonment.

“Thus, on a preliminary analysis, it is clear that the appellant as the mother-in-law of the second respondent cannot be accused of the offence of pronouncement of triple talaq under the Act as the offence can only be committed by a Muslim man.”

Does Section 7(c) of the Act bars the power of the court to grant anticipatory bail under Section 438 of the CrPC?

Under clause (c) of Section 7, Parliament has provided that no person who is accused of an offence punishable under the Act shall be released bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom the talaq is pronounced, is satisfied that there are reasonable grounds for granting bail.

The statutory text indicates that Section 7(c) does not impose an absolute bar to the grant of bail. On the contrary, the Magistrate may grant bail, if satisfied that “there are reasonable grounds for granting bail to such person” and upon complying with the requirement of hearing the married Muslim woman upon whom talaq is pronounced.

Hence, though Section 7 begins with a non obstante clause which operates in relation to the CrPC, a plain construction of Section 7(c) would indicate that it does not impose a fetter on the power of the Magistrate to grant bail, save and except, for the stipulation that before doing so, the married Muslim woman, upon whom talaq is pronounced, must be heard and there should be a satisfaction of the Magistrate of the existence of reasonable grounds for granting bail to the person.

“This implies that even while entertaining an application for grant of anticipatory bail for an offence under the Act, the competent court must hear the married Muslim woman who has made the complaint, as prescribed under Section 7(c) of the Act. Only after giving the married Muslim woman a hearing, can the competent court grant bail to the accused.”

Further, the legislature has not expressly barred the application of Section 438 of CrPC. The provisions of Section 7(c) of the Act must be distinguished from provisions which are contained certain other statutes which expressly exclude the provisions of Section 438 of the CrPC.

Hence, on a true and harmonious construction of Section 438 of CrPC and Section 7(c) of the Act, it was held that there is no bar on granting anticipatory bail for an offence committed under the Act, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail. It would be at the discretion of the court to grant ad-interim relief to the accused during the pendency of the anticipatory bail application, having issued notice to the married Muslim woman.

[Rahna Jalal v. State of Kerala, 2020 SCC OnLine SC 1061, order dated 17.12.2020]


*Justice Dr. DY Chandrachud has penned this order. Read more about him here

Advocates who appeared in the matter:

For Appellant: Advocate Haris Beeran,

For Second Respondent i.e. the complainant: Senior Advocate V. Chitambaresh, and advocate Harshad V. Hameed,

For State of Kerala: Advocate G. Prakash

Also read:

In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice set aside by a 3:2 majority

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Vipin Sanghi and Rajnish Bhatnagar, JJ., in regard to Triple Talaq observed that,

Prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat.

Issues in the instant petition have been pending for consideration before the Supreme Court in WP (C) No. 994 of 2019.

In view of the above, Bench stated that since the matter is pending before the Supreme Court, hence it would wait for the judgment of the Supreme Court.

Petitioners Counsel, Tarun Chandiok and Naseem Ahmed had moved the present application with the prayer that pending the consideration of the petition, all FIRs registered under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 be stayed.

Substantial Question of Law

Further, it added to its submissions that the minimum number of Judges who should sit for the purpose of deciding any case involving substantial question of law as to the interpretation of the constitution, or for the purpose of hearing any reference under Article 143 should be five.

Bench rejected the above-stated submission stating that there is no provision either in the Constitution or in any other law which required this Court to place the matter before a Larger Bench at this stage.

Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Bench noted that the present petition is not in the nature of a Public Interest Litigation. Hence Court denied invoking Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Petitioner also submitted that Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 declares the practice of triple talaq as popularly known, to be void and illegal.

What does the said provision state:

“any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”. Section 2(c) defines talaq to mean “talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband”.

Triple Talaq

Petitioner’s Counsel also added to its submissions that once triple talaq has been rendered void and illegal, there is no justification for criminalizing pronouncement of triple talaq, since such triple talaq would have no legal effect on the status of the Muslim Marriage.

Since it is of no consequence and does not end the marital status of the wife – who may be subjected to triple talaq, there is no purpose of penalising the said Act. Section 4 of the said Act provides “any Muslim husband who pronounces talaq referred to in Section 3 upon his wife shall be punished with imprisonment for a term which may extend to 3 years and shall also be liable to fine.”

Counsel relied on the decisions of the Supreme Court in Shayara Bano v. Union of India, (2017) 9 SCC 1 and Behram Khurshid Pesikaka v. State of Bombay, (1955) 1 SCR 613.

Bench held that,

“Legislation is presumed to be valid, unless it is declared to be invalid, or unconstitutional by a Competent Court, and is struck down.”

Court observed that the prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat i.e. triple talaq.

Purpose of Section 4 appears to provide a deterrent against such practice.

Merely because triple talaq has been declared to be void and illegal, it does not mean that the legislature could not have made the continuation of such practice an offence.

High Court in view of the above discussion, did not grant any interim relief. [Nadeem Khan v. Union of India, 2020 SCC OnLine Del 1336, decided on 13-10-2020]

Case BriefsHigh Courts

Madras High Court: While disposing of an appeal filed under Section 96 of the Code of Civil Procedure, 1908 the Single Bench of R.M.T. Teekaa Raman, J. held that a gift by a father to his minor child can be accepted by child’s mother under the Mohammedan Law.

 The plaintiff had filed a suit for partition and for permanent injunction against the defendants restraining them from alienating the suit properties. The plaintiff contended that suit properties were acquired by Hashim Saheb who possessed the same till he died intestate on 12.06.2004. The plaintiff and the third defendant were daughters,  Defendants 1 and 2 were sons and the fourth defendant was the widow of Hashim Saheb. The trial court found that Hashim Bai had executed a gift settlement in respect of most of the suit properties to his sons and thereby refused the relief of partition as claimed by the plaintiff. The plaintiff, in appeal, contended that at the time of execution of the Gift Deeds, the second defendant was minor and his mother had represented on his behalf and hence the same was not valid as under Mohammedan law women have no rights to act as guardian.

The High Court noted that Section 359 of Mulla’s Principles of Mohammedan Law which governs the guardianship of the property of the minors, describes that only the father or father’s father can act as a guardian. Further, the general rule under Section 156 requires that a gift to a minor by a person other than his father or guardian will be completed by delivery of possession to the father or guardian. However, the instant case falls under Section 155 which omits the requirement of transfer of possession when a father gifts property to his child. On a conjoint reading of Section 155 with that of Section 359, the Court concluded that when mother was the only person who could look after the interest of the minor, acceptance of the gift by the mother was not invalid, and in such cases, the completion of the gift for his benefit is to be the sole consideration. [Shamshed Begum v. Sadiq Basha, 2016 SCC OnLine Mad 16883, decided on December 22, 2016]