Author: A. Subramani
Publication: The Hindu
Date: July 26, 2002
A Division Bench of the Madras High
Court has reserved orders on a petition seeking to declare Section 2 of
the Shariat Act unconstitutional.
The Bench comprising Justice R.
Jayasimha Babu and Justice E. Padmanabhan reserved orders after hearing
arguments advanced on behalf of the petitioner A.S. Parveen Akhtar, who
moved the court in 1992. Later, the present Wakf Board Chairman, Badar
Sayeed, and the Advocates Milad Committee also impleaded themselves as
parties to the case.
In her petition, Ms. Parveen Akhtar
contended that the impugned Section of the Muslim Personal Law (Shariat)
Application Act, 1937 should be declared invalid since it recognised and
validated Talaaq-ul-Bidaat form of divorce.
The petitioner said her husband
had served a notice on May 1, 1991 stating that he had divorced her under
the Talaaq-ul-Bidaat form in a single sitting in the presence of two witnesses.
According to her, Talaaq-e-ahsan
and Talaaq-e-hasan forms or divorce alone were valid and approved under
the Muslim Personal Law. These two forms of divorce leave enough room for
reconciliation and arbitration.
Ms. Parveen Akhtar claimed that
Talaaq-ul-Bidaat was `unislamic' since it pronounced divorce in one sitting
and was irrevocable. Citing her condition, she said, ``in view of the Muslim
Women (Protection of Rights of Divorce) Act 1989, Muslim women divorcees
could not seek maintenance from their husbands. As a result they are living
a life of misery and starvation''.
The impugned Section is discriminatory
in nature because while men can take recourse to this form of divorce,
Muslim women have to get divorce under the Dissolution of Muslim Marriages
Act 1939, she said.
In her petition, Ms. Badar Sayeed
also maintained that Talaaq-ul-Bidaat was unislamic in nature leading the
affected Muslim women to misery.
However, the Advocates Milaad Committee
said it was an Islamic practice, where courts could not intervene.
Representing the Union Government,
which was cited as respondent, the Additional Solicitor-General, V.T. Gopalan,
submitted that since Parliament alone was empowered to amend the laws,
the courts could not interfere in the matter.
