Violation of Fundamental Right of Citizens: An Analysis

VIOLATION OF FUNDAMENTAL RIGHT OF CITIZEN

Authors: Ms. Saloni Ratra and Mr. Ritwij Shrivastava.

Introduction-

Article 21 of the Constitution of India, a very familiar fundamental right, applicable to all persons under Part III of the Constitution of India. The meaning of term “life” is defined in Munn v. Illinois,  By the term “life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.”

This article applies to even non-citizen of India. The Supreme Court has emphasized that even those who come to India as tourists also –“have the right to live, so long as they are here, with human dignity, just as the State is under an obligation to protect the life of every citizen in this country, so also the State is under an obligation to protect the life of the persons who are not citizen.”(Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988)\

Triple Talaq –

The triple talaq also violates the right to life of women, they were not given their rights and only they were suffered by this law from the last 50-60 years they are not given the right to equality and right to freedom in their life. A Muslim man can divorce his wife by pronouncing the word ‘talaq’clearly three times in a row for the talaq (divorce) to be finalized. In case the husband does not do so, or utters the word in a muddled and unclear manner it is essential that he mentions that he wishes to end the marriage. When done it is called express talaq. After that, the husband and wife cannot get back together until the wife marries someone else. There are three types of talaq namely; Unlike other religions where marriage has been traditionally viewed as a sacrament, under Muslim law, marriage is a civil and social contract. Talaq-ul-Sunnat of the divorce sanctioned by Prophet is sub-divided into (i) Talaq-e-Ahsan (ii) Talaq Hasan (iii) Talaq-e-Biddat.

Triple talaq: How it affects the lives of India’s Muslim women

Imagine living with the mental insecurity that years of your marital alliance can be ended just by the utterance of three words. That’s exactly what Indian Muslim women feel.

India is home to the world’s third-largest Muslim population which is governed by the Sharia or Islamic jurisprudence and this has been the case since British colonial rule. But till today, India’s 90 million Muslim women face the threat of a sudden, oral, and out-of-court divorce.

When Pakistan, Bangladesh, and many other Islamic countries could ban the practice of talaq-ul-bidat, then why not India, is the question. Talaq-ul-bidat or triple talaq is a Sharia law practice that gives men the power to end a marriage by simply uttering the word ‘talaq’ to their wives three times in succession.

There have been many cases that made headlines for men practicing triple talaq even via instant messaging apps like WhatsApp. According to the Census 2011 data, out of all married Muslim women, 13.5 percent were married even before the age of 15 and 49 percent were married between 14 and 19 years of age. Marriage at such an early age, in most cases, decreases the possibility of acquiring education or being financially sound.

A survey by Bharatiya Muslim Mahila Andolan revealed that 95 percent of divorced women received no maintenance from their husbands. In many cases, women are not in a position to immediately become the breadwinner and manage kids.

Even in 2015, an NRI man from Kerala sent his wife a triple talaq message on WhatsApp from Dubai hardly after 10 days of the wedding. The young woman in her complaint said her husband had not even informed her if he had reached Dubai or where he is working.

Judicial intervention:

Allahabad High Court has termed ‘triple talaq’ as unconstitutional and the Supreme Court was decided that a five-judge constitution bench will begin hearing cases and will decide on the “constitutional validity” of the practice of triple talaq, nikah halala and polygamy among Muslims.

Chief Justice of India Justice J.S Khehar has said that the Supreme Court is ready to give up its summer vacation of 2017 to hear the issue of triple talaq as it is a matter of “grave importance”. The cases filed are regarding whether divorce by saying ‘talaq’ three times is legal or not, women’s right, and whether the freedom to practice religion – via the Muslim Personal Law for Islam – takes precedence over basic freedoms. It is for the Centre to decide if they can cooperate, he said. However, the All India Muslim Personal Board (AIMPLB) urged the SC not to meddle with its laws as the issues fell outside the realm of judiciary.

consequences of triple talaq :

Talaq even though commonly translated as Divorce under the English Law is a somewhat different concept. The very crux of Talaq is the husband’s unilateral, arbitrary and whimsical power to annul his lawful marriage without any reasonable cause or even an explanation.

There are three types of Talaq in the Islamic Law:

  • Talaq-e-Ahsan which consists of a single pronouncement of Talaq by the husband followed by a period of abstinence (Iddat) of 90 days. If cohabitation is resumed in this period, the Talaq is revoked otherwise it becomes final and binding. It is considered to be the most reasonable form of Talaq.
  • Talaq-e-Hasan which is similar to Talaq-e-Ahsan except for the fact that there are three successive pronouncements of Talaq after every month. It is considered to be a reasonable form of Talaq.
  • Talaq-e-Hasan which is similar to Talaq-e-Ahsan except for the fact that there are three successive pronouncements of Talaq after every month. It is considered to be a reasonable form of Talaq.

In the batch of petitions decided by the apex court Constitutional validity of only the Talaq-e-Biddat was challenged. The petitioners successfully contended that this form of Talaq is not saved by Article 25 of the Constitution of India conferring the freedom to freely practise and propagate religion as this practice violated the article 14  of the Constitution of India being arbitrary and unreasonable in nature and article 21  of the Constitution of India as it robs a Triple Talaq victim of her dignity and she leads a mere animal existence thereafter. The respondents led by an acclaimed counsel who also happens to be a prominent leader in the oldest political party of India raised several objections including the argument that since the practice is an old one it confers validity on the practice and the Muslim men have a right to exploit their wives. These contentions were rejected by the five-judge-bench with three judges ruling against the conservative practice. The Hon’ble Supreme Court observed that where Article 14 and Article 21 conflicted with Article 25 the former should be given preference over the latter.

Triple talaq in India: in favour or against? (on the protection of Muslim women’s rights during the divorce):

Triple talaq provides security to wife –

“Granting the husband the right to divorce indirectly provides security to the wife. Explaining the reasons for this, it says, “Marriage is a contract in which both the parties are not physically equal. Male is the stronger and female weaker sex. Man is not

dependent upon the woman for his protection. On the contrary, she needs him for her defense. If there develops a serious discord between the couple and husband does not at all want to live with her, legal compulsions of time-consuming separation proceedings and expenses may deter him from taking the legal course. In such instances, he may resort to illegal, criminal ways of murdering or burning her alive.”

Women get killed when men don’t have easy divorce-

“Needless to add, a husband who does not fear God may do anything against his wife whom he hates. For only he is with her in the darkness of night. He has more chances of covering up his crime. Often do culprits get the benefit of the doubt. This accounts for the rise in the cases of women being murdered and burnt alive.”

 Obtaining divorce from courts scandalizes women’s character, for men the damage is little –

“Securing separation through court entails that the weaknesses of the opposite party be brought into the public domain. Some moral failings are considered more scandalous for women in our society. For example, the charge against a male that he has loose conduct and temper may damage only a little his prospects of remarriage. However, the husband’s same charge publicly against his wife about her loose character may deprive her of the chance of remarriage. She may be more harmed than benefitted by court proceedings.”

 Obtaining divorce from courts “deters re-marriage” prospects of men, women-

“Further, it is not unknown that securing separation through courts takes a long time; this further deters the re-marriage prospects of the parties. In addition to the above, in cases where serious discords develops between the parties and the husband wants to get rid of the wife, legal compulsions of time-consuming separation proceedings and the high expenses of such a procedure may deter him from adopting such a course and in extreme cases he may resort to illegal criminal ways of getting rid of her by murdering her.”

Triple Talaq is sin, but ‘valid and effective’ form of divorce-

“It is submitted that though pronouncement of Triple talaq is considered to be a sin it is still a valid and effective form of divorce. In Islamic Jurisprudence many times an irregular or improper nature of an act does not affect the legal consequences of the Act. For instance, it is not lawful to appoint a sinner as a judge, However, if the state appoints a sinner as a judge and he passes judgment, that judgment will be effective, provided it is within the limits of Sharia.”

Conclusion:

It took us a little more than 70 years to realize and declare that religious conservatism and orthodoxy are not superior to women’s dignity. Muslim husbands no longer have the power to throw out their wives in one go. Way back in the 1950s the then Prime Minister of India Nehru and the first Law Minister of India Ambedkar had shown great impatience to overhaul the archaic Hindu laws and tilt them in favour of the Women and despite several protests and insecurity among the Hindus the Hindu personal laws were overhauled by successive legislation. When confronted with the question of similar reforms in still more chauvinist Muslim Law, the then Prime Minister cited minority insecurity and fears created by the events of Partition as a reason for delay in transforming the Muslim laws. However, it was promised that when the situation is ripe there will be similar reforms in the Muslim personal law. But the successive governments which actively engaged in minority appeasement and vote bank politics failed to deliver on this promise and the legislature of this country let down the Muslim women of India. Finally, the Rajiv Gandhi led Government mercilessly broke this promise when it overruled a Supreme Court judgment which had provided the right of maintenance to Muslim women beyond the period of Iddat by bringing a law overruling the judgment. We cannot expect the Hon’ble Supreme Court to single-handedly transform the Muslim law the baton now passes on to the Parliament to ensure that centuries of injustice to the Muslim women are undone.

Case laws:

Triple talaq :

Shayara Bano vs Union of India – Triple Talaq 

https://indiankanoon.org/doc/115701246/

Right to privacy:

Kharak Singh vs The State Of U. P. & Others

https://indiankanoon.org/doc/619152/

sunil Batra v. Delhi Administration

https://indiankanoon.org/doc/778810/

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BY -SALONI RATRA

AMITY LAW SCHOOL,NOIDA

B.A.LLB- 2ND YEAR.

&

RITWIJ SHRIVASTAVA

DR. D.Y. PATIL LAW COLLEGE ,PUNE

B.A.LLB- 3RD YEAR.

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