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Part-1.
The petitioner’s marital discord, and the petitioner’s prayers:
1. The petitioner-Shayara Bano, has approached this
Court, for assailing the divorce pronounced by her husband –
Rizwan Ahmad on 10.10.2015, wherein he affirmed “…in the
presence of witnesses saying that I gave ‘talak, talak, talak’,
hence like this I divorce from you from my wife. From this date
there is no relation of husband and wife. From today I am
‘haraam’, and I have become ‘naamharram’. In future you are
free for using your life …”. The aforesaid divorce was
pronounced before Mohammed Yaseen (son of Abdul Majeed)
and Ayaaz Ahmad (son of Ityaz Hussain) – the two witnesses.
The petitioner has sought a declaration, that the
‘talaq-e-biddat’ pronounced by her husband on 10.10.2015 be
declared as void ab initio. It is also her contention, that such a
divorce which abruptly, unilaterally and irrevocably terminates
the ties of matrimony, purportedly under Section 2 of the
Muslim Personal Law (Shariat) Application Act, 1937
(hereinafter referred to as, the Shariat Act), be declared
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unconstitutional. During the course of hearing, it was
submitted, that the ‘talaq-e-biddat’ (-triple talaq),
pronounced by her husband is not valid, as it is not a part of
‘Shariat’ (Muslim ‘personal law’). It is also the petitioner’s case,
that divorce of the instant nature, cannot be treated as “rule of
decision” under the Shariat Act. It was also submitted, that
the practice of ‘talaq-e-biddat’ is violative of the fundamental
rights guaranteed to citizens in India, under Articles 14, 15
and 21 of the Constitution. It is also the petitioner’s case, that
the practice of ‘talaq-e-biddat’ cannot be protected under the
rights granted to religious denominations (-or any sections
thereof) under Articles 25(1), 26(b) and 29 of the Constitution.
It was submitted, that the practice of ‘talaq-e-biddat’ is
denounced internationally, and further, a large number of
Muslim theocratic countries, have forbidden the practice of
‘talaq-e-biddat’, and as such, the same cannot be considered
sacrosanctal to the tenets of the Muslim religion.
2. The counter affidavit filed by respondent no.5 – the
petitioner’s husband – Rizwan Ahmad, discloses, that the
‘nikah’ (marriage) between the petitioner and the respondent
was solemnized on 11.04.2001, as per ‘Shariat’, at Allahabad.
It was submitted, that the petitioner – Shayara Bano,
performed her matrimonial duties intermittently, coming and
leaving the matrimonial home from time to time. The
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matrimonial relationship between the parties resulted in the
births of two children, a son – Mohammed Irfan (presently
about 13 years old) studying in the 7th standard, and a
daughter – Umaira Naaz (presently about 11 years old)
studying in the 4th standard, both at Allahabad.
3. It is the case of the respondent–husband, that the
petitioner-wife, left her matrimonial home on 9.4.2015 in the
4. On 07.07.2015 the father of the petitioner, brought the
two children – Mohammed Irfan and Umaira Naaz to
Allahabad. The husband submits, that both the children have
thereafter been in his care and custody, at Allahabad. It is the
assertion of the husband, that the petitioner’s father had given
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him the impression, that the petitioner would be inclined to
return to Allahabad, consequent upon the husband’s care and
custody of both children, at the matrimonial home.
5. It is claimed by the respondent-husband, that he made
another attempt to bring back the petitioner-wife from her
parental home on 09.08.2015, but Shayara Bano refused to
accompany him. It is submitted, that Rizwan Ahmad was
opposed in the above endeavour, both by the petitioner’s father
and her maternal uncle.
6. Finding himself in the above predicament, Rizwan
Ahmad approached the Court of the Principal Judge, Family
Court at Allahabad, Uttar Pradesh, by preferring Matrimonial
Case No.1144 of 2015 with a prayer for restitution of conjugal
rights. The petitioner-Shayara Bano, preferred Transfer
Petition (C) No. 1796 of 2015, under Section 25 of the Code of
Civil Procedure, 1908, read with Order XXXVI-B of the
Supreme Court Rules, 1966, for the transfer of Matrimonial
Case No.1144 of 2015, filed by the respondent-husband
(seeking restitution of conjugal rights) pending at Allahabad,
Uttar Pradesh, to the Principal Judge, Family Court, Kashipur,
Uttarakhand. In the above transfer petition, the wife inter alia
asserted as under: