October 29, 2024 - In a recent ruling of a triple talaq case, the Madras High Court has said that the Shariat Council is not a court but a private body and for someone seeking divorce, they must get a legal stamp of the talaq. The Court further ruled that only State-constituted courts can deliver judgements and that the Shariat Council is not the authority to issue divorce certificates or impose fines.

Justice GR Swaminathan of Madras High Court made the observations while hearing a civil revision petition filed by a Muslim husband against the order of the District and Sessions Judge confirming compensation to the wife.

The couple had married in 2010 as per Islamic rites.  In 2017, the man claimed to have issued her three talaq orders. He had then married someone else. However, the wife denied that she had received the third talaq notification and claimed that their marriage still stands.

In 2018, she filed a domestic violence complaint with the Tirunelveli Judicial Magistrate Court under Sections 12(1) and (2), 18(a) and (b), 19(a), (b), (c), and 20(1)(d) and 22 of the Protection of Women from Domestic Violence Act. In 2021, the Magistrate directed the husband to pay Rs 5 lakh as compensation to the wife over charges of domestic violence and Rs 25,000 per month for maintenance of their minor child.

The husband challenged the order in a District and Sessions Court by claiming he entered into the second marriage after dissolving the first marriage by issuing triple talaq as per law. The Sessions Court dismissed the plea.

Justice Swaminathan told the petitioner:  “Talaq thus involves a certain procedure. In the very nature of things, strict compliance has to be insisted upon. If the husband claims that he had divorced the first wife by properly pronouncing talaq three times, and it is disputed by the wife, the question arises if the marriage has been validly dissolved. The issue cannot be left to the unilateral determination of the husband. That would amount to the husband becoming a judge of his own cause. The only appropriate and legally permissible course would be to call upon the husband to obtain a judicial declaration that the marriage has been validly dissolved.”

The Judge found the divorce certificate issued by the Shariat Council of Tamil Nadu, Thowheed Jamath, shocking as it had blamed the wife for not cooperating in the talaq. The HC observed that this certificate was not legally valid as judgement could only be delivered by a court duly constituted by the State.

“If a Hindu, Christian, Parsi or Jewish husband contracts a second marriage during the subsistence of the first marriage, it would constitute cruelty, besides being an offence of bigamy. It would obviously be considered an act of domestic violence entitling the wife to claim compensation under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Will this proposition apply in the case of Muslims? The answer is yes”, said Justice Swaminathan.

He added that while a Muslim man is legally entitled to as many as four marriages, his first wife has the right to seek maintenance and not wish to be a part of the new household.

With inputes from media reports