The Court have no role in restraining the
parties invoking their personal law remedies. The Court
should not forget the mandate of Article 25 of the
Constitution of India, which not only allows one profess
religion but also to practice. In essence, if any orders
are passed restraining one from acting in accordance with
the personal belief and practice, that would amount to
encroaching his constitutionally protected rights. No
doubt, aggrieved can challenge any action emanates out of
exercise of faith and practice; if it was not done in
accordance with the personal law, belief and practice but
that stage would arise only after the performance of the
act. The jurisdiction of the Court is limited in these
kinds of processes. The Family Court cannot restrain a
person performing his act in accordance with the personal
law. The act complained, invoking irrevocable invocation
of Talaq yet to come into existence. It is only after the
completion of the process and the procedure act qua the
Talaq, it can be said that whether it was in accordance
with the procedure as prescribed under the personal law or
not. It is unfortunate before that exercise is being done
he has been restrained from acting in accordance with the
personal belief and practice. The right to marry more
than one person at a time is prescribed under the personal
law. If the law ensures such protection, it is not for
the Court to decide that one person should not act in
accordance with the personal conscious and belief in
accordance with his religious practices. The Court has no
role to restrain or regulate one's behavior or decision in
accordance with the personal law guarantied. In the light
of exercise of the husband in accordance with the personal
law as above, we are of the view, the orders impugned are
without any justification and jurisdiction. We set aside
both the orders. We make it clear that at appropriate
time, if Talaq is not exercised in accordance with the
law, the respondent-wife can approach the competent Court
to redress her grievances.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP (FC) NO. 394 OF 2022
ANVARUDEEN Vs SABINA,
PRESENT
MR. JUSTICE A.MUHAMED MUSTAQUE & MRS. JUSTICE SOPHY THOMAS
Author:A. Muhamed Mustaque, J
These original petitions are filed at the instance of
the husband. He is a muslim by faith. He married the
respondent in accordance with the muslim religious rites
and ceremonies. The case depicts a strained marital
relationship. The petitioner appears to have initiated
steps to pronounce Talaq. He has pronounced first and
second Talaq. Before pronouncing irrevocable Talaq, he
has been restrained by an order of temporary injunction by
the Family Court. This order has been passed at the
instance of the wife. The wife also had filed an
application restraining him to conduct second marriage.
That also has been allowed. These independent orders are
challenged in these original petitions.
2. The Court have no role in restraining the
parties invoking their personal law remedies. The Court
should not forget the mandate of Article 25 of the
Constitution of India, which not only allows one profess
religion but also to practice. In essence, if any orders
are passed restraining one from acting in accordance with
the personal belief and practice, that would amount to
encroaching his constitutionally protected rights. No
doubt, aggrieved can challenge any action emanates out of
exercise of faith and practice; if it was not done in
accordance with the personal law, belief and practice but
that stage would arise only after the performance of the
act. The jurisdiction of the Court is limited in these
kinds of processes. The Family Court cannot restrain a
person performing his act in accordance with the personal
law. The act complained, invoking irrevocable invocation
of Talaq yet to come into existence. It is only after the
completion of the process and the procedure act qua the
Talaq, it can be said that whether it was in accordance
with the procedure as prescribed under the personal law or
not. It is unfortunate before that exercise is being done
he has been restrained from acting in accordance with the
personal belief and practice. The right to marry more
than one person at a time is prescribed under the personal
law. If the law ensures such protection, it is not for
the Court to decide that one person should not act in
accordance with the personal conscious and belief in
accordance with his religious practices. The Court has no
role to restrain or regulate one's behavior or decision in
accordance with the personal law guarantied. In the light
of exercise of the husband in accordance with the personal
law as above, we are of the view, the orders impugned are
without any justification and jurisdiction. We set aside
both the orders. We make it clear that at appropriate
time, if Talaq is not exercised in accordance with the
law, the respondent-wife can approach the competent Court
to redress her grievances.
These original petitions are allowed. Both orders
are set aside. No costs.
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