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Notice Issued By Delhi HC In A Petition To Declare Talaq-ul-Sunnat As Unconstitutional

  • In a case titled Reshma vs. Union of India through the Ministry of Women and Child Development, GOI and ors., the Dlehi HC has sought a response of the Central Government seeking to declare talaq-ul-sunnat as unconstitutional owing to the arbitrary power of the muslim husband to divorce his wife at any time without any reason or advance notice. This was contested due to it being arbitrary, anti-shariat and unconstitutional.
  • A bench of Justices Vipin Sanghi and Jasmeet Singh has granted an eight-weeks time to the government for filing a response to the same.
  • The petition was filed by a 28 year old woman who had a 9 month old baby, who was deserted by her husband by pronouncing triple talaq.
  • The original petition sought the issuance of detailed guidelines in the form of checks and balances regarding divorce in the sunnat form (ehsan and hasan). However, the said petition was rejected by the Court in September, 2021. Later, the petitioner had sought a review of the same.
  • The review petition sought a clarification as to whether talaq-ul-sunnat also fell with the category of talaq as is defined in section 2(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019 which was passed to criminalise instant triple talaq.
  • Counsel for the Centre has submitted that while instant triple talaq was declared unconstitutional and illegal, the other forms of talaq were not specifically mentioned in the aforementioned Act. The counsel also submitted that though triple talaq had been declared illegal, however, if the husband pronounces talaq three times during the course of three months, it has not been declared illegal.
  • While recalling its previous order, the Court said that their attention has now been drawn to the fact that talaq-ul-sunnat has not been covered under section 2(c) of the aforementioned Act. This matter, therefore, requires consideration.
  • The matter has now been called on for hearing on May 2.

And now, a question for our aspirants-
Instant triple talaq has been declared as unconstitutional in the case of ____________ .

Mind To Be Applied To Grounds Of Challenge Before Disposing Off A Writ Petition: SC

  • The Hon’ble SC in a case titled State of Orissa vs. Prasanta Kumar Swain has held that the HC cannot dispose of a writ petition without appreciating the grounds on which the case has been challenged as it is the Court's primary duty to ascertain whether the decision of the Tribunal is sustainable on facts and law.
  • The Orissa HC had originally dismissed the petition which challenged the Orissa Administrative Tribunal’s order by stating that taking into account that the opposite party has been working for three decades, it would not be wise for them to disturb the findings of the tribunal. Hence they dismissed the writ petition. The Court also said that this order should not be treated as precedent.
  • The Supreme Court, while setting aside the Court’s order and remitting the case back for a fresh decision, the bench of Justices DY Chandrachud and AS Bopanna said that there has been no application of mind by the HC to the grounds of challenge or to the submissions.
  • The Apex Court also said that this was an inappropriate way to dismiss a substantive writ petition under Article 226 as the HC is duty-bound to apply its mind to whether the judgement of the tribunal is sustainable on facts and on law.
  • The Apex Court also requested the HC to dispose of the case within a period of three months, as the case had been going on since 2008.

Petitioner Cannot File Writ Petition Unless Remedy Under SARFAESI Has Been Duly Availed Off: Madras HC

  • The Madras HC has, in a case titled R.Ganesan vs. M/s ASREC (India) Ltd. dismissed the writ petition and has reiterated the settled legal position that if an alternate remedy is available, a writ petition cannot be filed.
  • As per Section 17 of the SARFAESI Act, an appeal can be filed before the Debt Recovery Tribunal within 45 days from the date on which the measures under section 13(4) of the Act are taken.
  • In the instant case, the petitioner had filed a writ petition under Article 226 of the Constitution, challenging the order passed under section 14 of the SARFAESI Act and praying for a writ of certiorari and mandamus to call for records relating to the proceedings of the CJM, to quash the same and direct the respondent to unseal the premises.
  • Section 14 of the SARFAESI Act empowers the CMM of DM to assist the secured creditor to take possession of the secured asset.
  • The HC, relying on the decisions of the Hon’ble SC in the cases of Authorized Officer, State bank of Travancore and anr vs. Matthew KC and Agarwal Tracom Private Limited vs. PNB and ors. held that the aggrieved parties cannot challenge the proceedings taking place under the SARFAESI Act by way of a writ petition directly without exhausting the remedy of appeal available to them under the Act itself.
  • Thus the Court, while dismissing the petition, said that the petitioner is free to challenge the order before the Debt Recovery Tribunal under section 17 of the SARFAESI Act.
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