Triple Talaq and right of equality under Indian Constitution

On 23 August 1985, Arif Mohd. Khan, former Minister of State for Home Affairs during the reign of Rajiv Gandhi, conveyed a zealous perspective in Lok Sabha, defending the then Supreme Court judgment in the case of Ahmed Khan v. Shah Bano Begum. It was in the milieu of a private member bill that was moved in the Lok Sabha by G. M. Banatwala (MP), seeking to exempt Muslims from the purview of Section 125 of CrPC, an exemption which was struck down and nullified by the apex court in the Shah Bano case. Three decades later, the issue resurfaced in the name of triple talaq and Uniform Civil Code (UCC).

What is triple talaq?

Under Muslim personal laws, a Muslim man has been bestowed upon the absolute power of instant divorce by repeating ‘talaq’ thrice before his wife.

Violation of Right to Equality under the Constitution of India

On March 30, the Supreme Court observed that practices of 'triple talaq', 'nikah halal' and polygamy amongst Muslims were crucial issues involving "sentiments" and a Constitution bench would hear the pleas challenging these from May 11. Before the hearing, the Centre filed written submission which enunciated as follows:

·         Whether under a secular Constitution, women, merely because of their religious identity, could be relegated to a significantly more vulnerable status than their counterparts who profess any other faith such as Hindus, Christians, Zoroastrians, Buddhists, Sikhs, Jains, etc.

·         The conferment of a social status based on patriarchal values or one that is at the mercy of menfolk is incompatible with the letter and spirit of Articles 14 and 15;

·         The right of a woman to human dignity, social esteem, and self-worth are vital facets of her Right to Life under Article 21;

·         Right to Equality takes within its fold, equality of status and the gender equality, gender equity and gender justice are values intrinsically entwined in the guarantee of equality under Article 14.

The Petition

A petition against triple talaq was started by the Muslim Rashtriya Manch (MSM), an offshoot organization of Rashtriya Swayamsevak Sangh (RSS) wherein more than 1 million people have signed such petition. Moreover, the abolition of triple talaq has been supported by All India Muslim Women Personal Law Board (AIMWPLB) but opposed by the All India Muslim Personal Law Board (AIMPLB).

WORLD’S MOST EXPENSIVE DIVORCE LAWYERS

Each party to marriage ties the knot with other with great hopes and expectations. Each party to the marriage has a right to enjoy the company of other for the solace of his life. But sometimes circumstances may arise and parties want to dissolve their marriage due to some reason or another. A divorce lawyer can help someone who wants to divorce his/her spouse. There may be some NGOs which can provide free legal advice. One can also seek a legal adviser online. In most of the cases, one has to pay a fee for hiring a lawyer for divorce. There are many divorce advocates in the world who charges a huge fee from their clients for lawyer consultation. Let’s have a look on the world’s most expensive divorce lawyers-

1. Laura Wasser- 

Laura Allison Wasser is a partner at Los Angeles-based firm Wasser, Cooperman & Mandles, established by her father, Dennis Wasser which deals in family law cases related to marriage, divorce and child custody. She joined the firm after graduating from Loyola Law School in 1996.She is one of the most expensive lawyers as she Charges $850 for an hour and requires a $250,000 retainer. It is alleged that Wasser typically only represents people who are worth more than $10 million. Laura Wasser has represented a number of high-profile celebrities in the past, including Johnny Depp in his divorce from Amber Heard, Britney Spears, Mariah Carey, Kim Kardashian West, Ryan Reynolds, Heidi Klum and more. She even represented Jolie in her divorce from Billy Bob Thornton in 2003.Angelina Jolie has hired Wasser to represent her as she has filed a divorce suit against her husband Brad Pitt where the main issue is related with custody of their 6 children.

2. Sandra Davis-

Sandra Davis is a partner and head of the Family Department of the London-based firm Mishcon de Reya, Davis charges £610 an hour and has represented celebrity clients such as the Princess of Wales, Jerry Hall, Thierry Henry and Tamara Mellon. With her 30 years of experience. Sandra specializes in complex high-net-worth and ultra-high-net-worth cases. She is a Fellow of International Academy of Matrimonial Lawyer. London Super Lawyers directory even named her one of the Top 100 Lawyers and one of the Top 50 women.

3. Fiona Shackleton (Baroness Shackleton of Belgravia)- 

Fiona Sara Shackleton is a partner in one of the London’s leading family law firms, Payne Hicks Beach which she joined in 2001. She has represented members of the British Royal Family and legendary Beatle, Sir Paul McCartney, and many more celebrities. Shackleton charges £640 for an hour plus £5k for an initial meeting.

4. Ira E. Garr- 

Ira E. Garr works with Slipe Garr, P.C. a New York based firm which deals with matrimonial issues. Garr has been listed as one of the “Best Lawyers in America” since 2008.Most of his clients are generally high net worth individuals and often celebrities, it is no wonder that Murdoch chose Garr to represent him in the $11.2 billion divorce suit with her third wife.

5. Liz Vernon-

Liz Vernon is a partner at family law firm Clintons based in London. She has over 20 years of experience. She has dealt with high profile clients from sports, media and entertainment fields and their spouses like Slavica Ecclestone and Karen Parlour.

Right to be forgotten- Kerala High Court asks Indian Kanoon to remove name of the rape victims from Judgements

In 2017, a rape victim filed a petition before the Kerala High Court to pass an order directing the online web portal ‘indiankanoon.com’ to strike off her name published in a Kerala High Court judgment on its website and also prevent her name from being visible in the search results of Google, Yahoo, etc.

Facts:
The name of the rape victim appeared online on ‘indiankanoon.com’ in the judgment of the Kerala High Court which was passed in regards to her. Moreover, the judgment appeared in the general search results of Google and Yahoo.

Legal Contention:
She stated that the publication of her name was without authorization/prior permission from the court or her which is in clear contravention of the mandate provided under Rule 5 of the Information Technology (Reasonable Security Practises and Procedures and Sensitive Personal Data or Information) Rules, 2011. Her grievance extended to the search results of Google and Yahoo.
According to her, the publications violated her right to privacy and right to a dignified life enshrined under Art. 21 of the Constitution of India as it has diminished her job prospects and social life which has brought upon further shame and destitution upon her. Furthermore, the essence of Section 228A of IPC is also diluted.

Section 228A of the Indian Penal Code:
Under Section 228A of IPC, disclosure of the identity of a rape victim may amount to two years imprisonment and fine. She also contented her ‘right to be forgotten’. In State of Karnataka v. Puttaraja AIR 2004 SC 433, the Apex Court of India held that the names of the rape victims should not be mentioned in court cases keeping in mind the social object of preventing social victimization or ostracism of the victim and hence, in line with Sec. 228A.

What is “Right to be Forgotten”?
The roots of this phrase ‘Right to be Forgotten’ can be traced back to the ‘Right to Oblivion’ in French Jurisprudence. The rationale of such a principle was to give an opportunity to the offenders to object against the publication in regards to their crimes and strike off their names for an effective social integration. This right went into practice in the European Union and Argentina as well and has been seen as a tool for social integration and development of a person. In Vasunathan v. Registrar General, 2017 SCC OnLine Kar 424, Karnataka High Court, while directing its registry to remove the name of the victim from being reflected in the public domain, observed, “This is in line with the trend in Western countries of ‘right to be forgotten’ in sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned.”
Recently, a tussle has been going on between France and Google over the ‘right to be forgotten’ where France is trying to impose such rule upon Google to censor its search results. In India, there are no provisions under Information Technology Act, 2000 or any other statutes which prevents Google or any other search engine to enforce the ‘right to be forgotten’ as the scope of public domain is pretty scary. It will wrangle anything out from the world. To prevent such anomalies, the weapon of Judicial Activism is a requirement.

Order
Recognizing the ‘right to be forgotten’ and confidentiality of her identity under Sec. 228A of IPC, Justice Shaji P. Chaly of the Kerala High Court directed the web portal indiankanoon.com to remove her name from its website. However, no such direction has been passed towards Google and Yahoo.

Victimization under 498A IPC

When a complaint, true or false, is filed by a wife against her husband and against relatives of her husband in a police station, police officials usually call both parties to settle down the dispute or pass on the complaint to the women cell so that both parties can try to reach a compromise to the satisfaction of complainant. 

If the parties are still unable to solve the dispute amicably, then the women cell usually direct parties to go for mediation. If the dispute remains unresolved, then the matter comes back to women cell then police officials register it as FIR. 

Important points: -

1. If the accused is not arrested, then he should file for anticipatory bail as early as he can.
2. If any of the accused is arrested, then they can apply for regular bail.
3. If the arrest warrants are issued, the accused must surrender as soon as he can before the police. It becomes easy to defend the case in the court if accused has willfully surrendered.
4. Sometime these accusations can be placed out of sheer outburst of the sense of revenge, and wife may realize the futility of her actions with the passage of time, therefore husband shouldn’t put more efforts to expedite the judicial process and must wait for things to settle down and let them take its normal course.  


Statutory law Reference.

1. 498A IPC

Prevention of Arrest

1. When a FIR is lodged against husband and his relatives, one should apply for an anticipatory bail for all involved. Even if  one of accused gets the anticipatory bail, others can substantiate their claim on that basis
2. Try to put your case for mediation with the help of your lawyer.
3. Try to schedule your case for Lok Adalat hearing with the help of your lawyer so that it may lead to a compromise.


4. Try your best to negotiate and settle the dispute with the accuser and her parents.
5. If the husband and his relatives have not committed any offense such as demand for dowry or physical abuse, then he has every right to defend his rights and court take cognizance of unsubstantiated accusations.  

Your Claim for Child custody

In matrimonial disputes, the question about rightful custody of children may crop up before the court. The court is usually requested to decide the question during the pendency of the trial. It is an important matter to decide as it not only affects the parents but also the children who may feel being pulled up in opposite directions by parties, they probably love equally. The court can exercise its jurisdiction only if it has jurisdiction in the main petition which is pending before the court. If the child is under the age of 5 years, the mother is usually considered as guardian.

Important points while determining the child custody issue: -  

1.      Age and sex of the child.  

2.      The character and capacity of proposed guardian.

3.      Any wishes of deceased parent i.e. specified in a will.

4.      The minor’s preference, if the child is old enough to give an intelligent preference.

5.      The court usually tries to keep children united.

6.    Though the guardianship decisions tend to tilt a lot in favor of the mother, justifiably so, and guardianship of girl child virtually always goes with the mother only, however, if the mother is ill and financially not strong or a disable then usually court deny guardianship on these grounds.

7.       Usually, the children maintenance cost is borne by the father irrespective of the fact that its mother who has been given the child custody.

  

Statutory law references.

1.      Section 26 of Hindu Marriage Act, 1955

2.      Section 38 of the Special Marriage Act, 1954

3.      Section 25 in The Guardians and Wards Act, 1890

Important judgments: - 

1.      Thrity Hoshie Dolikuka Vs. Hoshiam Shavaksha Dolikuka 1982(1)SCALE 608 (Supreme court)

2.      Sheila B. Das Vs.P.R. Sugasree 2006(1)RCR(Civil)758 ( Supreme court) 

3.      Kumar V. Jahgirdar v. Chethana Ramatheertha 2004 ( 3 ) RCR (Civil) 233 (Supreme court)

4.      Roxann Sharma Vs. Arun Sharma 2015(2)RCR(Civil) 93 (Supreme court)

Do: -

1.      Disclose all the facts related to marriage.

2.      Disclose all  the details about the pending cases, if any, to your lawyer

3.      Provide all the details  such as Age, educational expenses, comparative emotional attachment to either parent, physical abuse etc. with your lawyer

4.      Provide details of opposite party i.e. income, status, character, nature etc.  to your lawyer

Alimony Amount Assessment-Important factors- As per Hindu Law

The alimony amount is given at the time of the dissolution of marriage. It is a financial support to either spouse who is unable to earn or unable to maintain himself/herself. The alimony amount can be claimed by either spouse but usually, wife claims it from husband in our patriarchal society. The alimony amount depends on various facts, contexts and their assessment by the court and there is no specific mathematical formula to calculate it despite considerations of all factors involved
The alimony amount can be provided as the one-time payment or as periodical/monthly payment.

Important points while determining the alimony amount

1. Husband’s income from various sources(salary, rent, premium from insurance policies/mutual funds etc.) and his assets, esp. self-acquired
2. Other mandatory deductions from income of either spouse such as income tax, loan repayments etc.
3. Other liabilities of either spouse such as dependents (old parents).
4. If the other spouse is working and he/she has an own income source, the same will be taken into consideration while determining the alimony amount.
5. The social status and lifestyle of either spouse may also be taken into consideration while determining the alimony amount.
6. The expenses of children, education, living cost etc. will be considered.
7. Period of marriage, age, and health of either spouse.

Statutory law References.

Section 25 of Hindu Marriage act 1995 
Section 37 of Special marriage act 1954 
Section 36 of Divorce act 1869
 
Important Judgments
1. U. Sree v. U. Srinivas, (2013) 2 SCC 114 (Supreme court)
2. Ruby Vs Debasish Pradhan 118(2014) CLT859 (Supreme court)
3. Vinny Parmar vs Paramvir Parmar 2011(3)RCR(Civil)900 (Supreme court)
4. Sumitra Manna vs. Gobinda Chandra Manna (AIR 1988 Cal 192)


Important Do: - 
1. Disclose all the facts related to the marriage.
2. Disclose the status of pending cases and details.
3. Provide the income details of either spouse.
4. Provide the self-acquired property details of either spouse.
5. Provide children details & their expenses.

How to Divorce your spouse -Mutual Consent divorce- Hindu Divorce Law

Introduction: - A mutual consent divorce between Hindu couple is governed by Hindu law (Hindu marriage Act 1955) under section 13B.

Section 13B states that a petition for dissolution of marriage may present by both parties before District court If they are living separately for a period of one or more than one year as they have not been able to cohabitate owning to personal differences and that they have mutually agreed that their marriage should be dissolved.

Important Points. 

As per section 13B of Hindu marriage act 1955 

1. Husband and wife have been living separately for a period of one year or more, 
2. That they are unable to live together
3. They are  somehow living together under one roof but owing to personal differences and bitterness in relationship, didn’t have sex for more than a year
4. And that both husband and wife have mutually agreed that marriage has totally collapsed, hence marriage should be dissolved. 

Under these circumstances, a divorce by mutual consent can be filed. 


5. A petition should jointly be presented before the court. 
6. Both parties have freely consented for dissolution of marriage. 
7. The court must be satisfied to the statements made in the petition after making inquiry and hearing the parties. 


Statutory law references-

1. Section 13B of the HMA Act 1955 provides for divorce by mutual consent. period of separation is 1 year)
2. Section 28 of the Special Marriage Act, 1954 provides for divorce by mutual consent.
3. Section 10A of the Divorce Act, 1869, provides for divorce by mutual consent (period of separation is 2 years) 

Important judgments-

1. Soni Kumari Vs. Deepak Kumar 2016(1)RCR(Civil)52 (Supreme court) 
2. Devinder Singh Narula Vs. Meenakshi Nangia 2012(4)RCR(Civil)235 (Supreme court) 
3. Anil Kumar Jain v. Maya Jain 2009 ( 4 ) RCR (Civil) 309 (Supreme court) 
4. Kiran v. Sharad Dutt JT 2000 ( 1 ) SC 532 (Supreme court) 




      Do: 

1. Share all the facts related to the marriage with a lawyer. 
2. Share every document/evidence related to the marriage with your lawyer. 
3. Provide details of ‘Streedhan', how parties are going to settle it, If already agreed else take help from Lawyer
4. Discuss and settle the important issues such as Alimony amount, child custody, and children maintenance before your file for a mutual consent divorce.-IMPORTANT
5. Create MoA (Memorandum of Agreement) along with your spouse and append it with your divorce application.