Courts cannot restrain Muslim men from pronouncing talaq: Kerala HC

It further said that courts cannot restrain Muslim men from marrying more than once because the same is permitted under Muslim law.

The Kerala high court held that lower courts cannot restrain a Muslim man from invoking talaq (divorce) as it is an act in accordance with Muslim law, and doing so would violate his rights under Article 25 (Freedom of conscience and free profession, practice and propagation of religion) of the Constitution of India.

A division bench of Justices A Muhamed Mustaque and Justice Sophy Thomas said that if the talaq or any religious act is not done in accordance with personal law, the same can be challenged before a court of law after the act. However, a court cannot restrain a person from performing it.

“No doubt, the aggrieved can challenge any action that emanates out of the 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 bench remarked.

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“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 judgment stated.

The Court was considering a petition filed by a married Muslim man challenging the temporary injunction passed by a family court order restraining him from pronouncing irrevocable talaq against his wife.

The family court had also allowed his wife’s application to restrain him from getting married a second time. The court said that the wife can approach the competent court to address her grievance if talaq is not exercised at the appropriate time.

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