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
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.