THE High Court of Jammu and Kashmir and Ladakh has ruled that the Supreme Court’s judgment in the Shayara Bano case in 2017 holding the practice of instant “Triple Talaq” illegal would apply equally to cases of ‘triple talaq’ pronounced prior to the passing of the 2017 judgment.
“The judgment rendered in the case of Shayara Bano, if not made to operate prospectively is to be treated as retrospective and applicable even to the pending cases,” Justice Sanjeev Kumar said.
The High Court was dealing with a plea filed by a husband seeking to recall a judgment of the High Court passed in 2019, to the extent of relying upon and applying the judgment in Shayara Bano to the present case in which the husband allegedly pronounced the triple talaq in 2014.
Both the trial court and the appellate court had rejected the plea of the husband that there was no domestic relationship in existence on the date of filing of the application by the wife under the Domestic Violence Act.
The High Court had affirmed the findings recorded by the trial court and upheld by the appellate court that the petitioner-husband sought to divorce his wife by claiming that he had pronounced triple talaq on her in the presence of two witnesses.
The petitioner contended that the judgment in Shayara Bano was pronounced in the year 2017, whereas in the instant case, the divorce, that is, ‘triple talaq’ was pronounced in the year 2014. Thus, the decision could not have been applied to declare the validity of ‘triple talaq’ pronounced in the year 2014.
Rejecting the contention, the High Court opined that the Supreme Court, while declaring the ‘triple talaq’ as null and void, did not specifically make the judgment to operate prospectively and that being the position, the law declared by Supreme Court in Shayara Bano’ would apply equally to the ‘triple talaq’ pronounced prior to the passing of the said judgment.
The Constitution bench of the Supreme Court in August 2017 had set aside the practice of instant triple talaq by a majority of 3:2.
