Court cannot stop Muslim man from divorcing, Kerala HC said THIS on second marriage

Kochi: The court has no role in restraining the parties invoking their personal law remedies, the Kerala High Court has said and set aside two orders of family court restraining a Muslim man from invoking irrevocable Talaq and from conducting a second marriage. The high court said this while allowing a petition filed by a 30-year-old man challenging two family court orders --one restraining him from pronouncing irrevocable talaq and another preventing him from conducting a second marriage. The family court had passed the order at the instance of the wife.

"The Court has 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 to 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", a Division Bench comprising Justices A Muhamed Mustaque and Sophy Thomas said in the order dated August 17.

The court said aggrieved can challenge any action emanating 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", it said. The act complained, invoking irrevocable invocation of Talaq yet to come into existence, the high court said, adding, it is only after the completion of the process and the procedure act qua the Talaq, it can be said whether it was in accordance with the procedure as prescribed under the personal law or not.

"It is unfortunate that before that exercise is being done he has been restrained from acting in accordance with 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 conscience and belief in accordance with his religious practices. The Court has no role to restrain or regulate one's behaviour or decision in accordance with the personal law guaranteed", the court said set aside both the orders.

The court also made it clear that at an appropriate time, if Talaq is not exercised in accordance with the law, the respondent-wife can approach the competent Court to redress her grievances.