Divorce is mandatory from the first marriage for Muslim women, but not for Men: Punjab & Haryana High Court

A Muslim man may get married more than once without divorcing his earlier wife but this doesn’t apply to a Muslim woman. She needs to give divorce her earlier husband under Muslim Personal laws or Muslim Marriage Act. The decision was taken by the single bench of Hon’ble Justice Alka Sarin in the case of Nahida & Anr. vs. State of Haryana [CRWP no. 764 of 2021].

In the instant case, a criminal writ petition was filed by the petitioners under Article 226 of the Constitution for protection of life and liberty against the private respondents. It was alleged that both the petitioners were Muslims and major. They got married on 19-1-2021, but the relatives of the petitioner were against their marriage and the relationship. And it was contended by the petitioners that they got life threats from their relatives and hence writ petition was filed by them.

In the High Court, it was observed that the petitioner (woman) was married earlier to some other person from whom she got divorced but there was no evidence available for such divorce taken under Muslim Personal Laws or Muslim Marriages Act, 1939. The confusion was created in front of a court as to how protection can be given to a couple whose marriage does not subsist in law because the wife didn’t take a valid divorce from her first husband. There was no averment that the wife’s first marriage was dissolved. Even the petitioners’ counsel couldn’t prove the same in the court.

After hearing all the arguments, High Court Bench contended that the Muslim man has the right to get married to some other woman without obtaining a divorce from the first wife but this provision doesn’t apply to Muslim women. Divorce from the first marriage is compulsory to be obtained; otherwise, the first marriage will not be dissolved and the second marriage will be considered void/illegal.

The High Court stated that under Article 21 of the Constitution, life and liberty is a right of every citizen and no person shall be deprived of his life and liberty and can approach the court or the police if anytime being threatened of the same, but in the present case, since their marriage was illegal and did not subsist in law, the writ petition cannot be exercised and hence, shall be disposed of.

The HC bench stated that “Article 21 of the Constitution of India provides that no person shall be deprived of his life and liberty except in accordance with the law. The petitioners have approached this Court for protection of their life and liberty to live as a couple which cannot be considered in the facts and circumstances of the present case. However, as an individual either of the petitioners, if they apprehend any threat to their life or liberty, would be entitled to approach the Police for redressal of their apprehensions regarding threats to their life and liberty.”

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