Transfer of Property ACT 1882 LECTURE 2

tranfer of property act 1882 lecture 1

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017: PART II

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017:  PART II

Hello every one,

Thank you for such a over whelming response to my blog on the aforesaid blog PART I. I got so many quires which I will be discussing here for all my readers.

Q1 Do you mean to say Triple Talaq is not an issue at in Muslim?

Ans:  No, I do not mean that. Triple talaq is no doubt an evil existing in the Muslim community. What I  mean to say by data is that this the part of some bigger issue that is abandonment of wives by husband through divorce or otherwise.  And that issue is to be projected like this one. If we really want women empowerment than this issue is need of an hour.

Q2 Do you mean to say no law is required for betterment of Muslim women?

Ans: Of course is required, no doubt in that. What I tried to say is this that this is not the right law which is needed. This law is a big dent institution of family in our society. We always aim to meditate issue between the spouse. But this law blurs that silver lining of preservation of marriage.

Q3 SO, explain what will be the better law?

Ans: I am just an academician and legislation is not my domain . Yet I am working on draft so some good model on the same. Right now I can give you just a broad idea that is  Muslim law of divorce is very clear and very well codified in Islamic law. We can give a legislative frame to that and in that we can declare that talaq-ul-biddat is  not any form of talaq. And will not have any legal effect of marriage and any person abandons their wife in consequence can me made punishable. I am working on it and will surely come for the model bill through my blog .

Q3 Are you a Muslim law activist or anti Modi ?

Ans :  I am an academician , I am not Muslim activist nor anti Modi. I write what  I feel right. I have written against Muslims legal thought upon same issue earlier you can very well check my earlier blogs.

Q4 Do we leave our Muslim sisters on their fates. They have already suffered a lot?

Ans: Rightly asked, no we should not  supreme court already in sayera bano has done some justice to them. Yes no doubt even after the judgement also we have so many reported cases of triple talaq. But we should remember that it is a social evil and can not be eradicated at once. Indeed Muslim community is taking steps to make people aware about it.  They have incorporated new clause in there nikha nama that talaq-ul-biddat is not valid form of talaq.

Q5 So you mean to say we should what till society change completely?

Ans: (laughing) No I do not mean that. But we all know good laws need through study present law is not the out come of good home work. We have seen in  vishaka case  it took time to draft a good law . We can see the issue of child marriage, we have law but maniac still exist in society. I just want that some law with effective results is required. Present law is going to create more problem than solutions

  

I will try in my future blog to draft model Muslim talaq law soon.

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017: CRITICAL ANALYSIS (Part I)

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017: CRITICAL ANALYSIS       (Part I)

Hello to my all readers,

I was continuously resisting myself to write again on the issue of triple talaq or talaq-ul-biddat.  As in my previous writing I clearly stated that it is un-Islamic and unconstitutional and same has been declared by Supreme Court in sayera bano v. Union of India.  But after seeing all the steps taken by the present government and seeing that nation has been misled. I felt that it became my primary duty to through some light on the present issue.

Today I will like to discuss on THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017 which is already the subject of so many mix reactions. As always I have my own personal views and I will never tilt my approach due to my cultural or religious belief. As a researcher I just bring facts in to the knowledge of my readers I no where a supporter of triple talaq.

Triple Talaq is biggest issue that the nation is facing today(as no other issue exist in our society). So first of all let us see what census says about divorce issue in India.

In India we do not have any special survey for recognising issue of divorce but according to census 2011, among divorced Indian women, are 68 per cent Hindus whereas 23.3 per cent are Muslims”. Of the 23.3 per cent, we have no data to find out the percentage of Muslim women divorced because of the pronouncement of triple talaq in one sitting. Neither the law commission nor any other state agency has done survey on extend of triple talaq in Muslim but they all proclaimed that it frequency is high. I am not saying it does not exist but its frequency is not so as been projected by the government. But the only survey that can be relied upon is survey conducted by the Bharatiya Muslim Mahila Andolan (BMMA), which claim the divorce rate among Muslims to be as high as 11% as opposed to the Census. This might be because survey done by BMMA covered 4,710 Muslim women from 10 states. According it this survey BMMA covered 117  divorce cases out of which  in 0.2 % cases talaq was given on phone,0.6 % through mail, 0.19 % through SMS. So from the above scenario we can very well understand  that the frequency of triple talaq is not such  been projected and Prior to passing any Bill it is the duty of government to do the study of stake holders and find out the real problem existing . Supreme court no where in its judgement declare that triple talaq should be criminalized.

Now coming to the present bill  preamble of bill reads as to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto. The words that need to be focused is that “prohibit divorce by pronouncing talaq by their husband” . Does the legislature mean that Muslim male cannot pronounce talaq to their wives in any form.  I do not understand that why they do not used the word talaq-ul-biddat instead of the word talaq. Same.  What Supreme Court guided was to frame work the legislation which will guide the Muslim male the procedure of pronouncement of talaq.  Similarly section 2(b) provides the unique definition of talaq which cannot be found anywhere in Muslim jurisprudence. It provides that "talaq" means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband. The word any other form of Talaq includes talaq-ul hasan and talaq-ul-ahasan as both talaq have tendency to convert in to irrevocable form of talaq. By giving such a voyage definition did legislature want to impose upon the Muslim male a barbaric legislation. Which takes away his all rights regarding the divorce? You can not find such type of law in any civilized society. If I am the Muslim male how should I will divorce my wife if i want to do so this bill is silent on this. Oh! I            am Muslim indeed so I will not have any right to divorce after my marriage Let me think ...

Section 3 “Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”

The issue in said section is same as in above section that is word talaq. But the peculiarity of this section lies in the last words that are “void and illegal”. It means that talaq-ul-biddat is void.  That’s mean it does not have any legal effect. The definition is valid on this point but  the consequence of void act have been given under section 4  of the act that is “Whoever pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and fine” . though  this clause is been subject to great criticism on the ground that Muslim marriage being a civil contract how its breach can be made punishable.  Therefore I will not be discussing that part in my blog rather being a legal researcher I will simply try to draw analogy from the act itself. Firstly bill nowhere define the amount of fine, i.e. there is no maximum limit of fine that can be imposed and all discretion lies in to the hand of judge. Secondly lets us assume a situation where wife in sudden fight with husband asked for instant talaq what will be the consequence because this is very common example and issue is to understand and addressed. Because the talaq is been asked by the wife and husband is the victim as he will have to face the punishment. Though the real mistake is of wife.

Some people may say that in such case issue will never reach to the court but this law itself declare that offence is cognizable and non bailable therefore is not need of complaint of wife in such situations. Police have ample power in criminal procedure code to take cognizance even without the complaint.

Let us presume another situation where husband pronounced the divorce to her wife but in front of magistrate he denies the same. What said wife will do as burden of proof lies on her and normally the act of divorce is matter of privacy how she will shift her burden of proof.

From the above discussion I can conclude that the present act is not the appropriate step that can be taken. Now the question remains open is than what will be the appropriate step can be taken which I will be discussing in my blog.(though so much still left uncovered and will be doing so in my next blog)

Above discussion is writers personal view and does not aim to criticize  policy  of the government. Writer is no where in favor of triple talaq and very vehemently criticized it in its earlier series of blog  titled as TRIPLE TALAQ

TRIPLE TALAQ 3

TRIPLE TALAQ : JUDGEMENT RESERVED

Hello to my all readers.

Today after hearing day to day; Supreme court reserved its judgement. I feel happy and congrats Supreme Court to show the world that Indian Judiciary is not lethargic on such sensitive issue and nether it is over zealous to give hasty judgements.

Detailed discussion on each prospective is really appreciable. I was continuously fallowing Supreme Court on this and ICJ on Jahadav case. Before the judgement of Supreme Court I want to predict the decision of the highest court of justice.

Supreme Court most probably going to give fallowing points in its judgement in Triple Talaq:

1)      Talaq ul biddat is a bad Talaq though its no where given in Quran but there are certain Hadis  that favour triple Talaq. Due to its consistent and undisturbed use it has became the integral parts of Muslims even though not allowed by Islam. (for details of hadis please read my earlier blog on triple Talaq) . Taking away the rights of triple Talaq may be miss understood my minority therefore we are not taking away triple Talaq as completely.

2)      Legislation is the sole domain of legislatures and they always have power to legislate new laws in order to strike down any social evil in order to do social development.  Triple Talaq being a social evil can be struck down by legislature through some legislation.

3)      Until the new legislation does not come in to  existence we order AIMPB( All India Muslim Personal Board) to  amend the Nikha Nama and incorporate new clauses in Nikha Nama such as

·          Wife will have power to deny instant triple Talaq.

·         Wife will have power to  enhance the amount of Dower in cases of instant Talaq

AIMPB have to inform this to all qazis about the changes and any qazi not fallowing the changes will be subject to some punishment ( court will decide that in its judgement).

4)      AIMPB to make changes in nikha nama where right  to Triple Talaq  will also be given to women . Indian Constitution gives equality to all and even Quran Allowed power of Talaq to women. Therefore All Muslim women should also  be given right of divorce trough triple Talaq.

In order to have control on such social evil court might create deterrence by creating penalty in form of heavy fine

Dear readers these are my personal predictions I am not declaring that this is going to be a judgement.

 Waiting for the judgement.

 

ANTI ROMEO SQUAD # U.P

Anti Rameo Squad Morph in to Moral Policing

My warm wishes to all my readers.

Uttar Pradesh Chief Minister Mr. Yogi Adityanath, on 22 March 2017 just after two days of its oath full filled one of its most polarising promise i.e establishments of Anti Romeo Squads in order to control eve teasing. What a positive approach respected CM have and it is really appreciable. These  anti romeo squads come in function with immediate effect and results in to 800 arrests in to Six district. But the question of concerned as a lawyer for me is whether it is really a control on eve teasing or is it moral policing.  There exist every thin line between crime control and moral policing and which seems to be blurred in this  particular instance.

As per the news papers and news channel head line police is raiding in cafeterias, Hotels, Cafes, parks and all other places. Asking couples moving on roads to get separated and in mostly cases they are arresting boys who are moving or sitting with some girl. Before getting in to issue as a lawyer lets us understand the two basic terms and then we will try to find out the dividing line of both.

Firstly what amount to eve teasing ?Eve teasing is a euphemism used for molestation or harassment of a women in public place. Commonly known as street harassment. Word “Eve” is alluded  from the name of very first women on earth as per Bible and word teasing mean disrespecting  such a godly women. So we can very well understand eve teasing is both moral and legal offence rather I will say crime.

On the other hand Moral Policing is a blanket used by some particular vigilant group which act enforce moral code of conduct to other people because they consider that particular act against the morality of the Indian culture. So we can also say that moral policing is also illegal as it tries ti infringe the fundamental rights of all citizens in India.

Known coming back to the present discussion  we will find that police is enquiring each and every couple who is travelling or sitting together is that amount to check on eve teasing, surely not; I think Uttar Pradesh police really do not know the meaning of eve teasing. When someone is travelling with his /her  colleague or fellow friend than its nowhere amounts to eve teasing and you have no right to question me and my fellow person status. As it is the matter of right to privacy and you can not interfere in my right of privacy without any reasonable restrictions. Being a lawyer I will not only impose my views on this I will try to find out the  the answer of some question through our constitution. I will be discussing all questions one by one.

1)      Being a major is it illegal to stay in hotel in India and can police raid on such person without reason?

Instead of giving my personal opinion let me show you the word of law, as written in our Constitution:

Art 15(2)(a) (read as Article 15,Sub-section 2,Clause a): No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment.

Art 19(1)(d) and Art 19(1)(e)  (1) All citizens shall have the right—

 (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India.

Art 21: No person shall be deprived of his life or personal liberty except according to procedure established by law. And more over supreme court in many judgment recognized live in relationship so when two unmarried people staying in hotel it is not a offence unless they are not doing some thing else illegal and consistent raiding in hotels and harassing such couples is not control on eve teasing rather it is a moral policing and have to be stopped immediately. (Khushboo v. Kanniammal s.c)

2)      Can police stop couples travelling together or sitting in park or cafeteria ?

 Uttar Pradesh police says that they are continuously visiting coffee shops and parks and having check on couple sitting there. So tell me which coffee shop in Uttar Pradesh will allow a haggler to sit in to its arena, I think no one and it’s the place where two people sit with their consent and when they are sitting with their mutual consent than where the question of eve teasing arise. Are taking nation towards self proclaimed democracy. All fundamental rights are subject to state will, are we living is state to tyranny.

Police have to understand that respected CM of Uttar Pradesh has ordered to check on eve teasing and your duty is to check hagglers and not unnecessarily   interfering in to personal liberty of other. If you keep on doing than it will going to have a very negative impact on the youth. Brothers and sister will start fearing to move freely. Your aim is to make you more safer rather than creating a state of fear in all girls and boys. Youth should feel secure in your presence rather than feeling insecure. Its the high time to draw the clear line of division between eve teasing and moral policing.

Against ABVP # antinatinalist

We have freedom of speech, Sorry ! you are anti nationalist .

Hi to my all readers, i am shocked, sadden, heartbroken. Having no words to express my feelings and I can only be in mental peace after expressing my feelings and this is the best place to do so. My blog is on very sensitive issue that is nationalism and anti nationalism. My freedom  of speech visa a vice rational criticism of the government.

Delhi university student Gurmehar Kaur started the campaign last week against the ABVP (Akhil Bharatiya Vidyarthi Parishad) and she was compelled to take off the campaign. Before understanding the above issue lets us peep in to the root cause of this campaign.

Violent clashes broke out between Left-affiliated AISA and RSS-backed ABVP at DU's Ramjas college on 22 February 2017 over a seminar invite to JNU students Omar Khalid and Shehla Rashid which left "several students and three teachers injured. The clash broke out when a group of students and teachers tried to take out a march demanding action against ABVP for alleged vandalism and also disruption of a seminar. Akhil Bhartiya Vidyarthi Parishad had  locked down the college's seminar room and pelted stones in protest against the invitation to the JNU students who were to address a seminar calling them "anti-nationals". The college authorities decided to withdraw the invitation which irked a section of students and teachers who planned the protest march to Maurice Nagar police station demanding action against ABVP members for the "vandalism". The ABVP members, however, did not allow the march to proceed and allegedly locked the students and teachers inside Ramjas college while AISA members tried to barge inside the premises to "rescue the captives".The two JNU students were invited to take part in a session during a two-day seminar on 'Culture of Protest' organised by Wordcraft, Ramjas college's Literary Society.

After the above act gurmehar kaur started her campaign against ABVP where she got trolled badly on internet being called anti national. So the question of concerned is how she  become anti national.  Did it mean that any person who will speak against RSS and BJP or there backed wings will be declared as anti national. Lets me not be so emotional I am a lawyer so I should try to find the answer through law not through my sentiments. Here the issue of contention is that Whether raising a voice against particular group of people or  disliking ideology of particular political party can be ground to declare you anti national.

Constitution of India provide all Freedom of speech and expression with reasonable restrictions and  existence of sedition in India is always be considered as indivisible    part of   freedom of speech and expression. As it always matter of contention what amount to reasonable for the purpose of article 19 and where sedition charges are to be impose. We have to understand that where the circumference of reasonableness of Article 19 ends, sedition laws starts. Supreme court in kedarnath singh v state of bihar 1959 clearly held that sedition law is constitutional and provide that  since the word ‘sedition’ by itself is not included as one of the reasonable restrictions under Article 19(2), the Court could uphold section 124A only if it was brought within the ambit of ‘public order’. It made a clear distinction between strong criticism of the government and those words which excite with the inclination to cause public disorder and violence. It also distinguished between ‘the Government established by law’ and ‘persons for the time being engaged in carrying on the administration. Later on clearing the view supreme court in  S. Rangarajan v. P. Jagjivan Ram 1989  held that for bringing sedition in to the domain of public order  the expression of thought should be intrinsically dangerous to public interest. The anticipated danger should  not be remote  it should be proximate. Again Supreme court in balwant singh v state of Punjab  in 1995 held that “Over sensitiveness sometimes is counterproductive and can result in inviting trouble. Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established, nor could the same give rise to feelings of enmity or hatred among different communities or religious or other groups.

Coming back to the recent matter, what Gurmehar Kaur did  she simply started the campaign against a political thought and express that she did not like views of ABVP and therefore she stand against it, How this act became so aggressive that all start thinking that she is speaking against the nation. So is it ABVP who will decide that what is national and what is not. Not they can not, what is actually going on is some thing different.The attack at Ramjas College in Delhi is one episode. It is linked to the assaults at India’s premier university – Jawaharlal Nehru University – and to the many attacks on students from Jadavpur University (West Bengal) to Central Universities in Hyderabad, Haryana and Jharkhand. The ruling party’s student wing – ABVP – has been emboldened to intervene violently in any attempt by students to have open discussions about matters that the Sangh Parivar deems to be inappropriate. This is thuggish censorship.  The Sangh Parivar wants to use ‘reforms’ to college admission policy and to the policies on student life as a way to engineer the student body. They want to disallow progressive politics and allow only the politics of violent cultural nationalism. The people chosen by the ruling party to run academic and cultural institutions show that they care little for competence and are driven by a narrow political agenda. Blind obedience and conformity are preferable to them than robust and rich political debate on the campuses. The Sangh Parivar’s agenda is to close the Indian mind and destroy intellectual flexibility. Leaders of colleges who are sympathetic to the Sangh Parivar have emboldened non-academic agents to use violence against students and faculty who want to hold conversations around controversial themes – Kashmir, the Sangh Parivar, caste violence, misogyny, and class apartheid. This intimidation is the opposite of what a university and college must be – namely, a sanctuary for conversation and debate over the very issues that are most contentious. No progress is possible in a country if young people are not permitted full freedom to discuss difficult issues, pressing issues, issues that will matter to them long after the political leadership in the country has passed on.  oh! Again being little sentimental actually it is not my over zealousness rather it my heart pain that every time comes out.

If Gurmehar Kaur is anti national than what about those who gave her open warning of rape and death. I agree this 20 year girl was knowing the consequences of her campaign, she was not knowing that she is no more living in democracy her freedom of speech has already been taken. She forget that some people draw their ideologies from North Korea and these people have firm believe that what they think, what they say, what they eat, what they drink is only national any one doing things other way is anti national.

You believe that there should be open discussion about peace between India and Pakistan as war take thousands of life # you are anti nationalist.

They say we should have a diplomatic relations and war only kills# they are nationalist.

You say have a democratic thought, all are equal# you are anti nationalist.

They say only Sang parivar is true follower of democracy   # nationalist.

You say I want to eat   Meat # you are anti nationalist

They say  you cannot eat without our will # nationalist

You say who kill Gandhi ji  was anti nationalist # you are anti nationalist

They say he was the real patriot  # they are nationalist.

I know if this post reaches up to some people than I will be also facing sedation soon. But being a lawyer it is my duty to show mirror to the world. Though I tried to write only on legal prospective but this time was not able to control my emotions. But I will be writing on this topic again with complete legal prospective.

Thankyou for reading

DEMONITISATION HOW FAR LEGAL

DEMONITISATION HOW FAR LEGAL

Hello to all my readers, today i am writing this blog due to continues queries of my friends, colleagues and students about demonetisation. I am not an economist to review the policy of union government of India so my blog is going to be very different from all that available on online portal. My aim will be to test its legality and its real impact on root level without being biased or politically oriented.

As  we know 8^th  November 2016 was termed as surgical strike on black money or we can say the biggest revolutionary step by our  respected Prime Minster and I really congrats him for that but lets us first peep up in to the constitutional validity of this step and then we will see its positive and negative impact. To check the constitutional validity of demonetisation by central government we will try to find the answer of some questions. which are framed by supreme court.

1)      Whether demonetisation notification of November 8 is ultra vires Section 26(2) and other provisions of the RBI Act?

 Section 26 0f RBI Act reads as

“Legal tender character of notes.—

(1) Subject to the provi­sions of sub-section (2), every bank note shall be legal tender at any place in 1[India] in payment, or on account for the amount expressed therein, and shall be guaranteed by the 2[Central Government].

(2) On recommendation of the Central Board the 2[Central Government] may, by notification in the Gazette of India, declare that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination shall cease to be legal tender 3[save at such office or agency of the Bank and to such extent as may be specified in the notification]”

As we see section 26(2) that central government have authority to demonetise any series of bank notes and cease them to have any legal tender. But the matter of contention is that wither the word “Series of notes”   include “complete currency or it includes only particular series of that currency. 

Indian history has never witnessed such situation ever so finding answer to this question is absolutely a new venture to supreme court. But I will like to keep my view. When ever we make some law there is always some reason behind that. If we study the history of this act than you will  find that aims of legislature  to introduce this act was to have control and maintain economic equality. And section 26(2) was aimed to control the miss use of any type of currency. So I will not be reluctant to apply Purposive rule of interpretation to 26(2) of RBI Act instead of literal interpretation.  Purposive interpretation is the Modern principle  of construction where courts tries to find out the reason for the enactment of the act or which was the mischief that law aims to over throw. So instead of giving literal interpretation to the section26(2) of  RBI Act.I will say the demonetisation is not ultra varies to the RBI Act.

2)      Does Section 26(2) of the RBI Act - under which the November 8 notification was issued - itself suffer from excessive delegation of powers and therefore ultra varies the Constitution?

Too much excessive power to Union Government brings section 26 of RBI Act(here in after section 26) on the scanner  of constitutional validity. Though this question is yet to be decided by honourable supreme court but I will love to Throw some light on this prospective. Interpreting law is the sole duty of hon’ble  supreme court but any law in India drive its power from constitution and any law not in conformity of constitution can be declare void. The limit of legislations are expressly discussed under Article 13, 245 and 246 of Indian Constitution.

 Article 13(1) provides that all laws in force in the territory of India immediately before the commencement of the constitution in so far as they are inconsistent with the provisions of Part III (fundamental rights) shall, to the extent of the contravention, be void. According to article 13(2), the state shall not make any law which takes away or abridges the rights conferred by part III (i.e the Fundamental Rights) and any law made in contravention of this clause shall, to the extent of the contravention, be void. Article 13(3) makes it clear that for this purpose, unless the context otherwise requires , law includes any ordinance, order, by – law, rule, regulation, notification, custom or usage having in the territory of India, the force of law. The legislature, thus, cannot violate the provisions of part III of the constitution granting the fundamental rights. If the parent or enabling Act is violative of the Fundamental Rights granted by part III of the constitution, it will be declared by the court as unconstitutional and void, and the subordinate or delegated legislation made under the act will also be held to be unconstitutional and void .

Article 245 makes it clear that the legislative powers of the parliament and that of the state legislatures are subject to the provisions of the constitution. Parliament may make laws for the whole or any part of the territory of India and the legislatures of a state make laws for the whole or any part of the state. No law made by the parliament shall be deemed to be invalid on the ground that it would have extra territorial operation. The state legislature can make law only for the State concerned and, therefore, the law made by the state legislature having operation outside the state would be invalid . In short, no law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation. However, the law made by the state legislature may be challenged on the ground of extra territorial operation. If the parent act is declared to be unconstitutional, then the delegated legislation made under such act would also be declared to be unconstitutional and thus, void.

Article 246 makes provisions in respect of the distribution of powers between the powers between the Parliament and the State legislatures. From article 246 and the seventh schedule, it becomes clear that the subjects have been divided into three categories – Union list, State list and Concurrent list. Parliament has exclusive power to make laws with respect to any of the matters or subjects enumerated in the Union list and of the legislature of any state has power to make laws for such state or any part thereof with respect to any of the matters or subjects enumerated in the State list. Parliament and State Legislatures both have power to make laws with respect to any of the matters or subjects enumerated in the Concurrent List, but In the case of conflict between the law made by Parliament and a law made by the State Legislature with respect to such matter or subject, the law made by Parliament shall prevail and the laws made by the State Legislature, to the extent of repugnancy. be void, unless the law made by the State Legislature has received the assent of the President.  

Section 26(2) fall in to the test of Article 13 that is wither giving excessive power to central government violets the basic structure of our constitution and take away the fundamental rights of Indians if I put it on the test of Article 19 than though it appears to be  unconstitutional at first instance but as article 19 itself is subject to matters in interest of public. As union government stating from very first day that they are doing in public interest so we can say that this law as such is not ultra varies to Indian constitution but  so much of public inconvenience  come in to the definition of public interest as per Article 19 is the question that Supreme court have to see.

3)      Whether restriction on withdrawal of legitimate funds is violative of Article 14 and 19 of the Constitution?

Prime minister announces the demonetisation of 8^th November 2016 in order to curb black money and stop extra territorial terrorism problem in India. But since then justifications are changed, now it is to make India “cash less” society. The chaotic effect of demonetisation can be  seen behind out of banks and ATM’s. So many of them has lost their lives    jus in order to withdraws there legitimate funds. Prime minister rhetorically argues that poor are going to sleep and rich are going to spend sleepless night. The result can very well be seen how many rich people have you seen outside the banks, I am not saying that they were having black money. My question is, Are they not having any hard cash with them to exchange or submit. Does India already developed to that extend? If yes, than it is the discrimination made by   central government under Article 14. No doubt rule of law prevails but it should not be arbitrary. Discriminating between rich and poor is really unconstitutional. Than another argument i favour can be  that  the notification applies to all  equally and hence does fall in category of class discrimination. Yes, absolutely right but if I say it the example of colourable legislation apparently you find it that it applies on all but in realty it does not. And colourable legislation is not allowed.

Again forcing individuals not to withdraw  more than 2500/= rupees and cannot submit more than particular amount is bad example of reasonable restriction and this cannot be allowed. Than argument in favour of this can be that Article 19 provides restriction on the basis of public interest than we should keep in mind that supreme court has made clear in its so many judgements that no restriction can be read in isolation and even restriction in public interest have to pass the test of reasonableness.

From the above discussion I can conclude that restricting people to withdraw their legitimate money is voliative of Article 19 and Article 14 and hence unconstitutional.

4)      Whether November 8 notification and subsequent ones are in violation of Article 300A (right to property) of the Constitution?

Right to property was the fundamental right and which later converted in to constitutional right with 44^th amendment and incorporated in form of Article 300A. Money is the property and fall in to the definition of Article 300A. Language of Article 300A is  that no person can be deprived of his property without the “Authority of law”. So the question in discussion is what the Authority of law  is for Article 300A.The term ‘law’ as defined in Article 300A is understood to mean only a legislation or a statutory rule or order. The term ‘law’ as understood by Article 300A will not include executive fiats(K.T. Plantation Pvt. Ltd. & Anr vs State Of Karnataka on  2011 SC).. The source of the ‘law’ depriving a person of his property has to be necessarily traced, through a statute, to the legislature. The question therefore is whether the relevant notification of central government ‘law’ for the purpose of Article 300A or whether the same would be struck down as having no basis in the Act. As it is very much cleared by Supreme Court that mere executive fiats cannot be authority of law for the purpose of Article 300A and hence mere notification of central government not qualified to be authority of law. The argument in favor of the government may be that Section 26(2) RBI give authority to central government for demonetisation and hence notification of demonetisation will fall within the meaning of law for aforesaid Article. Than answer to the raised question is that every law is subject to Article 21 and each law before coming in to existence have to fallow the due process of law. Due process of law for deprivation of property is law by parliament and hence notification of demonetisation fringed the basic feature of Indian Constitution and hence liable to be held unconstitutional.

Above discussed questions are my personal views and these questions are yet to be decided by Supreme Court. 

But from the aforesaid unbiased discussion we can say that central government act of demonetisation does not qualifies the constitutional validity and hence liable to be sat as side. Apart from this consistent rollback of the government is also the matter of great concerned. When Mr. Modi announces the demonetisation it says that exchange will be done till 30^th December 2016 and notification still contain same date but government through various advertisement keep on changing dates. This act raised the serious question on ethical and moral behavior of the government. Legally such action of government can be challenged as violation of Doctrine of Legitimate expectation.

I will try to bring positive and negative social impact of demonetisation in my next blog.

Hope you people like this blog. Do not forget to leave your comments that gave me courage to write   better and unbiased blog every time.

Triple Talaq (part 2)

 Triple Talaq in Islam (Part 2)

My warm greet to my all readers, I am back with same question that I kept open in my last blog on “Triple Talaq”. After that blog I got so many comments that,  I do not know Shariyat and  Hadith therefore I should not write all this. I took them very optimistically and I am here again to answer them. This blog is going to deal with Talaq discussed in Quran and Hadith.  No doubt I am pure Muslim and Hanafi Sunni fallowed “Ala-Hazart” and want to clear one thing that my blog does not favour  uniform civil code  as that is purely a separate zone need a detailed discussion which I will do surely in my next blog. The focus of this blog is to make all world clear that what really Islam says about “triple Talaq”  or “Talaq-ul-Bittat”.

Quran (Surat At-talaq)

At-Talaq is not only the name of this Surah but also the title of its subject matter in Quran, for it contains commandments about Talaq (divorce) itself. Hadrat `Abdullah bin Mas`ud has described it as Surah an-Nisa al-qusra also, i.e. the shorter Surah an-Nisa. This Surat discuss  Talaq in detail  I will focus on the relevant part only which can be discussed as fallow

“O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period, and fear Allah , your Lord. Do not turn them out of their [husbands'] houses, nor should they [themselves] leave [during that period] unless they are committing a clear immorality. And those are the limits [set by] Allah . And whoever transgresses the limits of Allah has certainly wronged himself. You know not; perhaps Allah will bring about after that a [different] matter.”

These are the wording of Quran where Allah says Prophet Mohammad ( S.a.a.w) that divorce women during their first month i.e Tuhar period and wait for next till all pronouncement completed  and whosoever does not obey Allah is certainly a wrong doer.

Certainly I have no  authority to interpret Quran according to my understanding I am not a capable person to do so  but  we Muslim believe in fallowing Hadith and consider them the real authority and believe that Quran  is to be  read in the light of these authorities. These authorities are Sahih Muslim, Sahih Bukhari, Ibn Majah ,Mishkat Sharif, Tirmidhi  Sharif,  & Sunna Abu Dawood.  So let’s study the above verses of Quran in the light of these Hadith one by one.

Sahih Muslim (http://www.iium.edu.my/deed/hadith/muslim/009_smt.html)

Book no 9 Page no 3491

Says that “bn 'Abbas (Allah be pleased with them) reported that the (pronouncement) of three divorces during the lifetime of Allah's Messenger (may peace be upon him) and that of Abu Bakr and two years of the caliphate of Umar (Allah be pleased with him) (was treated) as one.But Umar b. Khattab (Allah be pleased with him) said: Verily the people have begun to hasten in the matter in which they are required to observe respite.So if we had imposed this upon them, and he imposed it upon them”

Book 9, Number 3492:

Abu Sahba' said to Ibn 'Abbas (Allah be pleased with them): Do you know that three (divorces) were treated as one during the lifetime of Allah's Apostle (may peace be upon him), and that of Abu Bakr, and during three (years) of the caliphate of Umar (Allah be pleased with him)?

Ibn Abbas (Allah be pleased with them) said: Yes.

Book 9, Number 3493:

Abu al-Sahba' said to Ibn 'Abbas: Enlighten us with your information whether the three divorces (pronounced at one and the same time) were not treated as one during the lifetime of Allah's Messenger (may peace be upon him) and Abu Bakr.He said: It was in fact so, but when during the caliphate of 'Umar (Allah be pleased with him) people began to pronounce divorce frequently, he allowed them to do so (to treat pronouncements of three divorces in a single breath as one).

From the above three hadith discussion  it is clear that Sahih Muslim clearly states that Triple Talaq was not allowed at the time of Prophet Mohammad (S.a.a.w). 

Sahih Bukhari ( https://www.sahih-bukhari.com/Pages/Bukhari_7_63.php )

Volume 7, Book 63, Number 178 :

Narrated by 'Abdullah bin 'Umar

That he had divorced his wife while she was menstruating during the lifetime of Allah's Apostle . 'Umar bin Al-Khattab asked Allah's Apostle about that. Allah's Apostle said, "Order him (your son) to take her back and keep her till she is clean and then to wait till she gets her next period and becomes clean again, whereupon, if he wishes to keep her, he can do so, and if he wishes to divorce her he can divorce her before having sexual intercourse with her; and that is the prescribed period which Allah has fixed for the women meant to be divorced.

Volume 7, Book 63, Number 179 :

Narrated by Anas bin Sirin

Ibn 'Umar said: "I divorced my wife while she was menstruating. 'Umar mentioned that to the Prophet . The Prophet said, (to my father), "Let your son take her back." I asked (Ibn 'Umar), "Is such a divorce counted (i.e. as one legal divorce)?" Ibn 'Umar said, "Of course." Narrated Yunus bin Jubair: Ibn 'Umar said, "The Prophet said to 'Umar, 'Order him (Ibn 'Umar) to take her back.' " I asked, "Is such a divorce counted (as one legal divorce)?" Ibn 'Umar said, "What do you think if someone becomes helpless and foolish?"

 Volume 7, Book 63, Number 180 :

Narrated by Ibn 'Umar.

(Divorcing my wife during her menses) was counted as one legal divorce.

The above two Hadith are most universally accepted so I concise my study with discussion from these two Hadith.

From the above discussion  it became clear that Triple Talaq have no place in Islam and it come in existence after Prophet Mohammad (S.a.a.w) . There are some Hadith which says that if one pronounce Triple Talaq at once than Talaq will be complete but such Talaq is certainly not good form of Talaq.

Question became more complicated when I  deepens my study but one thing is still certain that it is not the good form of  Talaq. 

I made discussion about this topic with some Muslim authorities and tries to find their views. Their attitude towards me was very repulsive yet somehow I convince them to discuss on this. They also have same view with different approach. They say no doubt it is bad in Islam but nowhere it is directly stopped by Allah or Prophet Mohammad (s.a.a.w) in Islam so you cannot stop this fallowing. Doing so will be direct interference in to Islamic law which can not be allowed.

I do not understand there logic but yes I understand one thing that it has became a very complicated issue due to some orthodox people who are making their bread on this fire.  

Question still remain open and to be decided by court of highest jurisdiction in the light of Islam. But me as a lawyer and true Muslim condemn this practise and ready to face the consequences of this blog. As a man of understanding and giving detailed study to the subject Islam nowhere recognize this practice. So my massage in last is Islam never  provide low value to any women and it safeguard its right at supremacy.  

Thank you    for reading my blog if you find worth do share and like my blog that provide me courage to write more and more.  Rest my motion.

triple Talaq

Good morning dear readers;

I am back with my own personal views on the burning topic  “Triple Talaq”. I know it is very  delicated topic as it involves religion but being a Muslim and a lawyer it is my duty to put my view with full impartiality.

Yesterday my senior asked me what is your view on Triple Talaq  and whether it should be declared unconstitutional or not , or Supreme Court have power under Indian constitution to interfere into religious matters as all religions  are protected under article  25 and so on in Indian constitution. My answer to him was negative and this question made me to write this blog.

I am not going to peep in to the power of supreme court or giving it a litmus test nor I am interested in checking the constitutional validity of “triple talaq or talaq-ul-bidadt” indeed I am interested to check its Islamic validity. How far Islam recognise triple talaq. Before getting into the question I would like to make few things clear to my readers who are from non law backgrounds.

Islamic law is based upon four main sources: [sources of law mean the ground in which Islamic law is based]

1       The Quran

 Quran is the first source of law. Muslims believe the Quran to be the direct words of Allah, as revealed to and transmitted by the Prophet Muhammad. All sources of Islamic law must be in essential agreement with the Quran, the most fundamental source of Islamic knowledge. When the Quran itself does not speak directly or in detail about a certain subject, Muslims only then turn to alternative sources of Islamic law.

2     The Sunnah

Sunnah are the traditions or known practices of the Prophet Muhammad, many of which have been recorded in the volumes of Hadith literature. The resources include many things that he said, did, or agreed to -- and he lived his life according to the Quran, putting the Quran into practice in his own life. During his lifetime, the Prophet's family and companions observed him and shared with others exactly what they had seen in his words and behaviours -- i.e. how he performed ablutions, how he prayed, and how he performed many other acts of worship. People also asked the Prophet directly for rulings on various matters, and he would pronounce his judgment. All of these details were passed on and recorded, to be referred to in future legal rulings. Many issues concerning personal conduct, community and family relations, political matters, etc. were addressed during the time of the Prophet, decided by him, and recorded. The Sunnha can thus clarify details of what is stated generally in the Quran.

3     Ijma (consensus)

In situations when Muslims have not been able to find a specific legal ruling in the Quran or Sunnah, the consensus of the community is sought (or at least the consensus of the legal scholars within the community). The Prophet Muhammad once said that his community (i.e. the Muslim community) would never agree on an error.

4    Qiyas (analogy)

In cases when something needs a legal ruling, but has not been clearly addressed in the other sources, judges may use analogy, reasoning, and legal precedent to decide new case law. This is often the case when a general principle can be applied to new situations.

So from above discussion I can conclude you that if anything is not provided in Quran than only other sources will be seen but if anything are very much clearly given in Quran than there is no need to seek answer to that from other sources. Talaq is very well discussed in Quran

Sūrat aṭ-Talāq (Arabic: سورة الطلاق‎‎, "Divorce") is the 65th sura of the Qur'an with 12 ayat. At-Talaq is not only the name of this Surah but also the title of its subject matter, for it contains commandments about Talaq (divorce) itself. Abdullah ibn Masud has described it as the shorter surah An-Nisa. The surah also defines the time period of Iddah to be three menstruation periods, three months if menstruation is not applicable, and in case of pregnancy it is the delivery of child. After addressing the topic of divorce and a number of other resulting family issues in first 7 ayaat.The surah then strongly urges people to observe God’s regulations and guidance, and reminded the fate of earlier disobedient people that the apostate and disobedient were chastised for their sin. Then 11th ayah describe the required attitude of the true believers that they exhort to faith in messenger and the regarding bounties.Finally God’s power and knowledge are emphasized at the end.

Now coming back to my question of triple Talaq. Quran nowhere talks about triple Talaq its only recognised Talaq-ul- Sunnat i.e Talaq after complete thinking within period of three months. But some so called learned scholars of Islam has given it the widest interpretation which is not allowed in Islam especially for matters which are directly discussed in Islam. They interpreted this Surat with some Hadees and said that triple talaq is allowed. Whereas Prophet Mohammad itself says in one Hades that Fallow Quran first and if do not get answer there than fallow Hadees and so on. He never intends to improvise law of Quran with the help of Hades.

Secondly triple talaq is known as Talaq-ul- bidat in Islam. The word bidadt mean “innovation” so it means triple talaq is innovation to what is provided in Islam. Which is not allowed in Islam?

Thirdly Islamic board says to Supreme Court in an affidavit that Supreme Court cannot interfere in religious practises than I want to make clear that what is protected by constitution is religion and not practices which are not recognised by Quran even. Suppose tomorrow child marriage became practise in Islam will it be allowed of course not that is not allowed in Islam and not recognised in constitution?

So ending with my blog keeping  question open for you all to decide whether triple Talaq is Islamic or not.