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    Petition filed to protect the fundamental rights of a husband and wife who wish to reside together and are not being permitted to do so by the local community

    Date : 16/07/2010

    Nazma biwi & Anr v. State of Orissa

    Nazma biwi & Anr v. State of Orissa is a Special Leave Petition relates to the fundamental rights of the Petitioners, husband and wife, who wish to reside together and are not being permitted to do so by the local community.

    Triple Talaq is an Islamic principle by which a husband can divorce his wife by saying “Talaq” (I divorce you” three times. Under many interpretations of Islamic law, this utterance alone is enough for the divorce to be official. Although banned in many countries, the practice is legal in many muslim communities in India and it s enforcement is often left to local Muftis.

    On 15.07.2003, it is alleged by members of the community that the petitioner uttered triple Talaq towards his wife while he was intoxicated. He has no recollection of this and neither does she. Despite this, the public would not let them live together as man and wife. The petitioner appealed to the Mufti, who issued a fatwa (order) saying that the triple talaq was void because it was uttered while intoxicated. Later, a mob of people approached the Mufti and obtained a fatwa to the contrary.

    Therefore the couple having no other course of action then approached the Family Court, Cuttack, dated 13.11.2003 wherein the husband filed an application for the restoration of conjugal rights and the Family Court on recorded the compromise of the parties to the effect that they had agreed to reside together in their matrimonial home. Despite this order the police did not help the couple in the implementation of the order and the threatening mobs endangered the lives of the entire family.

    The Petition was filed in July 2004 when the couple was threatened by mobs repeatedly. Despite entreaties to the Hon’ble High Court that the matter ought to be heard on an urgent basis, the petition lingered until April 2008. Meanwhile, the family life of the Petitioners was severely disrupted. The High Court issued a decision refusing to interfere with the local processes, in part because of their religious nature. A Special Leave Petition was immediately filed before the Supreme Court, alleging that the High Court failed to take into account the true nature of the petition, which as relates to the fundamental rights of the above mentioned Petitioners, husband and wife, who wish to reside together and are not being permitted to do so by the local community.

    This petition therefore raises an important, recurring point of law of general public importance relating to the interference by local communities of the exercise of fundamental rights by individuals and married couples. The police and the judiciary play the role of mute spectators and the individuals or couples remain at the mercy of threatening mobs. The question arises as to whether local communities and other local bodies should be allowed to interfere with threats of force and violence and whether it is permissible for the police and administration to remain inactive in such circumstances.

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