Ishrat Jahan case: Will approach SC under Article 32 if fundamental rights violated, says RK Kapoor

New Delhi :  With the Supreme Court set to hear petitioner Ishrat Jahan challenging the constitutional validity of the triple talaq system, senior advocate R.K. Kapoor said Friday that if the fundamental rights of any Indian citizen is violated, irrespective of gender, then he or she can knock at the door of the Supreme Court under Article 32 of the Constitution. In her petition, Jahan has raised the question whether an arbitrary and unilateral divorce through triple talaq can deprive the wife of her rights in the matrimonial home as also her claim to custody of her children. Kapoor told ANI that this issue of delivering triple talaq on mobile phone has risen recently and the matter has been presented before the Supreme Court.

 “It would be relevant to say that when the fundamental rights of Indian citizens, irrespective of gender, are affected, then he or she has a right to knock the door of the Supreme Court,” Kapoor said. “And, infact, Article 32 (of the Constitution) itself is a fundamental right, where the person can knock the door of the Supreme Court if there is a violation of his or her fundamental rights, particularly under Article 21, vis-a-vis any religious community or otherwise,” Kapoor added. Kapoor further said, “If there is a contrast, or there is a violation of fundamental rights vis-a-vis the other rights given under personal law, then the honourable Supreme Court will go into this issue which is already pending before the honourable Supreme Court, and this matter will also be tagged with that.”

The apex court agreed to hear on Friday the writ petition filed by Ishrat Jahan from Howrah through advocate V K Biju, who mentioned it before a bench comprising of Justices A R Dave and L Nageswara Rao. Ishrat Jahan has four kids aged between seven and 12 years, who were forcibly taken away from her and now she does not know their whereabouts.

In her petition, she sought a declaration from the court that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 was unconstitutional, as it violated fundamental rights guaranteed under Articles 14 (equality), 15 (non-discrimination), 21 (life) and 25 (religion) of the Constitution. On July 29, the Supreme Court had favoured a wider debate on the petitions challenging the validity of the triple talaq. Earlier, the All India Muslim Personal Law Board and the Jamiat-e-Ulema had defended the practice of triple talaq, saying it was part of the Quran-dictated personal law which was beyond the ambit of judicial scrutiny.