SC declines to order custody of children to Muslim woman divorced over phone call

A bench led by Chief Justice of India T S Thakur said that the woman should approach the police and get a case registered if her children had been snatched away by the man, who allegedly granted her divorce over the phone from Dubai where he worked.

“You file a police report…or go to the Calcutta High Court with a habeas corpus petition for your children’s custody. We can’t pass orders,” said the bench, as it issued notices on her main prayer questioning the validity of triple talaq.

Seeking responses from the Centre and the National Commission for Women, the bench tagged this petition with a clutch of similar petitions pending in the top court.

Appearing for the woman, advocate V K Biju, said that she has sought a declaration that Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 was unconstitutional since it violated fundamental rights guaranteed under Articles 14 (equality), 15 (non-discrimination), 21 (life) and 25 (religion) of the Constitution “in so far as it seeks to recognise and validate triple talaq as a valid form of divorce”.

Biju complained that her four children were forcibly taken away from her and that she apprehended threat to the lives of three daughters and a son. But the bench said it would hear the matter only on the main prayer and that the woman should resort to other legal remedies for custody of her children.

When Biju said that the woman had gone to Jahanabad in Bihar to stop her husband marrying another woman, the bench retorted: “Why did you go to stop his marriage? Isn’t he entitled to marry four times, irrespective of the fact whether he divorced you or now?”