IMPORTANT
Triple Talaq - What is held to be bad in the Holy Quran cannot be good in Shariat.
IMPORTANT
Triple Talaq - Talaq held to be violative of the fundamental right contained under Article 14.
A. Muslim Personal Law (Shariat) Application Act, 1937, Section 2 - Constitution of India, 1950 Article 141 Triple Talaque - Whether triple talaq has any legal sanctity - Question in no more res integra - Supreme Court in Shamim Ara v. State of Up has held, though not in so many words, that triple talaq lacks legal sanctity - Shamim Ara is the law that is applicable in India - What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well. [Para 201] B. Muslim Personal Law (Shariat) Application Act, 1937, Section 2 - Constitution of India, 1950 Article 141 Section 2 regarding "marriage, dissolution of marriage, including talaq", the law that is applicable to Muslims shall be only their personal law namely Shariat - Nothing more, nothing less - The 1937 Act simply makes Shariat applicable - While talaq is governed by Shariat, the specific grounds and procedure for talaq have not been codified in the 1937 Act - Triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat. [Paras 204 to 210] C. Constitution of India, 1950 Articles 14, 15(1) and 21 Muslim Personal Law (Shariat) Application Act, 1937 - 1937 Act is a law made by the legislature before the Constitution came into force, it would fall squarely within the expression "laws in force" in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency. [Para 245] D. Constitution of India, 1950 Article 25 Only what is an essential religious practice is protected under Article 25 - Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it - Triple Talaq forms no prat of Article 25(1). [Paras 250 and 251] E. Constitution of India, 1950 Article 32 Can Court decide the breach of fundamental right, when petition is filed under Article 32 - Yes. [Paras 252 to 256] F. Constitution of India, 1950 Article 14 Muslim Personal Law (Shariat) Application Act, 1937 - Breach of Fundamental Rights - A statutory law can be struck down if it is found to be "arbitrary" - There is no reason why arbitrariness cannot be used to strike down legislation under Article 14 as well. [Para 270] G. Constitution of India, 1950 Article 14 Muslim Personal Law (Shariat) Application Act, 1937 - Constitutional validity of a legislation - Subordinate legislation can be struck down on the ground that it is arbitrary and, therefore, violative of Article 14 of the Constitution. [Para 280] H. Constitution of India, 1950 Article 14 Muslim Personal Law (Shariat) Application Act, 1937 - Triple Talaq - This form of Talaq is manifestly arbitrary - This form of Talaq held to be violative of the fundamental right contained under Article 14 - 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression "laws in force" in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. [Para 283] Cases Referred :- A.S. Parveen Akthar v. The Union of India, 2003-1-L.W. 370. A. Yusuf Rawther v. Sowramma, AIR 1971 Kerala 261. A.K. Gopalan v. State of Madras, 1950 SCR 88. A.L. Kalra v. Project and Equipment Corpn., (1984) 3 SCC 316. A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy, (2011) 9 SCC 286. A.S. Narayana Deekshitulu v. State of A.P., (1996) 9 SCC 548. A.V. Fernandez v. State of Kerala, 1957 SCR 837. Adelaide Company v. Commonwealth, 67 CLR 116. Ahmed Kasim Molla v. 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Cellular Operators Association of India v. Telecom Regulatory Authority of India, (2016) 7 SCC 703. Charu Khurana v. Union of India, 2015(2) S.C.T. 819 : (2015) 1 SCC 192. Cheater v. Cater, 1918 1 K.B. 247. Chintamanrao v. State of M.P., AIR 1951 Supreme Court 118 : 1950 SCR 759. Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, 2004 (12) SCC 770. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR 1954 Supreme Court 282 : 1954 SCR 1005. Commissioners of Taxation for the State of New South Wales v. Palmer, 1907 Appeal Cases 179. Council of Civil Service Unions v. Minister for Civil Service, 1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174. D.K. Basu v. State of W.B. D.S. Nakara v. Union of India, (1983) 1 SCC 305 : 1983 SCC (L&S) 145 : AIR 1983 Supreme Court 130 : (1983) UPSC 263. Daniel Latifi v. Union of India, 2001(4) RCR (Criminal) 468 : (2001) 7 SCC 740. Daryao v. State of U.P., (1962) 1 SCR 574. Dr. Subramanian Swamy v. Director, Central Bureau of Investigation, 2005(2) RCR (Criminal) 38 : (2005) 2 SCC 317. Dr. Subramanian Swamy v. Director, Central Bureau of Investigation, 2014(2) RCR (Criminal) 822 : 2014(3) Recent Apex Judgments (R.A.J.) 269 : (2014) 8 SCC 682. Durgah Committee, Ajmer v. Syed Hussain Ali. E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 : 1974 SCC (L&S) 165 : (1974) 2 SCR 348. Erskine v. Adeane, (1873) 8 Ch. App. 756 : [1918] 1 K.B. 252). Folkes v. King, [1923] 1 K.B. 282. Furzund Hossein v. Janu Bibee, ILR (1878) 4 Cal 588. Fuzlunbi v. K. Khader Vali, (1980) 4 SCC 125. G. Ganayutham, 1997(4) S.C.T. 214 : (1997) 7 SCC 463 : 1997 SCC (L&S) 1806. Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228. Habibur Rahman Chowdhury v. Altaf Ali Chowdhury L.R., 48 I.A. 114.. Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 : 1985 SCC (Tax) 121. Indira Gandhi v. Raj Narain judgment, 1975 Supp SCC 1. International Airport Authority, (1979) 3 SCC 489. Jacobs v. London County Council, [1950] 1 All E.R. 737. Jamshed ji v. Soonabai, 33 Bom 122. Javed v. State of Haryana, 2003(3) RCR (Civil) 793 : (2003) 8 SCC 369. Jiauddin Ahmed v. Anwara Begum, (1981) 1 Gau.L.R. 358. John Vallamatom v. Union of India, 2003(3) RCR (Civil) 691 : (2003) 6 SCC 611. John Wilkes, (1770) 4 Burr. 2528. Justice V. Khalid in Mohd. Haneefa v. Pathummal Beevi, 1972 KLT 512. K.R. Lakshmanan (Dr.) v. State of T.N., 1996(1) RCR (Criminal) 468 : (1996) 2 SCC 226. K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 SCC 304. Khursheed Ahmad Khan v. State of Uttar Pradesh, 2015(3) S.C.T. 248 : (2015) 8 SCC 439. Krishna Janardhan Bhat v. Dattaraya G. Hegde, 2008(1) RCR (Civil) 498 : 2008(1) RCR (Criminal) 695 : 2008(1) Recent Apex Judgments (R.A.J.) 279 : (2008) 4 SCC 54. Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689. Lachhman Das v. State of Punjab, (1963) 2 SCR 353. London Jewellers, Ltd., v. Attenborough, [1934] 2 K.B. 206. Lords Lowry and Ackner in R. v. Secy. of State for Home Deptt., ex p Brind, 1991 AC 696 : (1991) 1 All ER 720. Mackinnon Mackenzie and Co. Ltd. v. Audrey D' Costa. Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125. Mahant Jagannath Ramanuj Das v. State of Orissa. Maharshi Avdhesh v. Union of India, (1994) Supp (1) SCC 713. Malpe Vishwanath Acharya v. State of Maharashtra, 1998(1) RCR (Rent) 17 : (1998) 2 SCC 1. Mandal, 1992 Supp (3) SCC 217. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 Supreme Court 597 : (1978) 2 SCR 621. Manoj Narula v. Union of India, 2014(4) RCR (Civil) 198 : 2014(5) Recent Apex Judgments (R.A.J.) 67 : (2014) 9 SCC 1. Mardia Chemicals Ltd. v. Union of India, 2004(2) RCR (Civil) 665 : (2004) 4 SCC 311. Masroor Ahmed v. State (NCT of Delhi), ILR (2007) II Delhi 1329 : 2008 (103) DRJ 137. McDowell & Co., (1996) 3 SCC 709. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625. Mithu v. State of Punjab, (1983) 2 SCC 277 : 1983 SCC (Cri) 405. Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556. Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737. Must. Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 Gau. L.R. 375. N. Adithyan v. Travancore Devasom Board, (2002) 8 SCC 106. Narendra Singh v. State of M.P. Nazeer @ Oyoor Nazeer v. Shemeema, 2017 (1) KLT 300. Obergefell v. Hodges, 135 S. Ct. 2584 at 2605. D/d. 26.6.2015. Om Kumar v. Union of India, (2001) 2 SCC 386. Pathayi v. Moideen, 1968 KLT 763. People's Union for Civil Liberties v. Union of India. Prakash v. Phulavati, (2016) 2 SCC 36. Prem Chand Garg v. Excise Commissioner, U.P., 1963 (Supp.) 1 SCR 885. Prem Shankar Shukla v. Delhi Admn. Qureshi v. State of Bihar, AIR 1958 Supreme Court 731. R.C. Cooper v. Union of India, (1970) 1 SCC 248. Rajbala v. State of Haryana, (2016) 2 SCC 445. Rajesh Ranjan Yadav v. CBI. Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra. Rashid Ahmad v. Anisa Khatun, (1931-32) 59 IA 21 : AIR 1932 Privy Council 25. Ratilal Panachand Gandhi v. State of Bombay, (1954) SCR 1055 : AIR 1954 Supreme Court 388. Romesh Thappar v. State of Madras, [1950] SCR 594. Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 Gau LR 375. Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India, (1970) 1 SCC 248. S.G. Jaisinghani v. Union of India, (1967) 2 SCR 703. S.R. Bommai v. Union of India, (1994) 3 SCC 1. Safai Karamchari Andolan v. Union of India, (2014) 11 SCC 224. Sant Ram v. Labh Singh, (1964) 7 SCR 756. Sarabai v. Rabiabai, (1906) ILR 30 Bom 537. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 Supreme Court 853 : 1962 Supp (2) SCR 496. Sarla Mudgal v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569. Seshammal v. State of T.N., (1972) 2 SCC 11 : AIR 1972 Supreme Court 1586. Shabnam Hashmi v. Union of India, (2014) 4 SCC 1. Shamim Ara v. State of U.P., (2002) 7 SCC 518 : 2002 AIR SCW 4162 : 2002 (3) KLT 537 (SC). Sharma Transport v. State of A.P., (2002) 2 SCC 188. Sheela Barse v. Secy., Children's Aid Society. Shri Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689. Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of U.P., (1997) 4 SCC 606. Sri Venkataramana Devaru v. State of Mysore, 1958 SCR 895. State of A.P. v. McDowell & Co., (1996) 3 SCC 709. State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453. State of Bihar v. Rai Bahadur Hurdut Roy Moti Lal Jute Mills, AIR 1960 Supreme Court 378. State of Bombay v. Narasu Appa Mali, AIR 1952 Bombay 84 : 53 CriLJ 354. State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534. State of Karnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469 : AIR 1993 SC 1126. State of Kerala v. Peoples Union for Civil Liberties, (2009) 8 SCC 46. State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312. State of Madras v. V.G. Row, AIR 1952 Supreme Court 196 : 1952 SCR 597 : 1952 CriLJ 966. State of Mysore v. S.R. Jayaram, (1968) 1 SCR 349. State of Punjab v. Khan Chand, (1974) 1 SCC 549. State of Rajasthan v. Union of India, (1977) 3 SCC 592. State of T.N. v. Ananthi Ammal, (1995) 1 SCC 519. State of Tamil Nadu v. K. Shyam Sunder, (2011) 8 SCC 737. State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14. State of W.B. v. Ashutosh Lahiri, (1995) 1 SCC 189. Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155. Ummer Farooque v. Naseema, 2005 (4) KLT 565. United States v. Wunderlick, 342 US 98. Valsamma Paul v. Cochin University, (1996) 3 SCC 545. Venkataramana Devaru v. State of Mysore. Vishaka v. State of Rajasthan, (1997) 6 SCC 241. West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943). Zamrud Begum v. K. Md. Haneef, (2003) 3 ALD 220.Index
Sl. No. |
Divisions |
Contents |
Paragraphs |
1. |
Part-1 |
The petitioner's marital discord, and the petitioner's prayers |
1- 10 |
2. |
Part-2 |
The practiced modes of `talaq' amongst Muslims |
11- 16 |
3. |
Part-3 |
The Holy Quran - with reference to `talaq' |
17- 21 |
4. |
Part-4 |
Legislation in India, in the field of Muslim `personal law' |
22- 27 |
5. |
Part-5 |
Abrogation of the practice of `talaq-e-biddat' by legislation, the world over, in Islamic, as well as, non-Islamic States |
28- 29 |
|
A. |
Laws of Arab States |
(i) - (xiii) |
|
B. |
Laws of Southeast Asian States |
(i) - (iii) |
|
C. |
Laws of Sub-continental States |
(i) - (ii) |
6. |
Part-6 |
Judicial pronouncements, on the subject of `talaq-e-biddat' |
30 - 34 |
7. |
Part-7 |
The petitioner's and the interveners' contentions: |
35 - 78 |
8. |
Part-8 |
The rebuttal of the petitioners' contentions |
79 - 111 |
9. |
Part-9 |
Consideration of the rival contentions, and our conclusions |
112- 114 |
|
I. |
Does the judgment of the Privy Council in the Rashid Ahmad case, upholding `talaq-e-biddat', require a relook? |
115-120 |
|
II. |
Has `talaq-e-biddat', which is concededly sinful, sanction of law? |
121-127 |
|
III. |
Is the practice of `talaq-e-biddat', approved/disapproved by "hadiths"? |
128-139 |
|
IV. |
Is the practice of `talaq-e-biddat', a matter of faith for Muslims? If yes, whether it is a constituent of their `personal law'? |
140-145 |
|
V. |
Did the Muslim Personal Law (Shariat) Application Act, 1937 confer statutory status to the subjects regulated by the said legislation? |
146-157 |
|
VI. |
Does `talaq-e-biddat', violate the parameters expressed in Article 25 of the Constitution? |
158-165 |
|
VII. |
Constitutional morality and `talaq-e-biddat'. 166-174 |
|
|
VIII. |
Reforms to `personal law' in India. 175-182 |
|
|
IX. |
Impact of international conventions and declarations on `talaq-e-biddat'. |
183-189 |
|
X. |
Conclusions emerging out of the above consideration |
190-190 |
10. |
Part-10 |
The declaration |
191-201 |
Part-1.
The petitioner's marital discord, and the petitioner's prayers: The petitioner-Shayara Bano, has approached this Court, for assailing the divorce pronounced by her husband - Rizwan Ahmad on 10.10.2015, wherein he affirmed "...in the presence of witnesses saying that I gave `talak, talak, talak', hence like this I divorce from you from my wife. From this date there is no relation of husband and wife. From today I am `haraam', and I have become `naamharram'. In future you are free for using your life ...". The aforesaid divorce was pronounced before Mohammed Yaseen (son of Abdul Majeed) and Ayaaz Ahmad (son of Ityaz Hussain) - the two witnesses. The petitioner has sought a declaration, that the `talaq-ebiddat' pronounced by her husband on 10.10.2015 be declared as void ab initio. It is also her contention, that such a divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as, the Shariat Act), be declared unconstitutional. During the course of hearing, it was submitted, that the `talaq-e-biddat' (-triple talaq), pronounced by her husband is not valid, as it is not a part of `Shariat' (Muslim `personal law'). It is also the petitioner's case, that divorce of the instant nature, cannot be treated as "rule of decision" under the Shariat Act. It was also submitted, that the practice of `talaq-e-biddat' is violative of the fundamental rights guaranteed to citizens in India, under Articles 14, 15 and 21 of the Constitution. It is also the petitioner's case, that the practice of `talaq-e-biddat' cannot be protected under the rights granted to religious denominations (-or any sections thereof) under Articles 25(1), 26(b) and 29 of the Constitution. It was submitted, that the practice of `talaq-e-biddat' is denounced internationally, and further, a large number of Muslim theocratic countries, have forbidden the practice of `talaq-ebiddat', and as such, the same cannot be considered sacrosanctal to the tenets of the Muslim religion. 2. The counter affidavit filed by respondent no.5 - the petitioner's husband - Rizwan Ahmad, discloses, that the `nikah' (marriage) between the petitioner and the respondent was solemnized on 11.04.2001, as per `Shariat', at Allahabad. It was submitted, that the petitioner - Shayara Bano, performed her matrimonial duties intermittently, coming and leaving the matrimonial home from time to time. The matrimonial relationship between the parties resulted in the births of two children, a son - Mohammed Irfan (presently about 13 years old) studying in the 7th standard, and a daughter - Umaira Naaz (presently about 11 years old) studying in the 4th standard, both at Allahabad. 3. It is the case of the respondent-husband, that the petitioner-wife, left her matrimonial home on 9.4.2015 in the company of her father - Iqbal Ahmad and maternal uncle - Raees Ahmed, as well as children - Mohammed Irfan and Umaira Naaz, to live in her parental home. The respondent claims, that he continued to visit the petitioner, for giving her maintenance, and for enquiring about her well being. When the husband met the wife at her parental home in May and June 2015, she refused to accompany him, and therefore, refused to return to the matrimonial home. On 03.07.2015, Rizwan Ahmad, asked the father of Shayara Bano to send her back to her matrimonial home. He was informed by her father, after a few days, that the petitioner was not inclined to live with the respondent. 4. On 07.07.2015 the father of the petitioner, brought the two children - Mohammed Irfan and Umaira Naaz to Allahabad. The husband submits, that both the children have thereafter been in his care and custody, at Allahabad. It is the assertion of the husband, that the petitioner's father had given him the impression, that the petitioner would be inclined to return to Allahabad, consequent upon the husband's care and custody of both children, at the matrimonial home. 5. It is claimed by the respondent-husband, that he made another attempt to bring back the petitioner-wife from her parental home on 09.08.2015, but Shayara Bano refused to accompany him. It is submitted, that Rizwan Ahmad was opposed in the above endeavour, both by the petitioner's father and her maternal uncle. 6. Finding himself in the above predicament, Rizwan Ahmad approached the Court of the Principal Judge, Family Court at Allahabad, Uttar Pradesh, by preferring Matrimonial Case No.1144 of 2015 with a prayer for restitution of conjugal rights. The petitioner-Shayara Bano, preferred Transfer Petition (C) No. 1796 of 2015, under Section 25 of the Code of Civil Procedure, 1908, read with Order 36-B of the Supreme Court Rules, 1966, for the transfer of Matrimonial Case No.1144 of 2015, filed by the respondent-husband (seeking restitution of conjugal rights) pending at Allahabad, Uttar Pradesh, to the Principal Judge, Family Court, Kashipur, Uttarakhand. In the above transfer petition, the wife inter alia asserted as under:"Deed of Divorce
Dated 10.10.2015
Only
Sd/ Hindi Rizwan Ahmed
(Rizwan Ahmed)
S/o Iqbal Ahmed
Ghaus Nagar, Karaili, Allahabad"
Part-2.
The practiced modes of `talaq' amongst Muslims: 11. Since the issue under consideration is the dissolution of marriage by `talaq', under the Islamic law of divorce, it is imperative, to understand the concept of `talaq'. In this behalf, it is relevant to mention, that under the Islamic law, divorce is classified into three categories. Talaq understood simply, is a means of divorce, at the instance of the husband. `Khula', is another mode of divorce, this divorce is at the instance of the wife. The third category of divorce is `mubaraat' - divorce by mutual consent. 12. `Talaq', namely, divorce at the instance of the husband, is also of three kinds - `talaq-e-ahsan', `talaq-e-hasan' and `talaq-e-biddat'. The petitioner's contention before this Court is, that `talaq-e-ahsan', and `talaqe- hasan' are both approved by the `Quran' and `hadith'. `Talaq-e-ahsan', is considered as the `most reasonable' form of divorce, whereas, `talaq-ehasan' is also considered as `reasonable'. It was submitted, that `talaq-ebiddat' is neither recognized by the `Quran' nor by `hadith', and as such, is to be considered as sacrosanctal to Muslim religion. The controversy which has arisen for consideration before this Court, is with referenc to `talaq-ebiddat'. 13. It is necessary for the determination of the present controversy, to understand the parameters, and the nature of the different kinds of `talaq'. `Talaq-e-ahsan' is a single pronouncement of `talaq' by the husband, followed by a period of abstinence. The period of abstinence is described as `iddat'. The duration of the `iddat' is ninety days or three menstrual cycles (in case, where the wife is menstruating). Alternatively, the period of `iddat' is of three lunar months (in case, the wife is not menstruating). If the couple resumes cohabitation or intimacy, within the period of `iddat', the pronouncement of divorce is treated as having been revoked. Therefore, `talaq-e-ahsan' is revocable. Conversely, if there is no resumption of cohabitation or intimacy, during the period of `iddat', then the divorce becomes final and irrevocable, after the expiry of the `iddat' period. It is considered irrevocable because, the couple is forbidden to resume marital relationship thereafter, unless they contract a fresh `nikah' (-marriage), with a fresh `mahr'. `Mahr' is a mandatory payment, in the form of money or possessions, paid or promised to be paid, by the groom or by the groom's father, to the bride, at the time of marriage, which legally becomes her property. However, on the third pronouncement of such a `talaq', the couple cannot remarry, unless the wife first marries someone else, and only after her marriage with other person has been dissolved (either through `talaq' - divorce, or death), can the couple remarry. Amongst Muslims, `talaq-e-ahsan' is regarded as - `the most proper' form of divorce. 14. `Talaq-e-hasan' is pronounced in the same manner, as `talaq-eahsan'. Herein, in place of a single pronouncement, there are three successive pronouncements. After the first pronouncement of divorce, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. The same procedure is mandated to be followed, after the expiry of the first month (during which marital ties have not been resumed). `Talaq' is pronounced again. After the second pronouncement of `talaq', if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. It is significant to note, that the first and the second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, `talaq' pronounced by the husband becomes ineffective, as if no `talaq' had ever been expressed. If the third `talaq' is pronounced, it becomes irrevocable. Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, in the third `tuhr' (period of purity), as soon as the third declaration is made, the `talaq' becomes irrevocable, and the marriage stands dissolved, whereafter, the wife has to observe the required `iddat' (the period after divorce, during which a woman cannot remarry. Its purpose is to ensure, that the male parent of any offspring is clearly identified). And after the third `iddat', the husband and wife cannot remarry, unless the wife first marries someone else, and only after her marriage with another person has been dissolved (either through divorce or death), can the couple remarry. The distinction between `talaq-eashan' and `talaq-e-hasan' is, that in the former there is a single pronouncement of `talaq' followed by abstinence during the period of `iddat', whereas, in the latter there are three pronouncements of `talaq', interspersed with abstinence. As against `talaq-e-ahsan', which is regarded as `the most proper' form of divorce, Muslims regard `talaq-e-hasan' only as `the proper form of divorce'. 15. The third kind of `talaq' is - `talaq-e-biddat'. This is effected by one definitive pronouncement of `talaq' such as, "I talaq you irrevocably" or three simultaneous pronouncements, like "talaq, talaq, talaq", uttered at the same time, simultaneously. In `talaq-e-biddat', divorce is effective forthwith. The instant talaq, unlike the other two categories of `talaq' is irrevocable at the very moment it is pronounced. Even amongst Muslims `talaq-e-biddat', is considered irregular. 16. According to the petitioner, there is no mention of `talaq-e-biddat' in the Quran. It was however acknowledged, that the practice of `talaq-ebiddat' can be traced to the second century, after the advent of Islam. It was submitted, that `talaq-e-biddat' is recognized only by a few Sunni schools. Most prominently, by the Hanafi sect of Sunni Muslims. It was however emphasized, that even those schools that recognized `talaq-ebiddat' described it, "as a sinful form of divorce". It is acknowledged, that this form of divorce, has been described as "bad in theology, but good in law". We have recorded the instant position at this juncture, because learned counsel for the rival parties, uniformly acknowledge the same.Part-3.
The Holy Quran - with reference to `talaq': 17. Muslims believe that the Quran was revealed by God to the Prophet Muhammad over a period of about 23 years, beginning from 22.12.609, when Muhammad was 40 years old. The revelation continued upto the year 632 - the year of his death. Shortly after Muhammad's death, the Quran was completed by his companions, who had either written it down, or had memorized parts of it. These compilations had differences of perception. Therefore, Caliph Usman - the third, in the line of caliphs recorded a standard version of the Quran, now known as Usman's codex. This codex is generally treated, as the original rendering of the Quran. 18. During the course of hearing, references to the Quran were made from `The Holy Quran: Text Translation and Commentary' by Abdullah Yusuf Ali, (published by Kitab Bhawan, New Delhi, 14th edition, 2016). Learned counsel representing the rival parties commended, that the text and translation in this book, being the most reliable, could safely be relied upon. The text and the inferences are therefore drawn from the above publication. (i) The Quran is divided into `suras' (chapters). Each `sura' contains `verses', which are arranged in sections. Since our determination is limited to the validity of `talaq-e-biddat', within the framework of the Muslim `personal law' - `Shariat', we shall only make a reference to such `verses' from the Quran, as would be relevant for our above determination. In this behalf, reference may first be made to `verses' 222 and 223 contained in `section' 28 of `sura' II. The same are reproduced below:Part-4.
Legislation in India, in the field of Muslim `personal law': 22. It would be relevant to record, that `personal law' dealing with the affairs of those professing the Muslim religion, was also regulated by custom or usage. It was also regulated by `Shariat' - the Muslim `personal law'. The status of Muslim women under customs and usages adopted by Muslims, were considered to be oppressive towards women. Prior to the independence of India, Muslim women organisations condemned customary law, as it adversely affected their rights, under the `Shariat'. Muslim women claimed, that the Muslim `personal law' be made applicable to them. It is therefore, that the Muslim Personal Law (Sharait) Application Act, 1937 (hereinafter referred to, as the Shariat Act), was passed. It is essential to understand, the background which resulted in the enactment of the Shariat Act. The same is recorded in the statement of objects and reasons, which is reproduced below:Part-5.
Abrogation of the practice of `talaq-e-biddat' by legislation, the world over, in Islamic, as well as, non-Islamic States: 28. `Muslim Law in India and Abroad', by Tahir Mahmood and Saif Mahmood (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2012 edition), records the following position about the abrogation of the practice of `talaqe- biddat' as a means of divorce, through statutory enactments, the world over. The countries which have abolished `talaq-e-biddat' have been divided into Arab States, Southeast Asian States, and Subcontinental States. We have maintained the above classifications, in order to establish their factual positions. Firstly, to demonstrate that the practice was prevalent across the globe in States having sizeable Muslim populations. And secondly, that the practice has been done away with, by way of legislation, in the countries referred to below.A. Laws of Arab States
(i) Algeria: Is a theocratic State, which declares Islam to be its official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:B. Laws of Southeast Asian States
(i) Indonesia: The Constitution of Indonesia guarantees freedom of religion among Indonesians. However, the Government recognizes only six official religions - Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place:C. Laws of Sub-continental States
(i) Pakistan & Bangladesh: Are both theocratic States, wherein Islam is the official religion. In both countries Muslims of the Sunni sect constitute the majority. On the issue in hand, it has the following legislation in place:Part-6.
Judicial pronouncements, on the subject of `talaq-e-biddat': 30. Rashid Ahmad v. Anisa Khatun, AIR 1932 Privy Council 25. (i) The facts: The primary issue that came to be adjudicated in the above case, pertained to the validity of `talaq-e-biddat' pronounced by Ghiyas-uddin, a Sunni Mohomedan of the Hanafi school, to his wife Anisa Khatun - respondent no.1. The marriage of the respondent with Ghiyas-ud-din had taken place on 28.08.1905. Ghiyas-ud-din divorced her on or about 13.09.1905. Ghiyas-ud-din pronounced triple talaq, in the presence of witnesses, though in the absence of his wife - Anisa Khatun. Respondent no.1 - Anisa Khatun received L 1,000 in payment of `dower' on the same day, which was confirmed by a registered receipt. Thereafter, Ghiyas-uddin executed a `talaqnama' (decree of divorce) dated 17.09.1905, which narrates the divorce. The `talaqnama' is alleged to have been given to Anisa Khatun - respondent no.1. (ii) The challenge: Anisa Khatun - respondent no.1, challenged the validity of the divorce, firstly, for the reason, that she was not present at the time of pronouncement of divorce. And secondly, that even after the aforestated pronouncement, cohabitation had continued and subsisted for a further period of fifteen years, i.e., till the death of Ghiyas-ud-din. In the interregnum, five children were born to Ghiyas-ud-din and Anisa Khatun. According to Anisa Khatun, Ghiyas-ud-din continued to treat Anisa Khatun - respondent no.1, as his wife, and the children born to her, as his legitimate children. It was also the case of respondent no.1, that the payment of L 1,000, was a payment of prompt dower, and as such, not payment in continuation of the `talaq-e-biddat', pronounced by Ghiyas-uddin. (iii) The consideration: While considering the validity of the `talaq-e-biddat' pronounced on 13.09.1905, and the legitimacy of the children born to Anisa Khatun, the Privy Council held as under:Part-7.
The petitioner's and the interveners' contentions: 35. On behalf of the petitioner, besides the petitioner herself, submissions were initiated by Mr. Amit Singh Chadha, Senior Advocate. He invited this Court's attention to the legislative history in the field of Muslim `personal law' (-for details, refer to Part-4 - Legislation in India, in the field of Muslim `personal law'). It was submitted, that all fundamental rights contained in Part III of the Constitution were justiciable. It was therefore pointed out, that the petitioner's cause before this Court, was akin to such rights as were considered justiciable. The practice of `talaq-e-biddat', according to learned counsel, permitted a male spouse an unqualified right, to severe the matrimonial tie. It was pointed out, that the right to divorce a wife, by way of triple talaq, could be exercised without the disclosure of any reason, and in fact, even in the absence of reasons. It was submitted, that a female spouse had no say in the matter, inasmuch as, `talaq-e-biddat' could be pronounced in the absence of the wife, and even without her knowledge. It was submitted, that divorce pronounced by way of triple talaq was final and binding, between the parties. These actions, according to learned counsel, vested an arbitrary right in the husband, and as such, violated the equality clause enshrined in Article 14 of the Constitution. It was submitted, that the Constitution postulates through the above article, equality before the law and equal protection of the laws. This right, according to learned counsel, was clearly denied to the female spouse in the matter of pronouncement of divorce by the husband by adopting the procedure of `talaq-e-biddat'. Further more, it was submitted, the Constitution postulates through Article 15, a clear restraint on discrimination, on the ground of sex. It was submitted, that `talaq-e-biddat' violated the aforesaid fundamental right, which postulates equality between men and women. Learned counsel relied on the decisions of this Court in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 and Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 to contend, that it was the duty of courts to intervene in case of violation of any individual's fundamental right, and to render justice. It was also submitted, that the rights of the female partner in a matrimonial alliance amongst Muslims, had resulted in severe gender discrimination, which amounted to violating their human rights under Article 21 of the Constitution. Learned counsel accordingly sought intervention, for grave injustice practiced against Muslim wives. 36. Mr. Amit Singh Chadha, learned senior counsel, then placed reliance on the Jiauddin Ahmed, and the Rukia Khatun cases (-for details, refer to Part-6 - Judicial pronouncements, on the subject of `talaqe- biddat'). Based on the above judgments, it was submitted, that courts of this country had not found favour with the practice of triple talaq, in the manner prevalent in India. It was contended, that `talaq-e-biddat' should not be confused with the profession, practice and propagation of Islam. It was pointed out, that `talaq-e-biddat' was not sacrosanctal to the profession of the Muslim religion. It was accordingly submitted, that this Court had an indefeasible right, to intervene and render justice. In order to press his claim based on constitutional morality, wherein the petitioners were claiming not only gender equality, but also the progression of their matrimonial life with dignity, learned senior counsel placed reliance on Manoj Narula v. Union of India, 2014(4) RCR (Civil) 198 : 2014(5) Recent Apex Judgments (R.A.J.) 67 : (2014) 9 SCC 1 wherein this Court observed as under:[Constituent Assembly Debates, 1948, Vol. VII, 38.]
Part-8.
The rebuttal of the petitioners' contentions: 79. The submissions advanced on behalf of the petitioners, were first of all sought to be repudiated by the AIMPLB - respondent no.8 (hereinafter referred to as the AIMPLB). Mr. Kapil Sibal, Senior Advocate, and a number of other learned counsel represented the AIMPLB. In order to lay down the foundation to the submissions sought to be canvassed on behalf of the respondents, it was asserted, that ceremonies performed at the time of birth of an individual, are in consonance with the religious norms of the family to which the child is born. And thereafter, in continuation each stage of life during the entire progression of life, is punctuated by ceremonies. It was pointed out, that even the act of adoption of a child, in some other family, has religious ceremonies. In the absence of such religious rituals, adoption is not valid. It was submitted, that religious observances manifest an important fundamental position, in the life of every individual. Such religious observances, according to learned counsel, include the manner in which members of a community were required to dress. Insofar as the Muslim women are concerned, reference was made to `burqa' or `hijab' worn by women, whereby women veil themselves, from the gaze of strangers. All these observances, are matters of faith, of those professing the religion. It was asserted, that those who profess the Muslim religion, follow the edicts expressed in the Quran. It was submitted, that matrimony, is like any other stage in an individual's life. It has to be performed, in consonance with the ceremonies relating thereto. So also, if a married couple decides to part ways, by way of divorce. It was pointed out, that express religious ceremonies are observed even on an individual's death. It was submitted, that all issues including custody and guardianship of children, maintenance, dower, gifts and such like issues, were matters guided by the faith of the people, associated to their religion. How property has to be distributed, upon divorce and/or at the time of death, is also governed by faith. It was submitted, that questions of inheritance and succession, were likewise dealt with in consonance with the edicts of the individual's religion. All these issues, it was submitted, were matters of religious faith. 80. It was pointed out, that the personal affairs referred to in the foregoing paragraph, fall in the realm of `personal law'. This assertion, was sought to be demonstrated, by placing reliance on the definition of the term `personal law' in Blacks Law Dictionary (10th edition, 2014), as follows:Part-9.
Consideration of the rival contentions, and our conclusions: 112. During the course of our consideration, we will endeavour to examine a series of complicated issues. We will need to determine, the legal sanctity of `talaq-e-biddat' - triple talaq. This will enable us to ascertain, whether the practice of talaq has a legislative sanction, because it is the petitioner's case, that it is so through express legislation (-the Muslim Personal Law (Shariat) Application Act, 1937). But the stance adopted on behalf of those contesting the petitioner's claim is, that its stature is that of `personal law', and on that account, the practice of `talaq-e-biddat' has a constitutional protection. 113. Having concluded one way or the other, we will need to determine whether divorce by way of `talaq-e-biddat' - triple talaq, falls foul of Part III - Fundamental Rights of the Constitution (this determination would be subject to, the acceptance of the petitioner's contention, that the practice has statutory sanction). However, if We conclude to the contrary, namely, that the `talaq-e-biddat' - triple talaq, has the stature of `personal law', We will have to determine the binding effect of the practice, and whether it can be interfered with on the judicial side by this Court. The instant course would be necessary, in view of the mandate contained in Article 25 of the Constitution, which has been relied upon by those who are opposing the petitioner's cause. 114. Even if we agree with the proposition that `talaq-e-biddat' - triple talaq constitutes the `personal law' governing Muslims, on the issue of divorce, this Court will still need to examine, whether the practice of `talaqe- biddat' - triple talaq, violates the acceptable norms of "... public order, morality and health and to the other provisions ..." of Part III of the Constitution (-for that, is the case set up by the petitioner). Even if the conclusions after the debate travelling the course narrated in the foregoing paragraph does not lead to any fruitful results for the petitioner's cause, it is their case, that the practice of `talaq-e-biddat' being socially repulsive should be declared as being violative of constitutional morality - a concept invoked by this Court, according to the petitioner, to interfere with on the ground that it would serve a cause in larger public interest. The petitioners' cause, in the instant context is supported by the abrogation of the practice of `talaq-e-biddat', the world over in countries with sizeable Muslim populations including theocratic Islamic States. The following examination, shall traverse the course recorded herein above. I. Does the judgment of the Privy Council in the Rashid Ahmad case, upholding `talaq-e-biddat', require a relook? 115. It would not be necessary for this debate - about the validity of `talaq-e-biddat' under the Muslim `personal law' - `Shariat', to be prolonged or complicated, if the decision rendered by the Privy Council, in the Rashid Ahmad case is to be considered as the final word on its validity, as also, on the irrevocable nature of divorce, by way of `talaq-e-biddat'. The debate would end forthwith. The aforesaid judgment was rendered by applying the Muslim `personal law'. In the above judgment, `talaq-e-biddat' was held as valid and binding. The pronouncement in the Rashid Ahmad case is of extreme significance, because Anisa Khatun - the erstwhile wife and her former husband Ghyas-ud-din had continued to cohabit and live together with her husband, for a period of fifteen years, after the pronouncement of `talaq-e-biddat'. During this post divorce cohabitation, five children were born to Anisa Khatun, through Ghiyas-ud-din. And yet, the Privy Council held, that the marital relationship between the parties had ceased forthwith, on the pronouncement of `talaq-e-biddat' - triple talaq. The Privy Council also held, that the five children born to Anisa Khatun, could not be considered as the legitimate children of Ghyas-ud-din, and his erstwhile wife. The children born to Anisa Khatun after the parties stood divorced, were therefore held as disentitled to inherit the property of Ghyas-ud-din. The judgment in the Rashid Ahmad case was rendered in 1932. The asserted statutory status of Muslim `personal law' (as has been canvassed by the petitioners), emerged from the enactment of the Muslim Personal Law (Shariat) Application Act, 1937. The `Shariat' Act expressly provided, that the Muslim `personal law' - `Shariat', would constitute "the rule of decision", in causes where the parties were Muslim. It is not in dispute, that besides other subjects, consequent upon the enactment of the Shariat Act, dissolution of marriage amongst Muslims, by way of `talaq', would also have to be in consonance with the Muslim `personal law' - `Shariat'. As noticed herein above, `talaq-e-biddat' is one of the forms of dissolution of marriage by `talaq', amongst Muslims. According to the petitioners case, the issue needed a fresh look, of the conferment of statutoty status to Muslim `personal law' - `Shariat'. It was submitted, that after having acquired statutory status, the questions and subjects (including `talaq-e-biddat'), would have to be in conformity (-and not in conflict), with the provisions of Part III - Fundamental Rights, of the Constitution. Needless to mention, that all these are important legal questions, requiring examination. 116. In our considered view, the matter would most certainly also require a fresh look, because various High Courts, having examined the practice of divorce amongst Muslims, by way of `talaq-e-biddat', have arrived at the conclusion, that the judgment in the Rashid Ahmad case was rendered on an incorrect understanding, of the Muslim `personal law' - `Shariat'. 117. If the Muslim Personal Law (Shariat) Application Act, 1937, had incorporated the manner in which questions regarding intestate succession, special property of females including personal property inherited or obtained under contract or gift or matters such as marriage, dissolution of marriage, including talaq, ila, jihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (-as in Section 2 thereof), had to be dealt with, as per Muslim `personal law' - `Shariat' according to the petitioners, it would be quite a different matter. All the same, the Shariat Act did not describe how the above questions and subjects had to be dealt with. And therefore, for settlement of disputes amongst Muslims, it would need to be first determined, what the Muslim `personal law', with reference to the disputation, was. Whatever it was, would in terms of Section 2 of the 1937 Act, constitute "the rule of decision". After the Privy Council had rendered the judgment in the Rashid Ahmad case, and well after the asserted statutory status came to be conferred on Muslim `personal law' - `Shariat', the issue came up for consideration before the Kerala High Court in A. Yusuf Rawther v. Sowramma, AIR 1971 Kerala 261 wherein, the High Court examined the above decision of the Privy Council in the Rashid Ahmad case, and expressed, that the views of the British Courts on Muslim `personal law', were based on an incorrect understanding of `Shariat'. In the above judgment, a learned Single Judge (Justice V.R. Krishna Iyer, as he then was) of the Kerala High Court, recorded the following observations:
Sl.No. |
Reference |
Comments |
(i) |
Maulana Mohammad Ali (referred to at paras 7, 11, 12 and 13 of the judgment) |
He is a Qadiyani. Mirza Ghulam Ahmed (founder of the Qadiani School) declared himself to be the Prophet after Prophet Mohammed and it is for this reason that all Muslims do not consider the Qadiyani sect to be a part of the Islamic community. |
Sl.No. |
Reference |
Comments |
(i) |
|
Authorities in this judgment are identical to the above mentioned judgment of Jiauddin Ahmed v. Anwara Begum. |
Sl.No. |
Reference |
Comments |
(i) |
Mulla (Referred at the footnote at page 153 of the judgment) |
Approves the proposition that triple talaq is sinful, yet effective as an irrevocable divorce. |
Sl. No. |
Reference |
Comments |
(i) |
Basheer Ahmad Mohyidin (Referred at paras 1 and 6 of the judgment) |
He wrote a commentary on the Quran entitled as Quran: The Living Truth, however the extract relied upon in the decision does not discuss triple talaq. |
(ii) |
Ibn Kathir (Referred in paras 1 and 8 of the judgment) |
He wrote a commentary on the Quran entitled as Tafsir Ibn Kathir. He takes the view, that three pronouncements at the same time were unlawful. It is submitted that he belonged to the Ahl-e-Hadith/Salafi school, which school does not recognize triple talaq. |
(iii) |
Dr. Tahir Mahmood (Referred in para 6 of the judgment) |
He was a Professor of Law, Delhi University. He wrote a book entitled "Muslim Law in India and Abroad" and other books. Referred to other Islamic scholars to state, that it is a misconception that three talaqs have to be pronounced in three consecutive months, it is not a general rule as the three pronouncements have to be made when the wife is not in her menses, which would obviously require about three months. It is submitted, that the said extract is irrelevant and out of context as it does not specifically deal with validity of triple talaq. |
(iv) |
Sheikh Yusuf Al-Qaradawi (Referred in para 8 of the judgment) |
He regarded triple talaq as against God's law. It is submitted that he was a follower of the Ahl-e-Hadith School. |
(v) |
Mahmoud Rida Murad (Referred in para 8 of the judgment) |
He authored the book entitled as Islamic Digest of Aqeedah and Fiqh. He took the view that triple talaq does not conform to the teachings of the Prophet. He is a follower of the Ahl-e-Hadith school. |
(vi) |
Sayyid Abdul Ala Maududi (Referred in para 11 of the judgment) |
He is a scholar of the Hanafi School. Though the passages extracted in the judgment indicate that he was of the view that three pronouncements can be treated as one depending on the intention. However, subsequently he has changed his own view and has opined that triple talaq is final and irrevocable. |
(vii) |
Dr. Abu Ameenah Bilal Philips (Referred in para 19 of the judgment) |
He authored the book `Evolution of Fiqh'. He states that Caliph Umar introduced triple talaq in order to discourage abuse of divorce. He is a follower of the Ahl-e Hadith school. |
(viii) |
Mohammed Hashim Kamali (Referred in para 23 of the judgment) |
He was of the view that Caliph Umar introduced triple talaq in order to discourage abuse of divorce. He is a professor of law. |
(Emphasis supplied)
(Emphasis supplied)
204. After the 1937 Act, in respect of the enumerated subjects under Section 2 regarding "marriage, dissolution of marriage, including talaq", the law that is applicable to Muslims shall be only their personal law namely Shariat. Nothing more, nothing less. It is not a legislation regulating talaq. In contradistinction, The Dissolution of Muslim Marriages Act, 1939 provides for the grounds for dissolution of marriage. So is the case with the Hindu Marriage Act, 1955. The 1937 Act simply makes Shariat applicable as the rule of decision in the matters enumerated in section 2. Therefore, while talaq is governed by Shariat, the specific grounds and procedure for talaq have not been codified in the 1937 Act. 205. In that view of the matter, I wholly agree with the learned Chief Justice that the 1937 Act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman, J. that the 1937 Act is a legislation regulating triple talaq and hence, the same can be tested on the anvil of Article 14. However, on the pure question of law that a legislation, be it plenary or subordinate, can be challenged on the ground of arbitrariness, I agree with the illuminating exposition of law by Nariman, J. I am also of the strong view that the Constitutional democracy of India cannot conceive of a legislation which is arbitrary. 206. Shariat, having been declared to be Muslim Personal Law by the 1937 Act, we have to necessarily see what Shariat is. This has been beautifully explained by the renowned author, Asaf A.A. Fyzee in his book Outlines of Muhammadan Law, 5th Edition, 2008 at page 10.[48*](Emphasis supplied)
208. It is in that background that I make an attempt to see what the Quran states on talaq. There is reference to talaq in three Surasin Sura II while dealing with social life of the community, in Sura IV while dealing with decencies of family life and in Sura LXV while dealing explicitly with talaq. 209. Sura LXV of the Quran deals with talaq. It reads as follows:(Emphasis supplied)
211. The above view has been endorsed by various High Courts, finally culminating in Shamim Ara by this Court which has since been taken as the law for banning triple talaq. Interestingly, prior to Shamim Ara, Krishna Iyer, J. in Fuzlunbi v. K Khader Vali and Another, (1980) 4 SCC 125, while in a three judge bench in this Court, made a very poignant observation on the erroneous approach of Batchelor, J. in Sarabai v. Rabiabai, ILR 30 Bom 537 on the famous comment "good in law, though bad in theology". To quote:(Emphasis supplied)
213. There is also a fruitful reference to two judgments of the Kerala High Court - one of Justice Krishna Iyer in A. Yousuf Rawther v. Sowramma, AIR 1971 Kerala 261 and the other of Justice V. Khalid in Mohd. Haneefa v. Pathummal Beevi, 1972 KLT 512. No doubt, Sowaramma was not a case on triple talaq, however, the issue has been discussed in the judgment in paragraph 7 which has also been quoted in Shamim Ara.XXXX
(Emphasis supplied)
218. In A. S. Parveen Akthar v. The Union of India, 2003-1-L.W. 370, the High Court of Madras was posed with the question on the validity and constitutionality of Section 2 of the 1937 Act in so far as it recognises triple talaq as a valid form of divorce. The Court referred to the provisions of the Quran, opinions of various eminent scholars of Islamic Law and previous judicial pronouncements including Shamim Ara and came to the following conclusion:XXXX
(Emphasis supplied)
As far as the constitutionality of Section 2 is concerned, the Court refrained from going into the question in view of the decisions of this Court in Shri Krishna Singh v. Mathura Ahir and Others, (1981) 3 SCC 689 and Ahmedabad Women Action Group (AWAG) and Ors. v. Union of India, (1997) 3 SCC 573. 219. The High Court of Jammu and Kashmir, in Manzoor Ahmad Khan v.Saja & Ors., 2010 (4) JKJ 380, has also placed reliance on Shamim Ara. The Court, at paragraph 11, noted that in Shamim Ara, the Apex Court relied upon the passages from judgments of various High Courts "which are eye openers for those who think that a Muslim man can divorce his wife merely at whim or on caprice." The Court finally held that the marriage between the parties did not stand dissolved. 220. In Ummer Farooque v. Naseema, 2005 (4) KLT 565, Justices R Bhaskaran and K.P. Balachandran of the High Court of Kerala, after due consideration of the prior decisions of the various Courts, in paragraphs 5 and 6 held that:(Emphasis supplied)
221. In Masroor Ahmed, Justice Badar Durrez Ahmed, held as follows:(Emphasis supplied)
222. As recently as in 2016, Mustaque, J. of the High Court of Kerala in Nazeer @ Oyoor Nazeer v. Shemeema, 2017 (1) KLT 300, has inter alia referred to Shamim Ara and has disapproved triple talaq. 223. Therefore, I find it extremely difficult to agree with the learned Chief Justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law. 224. To freely profess, practice and propagate religion of one's choice is a Fundamental Right guaranteed under the Indian Constitution. That is subject only to the following- (1) public order, (2) health, (3) morality and (4) other provisions of Part III dealing with Fundamental Rights. Under Article 25 (2) of the Constitution of India, the State is also granted power to make law in two contingencies notwithstanding the freedom granted under Article 25(1). Article 25 (2) states that "nothing in this Article shall affect the operation of any existing law or prevent the State from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus." Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the learned Chief Justice. However, on the statement that triple talaq is an integral part of the religious practice, I respectfully disagree. Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice and thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq. I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right can be injuncted. 225. When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights. I believe that a reconciliation between the same is possible, but the process of harmonizing different interests is within the powers of the legislature. Of course, this power has to be exercised within the constitutional parameters without curbing the religious freedom guaranteed under the Constitution of India. However, it is not for the Courts to direct for any legislation. 226. Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and re-iterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well. R.F. Nariman, J. - Having perused a copy of the learned Chief Justice's judgment, I am in respectful disagreement with the same. 227. This matter has found its way to a Constitution Bench of this Court because of certain newspaper articles which a Division Bench of this Court in Prakash v. Phulavati, (2016) 2 SCC 36, adverted to, and then stated:(at pages 53 and 55)
Several writ petitions have thereafter been filed and are before us seeking in different forms the same relief - namely, that a Triple Talaq at one go by a Muslim husband which severs the marital bond is bad in constitutional law. 228. Wide ranging arguments have been made by various counsel appearing for the parties. These have been referred to in great detail in the judgment of the learned Chief Justice. In essence, the petitioners, supported by the Union of India, state that Triple Talaq is an anachronism in today's day and age and, constitutionally speaking, is anathema. Gender discrimination is put at the forefront of the argument, and it is stated that even though Triple Talaq may be sanctioned by the Shariat law as applicable to Sunni Muslims in India, it is violative of Muslim women's fundamental rights to be found, more particularly, in Articles 14, 15(1) and 21 of the Constitution of India. Opposing this, counsel for the Muslim Personal Board and others who supported them, then relied heavily upon a Bombay High Court judgment, being State of Bombay v. Narasu Appa Mali, AIR 1952 Bombay 84, for the proposition that personal laws are beyond the pale of the fundamental rights Chapter of the Constitution and hence cannot be struck down by this Court. According to them, in this view of the matter, this Court should fold its hands and send Muslim women and other women's organisations back to the legislature, as according to them, if Triple Talaq is to be removed as a measure of social welfare and reform under Article 25(2), the legislature alone should do so. To this, the counter argument of the other side is that Muslim personal laws are not being attacked as such. What is the subject matter of attack in these matters is a statute, namely, the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as the "1937 Act"). According to them, Triple Talaq is specifically sanctioned by statutory law vide Section 2 of the 1937 Act and what is sought for is a declaration that Section 2 of the 1937 Act is constitutionally invalid to the aforesaid extent. To this, the Muslim Personal Board states that Section 2 is not in order to apply the Muslim law of Triple Talaq, but is primarily intended to do away with custom or usage to the contrary, as the non-obstante clause in Section 2 indicates. Therefore, according to them, the Muslim personal law of Triple Talaq operates of its own force and cannot be included in Article 13(1) as "laws in force" as has been held in Narasu Appa (supra). 229. The question, therefore, posed before this Court is finally in a very narrow compass. Triple Talaq alone is the subject matter of challenge - other forms of Talaq are not. The neat question that arises before this Court is, therefore, whether the 1937 Act can be said to recognize and enforce Triple Talaq as a rule of law to be followed by the Courts in India and if not whether Narasu Appa (supra) which states that personal laws are outside Article 13(1) of the Constitution is correct in law. 230. Inasmuch as the Muslims in India are divided into two main sects, namely Sunnis and Shias, and this case pertains only to Sunnis as Shias do not recognize Triple Talaq, it is important to begin at the very beginning. 231. In a most illuminating introduction to Mulla's Principles of Mahomedan Law (16th Ed.) (1968), Justice Hidayatullah, after speaking about Prophet Mahomed, has this to say:[Emphasis Supplied]
236. Another noted author, A.A.A. Fyzee, in his book "Outlines of Muhammadan Law" (5th Ed.), at pages 120-122, puts it thus:[Emphasis Supplied]
237. It is at this stage that the 1937 Act needs consideration. The Statement of Objects and Reasons of this Act are as follows:[Emphasis Supplied]
238. It is a short Act consisting of 6 Sections. We are directly concerned in these cases with Section 2. Section 2 of the 1937 Act states:(at pages 21-22)
This view was followed in A.V. Fernandez v. State of Kerala, 1957 SCR 837 at 850. 244. It is, therefore, clear that all forms of Talaq recognized and enforced by Muslim personal law are recognized and enforced by the 1937 Act. This would necessarily include Triple Talaq when it comes to the Muslim personal law applicable to Sunnis in India. Therefore, it is very difficult to accept the argument on behalf of the Muslim Personal Board that Section 2 does not recognize or enforce Triple Talaq. It clearly and obviously does both, because the Section makes Triple Talaq "the rule of decision in cases where the parties are Muslims". 245. As we have concluded that the 1937 Act is a law made by the legislature before the Constitution came into force, it would fall squarely within the expression "laws in force" in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency. 246. At this stage, it is necessary to refer to the recognition of Triple Talaq as a legal form of divorce in India, as applicable to Sunni Muslims. In an early Bombay case, Sarabai v. Rabiabai, (1906) ILR 30 Bom 537, Bachelor, J. referred to Triple Talaq and said that "it is good in law though bad in theology". In a Privy Council decision in 1932, 5 years before the 1937 Act, namely Rashid Ahmad v. Anisa Khatun, (1931- 32) 59 IA 21: AIR 1932 Privy Council 25, the Privy Council was squarely called upon to adjudicate upon a Triple Talaq. Lord Thankerton speaking for the Privy Council put it thus:(at page 26)
The Privy Council went on to state:(at page 27)
247. It is thus clear that it is this view of the law which the 1937 Act both recognizes and enforces so as to come within the purview of Article 13(1) of the Constitution. 248. In this view of the matter, it is unnecessary for us to decide whether the judgment in Narasu Appa (supra) is good law. However, in a suitable case, it may be necessary to have a re-look at this judgment in that the definition of "law" and "laws in force" are both inclusive definitions, and that at least one part of the judgment of P.B. Gajendragadkar, J., (para 26), in which the learned Judge opines that the expression "law" cannot be read into the expression "laws in force" in Article 13(3) is itself no longer good law - See Sant Ram & Ors. v. Labh Singh & Ors., (1964) 7 SCR 756. 249. It has been argued somewhat faintly that Triple Talaq would be an essential part of the Islamic faith and would, therefore, be protected by Article 25 of the Constitution of India. Article 25 reads as follows:(at page 394)
And in Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, 2004 (12) SCC 770, it was stated as under:(at pages 782-783)
251. Applying the aforesaid tests, it is clear that Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it. According to Javed (supra), therefore, this would not form part of any essential religious practice. Applying the test stated in Acharya Jagdishwarananda (supra), it is equally clear that the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim's eyes, will not change without this practice. Indeed, Islam divides all human action into five kinds, as has been stated by Hidayatullah, J. in his introduction to Mulla (supra). There it is stated:(pages 718 - 719)
This was in the context of service rules being seniority rules, which applied to the Income Tax Department, being held to be violative of Article 14 of the Constitution of India. 260. Similarly, again in the context of an Article 14 challenge to service rules, this Court held in State of Mysore v. S.R. Jayaram, (1968) 1 SCR 349 as follows:(pages 353 - 354)
261. In the celebrated Indira Gandhi v. Raj Narain judgment, reported in 1975 Supp SCC 1, Article 329-A sub-clauses (4) and (5) were struck down by a Constitution Bench of this Court. Applying the newly evolved basic structure doctrine laid down in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, Ray, C.J. struck down the said amendment thus:(at page 44)
262. This passage is of great significance in that the amendment was said to be bad because the constituent power did not have any law to apply to the case, and this being so, the rule of law contained in the Constitution would be violated. This rule of law has an obvious reference to Article 14 of the Constitution, in that it would be wholly arbitrary to decide the case without applying any law, and would thus violate the rule of law contained in the said Article. Chandrachud, J., was a little more explicit in that he expressly referred to Article 14 and stated that Article 329-A is an outright negation of the right of equality conferred by Article 14. This was the case because the law would be discriminatory in that certain high personages would be put above the law in the absence of a differentia reasonably related to the object of the law. He went on to add:(at page 258)
263. This paragraph is an early application of the doctrine of arbitrariness which follows from the rule of law contained in Article 14. It is of some significance that Dicey's formulation of the rule of law was referred to, which contains both absence of arbitrary power and equality before the law, as being of the essence of the rule of law. 264. We now come to the development of the doctrine of arbitrariness and its application to State action as a distinct doctrine on which State action may be struck down as being violative of the rule of law contained in Article 14. In a significant passage Bhagwati, J., in E.P. Royappa v. State of T.N., (1974) 4 SCC 3 stated (at page 38):[Emphasis Supplied]
265. This was further fleshed out in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, where, after stating that various fundamental rights must be read together and must overlap and fertilize each other, Bhagwati, J., further amplified this doctrine as follows (at pages 283-284):[Emphasis Supplied]
266. This was further clarified in A.L. Kalra v. Project and Equipment Corpn., (1984) 3 SCC 316, following Royappa (supra) and holding that arbitrariness is a doctrine distinct from discrimination. It was held:(at page 328)
The same view was reiterated in Babita Prasad v. State of Bihar, 1993(2) S.C.T. 283 : (1993) Suppl. 3 SCC 268 at 285, at paragraph 31. 267. That the arbitrariness doctrine contained in Article 14 would apply to negate legislation, subordinate legislation and executive action is clear from a celebrated passage in the case of Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 (at pages 740-741):[Emphasis Supplied]
268. In this view of the law, a three Judge Bench of this Court in K.R. Lakshmanan (Dr.) v. State of T.N., 1996(1) RCR (Criminal) 468 : (1996) 2 SCC 226, struck down a 1986 Tamil Nadu Act on the ground that it was arbitrary and, therefore, violative of Article 14. Two separate arguments were addressed under Article 14. One was that the Act in question was discriminatory and, therefore, violative of Article 14. The other was that in any case the Act was arbitrary and for that reason would also violate a separate facet of Article 14. This is clear from paragraph 45 of the said judgment. The judgment went on to accept both these arguments. In so far as the discrimination aspect is concerned, this Court struck down the 1986 Act on the ground that it was discriminatory in paragraphs 46 and 47. Paragraphs 48 to 50 are important, in that this Court struck down the 1986 Act for being arbitrary, separately, as follows (at pages 256-257):[Emphasis Supplied]
269. Close upon the heels of this judgment, a discordant note was struck in State of A.P. v. McDowell & Co., (1996) 3 SCC 709. Another three Judge Bench, in repelling an argument based on the arbitrariness facet of Article 14, held:(at pages 737-739)
270. This judgment failed to notice at least two binding precedents, first, the judgment of a Constitution Bench in Ajay Hasia (supra) and second, the judgment of a coordinate three judge bench in Lakshmanan (supra). Apart from this, the reasoning contained as to why arbitrariness cannot be used to strike down legislation as opposed to both executive action and subordinate legislation was as follows:(at pages 755-756)
Clearly, therefore, the three Judge Bench has not noticed Maneka Gandhi (supra) cited in Mohd. Arif (supra) to show that the wheel has turned full circle and substantive due process is part of Article 21 as it is to be read with Articles 14 and 19. Mathew, J., while delivering the first Tej Bahadur Sapru Memorial Lecture entitled "Democracy and Judicial Review", has pointed out:[Emphasis Supplied]
In a long and illuminating concurring judgment, Krishna Iyer, J., added (at page 518):[Emphasis Supplied]
Coming to Mithu (supra), a Constitution Bench of this Court struck down Section 303 of the Indian Penal Code, by which a mandatory sentence of death was imposed on life convicts who commit murder in jail. The argument made by the learned counsel on behalf of the petitioner was set out thus:(at page 283)
After quoting from Sunil Batra (supra), the question before the Court was set out thus:(at page 285)
After setting out the question thus, the Court further stated:(at page 287)
The question was then answered in the following manner:(at pages 293, 294 and 296)
In a concurring judgment, Chinnappa Reddy, J., struck down the Section in the following terms:(at page 298)
It is, therefore, clear from a reading of even the aforesaid two Constitution Bench judgments that Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be "arbitrary". However, the three Judge Bench in Mcdowell (supra) dealt with the binding Constitution Bench decision in Mithu (supra) as follows (at page 739):[Emphasis Supplied]
277. In a recent Constitution Bench decision in Natural Resources Allocation, In re, Special Reference No.1 of 2012, (2012) 10 SCC 1, this Court went into the arbitrariness doctrine in some detail. It referred to Royappa (supra), Maneka Gandhi (supra) and Ajay Hasia (supra) (and quoted from paragraph 16 which says that "... the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached..."). It then went on to state that "arbitrariness" and "unreasonableness" have been used interchangeably as follows:(at page 81)
After stating all this, it then went on to comment, referring to McDowell (supra) that no arbitrary use should be made of the arbitrariness doctrine. It then concluded (at page 83):[Emphasis Supplied]
On a reading of this judgment, it is clear that this Court did not read McDowell (supra) as being an authority for the proposition that legislation can never be struck down as being arbitrary. Indeed the Court, after referring to all the earlier judgments, and Ajay Hasia (supra) in particular, which stated that legislation can be struck down on the ground that it is "arbitrary" under Article 14, went on to conclude that "arbitrariness" when applied to legislation cannot be used loosely. Instead, it broad based the test, stating that if a constitutional infirmity is found, Article 14 will interdict such infirmity. And a constitutional infirmity is found in Article 14 itself whenever legislation is "manifestly arbitrary"; i.e. when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favoritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment. Positively speaking, it should conform to norms which are rational, informed with reason and guided by public interest, etc. 278. Another Constitution Bench decision reported as Dr. Subramanian Swamy v. Director, Central Bureau of Investigation, 2014(2) RCR (Criminal) 822 : 2014(3) Recent Apex Judgments (R.A.J.) 269 : (2014) 8 SCC 682, dealt with a challenge to Section 6A of the Delhi Special Police Establishment Act, 1946. This Section was ultimately struck down as being discriminatory and hence violative of Article 14. A specific reference had been made to the Constitution Bench by the reference order in Dr. Subramanian Swamy v. Director, Central Bureau of Investigation, 2005(2) RCR (Criminal) 38 : (2005) 2 SCC 317, and after referring to several judgments including Ajay Hasia (supra), Mardia Chemicals (supra), Malpe Vishwanath Acharya (supra) and McDowell (supra), the reference inter alia was as to whether arbitrariness and unreasonableness, being facets of Article 14, are or are not available as grounds to invalidate a legislation. After referring to the submissions of counsel, and several judgments on the discrimination aspect of Article 14, this Court held:(at pages 721-722)
Since the Court ultimately struck down Section 6A on the ground that it was discriminatory, it became unnecessary to pronounce on one of the questions referred to it, namely, as to whether arbitrariness could be a ground for invalidating legislation under Article 14. Indeed the Court said as much in paragraph 98 of the judgment as under (at page 740):(at pages 736-737)
281. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers v. Union of India, (1985) 1 SCC 641, stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14. 282. Applying the test of manifest arbitrariness to the case at hand, it is clear that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq. We have noticed how in Fyzee's book (supra), the Hanafi school of Shariat law, which itself recognizes this form of Talaq, specifically states that though lawful it is sinful in that it incurs the wrath of God. Indeed, in Shamim Ara v. State of U.P., (2002) 7 SCC 518, this Court after referring to a number of authorities including certain recent High Court judgments held as under:(at page 526)
283. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression "laws in force" in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.ORDER OF THE COURT
In view of the different opinions recorded, by a majority of 3:2 the practice of `talaq-e-biddat' - triple talaq is set aside. .