Shayara Bano v. Union of India (SC)(Constitution Bench) BS890902
SUPREME COURT OF INDIA

(Constitution Bench)

Before:-Jagdish Singh Khehar, CJI, Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and S. Abdul Nazeer, JJ.

Writ Petition (C) No. 118 of 2016. D/d. 22.8.2017.

Shayara Bano - Petitioner

Versus

Union of India and others - Respondents

With

Suo Motu Writ (C) No. 2 of 2015.

In Re: Muslim Women's Quest For Equality - Petitioner

Versus

Jamiat Ulma-I-Hind - Respondents

With

Writ Petition(C) No. 288 of 2016.

Aafreen Rehman - Petitioner

Versus

Union of India and others - Respondents

With

Writ Petition(C) No. 327 of 2016.

Gulshan Parveen - Petitioner

Versus

Union of India and others - Respondents

With

Writ Petition(C) No. 665 of 2016.

Ishrat Jahan - Petitioner

Versus

Union of India and others - Respondents

With

Writ Petition(C) No. 43 of 2017.

Atiya Sabri - Petitioner

Versus

Union of India and others - Respondents

For the Petitioner :- Balaji Srinivasan, Advocate.

For the Respondent :- Devesh Kumar Tripathi, Applicant-In-Person, Nikilesh Ramachandran, M/s. Equity Lex Associates, O.P. Gaggar, Aparna Bhat, Wajeeh Shafiq, Purushottam Sharma Tripathi, Garima Bajaj, Shadan Farasat, Shadan Farasat, Ejaz Maqbool, Ejaz Maqbool, Shakil Ahmed Syed, Gurmeet Singh Makker, Mukesh Kumar Maroria, Advocates.

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]

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JUDGMENT

Jagdish Singh Khehar, CJI. -

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:

7. It is the case of the respondent-Rizwan Ahmad, that in view of the above averments of the petitioner-Shayara Bano, he felt that his wife was not ready for reconciliation, and therefore, he withdrew the suit (-for restitution of conjugal rights), preferred by him at Allahabad, and divorced the petitioner-Shayara Bano, by serving upon her a `talaq-nama' (deed of divorce) dated 10.10.2015. The text of the `talak-nama', is reproduced below:

"Deed of Divorce

Dated 10.10.2015

Only
Sd/ Hindi Rizwan Ahmed
(Rizwan Ahmed)
S/o Iqbal Ahmed
Ghaus Nagar, Karaili, Allahabad"

8. Based on the above, the case of the respondent-husband is, that he had pronounced `talaq' in consonance with the prevalent and valid mode of dissolution of Muslim marriages. It was submitted, that the pronouncement of divorce by him, fulfils all the requirements of a valid divorce, under the Hanafi sect of Sunni Muslims, and is in consonance with `Shariat' (Muslim `personal law').

9. It is also the submission of the respondent-husband, that the present writ petition filed by the petitioner-wife under Article 32 of the Constitution of India, is not maintainable, as the questions raised in the petition are not justiciable under Article 32 of the Constitution.

10. Keeping in view the factual aspect in the present case, as also, the complicated questions that arise for consideration in this case (and, in the other connected cases), at the very outset, it was decided to limit the instant consideration, to `talaq-e-biddat' - triple talaq. Other questions raised in the connected writ petitions, such as, polygamy and `halala' (-and other allied matters), would be dealt with separately. The determination of the present controversy, may however, coincidentally render an answer even to the connected issues.

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:

The above `verses' have been extracted by us for the reason, that the Quran mandates respectability at the hands of men - towards women. `Verse' 222 has been interpreted to mean, that matters of physical cleanliness and purity should be looked at, not only from a man's point of view, but also from the woman's point of view. The `verse' mandates, that if there is danger of hurt to the woman, she should have every consideration. The Quran records, that the action, of men towards women are often worse. It mandates, that the same should be better with reference to the woman's health, both mental and spiritual. `Verse' 223 postulates, that sex is as solemn, as any other aspect of life. It is compared to a husband-man's tilth, to illustratively depict, that in the same manner as a husband-man sows his fields, in order to reap a harvest, by choosing his own time and mode of cultivation, by ensuring that he does not sow out of season, or cultivate in a manner which will injure or exhaust the soil. So also, in the relationship towards a wife, `verse' 223 exalts the husband, to be wise and considerate towards her, and treat her in such manner as will neither injure nor exhaust her. `Verses' 222 and 223 exhort the husband, to extend every kind of mutual consideration, as is required towards a wife.

(ii) Reference is also necessary to `verses' 224 to 228 contained in section 28 of `sura' II of the Quran. The same are extracted below:

`Verse' 224, has a reference to many special kinds of oaths practised amongst Arabs. Some of the oaths even related to matters concerning sex. These oaths caused misunderstanding, alienation, division or separation between husbands and wives. `Verses' 224 to 227 are pointed references to such oaths. Through `verse' 224, the Quran ordains in general terms, that no one should make an oath - in the name of God, as an excuse for not doing the right thing, or for refraining from doing something which will bring people together. The text relied upon suggests, that `verses' 225 to 227 should be read together with `verse' 224. `Verse' 224 is general and leads up to the next three `verses'. These `verses' are in the context of existing customs, which were very unfair to married women. Illustratively, it was sought to be explained, that in a fit of anger or caprice, sometimes a husband would take an oath - in the name of God, not to approach his wife. This act of the husband, it was sought to be explained, deprives the wife of her conjugal rights, and yet, keeps her tied to the husand indefinitely, inasmuch as, she has no right to remarry. Even if this act of the husband, was protested by the wife, the explanation provided is, that the husband was bound - by the oath in the name of God. Through the above verses, the Quran disapproves thoughtless oaths, and at the same time, insists on a proper solemn and conscious/purposeful oath, being scrupulously observed. The above `verses' caution husbands to understand, that an oath in the name of God was not a valid excuse - since God looks at intention, and not mere thoughtless words. It is in these circumstances, that `verses' 226 and 227 postulate, that the husband and wife in a difficult relationship, are allowed a period of four months, to determine whether an adjustment is possible. Even though reconciliation is recommended, but if the couple is against reconciliation, the Quran ordains, that it is unfair to keep the wife tied to her husband indefinitely. The Quran accordingly suggests, that in such a situation, divorce is the only fair and equitable course. All the same it is recognized, that divorce is the most hateful action, in the sight of the God.

(iii) `Verses' 229 to 231 contained in `section' 29 of `sura' II, and `verses' 232 and 233 included in `section' 30 of `sura' II, as also `verse' 237 contained in `section' 31 in `sura' II, are relevant on the issue of divorce. The same are extracted below:

A perusal of the aforesaid `verses' reveals, that divorce for the reason of mutual incompatibility is allowed. There is however a recorded word of caution - that the parties could act in haste and then repent, and thereafter again reunite, and yet again, separate. To prevent erratic and fitful repeated separations and reunions, a limit of two divorces is prescribed. In other words, reconciliation after two divorces is allowed. After the second divorce, the parties must definitely make up their mind, either to dissolve their ties permanently, or to live together honourably, in mutual love and forbearance - to hold together on equitable terms. However, if separation is inevitable even on reunion after the second divorce, easy reunion is not permitted. The husband and wife are forbidden from casting aspersions on one another. They are mandated to recognize, what is right and honourable, on a collective consideration of all circumstances. After the divorce, a husband cannot seek the return of gifts or properties, he may have given to his wife. Such retention by the wife is permitted, only in recognition that the wife is economically weaker. An exception has been carved out in the second part of `verse' 229, that in situations where the freedom of the wife could suffer on account of the husband refusing to dissolve the marriage, and perhaps, also treat her with cruelty. It is permissible for the wife, in such a situation, to extend some material consideration to the husband. Separation of this kind, at the instance of the wife, is called `khula'. `Verse' 230 is in continuation of the first part of `verse' 229. The instant `verse' recognizes the permissibility of reunion after two divorces. When divorce is pronounced for the third time, between the same parties, it becomes irreversible, until the woman marries some other man and he divorces her (or is otherwise released from the matrimonial tie, on account of his death). The Quranic expectation in `verse' 230, requires the husband to restrain himself, from dissolving the matrimonial tie, on a sudden gust of temper or anger. `Verse' 231 provides, that a man who takes back his wife after two divorces, must not put pressure on her, to prejudice her rights in any way. Remarriage must only be on equitable terms, whereupon, the husband and wife are expected to lead a clean and honourable life, respecting each other's personalities. The Quranic message is, that the husband should either take back the wife on equitable terms, or should set her free with kindness.

(iv) The `verses' referred to above need to be understood along with `verses' 232 and 233, contained in `section' 20 of `sura' II, of the Quran. The above two `verses' are extracted below:

A perusal of the above `verses' reveals, that the termination of the contract of marriage, is treated as a serious matter for family and social life. And as such, every lawful advice, which can bring back those who had lived together earlier, provided there is mutual love and they can live with each other on honourable terms, is commended. After following the above parameters, the Quran ordains, that it is not right for outsiders to prevent the reunion of the husband and wife. `Verse' 233 is in the midst of the regulations on divorce. It applies primarily to cases of divorce, where some definite rule is necessary, as the father and mother would not, on account of divorce, probably be on good terms, and the interest of children must be safeguarded. Since the language of `verse' 233 is general, the edict contained therein is interpreted, as applying equally to the father and mother, inasmuch as, each must fulfil his or her part, in the fostering of children.

(v) The last relevant `verse' in `sura' II of the Quran, is contained in `section' 31, namely, `verse' 237. The same is reproduced below:

In case of divorce before consummation of marriage, it is recognized, that only half the dower fixed needed to be refunded to the wife. It is however open to the wife, to remit the half due to her. And likewise, it is open to the husband to remit the half which he is entitled to deduct (and thus pay the whole dower amount).

19. Reference is also necessary to `verses' 34 and 35, contained in `section' 6, as well as, `verse' 128 contained in `section' 19, of `sura' IV. All the above verses are extracted below:

The Quran declares men as protectors, and casts a duty on them to maintain their women. In order to be entitled to the husband's support, the Quran ordains the women to be righteous, and to be devoutly obedient to the husband, even in his absence. `Verse' 34, extends to the husband the right to admonish his wife who is either disloyal, or ill-conducts herself. Such admonition can be by refusing to share her bed, and as a last resort, even to beat her lightly. Thereafter, if the woman does not return to obedience, the husband is advised not to use means of annoyance against her. `Verse' 35, sets out the course of settlement of family disputes. It postulates the appointment of two arbitrators - one representing the family of the husband, and the other the family of the wife. The arbitrators are mandated to explore the possibility of reconciliation. In case reconciliation is not possible, dissolution is advised, without publicity or mud-throwing or by resorting to trickery or deception. `Verse' 128 provides for divorce at the instance of the wife - `khula'. It provides for a situation where, the wife fears cruelty or desertion on her husband's part. In such a situation, her desire to seek an amicable settlement, cannot be treated as an aspersion on her. The couple must then settle to separate, on most amicable terms. The husband is cautioned not to be greedy. He is required to protect the wife's economic interest. In case of disputation between the couple, for economic reasons, the Quran ordains, that sanctity of the marriage itself, is far greater than any economic interest, and accordingly suggests, that if separation can be prevented by providing some economic consideration to the wife, it is better for the husband to make such a concession, than to endanger the future of the wife and children.

20. The last relevant `verses' - 1 and 2, are contained in `section' 1 of `sura' - LXV. The same are reproduced below:

`Verse' 1 above, it may be noticed, has reference to the Prophet Muhammad himself. It is addressed in his capacity as teacher and representative of the community. It endorses the view, that of all things permitted, divorce is the most hateful in the sight of the God. Even though, the `verse' provides for divorce, it proscribes the husband from turning out his wife/wives from his house. It also forbids the wife/wives, to leave the house of their husband, except when they are guilty. Those who transgress the above limitation, are cautioned, that they are committing wrong to their own souls. Reconciliation is suggested, whenever it is possible. It is recommended at every stage. The first serious difference between the spouses is first to be submitted to a family counsel, on which both sides are to be represented. The `verse' requires the divorce to be pronounced, only after the period of prohibitory waiting. `Dower' has to be paid, and due provisions have to be made, by the husband, for many things on equitable terms. On each aspect, there is to be consideration. Reconciliation is recommended till the last moment. The message contained in `verse' 2 is, that everything should be done fairly, and all interests should be safeguarded. It is ordained, that the parties should remember, that such matters affect the most intimate aspect of their lives, and therefore, have a bearing even in the spiritual kingdom. It is therefore, that the `verses' extracted above, impress on the parties, to fear God, and ensure that their determination is just and true.

21. The understanding of the `verses' of the Quran, is imperative in this case, because the petitioner and those supporting the petitioner's case contend inter alia, that `talaq-e-biddat', is not in conformity with the unambiguous edicts of the Quran, and therefore, cannot be considered as valid constituents of Muslim `personal law'.

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:

23. Sections 2, 3 and 5 of the Shariat Act are relevant and are extracted hereunder:

A close examination of Section 2, extracted above, leaves no room for any doubt, that custom and usage, as it existed amongst Muslims, were sought to be expressly done away with, to the extent the same were contrary to Muslim `personal law'. Section 2 also mandated, that Muslim `personal law' (Shariat) would be exclusively adopted as "... the rule of decision ..." in matters of intestate succession, special property of females, including all questions pertaining to "... personal property inherited or obtained under contract or gift or any other provision of `personal law', marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, gifts, trusts and trust properties, and wakfs ...". Section 3 added to the above list, "... adoption, wills and legacies ...", subject to the declaration expressed in Section 3.

24. It is relevant to highlight herein, that under Section 5 of the Shariat Act provided, that a Muslim woman could seek dissolution of her marriage, on the grounds recognized under the Muslim `personal law'. It would also be relevant to highlight, that Section 5 of the Shariat Act was deleted, and replaced by the Dissolution of Muslim Marriages Act, 1939.

25. In the above context, it would be relevant to mention, that there was no provision in the Hanafi Code, of Muslim law for a married Muslim woman, to seek dissolution of marriage, as of right. Accordingly, Hanafi jurists had laid down, that in cases in which the application of Hanafi law caused hardship, it was permissible to apply the principles of the Maliki, Shafii or Hanbali law. This position was duly noticed in the introduction to the 1939 Act, as well as, in the statement of its objects and reasons. Be that as it may, the alternatives suggested by the Hanafi jurists were not being applied by courts. Accordingly, in order to crystalise the grounds of dissolution of marriage, by a Muslim woman, the 1939 Act, was enacted. The statement of objects and reasons of the above enactment is relevant, and is accordingly extracted hereunder:

26. The Dissolution of Muslim Marriages Act, 1939 provided, the grounds on which a Muslim woman, could seek dissolution of marriage. Section 2 of the enactment is reproduced below:

27. We may record here, that the Dissolution of Muslim Marriages Act, 1939, is irrelevant for the present controversy on account of the fact, that the issue in hand does not pertain to the dissolution of marriage at the behest of a Muslim wife (but pertains to the dissolution of marriage, at the behest of a Muslim husband). The provisions of the instant enactment are relevant, to understand the submissions advanced by learned counsel, representing the petitioners, as also the respondents, based on their individual perspectives.

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:

(ii) Egypt: Is a secular State. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:

(iii) Iraq: Is a theocratic State, which declares Islam to be its official religion. The majority of Iraq's Muslims is Shias. On the issue in hand, it has enacted the following legislation:

(iv) Jordan: Is a secular State. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:

(v) Kuwait: Is a theocratic State, which declares Islam to be the official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place:

(vi) Lebanon: Is a secular State. Muslims constitute its majority, which is estimated to be 54% (27% Shia, and 27% Sunni). On the issue in hand, it has enacted the following legislation:

(vii) Libya: 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:

(viii) Morocco: 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:

(ix) Sudan: 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 the following legislation in place:

(x) Syria: Is a secular State. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:

(xi) Tunisia: 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:

(xii) United Arab Emirates: Is a theocratic State, as the Federal Constitution declares Islam to be the official religion. The Constitution also provides for freedom of religion, in accordance with established customs. Muslims of the Shia sect constitute its majority. On the issue in hand, it has the following legislation in place:

(xiii) Yemen: Is a theocratic State, which declares Islam to be the official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place:

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:

(ii) Malaysia: Under the Constitution of Malaysia, Islam is the official religion of the country, but other religions are permitted to be practiced in peace and harmony. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place:

(iii) Philippines: Is a secular State. Christians constitute its majority. On the issue in hand, it has the following legislation in place:

(3) The provisions of this Article will be observed if the wife exercises right to Talaq-e-Tafweez.

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:

(ii) Sri Lanka: Is a secular State. Buddhists constitute its majority. On the issue in hand, it has the following legislation in place:

29. `Talaq-e-biddat' is effective, the very moment it is pronounced. It is irrevocable when it is pronounced.

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:

(iv) The conclusion: The Privy Council, upheld as valid, `talaq-e-biddat' - triple talaq, pronounced by the husband, in the absence and without the knowledge of the wife, even though the husband and wife continued to cohabit for 15 long years thereafter, wherefrom 5 offsprings were born to them

31. Jiauddin Ahmed v. Anwara Begum, (1981) 1 Gau.L.R. 358 (Single Judge judgment, authored by Baharul Islam, J., as he then was).

(i) The facts: The respondent - Anwara Begum had petitioned for maintenance, under section 125 of the Code of Criminal Procedure. Her contention was, that she had lived with her husband for about 9 months, after her marriage. During that period, her marriage was consummated. Anwara Begum alleged, that after the above period, her husband began to torture her, and even used to beat her. It was therefore, that she was compelled to leave his company, and start living with her father, who was a day labourer. Maintenance was duly granted, by the First Class Magistrate, Tinsukia. Her husband, the petitioner - Jiauddin Ahmed, contested the respondent's claim for maintenance, before the Gauhati High Court, on the ground that he had divorced her, by pronouncing divorce by adopting the procedure of `talaq-e-biddat'.

(iii) The challenge: It is in the above circumstances, that the validity of `talaq-e-biddat', and the wife's entitlement to maintenance came to be considered by the Guahati High Court, which examined the validity of the concept of `talaq-e-biddat'.

(iv) The consideration: (a) The High Court placed reliance on `verses' 128 to 130, contained in `section' 19, of `sura' IV, and `verses' 229 to 232, contained in `sections' 29 and 30 of `sura' II, and thereupon, referred to the commentary on the above verses by scholars (Abdullah Yusuf Ali and Maulana Mohammad Ali) and the views of jurists (Ameer Ali and Fyzee), with pointed reference to `talaq', which was narrated as under:

(b) The High Court also placed reliance on `verse' 35 contained in `section' 6, of `sura' IV, and again referred to the commentary on the above `verse' (by Abdullah Yusuf Ali), who had interpreted the same as under:

(iv) The conclusion: Based on the Quranic verses referred to above, the High Court concluded as under:

A perusal of the conclusion recorded by the High Court, through the above observations, leaves no room for any doubt, that the `talaq-e-biddat' pronounced by the husband without reasonable cause, and without being preceded by attempts of reconciliation, and without the involvement of arbitrators with due representation on behalf of the husband and wife, would not lead to a valid divorce. The High Court also concluded, that the petitioner - Jiauddin Ahmed, had mainly alleged that he had pronounced talaq, but had not established the factum of divorce by adducing any cogent evidence. Having concluded, that the marriage between the parties was subsisting, the High Court upheld the order awarding maintenance to the wife - Anwara Begum.

32. Must. Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 Gau. L.R. 375 (Division Bench judgment, authored by Baharul Islam, CJ., as he then was).

(i) The facts: Rukia Khatun was married to Abdul Khalique Laskar. The couple lived together for about 3 months, after their marriage. During that period, the marriage was consummated. Rukia Khatun alleged, that after the above period, her husband abandoned and neglected her. She was allegedly not provided with any maintenance, and as such, had been living in penury, for a period of about 3 months, before she moved an application for grant of maintenance. The petitioner's application for maintenance filed under section 125 of the Code of Criminal Procedure, was rejected by the Sub-Divisional Judicial Magistrate, Hailakandi. She challenged the order rejecting her claim of maintenance, before the Gauhati High Court. The respondent-husband - Abdul Khalique Laskar, contested the claim for maintenance by asserting, that even though he had married the petitioner, but he had divorced her on 12.4.1972 by way of `talaq-e-biddat', and had thereafter even executed a talaknama. The husband also asserted, that he had paid dower to the petitioner. The claim of the petitioner-wife for maintenance was declined on the ground, that she had been divorced by the respondent-husband.

(ii) The challenge: It is in the above circumstances, that the validity of the divorce pronounced by the respondent-husband, by way of `talaq-ebiddat', and the wife's entitlement to maintenance, came up for consideration.

(iii) The consideration: The Gauhati High Court recorded the following observations in respect of the validity of `talaq' pronounced by the respondent-husband, on 12.4.1972.

(iv) The conclusion: Based on the above consideration above, the High Court recorded the following conclusion:

A perusal of the consideration extracted above, when examined closely, reveals that the High Court listed the following essential ingredients of a valid `talaq' under Muslim law. Firstly, `talaq' has to be based on good cause, and must not be at the mere desire, sweet will, whim and caprice of the husband. Secondly, it must not be secret. Thirdly, between the pronouncement and finality, there must be a time gap, so that the passions of the parties may calm down, and reconciliation may be possible. Fourthly, there has to be a process of arbitration (as a means of reconciliation), wherein the arbitrators are representatives of both the husband and the wife. If the above ingredients do not exist, `talaq' - divorce would be invalid. For the reason, that the `talaq-e-biddat' - triple talaq pronounced by the respondent-husband - Abdul Khalique Laskar, did not satisfy all the ingredients for a valid divorce, the High Court concluded that the marriage was subsisting, and accordingly held the wife to be entitled to maintenance.

33. Masroor Ahmed v. State (NCT of Delhi), 2008 (103) DRJ 137 (Single Bench judgment, authored by Badar Durrez Ahmed, J., as he then was).

(i) The facts: Aisha Anjum was married to the petitioner - Masroor Ahmed, on 02.04.2004. The marriage was duly consummated and a daughter was born to the couple (-on 22.10.2005). It was alleged by the wife - Aisha Anjum, that the husband's family threw her out of her matrimonial home (-on 08.04.2005), on account of non-fulfilment of dowry demands. While the wife - Aisha Anjum was at her maternal home, the husband - Masroor Ahmed filed a case for restitution of conjugal rights (-on 23.03.2006), before the Senior Civil Judge, Delhi. During the course of the above proceedings, the wife returned to the matrimonial home, to the company of her husband (-on 13.04.2006), whereupon, marital cohabitation was restored. Once again there was discord between the couple, and Masroor Ahmed pronounced `talaq-e-biddat', on 28.08.2006. The wife - Aisha Anjum alleged, that she later came to know that her husband - Masroor Ahmed, had divorced her by exercising his right of `talaq-e-biddat', in the presence of the brothers of Aisha Anjum, in October 2006. And that, the husband had lied to the Court, (and to her, as well) when he had sought her restitution, from the Court, by making out as if the marriage was still subsisting. It was her claim, that she would not have agreed to conjugal relations with him, had she known of the divorce. And therefore, her consent to have conjugal relations with Masroor Ahmed, was based on fraud committed by him, on her - Aisha Anjum. She therefore accused Masroor Ahmed, for having committed the offence under Section 376 of the Indian Penal Code, i.e., the offence of rape. She also claimed maintenance from her husband, under Section 125 of the Criminal Procedure Code. During the pendency of the above proceedings, the parties arrived at an amicable settlement on 1.9.2007.

(ii) The challenge: The position expressed by the High Court in paragraph 12 of the judgment, crystalises the challenge. Paragraph 12, is reproduced below:

(iii) The consideration: While considering the legality and effect of `talaq-ebiddat', the High Court recorded the following consideration:

(iv) The conclusion: Based on the consideration recorded above, the High Court arrived at the following conclusions:

A perusal of the conclusions recorded by the High Court would reveal, that triple talaq pronounced at the same time, is to be treated as a single pronouncement of divorce. And therefore, for severing matrimonial ties finally, the husband would have to complete the prescribed procedure, and thereafter, the parties would be treated as divorced.

34. Nazeer v. Shemeema, 2017 (1) KLT 300 (Single Bench judgment, authored by A. Muhamed Mustaque, J.).

(i) The facts: Through the above judgment, the High Court disposed of a number of writ petitions, including three writ petitions, wherein husbands had terminated their matrimonial alliance with their spouses, by pronouncing `talaq-e-biddat' - triple talaq. Their matrimonial relationship having come to an end, one or the other or both (-this position is unclear, from the judgment) spouses approached the passport authorities, to delete the name of their former spouse, from their respective passports. The passport authorities declined to accept their request, as the same was based on private actions of the parties, which were only supported by unauthenticated `talaq-namas' (deeds of divorce). The stance adopted by the passport authorities was, that in the absence of a formal decree of divorce, the name of the spouse could not be deleted. By passing interim directions, the High Court ordered the passport authorities, to correct the spouse details (as were sought), based on the admission of the corresponding spouse, that their matrimonial alliance had been dissolved.

(ii) The challenge: Even though the authenticity and/or the legality of `talaq-e-biddat', did not arise for consideration before the High Court, it noticed "....Though the issue related to triple talaq does not directly crop up in these writ petitions calling upon this Court to decide the validity of triple talaq, this Court cannot ignore while granting a relief based on admission, the fact that direction of this Court would result in greater or lesser extent of injustice if it remains oblivious to the repercussions of the repudiation of marriage by volition of individual.....". The High Court therefore, embarked on the exercise of examining the validity of `talaq-e-biddat'.

(iii) The consideration: The High Court took into consideration texts by renowned scholars, as for instance, from "Sharia" by Wael B. Hallaq, "Sharia Law, An Introduction" by Mohammad Hashim Kamali, "Qur'an: The Living Truth" by Basheer Ahmad Mohyidin, "Muslim Law in India And Abroad" by Dr. Tahir Mahmood, "The Lawful and the Prohibited in Islam" by Sheikh Yusuf al-Qaradawi, from the Urdu book "Hikmatul Islam" by Moulana Wahidul Khan. The High Court also took into consideration Quranic verses (all of which have been, extracted above). The High Court even took note of the two judgments of the Gauhati High Court (referred to above), besides other High Court judgments, and thereupon, observed as under:

(iv) The conclusion: In the background of the above consideration, the High Court held as under:

A perusal of the conclusions drawn by the High Court reveals, that the practice of `talaq-e-biddat', was deprecated by the Court. The Court however called upon the legislature, to codify the law on the issue, as would result in the advancement of justice, as a matter of institutional form.

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.]

In continuation with the instant submission, it was also the contention of learned senior counsel, that Articles 25, 26 and 29 of the Constitution, did not in any manner, impair the jurisdiction of this Court, to set right the apparent breach of constitutional morality. In this behalf, the Court's attention was invited to the fact, that Article 25 itself postulates, that the freedoms contemplated thereunder, were subject to the overriding principles enshrined in Part III - Fundamental Rights, of the Constitution. This position, it was submitted, was affirmed through judgments rendered by this Court in John Vallamattom v. Union of India, 2003(3) RCR (Civil) 691 : (2003) 6 SCC 611 Javed v. State of Haryana, 2003(3) RCR (Civil) 793 : (2003) 8 SCC 369 and Khursheed Ahmad Khan v. State of Uttar Pradesh, 2015(3) S.C.T. 248 : (2015) 8 SCC 439.

37. Learned senior counsel also drew our attention to the fact, that a number of countries had, by way of express legislations, done away with the practice of `talaq-e-biddat'. It was submitted, that even when talaq was pronounced thrice simultaneously, the same has, by legislation, been treated as a single pronouncement, in a number of countries, including countries which have declared Islam as their official State religion. It was accordingly contended, that had `talaq-e-biddat' been an essential part of religion, i.e., if it constituted a core belief, on which Muslim religion was founded, it could not have been interfered with, by such legislative intervention. It was accordingly suggested, that this Court should have no difficulty whatsoever in remedying the cause with which the petitioners had approached this Court, as the same was not only violative of the fundamental rights enshrined in the Constitution, but was also in contravention of the principle of constitutional morality emerging therefrom.

38. Last of all, it was contended, that it is nobody's case before this Court, that `talaq-e-biddat' is a part of an edict flowing out of the Quran. It was submitted, that triple talaq is not recognized by many schools of Islam. According to learned counsel, all concerned acknowledge, that `talaq-ebiddat' has all along been treated irregular, patriarchal and even sinful. It was pointed out, that it is accepted by all schools - even of Sunni Muslims, that `talaq-e-biddat' is "bad in theology but good in law". In addition, it was pointed out, that even the Union of India had affirmed before this Court, the position expressed above. In such situation, it was prayed, that this Court being a constitutional court, was obliged to perform its constitutional responsibility under Article 32 of the Constitution, as a protector, enforcer, and guardian of citizens' rights under Articles 14, 15 and 21 of the Constitution. It was submitted, that in discharge of the above constitutional obligation, this Court ought to strike down, the practice of `talaq-e-biddat', as violative of the fundamental rights and constitutional morality contemplated by the provisions of the Constitution. It was commended, that the instant practice of `talaq-e-biddat' should be done away with, in the same manner as the practice of `Sati', `Devadasi' and `Polygamy', which were components of Hindu religion, and faith. Learned counsel concluded his submissions by quoting from the Constitutional Law of India, by H.M. Seervai (fourth edition, Volume 2, published by N.M. Tripathi Private Ltd., Bombay), wherein in clause 12.60, at page 1281, the author has expressed the following view:

39. Mr. Anand Grover, Senior Advocate, represented Zakia Soman - respondent no.10. Respondent no.10 was added as a party respondent on 29.6.2016, on the strength of an interlocutory application filed by her. Learned senior advocate, in the first instance, invited our attention to the various kinds of `talaq' practiced amongst Muslims (-for details, refer to Part-2 - The practiced modes of `talaq' amongst Muslims). It was submitted, that `talaq-e-ahsan' and `talaq-e-hasan' were approved by the Quran and the `hadith'. It was submitted, that `talaq-e-biddat' is neither recognized by the Quran, nor approved by the `hadith'. With reference to `talaq-e-biddat', it was asserted, that the same was contrary to Quranic prescriptions. It was submitted, that the practice of `talaq-e-biddat' was traceable to the second century, after the advent of Islam. It was asserted, that `talaq-e-biddat' is recognized only by a few Sunni schools, including the Hanafi school. In this behalf, it was also brought to our notice, that most of the Muslims in India belonged to the Hanafi school of Sunni Muslims. It was submitted, that even the Hanafi school acknowledges, that `talaq-ebiddat' is a sinful form of divorce, but seeks to justify it on the ground that though bad in theology, it is good in law. In India `talaq-e-biddat', according to learned counsel, gained validity based on the acceptance of the same by the British courts, prior to independence. It was submitted, that the judgments rendered by the British courts were finally crystallized, in the authoritative pronouncement by the Privy Council in the Rashid Ahmad case. It was pointed out, that thereafter, `talaq-e-biddat' has been consistently practised in India.

40. The first contention advanced at the hands of learned senior counsel was, that after the adoption of the Constitution, various High Courts in India had the occasion to consider the validity of `talaq-e-biddat', exercised by Muslim men to divorce their wives. And all the High Courts (which had the occasion to deal with the issue) unanimously arrived at the conclusion, that the same could not muster support either from the Quran or the `hadith'. In this behalf, the Court's attention was drawn to the various judgments of High Courts including the High Court of Gauhati in the Jiauddin Ahmed case - by a Single Bench, and by the same High Court in the Rukia Khatun case - by a Division Bench. By the Delhi High Court in the Masroor Ahmed case - by a Single Bench, and finally by the Kerala High Court in the Nazeer case - by a Single Bench (-for details, refer to Part-6 - Judicial pronouncements, on the subject of `talaqe- biddat'). It was submitted, that the High Courts were fully justified in their opinions and their conclusions. It was pointed out, that despite the aforesaid judgments, Muslim husbands continued to divorce their wives by `talaq-e-biddat', and therefore, an authoritative pronouncement on the matter was required to be delivered, by this Court. Based on the decisions relied upon, it was submitted, that a Muslim husband, could not enjoy arbitrary or unilateral power to proclaim a divorce, as the same does not accord with Islamic traditions. It was also contended, that the proclamation of talaq must be for a demonstrated reasonable cause, and must proceed by an attempt at reconciliation by two arbiters (one each, from the side of the rival parties). In order to affirm the aforesaid position, learned counsel placed reliance on Shamim Ara v. State of U.P., (2002) 7 SCC 518 to assert, that this Court approved the judgments referred to above. It was accordingly asserted, that this Court has already recognized, the Quranic position as recorded in verses 128 to 130 of `sura' IV and verses 229-232 of `sura' II, and also, `verse' 35 of `sura' IV. These verses, according to learned senior counsel, declare the true Quranic position on the subject of divorce (-for details, refer to Part-3 - The Holy Quran - with reference to `talaq'). Learned counsel heavily relied on the decision rendered by the Delhi High Court in the Masroor Ahmed case, and by the Kerala High Court in the Nazeer case to bring home his contention, that `talaq-ebiddat' was wholly unjustified and could not be recognized as a valid means of divorce in the Muslim community. It was the vehement submission of learned counsel, that the legal position being canvassed on behalf of the petitioners, clearly emerged from the judgments referred to above, and should be treated as the foundation, for adoption and declaration by this Court. It was therefore prayed, that triple talaq as was being practiced in India, be declared unsustainable in law.

41. It was also contended by learned senior counsel, that the settled principles applicable in all common law jurisdictions including India was that courts do not test the constitutionality of laws and procedures, if the issue arising between the parties can be decided on other grounds. It was submitted, that only when the relief being sought, cannot be granted without going into the constitutionality of the law, only then courts need to enter the thicket of its constitutional validity. Learned counsel invited the Court's attention, to the judgment of this Court in State of Bihar v. Rai Bahadur Hurdut Roy Moti Lal Jute Mills, AIR 1960 Supreme Court 378 wherein this Court refused to test the constitutional validity of certain provisions, by holding as under:

In the context of `personal law', it was submitted, that in Shabnam Hashmi v. Union of India, (2014) 4 SCC 1 the Court had recently refused to examine the constitutional validity of `personal laws', when the issue could be plainly decided on the interpretation of the concerned statute. It was therefore contended, that through a purely interpretative exercise, this Court should declare `talaq-e-biddat' as illegal, ineffective and having no force in law, in the same manner as the Gauhati High Court and the Delhi High Court, have previously so held. It was submitted, that the same declaration be given by this Court, by an interpretation of `personal law', as would incorporate the ingredients of the permissible and acceptable modes of talaq into `talaq-e-biddat'.

42. In the present determination, learned senior counsel submitted, that it would be essential to recognize the existence of distortions in the `hadiths'. It was pointed out, that it was by now well settled, that there were various degrees of reliability and/or authenticity of different `hadiths' (reference in this behalf was made to - Principles of Mohomedan Law by Sir Dinshaw Fardunji Mulla, LexisNexis, Butterworths Wadhwa, Nagpur, 20th edition). It was the contention of learned senior counsel, that the All India Muslim Personal Law Board (hereinafter referred to as, the AIMPLB), had relied on `hadiths', that were far removed from the time of the Prophet. It was submitted, that they were therefore far less credible and authentic, and also distorted and unreliable, as against the `hadiths' taken into consideration in the judgments rendered by the High Courts (-for details, refer to Part-6 - Judicial pronouncements, on the subject of `talaq-ebiddat'). It was pointed out, that the AIMPLB had relied upon a later `hadith' (that is, Sunan Bayhaqi 7/547). It was pointed out, that when compared to the `hadith' of Bhukahri (published by Darussalam, Saudi Arabia), the `hadith' relied upon by the AIMPLB appeared to be a clear distortion. It was also submitted, that the `hadith' relied upon by the AIMPLB, was not found in the Al Bukhari Hadiths, and as such, it would be inappropriate to place reliance on the same. As against the submissions advanced on behalf of AIMPLB, it was pointed out (in rejoinder), that Sahih Muslims believe, that during the Prophet's time, and that of the First Caliph Abu Baqhr and the Second Caliph Umar, pronouncements of `talaq' by three consecutive utterances were treated as one. Reference in this behalf was made to "Sahih Muslim" compiled by Al-Hafiz Zakiuddin Abdul-Azim Al- Mundhiri, and published by Darussalam. Learned senior counsel also invited this Court's attention to "The lawful and the prohibited in Islam" by Al-Halal Wal Haram Fil Islam (edition - August 2009), which was of Egyptian origin. It was pointed out, that Egypt was primarily a Sunni Hanafi nation. It was submitted, that the text of the above publication, clearly showed, that the practice of instant talaq was described sinful, and was to be abhorred. Reference was also made to "Woman in Islamic Shariah" by Maulana Wahiduddin Khan (published by Goodword Books, reprinted in 2014), wherein it is opined, that triple talaq pronounced on a singular occasion, would be treated as a single pronouncement of talaq, in terms of the `hadith' of Imam Abu Dawud in Fath al-bari 9/27. It was submitted, that the views of the above author, were also relied upon by the Delhi High Court in the Masroor Ahmed case. Reference was also made to "Marriage and family life in Islam" by Prof. (Dr.) A. Rahman (Adam Publishers and Distributors, New Delhi, 2013 edition), wherein by placing reliance on a Hanafi Muslim scholar, it was expressed that triple talaq was not in consonance with Quranic verses. Reliance was also placed on "Imam Abu Hanifa - Life and Work" by Allamah Shiblinu'mani's of Azamgarh, who founded the Shibli College in the 19th century. It was submitted, that Abu Hanifa himself ruled, that it was forbidden to give three divorces at the same time, and whoever did so was a sinner. Based on the aforestated submissions, it was the pointed contention of learned senior counsel, that there was no credibility in the position adopted by the AIMPLB, in its pleadings to demonstrate the validity of the practice of `talaq-e-biddat'.

43. Based on the above submissions, it was contended, that the judgment rendered by the Privy Council in the Rashid Ahmad case with reference to the validity of `talaq-e-biddat' needed to be overruled. Since `talaq-e-biddat' cannot be traced to the Quran, and since the Prophet himself deprecated it, and since `talaq-e-biddat' was considered sinful by all schools of Sunni Muslims, and as invalid by all the Shia Muslim schools, it could not be treated to be a part of Muslim `personal law'. It was asserted, that triple talaq was not in tune with the prevailing social conditions, as Muslim women were vociferously protesting against the practice. Learned senior counsel solicited, that this Court in order to resolve the present dispute, declare that the pronouncement of triple talaq by a Muslim husband, in order to divorce his wife, would be treated as a single pronouncement of talaq, and would have to follow the procedure of `talaq-eahsan' (or, `talaq-e-hasan') in accordance with the Quran, so as to conclude a binding dissolution of marriage by way of `talaq', in terms of Muslim `personal law'.

44. Ms. Indira Jaising, Senior Advocate, was the third counsel to represent the cause of the petitioners. She entered appearance on behalf of respondent no.7 - Centre for Study of Society and Secularism, which came to be added as a party respondent vide an order dated 29.6.2016. It was the contention of learned senior counsel, that the term `personal laws' had not been defined in the Constitution, although there was reference to the same in entry 5 of the Concurrent List of the Seventh Schedule. Learned counsel referred to Article 372 of the Constitution which mandates, that all laws in force, in the territory of India immediately before the commencement of the Constitution, "shall" continue in force until altered or repealed or amended by a competent legislature (or other competent authority). It was submitted, that on personal issues, Muslims were governed by the Muslim `personal law' - Shariat. It was contended, that even before, the commencement of the Constitution, the Muslim Personal Law (Shariat) Application Act, 1937 enforced Muslim `personal law', and as such, the Muslim `personal law' should be considered as a "law in force", within the meaning of Article 13(3)(b). It was pointed out, that the instant position made the legal position separate and distinct from what ordinarily falls in the realm of `personal law'. It was also highlighted, that a reading of entry 5 in the Concurrent List of the Seventh Schedule, leaves no room for any doubt, that `personal law' necessarily has to have nexus, to issues such as marriage and divorce, infants and minors, adoptions, wills, intestacy and succession, joint family property and partition, etc. It was contented, that `personal law' could therefore conveniently be described as family law, namely, disputes relating to issues concerning the family. It was pointed out, that such family law disputes, were ordinarily adjudicated upon by the Family Courts, set up under the Family Courts Act, 1984. The matters which arise for consideration before the Family Courts are disputes of marriage (namely, restitution of conjugal rights, or judicial separation, or dissolution of marriage), and the like. Based on the above backdrop, it was submitted, that it could be safely accepted that `personal law' deals with family laws and law of succession such as marriage, divorce, child custody, inheritance, etc.

45. Based on the foundation recorded in the preceding paragraph, it was submitted, that the question in the present controversy was, whether "rule of decision" (the term used in Section 2, of the Shariat Act) could be challenged, on the ground that the same was violative of the fundamental rights postulated in Part III of the Constitution? It was the pointed contention of learned counsel, that no "rule of decision" can be violative of Part III of the Constitution. It was acknowledged (we would say - fairly), that `personal law' which pertained to disputes between the family and private individuals (wherein the State has no role), cannot be subject to a challenge, on the ground of being violative of the fundamental rights enshrined in Part III of the Constitution. It was submitted, that insofar as Muslim `personal law' is concerned, it could no longer be treated as `personal law', because it had been statutorily declared as "rule of decision" by Section 2 of the Shariat Act. It was therefore asserted, that all questions pertaining to Muslims, `personal law' having been described as "rule of decision" could no longer be treated as private matters between parties, nor can they be treated as matters of mere `personal law'. It was therefore contended, that consequent upon the inclusion/subject of the question of "...dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat,...", amongst Muslims in the statute book, the same did not remain a private matter between the parties. And as such, all questions/matters, falling within the scope of Section 2 aforementioned, were liable to be considered as matters of `public law'. Learned senior counsel therefore asserted, that no one could contest the legitimacy of a challenge to `public law' on the ground of being violative of the provisions of the Constitution. In support of the aforesaid foundational premise, learned senior counsel placed reliance on Charu Khurana v. Union of India, 2015(2) S.C.T. 819 : (2015) 1 SCC 192 to contend that `talaq-e-biddat' should be considered as arbitrary and discriminatory, under Articles 14 and 15, in the same manner as the rule prohibiting women make-up artists and hair dressers from becoming members of registered make-up artists and hair dressers association, was so declared. It was also pointed out, that discrimination based on sex was opposed to gender justice, which position was clearly applicable to the controversy in hand. Insofar as the instant aspect of the matter is concerned, learned counsel placed reliance on the following observations recorded in the above judgment:

46. Learned senior counsel, thereupon attempted to express the same position, through a different reasoning. It is necessary to recall, that the question posed for consideration is, whether this Court should accept "rule of decision" under Section 2 of the Shariat Act - as "laws in force" within the meaning of Article 13 of the Constitution, and thereby, test the validity thereof, on the touchstone of the fundamental rights enshrined in Part III of the Constitution? It was the fervent contention of learned senior counsel, that all questions falling for consideration within the meaning of the term "rule of decision" had necessarily to be treated as "laws in force". Thus, it was submitted, that such laws were to be in consonance with the provisions of Part III - Fundamental Rights, of the Constitution. Insofar as the challenge to the constitutional validity of `talaq-e-biddat' is concerned, learned senior counsel, adopted the submissions advanced by other learned counsel.

47. Learned senior counsel, then placed reliance on the Universal Declaration of Human Rights adopted by the United Nations General Assembly on 10.12.1948, to contend that the preamble thereof recognised the inherent dignity of the entire human family, as equal and inalienable. It was submitted, that the charter provides for equal rights to men and women. It was submitted, that Article 1 thereof provides, that all human beings were born free and equal, in dignity and rights. Referring to Article 2, it was submitted, that there could be no distinction/discrimination on the basis inter alia of sex and/or religion. It was submitted, that it was this Court's responsibility to widen, and not to narrow, the right of equality contained in the aforestated Declaration. The Court's attention was also drawn to the International Convention on Economic, Social and Cultural Rights (ICESCR), which provided for elimination of all forms of discrimination against women. The instant convention was adopted by the United Nations General Assembly on 10.04.1979. It was submitted, that the International Convention bill of rights for women, was instituted on 3.9.1981, and had been ratified by 189 States. It was pointed out, that India had also endorsed the same. It was submitted, that Article 1 thereof defines "discrimination", as discrimination against women on the basis of sex. Referring to Article 2, it was submitted, that all State parties who ratified the above convention, condemned discrimination against women in all its forms, and agreed to eliminate discrimination against women by following the principle of equality amongst men and women, in their national Constitutions, as well as, other legislations. It was submitted, that Article 2 of the convention mandates, that all States would take all steps to eliminate discrimination against women - by any person, organisation or enterprise. It was submitted, that insofar as the present controversy is concerned, the provisions of the above declarations and conventions can be relied upon, to test the validity of `talaq-e-biddat', by treating it as "rule of decision" and for that matter, as law in force (on the touchstone of Articles 14, 15 and 21 of the Constitution). It was further submitted, that in any case, the practice of `talaq-e-biddat', clearly violated the norms adopted by the declaration, and conventions.

48. It was acknowledged, by learned senior counsel, that India recognises a plural legal system, wherein different religious communities are permitted to be governed by different `personal laws', applicable to them. It was submitted, that there could be no dispute, that different religious communities can have different laws, but the laws of each religious community must meet the test of constitutional validity and/or constitutional morality, inasmuch as, they cannot be violative of Articles 14 and 15 of the Constitution. Viewed in the above context, it was submitted, that even though matters of faith and belief are protected by Article 25 of the Constitution, yet law relating to marriage and divorce were matters of faith and belief, were also liable to be tested on grounds of public order, morality and health, as well as, on the touchstone of the other provisions of Part III of the Constitution. Therefore, on a plain reading of Article 25, according to learned senior counsel, the right to freedom of conscience was subject to public order, morality, health, and the other provisions contained in Part III of the Constitution. And as such, according to learned counsel, the said rights must be so interpreted, that no `personal law' negates any of the postulated conditions contained in Article 25 of the Constitution itself. It was submitted, that Articles 14 and 15 of the Constitution were not subject to any restrictions, including any restriction under Articles 25 or 26 of the Constitution. It was contended, that the cardinal principle of interpretation of the Constitution was, that all provisions of the Constitution must be harmoniously construed, so that there remained no conflict between them. It was therefore submitted, that Articles 14 and 15 on the one hand, and Articles 25 and 26 on the other, must be harmoniously construed with each other, to prevent discrimination against women, in a manner as would give effect to equality, irrespective of gender. It was contended, that it was totally irrelevant whether `personal law' was founded on custom or religion, or was codified or uncodified, if it is law and "rule of decision", it can be challenged under Part III of the Constitution.

49. Learned senior counsel, also expressed a personal view on the matter, namely, that divorce altered the status of married women, which can leave her destitute. It was asserted, that for all other communities in India, divorce could only be obtained from a judicial forum. And, a judgment and decree of divorce, was a decision in rem, which alters the legal status of the concerned person, as against the whole world. It was submitted, that for all other communities in India, divorce was not a matter between the private parties, to be settled on their own. Nor could any `fatwa' be issued, recognising unilateral `talaq'. It was submitted, that for one party alone, the right to annul a marriage, by a unilateral private `talaq', was clearly against public policy, and required to be declared as impermissible in law, and even unconstitutional. In this behalf, it was contended, that no person's status could be adversely altered so as to suffer civil consequences (for the concerned person - the wife in this case) by a private declaration. It was submitted, that annulment of the matrimonial bond was essentially a judicial function, which must be exercised by a judicial forum. Any divorce granted by way of a private action, could not be considered as legally sustainable in law. And for the instant additional reason, it was submitted, that unilateral talaq in the nature of talaq-ebiddat, whereby, a Muslim woman's status was associated with adverse civil consequences, on the unilateral determination of the male spouse, by way of a private declaration, must be considered (-and therefore, be held) as clearly unsustainable in law.

50. Mr. Salman Khurshid, Senior Advocate, appearing as an intervener, submitted, that for searching a solution to a conflict, or for the resolution of a concern under Islamic law, reference had first to be made to the Quran. The availability of an answer to the disagreement, from the text of the Quran, has to be treated as a final pronouncement on the issue. When there is no clear guidance from the Quran, reference must be made to the traditions of the Prophet Muhammad - `sunna', as recorded in the `hadiths'. If no guidance is available on the issue, even from the `hadiths', reference must then be made to the general consensus of opinion - `ijma'. If a resolution to the dispute is found in `ijma', it should be considered as a final view on the conflicting issue, under Islamic law. It was submitted, that the precaution that needed to be adopted while referring to `hadiths' or `ijma' was, that neither of the two can derogate from the position depicted in the Quran.

51. Learned senior counsel, then invited our attention to different kinds of `talaq', including `ila', `zihar', `khula' and `mubaarat'. It was emphasised, that the concept of `talaq-e-biddat' (also described as irregular talaq), was based on the limit of three talaqs available to a man, namely, that a man can divorce the same wife (woman) three times in his life time. The first two are revocable within the period of `iddat', whereas, the third talaq was irrevocable. Learned senior counsel, then invited the Court's attention to verses from the Quran (-for details, refer to Part-3 - The Holy Quran, with reference to `talaq'). However, during the course of his submissions, learned senior counsel emphasized the fact, that mere repetition of divorce thrice in one sitting, would not result in a final severance of the matrimonial relationship between spouses. In order to support his above contention, reliance was placed on the following traditions, from Sunna Muslim:

Based on the above, it was submitted, that in terms of the clear message in the Quran, the acts and sayings of the Prophet Muhammad are to be obeyed. Therefore, when the aforementioned `hadiths' are available stating in clear terms, that the Prophet Muhammad, considered the pronouncement of three divorces in one sitting as one, that should be given due expression. It was the contention of learned senior counsel, that it is reported, that when once news was brought to the Prophet Muhammad, that one of his disciples had divorced his wife, by pronouncing three talaqs at one and the same time, the Prophet Muhammad stood up in anger and declared that the man was making a plaything of the words of God, and made him take back his wife. The instance, which is supported by authentic support through available text, according to learned senior counsel, was sufficient by itself, to dispose of the present controversy.

52. It was also submitted, that even if one examines the deeds of the Prophet Muhammad's companions, it was quite clear from the `hadiths', that the same were followed during Caliph Abu Bakr's time, and also during the first two years of Caliph Umar. But thereafter, only to meet an exigency, Caliph Umar started accepting the practice of pronouncing three divorces in one sitting, as final and irrevocable. Insofar as the instant aspect of the matter is concerned, learned senior counsel narrated the following background:

53. It was also the contention of learned senior counsel, that Hanafi jurists who considered three pronouncements at one sitting, as amounting to a final divorce explained, that in those days people did not actually mean three divorces but meant only one divorce, and other two pronouncements were meant merely to emphasise the first pronouncement. But in the contemporary era, three pronouncements were made with the intention to effect three separate and distinct declarations, and hence, they were not to be counted as a singular announcement. This interpretation of the Hanafi jurists, it was submitted, was generally not acceptable, as it went against the very spirit of the Quran, as well as, the `hadith' which enjoin, that in case of breach between husband and wife, it should be referred to the arbitration, and failing an amicable settlement, a divorce was permissible, subject to a period of waiting or `idaat', during which a reconciliation was also to be attempted, and if successful, the husband could take back his wife. The main idea in the procedure for divorce, as laid down by Islam, it was submitted, was to give the parties an opportunity for repproachment. If three pronouncements are treated as a `mughallazah' - divorce, then no opportunity is available to the spouses, to retrieve a decision taken in haste. The rule of `talaq-e-biddat', it was pointed out, was introduced long after the time of the Prophet. It was submitted, that it renders the measures provided for in the Quran against hasty action ineffective, and thereby deprives people of a chance to change their minds, to retrieve their mistakes and retain their wives.

54. Based on the above submissions, it was contended, that though matters of religion have periodically come before courts in India, and the issues have been decided in the context of Articles 25 and 26 of the Constitution. Raising concerns over issues of empowerment of all citizens and gender justice, it was submitted, had increased the demand on courts to respond to new challenges. The present slew of cases, it was pointed out, was a part of that trend. It was submitted, that the Supreme Court could not refuse to engage itself, on the ground that the issues involved have political overtones or motives, and also because, they might pertain to a narrow constitutional permissibility. It was contended, that to refuse an invitation to examine broader issues such as whether `personal laws' were part of `laws in force' under Article 13, and therefore, subject to judicial review, or whether a uniform civil code should be enforced, would not be appropriate. It was submitted, if the immediate concern about triple talaq could be addressed, by endorsing a more acceptable alternate interpretation, based on a pluralistic reading of the sources of Islam, i.e., by taking a holistic view of the Quran and the `hadith' as indicated by various schools of thought (not just the Hanafi school), it would be sufficient for the purpose of ensuring justice to the petitioners, and others similarly positioned as them.

55. In support of his above submissions, learned senior counsel placed reliance on legislative changes with reference to `talaq-e-biddat' all over the world (-for details, refer to Part-5 - Abrogation of the practice of `talaq-ebiddat' by legislation, the world over, in Islamic, as well as, non-Islamic States). Reliance was also placed on judicial pronouncements, rendered by different High Courts with reference to `talaq-e-biddat' (-for details, refer to Part-6 - Judicial pronouncements, on the subject of `talaq-e-biddat'), so as to conclude, that triple talaq pronounced at the same time should be treated as a single pronouncement of divorce, and thereafter, for severing matrimonial ties, the husband would have to complete the prescribed procedure provided for `talaq-e-ahsan'/`talaq-e-hasan', and only thereafter, the parties would be treated as divorced.

56. While advancing his aforesaid contention, there was also a note of caution expressed by learned senior counsel. It was pointed out, that it was not the role of a court, to interpret Muslim `personal law' - Shariat. It was asserted, that under Muslim `personal law', the religious head - the Imam would be called upon, to decipher the teachings of the Quran and the `hadiths' in case of a conflict. And thereupon, the Imam had the responsibility to resolve issues of conflict, not on the basis of his own views, but by reading the verses, namely, the Quran and the `hadiths', and to determine therefrom, the correct interpretation. It was submitted, that the role of a court, not being a body well versed in the intricacies of faith, would not extend to an interpretation of either the Quran or the `hadiths', and therefore, `talaq-e-biddat' should also be interpreted on the touchstone of reasonableness, in tune with the prevailing societal outlook.

57. Ms. Nitya Ramakrishna, Advocate, appeared on behalf of respondent no.11 (in Writ Petition (C) No.118 of 2016) - Dr. Noorjehan Safia Niaz, who was impleaded as such, by an order dated 29.6.2016. It was submitted by learned counsel, that `talaq-e-biddat' was a mode of divorce that operated instantaneously. It was contended, that the practice of `talaqe- biddat', was absolutely invalid even in terms of Muslim `personal law' - `Shariat'. It was submitted, that it was not required of this Court to strike down the practice of `talaq-e-biddat', it was submitted, that it would suffice if this Court merely upholds the order passed by the Delhi High Court in the Masroor Ahmed case, by giving a meaningful interpretation to `talaq-e-biddat', which would be in consonance with the verses of the Quran and the relevant `hadiths'.

58. It was also asserted by learned counsel, that Islam from its very inception recognized rights of women, which were not available to women of other communities. It was pointed out, that the right of divorce was conferred on Muslim women, far before this right was conferred on women belonging to other communities. It was asserted, that even in the 7th century, Islam granted women the right of divorce and remarriage. The aforesaid legal right, according to learned counsel, was recognized by the British, when it promulgated the Shariat Act in 1937. It was submitted, that through the above legislation all customs and usages contrary to the Muslim `personal law' - `Shariat', were unequivocally annulled. It was therefore contended, that while evaluating the validity of `talaq-e-biddat', this Court should be conscious of the fact, that the Muslim `personal law' - `Shariat', was a forward looking code of conduct, regulating various features in the lives of those who professed the Muslim religion.

59. It was also submitted, that the Quran did not recognize `talaq-ebiddat'. It was pointed out, that the Prophet Muhammad considered only two forms of divorce to be valid, namely, `talaq-e-ahsan' and `talaq-e-hasan'. Despite there being numerous schools of Muslim jurisprudence, only two schools recognized `talaq-e-biddat' as a mode of divorce. It was submitted, that none of the Shia schools recognized triple talaq, as a valid process of divorce between spouses. Insofar as `talaq-e-biddat' is concerned, it was asserted, that the Quran does not approve instantaneous talaq. During the process of initiation of divorce and its finalization, it is necessarily to have a time lag and a timeline. It cannot be instantaneous. It was pointed out, that the time lag is the period of `iddat' for determining whether the wife is pregnant or not, i.e., for ascertaining the wife's purity. But the time line, is for adopting arbitration, to probe the possibility of reconciliation. `Talaq-ebiddat', according to learned counsel, was a subsequent improvisation, that had crept into the Hanafi school of Sunnis. It was asserted, that the British judges prior to independence, made a huge blunder by upholding `talaq-ebiddat' - triple talaq. Learned counsel placed reliance on a number of judgments rendered by different High Courts, culminating in the recent judgments of three High Courts (-for details, refer to Part-6 - Judicial pronouncements, on the subject of `talaq-e-biddat').

60. Based on the above, it was asserted, that `talaq-e-biddat' could not be considered as a valid mode for severing matrimonial ties under the Muslim `personal law' - `Shariat'. In view of the above submissions, and on a reiteration of the submissions advanced by learned counsel who had entered appearance prior to her, it was submitted, that the clear preponderance of judicial opinion after independence of India has been, that Muslim `personal law', does not approve `talaq-e-biddat', and therefore, in terms of the Muslim `personal law', this Court should declare `talaq-ebiddat', as unacceptable in law, and should also declare it as unconstitutional.

61. Dr. Rajan Chandra and Mr. Arif Mohd. Khan, Advocates, appeared on behalf of the Muslim Women Personal Law Board. It was their contention, that it has been acknowledged by all concerned, including the AIMPLB, that `talaq-e-biddat' was derogatory to the dignity of women, and that, it breaches the concept of gender equality. It was submitted, that the above position could easily be remedied through judicial intervention. In this behalf, our attention was drawn to Article 13 of the Constitution, which mandates, that all laws in force in the territory of India (immediately before the commencement of the Constitution), as were inconsistent with the Fundamental Rights contained in Part III of the Constitution, were to the extent of such inconsistency, to be treated as void. The above declaration, it was pointed out, had to be expressed through legislation, by the Parliament, and in case the Parliament was reluctant in bringing out such a legislation (-presumably, for political considerations), it was the bounden duty of this Court, to declare such existing laws which were derogatory to the dignity of women, and which violated the concept of gender equality, as void, on account of their being in conflict with the fundamental rights contained in Part III of the Constitution. Both learned counsel, invited our attention to the legislative march of events commencing from the enactment of the Shariat Act in 1937, by the British rulers of India, who took upon themselves, extreme cudgels to initiate the grant of appropriate rights to women. As also, the enactment of the Dissolution of Muslim Marriages Act, 1939 (again during the British regime), whereby, Muslim women were conferred with a right to divorce their husbands, on eight distinct grounds. It was submitted, that the protection of Muslim women's rights, which needed to have continued even after independence, had remained stagnant, resulting in insurmountable sufferings to the Muslim women, specially in comparison with women of other faiths. One of the grounds of such suffering, it was pointed out, was surely `talaq-e-biddat' - triple talaq, which has been a matter of substantial furore and outcry at the hands of Muslim women. During the course of hearing, our attention was drawn to fundamentals of Islam from the Quran (-for details, refer to Part-3 - The Holy Quran - with reference to `talaq'), and `hadiths'. Views of Imams on `fiqh' and `hadith' and other relevant texts were referred to (as were also relied upon by learned counsel who appeared before them - and have been duly referred to above), to contend that triple talaq had never been accepted as a valid means of divorce, even under the Muslim `personal law'. Adopting the submissions of learned counsel, who had already assisted this Court on behalf of the petitioners, it was submitted, that this Court should declare `talaq-e-biddat', as unconstitutional and violative of Articles 14 and 15 of the Constitution.

62. The learned Attorney General for India - Mr. Mukul Rohatgi commenced his submissions by contending, that in this case, this Court has been called upon to determine, whether the practice of `talaq-e-biddat' was compatible with contemporary constitutional morality and the principles of gender equality and gender equity guaranteed under the Constitution. In the context of the above debate, it was submitted, that the pivotal issue that needed to be answered was, whether under a secular Constitution, Muslim women could be discriminated against, merely by virtue of their religious identity. And/or whether Muslim women, could be relegated to a status significantly more vulnerable than their counterparts who professed other faiths - Hindu, Christian, Zoroastrian, Buddhist, Sikh, Jain, etc.. In other words, the fundamental question for determination by this Court, according to learned Attorney General was, whether in a secular democracy, religion can be a reason to deny equal status and dignity, to Muslim women.

63. In the above context, it was pointed out, that the fundamental right to equality guaranteed under Article 14 of the Constitution, manifested within its fold, equality of status. Gender equality, gender equity and gender justice, it was submitted, were values intrinsically entwined in the guarantee of equality, under Article 14. The conferment of a social status based on patriarchal values, or a social status based on the mercy of the men-folk, it was contended, were absolutely incompatible with the letter and spirit of Articles 14 and 15 of the Constitution. The rights of a Muslim woman to human dignity, social esteem and self-worth, it was submitted, were vital facets of a woman's right to life with dignity, under Article 21 of the Constitution. It was submitted, that gender justice was a constitutional goal of overwhelming importance and magnitude, without accomplishing the same, half of the country's citizenry, would not be able to enjoy to the fullest - their rights, status and opportunities. Reference was also made to clause (e) of Article 51A of the Constitution, which is extracted below:

It was accordingly asserted, that Muslim women could not be subjected to arbitrary and unilateral whims of their husbands, as in the case of divorce by triple talaq amongst Shia Muslims belonging to the Hanafi school.

64. It was submitted, that gender equality and the dignity of women, were non-negotiable. These rights were necessary, not only to realize the aspirations of every individual woman, who is an equal citizen of this country, but also, for the larger well being of society and the progress of the nation, one half of which is made up by women. It was submitted, that women deserved to be equal participants in the development and advancement of the world's largest democracy, and any practice which denudes the status of an inhabitant of India, merely by virtue of the religion he/she happens to profess, must be considered as an impediment to that larger goal. In this behalf, reliance was placed on C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, (1996) 8 SCC 525 wherein a 3-Judge Bench of this Court observed as under:

Reference was also made to Anuj Garg v. Hotel Association of India, 2008(1) RCR (Civil) 240 : 2008(1) S.C.T. 80 : (2008) 3 SCC 1. wherein it was submitted, that this Court had emphasized on the value of gender equality, and the need to discard patriarchal mindset. For arriving at the above conclusion, it was submitted, that this Court had relied upon international jurisprudence, to strike down a law which debarred women from employment on the pretext that the object of the law was, to afford them protection. The Court held that "it is for the court to review that the majoritarian impulses rooted in moralistic tradition do not impinge upon individual autonomy (of the women)". The Court also quoted from a judgment of the U.S. Supreme Court where discrimination was rationalized "by an attitude of `romantic paternalism' which, in practical effect, put women, not on a pedestal, but in a cage...". Reference was also made to Vishaka v. State of Rajasthan, (1997) 6 SCC 241 wherein, in the context of protection of women against sexual harassment at the workplace, this Court underlined the right of women to a life with dignity. Additionally, our attention was drawn to the Charu Khurana case, wherein it was concluded, that the "sustenance of gender justice is the cultivated achievement of intrinsic human rights and that there cannot be any discrimination solely on the ground of gender." The learned Attorney General also cited, Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC 228 wherein this Court had the occasion to interpret the provisions of the Hindu Minority and Guardianship Act, 1956. It was submitted, that this Court in the above judgment emphasized the necessity to take measures to bring domestic law in line with international conventions, so as to eradicate discrimination of all forms, against women. It was submitted, that Articles 14, 15 and 21 consituted an inseparable part of the basic structure of the Constitution. These values - the right to equality, non-discrimination and the right to live life with dignity, it was emphasized, formed the bedrock of the Constitution. Gender equality and dignity for women, it was pointed out, was an inalienable and inseparable part of the basic structure of the Constitution. Since women transcend all social barriers, it was submitted, that the most fundamental facet of equality under the Constitution was gender equality, and gender equity.

65. The learned Attorney General also pointed out, that a large number of Islamic theocratic countries and countries with overwhelmingly large Muslim populations, had undertaken significant reforms including the practice of triple talaq. These societies had accepted reform, as being consistent with the practice of Islam (-for details, refer to Part-5 - Abrogation of the practice of `talaq-e-biddat' by legislation, the world over, in Islamic, as well as, non-Islamic States). The paradox was that, Muslim women in India, were more vulnerable in their social status as against women even in predominantly Islamic States, even though India is a secular country. It was submitted, that the position of Indian Muslim women was much worst, than Muslim women who live in theocratic societies, or countries where Islam is the State religion. It was contended, that the impugned practice was repugnant to the guarantee of secularism, which it was pointed out, was an essential feature of the Constitution. Perpetuation of regressive or unjust practices in the name of religion, it was submitted, was anathema to a secular Constitution, which guarantees non-discrimination on grounds of religion. It was also submitted, that in the context of gender equality and gender equity, the larger goal of the State was, to strive towards the establishment of a social democracy, where each one was equal to all others. Reference in this behalf was made to the closing speech on the draft Constitution on 25th November, 1949, of Dr. Ambedkar who had stated: "What we must do is not to be attained with mere political democracy; we must make out political democracy and a social democracy as well. Political democracy cannot last unless there lies on the base of it a social democracy." A social democracy has been described as "A way of life which recognizes liberty, equality and fraternity as principles of life". It was therefore submitted, that in order to achieve social democracy, and in order to provide social and economic justice (envisaged in the preamble), namely, goals articulated in the fundamental rights and directive principles, and in particular, Articles 14, 15, 16, 21, 38, 39 and 46, had to be given effect to. In the instant context, the learned Attorney General placed reliance on Valsamma Paul v. Cochin University, (1996) 3 SCC 545 and drew the Court's attention to the following:

The learned Attorney General then submitted, that in paragraph 20 of the Valsamma Paul case, it was noted, that various Hindu practices which were not in tune with the times, had been done away with, in the interest of promoting equality and fraternity. In paragraph 21 of the above judgment, this Court had emphasized the need to divorce religion from `personal law'. And in paragraph 22, a mention was made about the need to foster a national identity, which would not deny pluralism of Indian culture, but would rather preserve it. Relevant extracts of the aforesaid judgment relied upon during the course of hearing, are reproduced herein below:

66. It was also asserted, that patriarchal values and traditional notions about the role of women in society, were an impediment to the goal for achieving social democracy. In this behalf it was contended, that gender inequity impacts not only women, but had a ripple effect on the rest of the community, preventing it from shaking out of backwardness and partaking to the full, liberties guaranteed under the Constitution. Citizens from all communities, it was submitted, had the right to the enjoyment of all the constitutional guarantees, and if some sections of society were held back, it was likely to hold back the community at large, resulting in a lopsided development, with pockets of social backwardness. According to the learned Attorney General, this kind of lopsided development was not in the larger interest of the integrity and development of the nation. It was submitted, that secularism, equality and fraternity being the overarching guiding principles of all communities, must be given effect to. This would move the entire citizenry forward, guaranteeing to women equal rights, and at the same time, preserving diversity and plurality.

67. It was the emphatic assertion of the learned Attorney General, that freedom of religion was subservient to fundamental rights. It was contended in this behalf, that the words employed in Article 25(1) of the Constitution, which conferred the right to practice, preach and propagate religion were "subject to the provisions of this Part", which meant that the above rights are subject to Articles 14 and 15, which guarantee equality and non-discrimination. In other words, under India's secular Constitution, the right to freedom of religion was subject to, and in that sense, subservient to other fundamental rights - such as the right to equality, the right to nondiscrimination, and the right to life with dignity. In this behalf reference was made to Sri Venkataramana Devaru v. State of Mysore, 1958 SCR 895. In this judgment, it was submitted, that this Court considered the meaning of the phrase "subject to the provisions of this Part" in Article 25(1) to conclude, that the other provisions of the Part would "prevail over" and would "control the right conferred" by Article 25(1).

68. In the above context it was also submitted, that the freedom of religion, expressed in Article 25 of the Constitution was, not confined to the male gender. Article 25 is extracted below:

It was highlighted, that it was also necessary to note, that Article 25(1) provides that "all" persons were "equally" entitled to the freedom of conscience, and the right to profess, practice and propagate religion. This, according to the learned Attorney General, should be understood to mean, that the rights conferred by this article were equally available to women, and were not confined to men alone. Therefore, it was contended, that any patriarchal or one sided interpretation of religion (or a practice of religion), ought not to be countenanced.

69. It was emphasised by the learned Attorney General, that it was necessary to draw a line between religion per se, and religious practices. It was submitted, that the latter were not protected under Article 25.

"Religion", according to the learned Attorney General, has been explained by this Court in A.S. Narayana Deekshitulu v. State of A.P., (1996) 9 SCC 548 as under :

In order to support the above view, the Court's attention was also drawn to the Javed case, wherein this Court observed as under :

It was further submitted, that practices such as polygamy cannot be described as being sanctioned by religion, inasmuch as, historically polygamy prevailed across communities for several centuries, including the ancient Greeks and Romans, Hindus, Jews and Zoroastrians. It was pointed out, that polygamy had less to do with religion, and more to do with social norms of that time. In the Quran as well, it was contended, it appears that the prevalence (or perhaps, rampant practice) of polygamy in pre-Islamic society, was sought to be regulated and restricted, so as to treat women better than they were treated in pre-Islamic times. It was submitted, that the practice of polygamy was a social practice rather than a religious one, and therefore, would not be protected under Article 25. It was sought to be explained, that `talaq-e-biddat' was similarly a practice never clearly recognized, nor was it seen with favour, and needed to be examined in the background of the above narrated historic position.

70. In order to be able to seek interference, with reference to the issue canvassed, and in order to surmount the legal object in advancing his contentions, the learned Attorney General pointed out, that there was an apparent misconstruction, which had led to the conclusions drawn by the Bombay High Court, in State of Bombay v. Narasu Appa Mali, AIR 1952 Bombay 84. It was submitted, that `personal laws' ought to be examined, in the light of the overarching goal of gender justice, and dignity of women. The underlying idea behind the preservation of `personal laws' was, to safeguard the plurality and diversity among the people of India. However, the sustenance of such diverse identities, according to the learned Attorney General, cannot be a pretext for denying women their rightful status and gender equality. It was submitted, that `personal law' was a part and parcel of "law" within the meaning of Article 13. And therefore, any such law (`personal law') which was inconsistent with fundamental rights, would have to be considered void. It was further submitted, that the interpretation of the Bombay High Court in the Narasu Appa Mali case, to the effect that Article 13 of the Constitution, would not cover `personal laws' warranted reconsideration. Firstly, it was contended, that a reading of the plain language adopted in Article 13 would clearly establish that `personal law', as well as customs and usages, were covered within the scope of "law". Article 13 reads as under:

It was submitted, that the meaning of "law" as defined in clauses (2) and (3) of Article 13 is not exhaustive, and should be read as if it encompassed within its scope, `personal law' as well. It was submitted, that under clause (2) of Article 246 of the Constitution, Parliament and State Legislatures had the power to make laws, also on the subject enumerated in entry 5 of the Concurrent List in the Seventh Schedule, pertaining to "Marriage and divorce; infants and minors; adoption; wills; intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law." Since the subjects expressed in entry 5 aforementioned, were relatable to `personal law', therefore, `personal law', according to the learned Attorney General, was liable to include law within the meaning of sub-clause (a) of clause (3) of Article 13 of the Constitution. The observations of the Bombay High Court in the Narasu Appa Mali case, it was contended, were contrary to the plain language of Article 13. Secondly, it was submitted, the plain language of Article 13(3)(a) which defines "law" as including "any...custom or usage having in the territory of India the force of law", left no room for any doubt, on the issue. It was pointed out, that the observations in the Narasu Appa Mali case, were in the nature of obiter, and could not be considered as the ratio of the judgment. Further more, the said judgment, being a judgment of a High Court, was not binding on this Court. Without prejudice to the above, according to the learned Attorney General, the said practices under challenge had been incorporated into the Muslim `personal law' by the Shariat Act. It was reasoned, that the Shariat Act, was clearly a "law in force", within the meaning of Article 13(3)(b). It was submitted, that the petitioner has challenged Section 2 of the aforesaid Act, insofar as it recognises and validates the practices of triple talaq or talaq-e-biddat (nikah halala and polygamy). Therefore, even assuming (for the sake of argument), that these practices do not constitute customs, the same were nonetheless manifestly covered by Article 13.

71. It was acknowledged, that the legal position expressed in the Narasu Appa Mali case had been affirmed by this Court, on various occasions. Rather than recording the learned Attorney General's submissions in our words, we would extract the position acknowledged in the written submissions filed on behalf of the Union of India, in this matter, below:

However, reference was nevertheless made to the Masilamani Mudaliar case, wherein, it was submitted, that this Court had adopted a contrary position to the Narasu Appa Mali case and had held, "But the right to equality, removing handicaps and discrimination against a Hindu female by reason of operation of existing law should be in conformity with the right to equality enshrined in the Constitution and the personal law also needs to be in conformity with the constitutional goal." It was also asserted, that this Court had further held, "Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution lest they become void under Article 13 if they violate fundamental rights." It is significant to note, that this case concerned the inheritance rights of Hindu women. In view of the aforesaid, it was submitted, that the observations in the Narasu Appa Mali case, that `personal law' was not covered under Article 13, was incorrect and not binding upon this Court.

72. It was also contended, that the Constitution undoubtedly accords guarantee of faith and belief to every citizen, but every practice of faith could not be held to be an integral part of religion and belief. It was therefore submitted, that every sustainable (and enforceable) religious practice, must satisfy the overarching constitutional goal, of gender equality, gender justice and dignity. It was asserted, that the practice of `talaq-e-biddat', could not be regarded as a part of any "essential religious practice", and as such, could not be entitled to the protection of Article 25. The test of what amounts to an essential religious practice, it was submitted, was laid down in a catena of judgments including Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR 1954 Supreme Court 282 wherein this Court held as under:

Reference was then made to Ratilal v. State of Bombay, AIR 1954 Supreme Court 388 wherein it was observed as under:

Our attention was also drawn to Qureshi v. State of Bihar, AIR 1958 Supreme Court 731 wherein this Court held as under:

Learned Attorney General also cited, State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534 and placed reliance on the following observations:

Finally, our attention was invited to Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 Supreme Court 853 wherein it was observed as under:

73. It was pointed out, that in the counter-affidavit dated August 2016, filed on behalf of the Muslim Personal Law Board, i.e., respondent no.3 to this petition, the practices of triple talaq (as well as, `nikah halala' and polygamy) have been referred to as "undesirable". It was accordingly submitted, that no "undesirable" practice can be conferred the status of an "essential practice", much less one that forms the substratum of the concerned religion.

74. It was asserted on behalf of the Union of India, that the Indian State was obligated to adhere to the principles enshrined in international covenants, to which it is a party. India being a founding member of the United Nations, is bound by its Charter, which embodies the first ever international agreement to proclaiming gender equality, as a human right in its preamble, and reaffirming faith in fundamental human rights, through the dignity of the human person, by guaranteeing equal rights to men and women. It was submitted, that significantly, the United Nations Commission on the Status of Women, first met in February, 1947, with 15 member States - all represented by women, including India (represented through Shareefah Hamid Ali). During its very first session, the Commission declared its guiding principles, including the pledge to raise the status of women, irrespective of nationality, race, language or religion, to the same level as men, in all fields of human enterprise, and to eliminate all discrimination against women in the provisions of statutory law, in legal maxims or rules, or in interpretation of customary law. (United Nations Commission on the Status of Women, First Session, E/281/Rev.1, February 25, 1947). It was submitted, that the Universal Declaration of Human Rights, 1948, the International Covenant of Economic, Social and Cultural Rights, 1966 and the International Covenant of Social and Political Rights, 1966, emphasized on equality between men and women. The other relevant international instruments on women which were brought to our notice, included the Convention on the Political Rights of Women (1952), Declaration on the Protection of Women and Children in Emergency and Armed Conflict (1974), Inter-American Convention for the Prevention, Punishment and Elimination of Violence against Women (1955), Universal Declaration on Democracy (1997), and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (1999). It was submitted by the learned Attorney General, that the Government of India ratified the Vienna Declaration and the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) on 19-6-1993. The preamble of CEDAW reiterates, that discrimination against women violated the principles of equality of rights and respect for human dignity. And that, such inequality was an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country. It was emphasized that such inequality, also hampered the growth of the personality from society and family, and made it more difficult for the full development of potentialities of women, in the service of their countries and of humanity. Article 1 of the CEDAW, it was pointed out, defines discrimination against women, while Article 2(b) enjoins the State parties to pursue elimination of discrimination against women, by adopting "appropriate legislative and other measures including sanctions where appropriate, prohibiting all discriminations against women". Clause (c) of Article 2 enjoins the ratifying States, to ensure legal protection of the rights of women, and Article 3 of the CEDAW enjoins the States to take all appropriate measures to ensure full development and advancement of women, for the purpose of guaranteeing to them, the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men. It was further submitted on behalf of the Union of India, that the equality principles were reaffirmed in the Second World Conference on Human Rights, held at Vienna in June 1993, as also, in the Fourth World Conference on Women, held at Beijing in 1995. It was pointed out, that India was a party to this convention and other declarations, and was committed to actualize them. It was asserted, that in the 1993 Conference, gender-based violence and all categories of sexual harassment and exploitation, were condemned.

75. Last of all, the Attorney General pointed out, the prevailing international trend all around the world, wherein the practice of divorce through `talaq-e-biddat', has been statutorily done away with (-for details, refer to Part-5 - Abrogation of the practice of `talaq-e-biddat' by legislation, the world over, in Islamic, as well as, non-Islamic States). On the basis of the submissions noticed above, it was contended, that it was extremely significant to note, that a large number of Muslim countries, or countries with a large Muslim populations such as, Pakistan, Bangladesh, Afghanistan, Morocco, Tunisia, Turkey, Indonesia, Egypt, Iran and Sri Lanka had undertaken significant reforms and had regulated divorce law. It was pointed out, that legislation in Pakistan requires a man to obtain the permission of an Arbitration Council. Practices in Bangladesh, it was pointed out, were similar to those in Pakistan. Tunisia and Turkey, it was submitted, also do not recognize extra-judicial divorce, of the nature of `talaq-e-biddat'. In Afghanistan, divorce where three pronouncements are made in one sitting, is considered to be invalid. In Morocco and Indonesia, divorce proceedings take place in a secular court, procedures of mediation and reconciliation are encouraged, and men and women are considered equal in matters of family and divorce. In Indonesia, divorce is a judicial process, where those marrying under Islamic Law, can approach the Religious Court for a divorce, while others can approach District Courts for the same. In Iran and Sri Lanka, divorce can be granted by a Qazi and/or a court, only after reconciliation efforts have failed. It was submitted, that even Islamic theocratic States, have undergone reform in this area of the law, and therefore, in a secular republic like India, there is no reason to deny women, the rights available all across the Muslim world. The fact that Muslim countries have undergone extensive reform, it was submitted, also establishes that the practice in question is not an essential religious practice.

76. In the circumstance aforesaid, it was submitted, that the practice of `talaq-e-biddat' cannot be protected under Article 25(1) of the Constitution. Furthermore, since Article 25(1) is subject to Part III of the Constitution, as such, it was liable to be in consonance with, and not violative of the rights conferred through Articles 14, 15 and 21 of the Constitution. Since the practice of `talaq-e-biddat' clearly violates the fundamental rights expressed in the above Articles, it was submitted, that it be declared as unconstitutional.

77. It is also necessary for us to recount an interesting incident that occurred during the course of hearing. The learned Attorney General having assisted this Court in the manner recounted above, was emphatic that the other procedures available to Muslim men for obtaining divorce, such as, `talaq-e-ahsan' and `talaq-e-hasan' were also liable to be declared as unconstitutional, for the same reasons as have been expressed with reference to `talaq-e-biddat'. In this behalf, the contention advanced was, that just as `talaq-e-biddat', `talaq-e-ahsan' and `talaq-e-hasan' were based on the unilateral will of the husband, neither of these forms of divorce required the availability of a reasonable cause with the husband to divorce his wife, and neither of these needed the knowledge and/or notice of the wife, and in neither of these procedures the knowledge and/or consent of the wife was required. And as such, the other two so-called approved procedures of divorce (`talaq-e-ahsan' and `talaq-e-hasan') available to Muslim men, it was submitted, were equally arbitrary and unreasonable, as the practice of `talaq-e-biddat'. It was pointed out, that submissions during the course of hearing were confined by the Union of India, to the validity of `talaq-e-biddat' merely because this Court, at the commencement of hearing, had informed the parties, that the present hearing would be limited to the examination of the prayer made by the petitioners and the interveners on the validity of `talaq-e-biddat'. It was contended, that the challenge to `talaq-e-ahsan' and `talaq-e-hasan' would follow immediately after this Court had rendered its pronouncement with reference to `talaq-ebiddat'. We have referred to the incident, and considered the necessity to record it, because of the response of the learned Attorney General to a query raised by the Bench. One of us (U.U. Lalit, J.), enquired from the learned Attorney General, that if all the three procedures referred to above, as were available to Muslim men to divorce their wives, were set aside as unconstitutional, Muslim men would be rendered remediless in matters of divorce? The learned Attorney General answered the querry in the affirmative. But assured the Court, that the Parliament would enact a legislation within no time, laying down grounds on which Muslim men could divorce their wives. We have accordingly recorded the above episode, because it has relevance to the outcome of the present matter.

78. Mr. Tushar Mehta, learned Additional Solicitor General of India, endorsed all the submissions and arguments, advanced by the learned Attorney General. On each aspect of the matter, the learned Additional Solicitor General, independently supported the legal propositions canvassed on behalf of the Union of India.

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:

Reference was also made to the definition of the term `personal law' in `Conflict of Laws 188' (7th edition, 1974) by R.H. Graveson, who defined the term as under:

Based on the cumulative definition of the term `personal law', it was submitted, that the evolution of the matters of faith relating to religious practices, must necessarily be judged in the context of practices adopted by the concerned community, with reference to each individual aspect of `personal law'. It was conceded, on behalf of the AIMPLB, that `personal laws' were per se subservient to legislation, and as such, `personal laws' were liable to be considered as mandatory, with reference to numerous aspects of an individual's life, only in the absence of legislation.

81. Even though it was acknowledged, that legislation on an issue would override `personal law' on the matter, it was pointed out, that in the absence of legislation `personal laws' in the Indian context, could not be assailed on the basis of their being in conflict with any of the provisions contained in Part III of the Constitution - the Fundamental Rights. It was submitted, that in the absence of statutory law, religious practices and faith, constituted the individual's (belonging to a community) right to profess the same. In order to substantiate his contention, that a challenge to `personal law' could not be raised on the anvil of Articles 14, 15 and 21 of the Constitution, learned senior counsel, placed reliance on the Narasu Appa Mali case. Learned senior counsel, also placed reliance on Shri Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689 wherein this Court arrived at the conclusion, that the rights of `sudras' (the lowest amongst the four Hindu castes - members of the workers caste), as were expressed by the Smriti (-refers to a body of Hindu texts, traditionally recorded in writing) writers, were invalid because they were in conflict with the fundamental rights guaranteed under Part III of the Constitution. It was submitted, that both the above judgments were considered by this Court in Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573 wherein, the legal position recorded in the above judgments was confirmed. It was pointed out, that there was a clear distinction between `law' and `law in force', thus far interpreted by this Court with reference to Article 13 of the Constitution. It was asserted, that read along with Article 372 - which mandates, that all laws in force in the territory of India, immediately before the commencement of the Constitution, would continue to remain in force, until altered, repealed or amended by a competent legislature or other competent authority. It was submitted, that to affect a change in `personal law', it was imperative to embark on legislation, as provided for through entry 5 of the Concurrent List in the Seventh Schedule, which provides - "marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law." It was therefore urged, that `personal laws' per se were not subject to challenge, under any of the provisions contained in Part III of the Constitution.

82. It was contended, that the expression `custom and usage' in Article 13 of the Constitution, would not include faith of religious denominations, embedded in their `personal law'. Insofar as the instant aspect of the matter is concerned, reference was also made to Section 112 of the Government of India Act, 1915, wherein a clear distinction was sought to be drawn between `personal laws' and `customs having force of law'. Section 112, aforementioned is extracted hereunder:

It was pointed out, that in framing Article 13, the choice of the words "custom and usage" and the exclusion of the expression "personal law" needed to be taken due note of. It was submitted, that the Constituent Assembly was aware of the use of the term `personal law' (-which it consciously used in entry 5 of the Concurrent List, in the Seventh Schedule) and the term `customs and usages', which the Constituent Assembly, employed while framing Article 13 of the Constitution. It was pointed out, that the above position was consciously highlighted by a Full Bench of the Andhra Pradesh High Court in the Youth Welfare Federation case[31*]. It was submitted, that if the term `personal law' was excluded from the definition `law in force' deployed in Article 13, then matters of faith having a direct relationship to some religious denomination (matters of `personal law'), do not have to satisfy the rights enumerated in Articles 14, 15 and 21 of the Constitution. In the above view of the matter, it was contended, that the challenge raised on behalf of the petitioners on the basis of the provisions contained in Part III - Fundamental Rights, needed to be summarily rejected

83. Having presented the aforesaid overview of the constitutional position Mr. Kapil Sibal, learned senior counsel, endeavoured to deal with the concept of `talaq' in `Shariat' - Muslim `personal law'. Learned senior counsel pointed out, that religious denominations in India with reference to Islam were divided into two categories - the Sunnis, and the Shias. It was pointed out, that Sunnis were again sub-divided into religious denominations/schools. The four prominent Sunni schools being - Hanafi, Malaki, Shafei and Hanbali. It was submitted, that a fifth school/denomination had emerged later - Ahl-e-Hadith. It was pointed out, that in India 90% of the Muslims amongst the Sunnis, belonged to the Hanafi school. It was submitted, that Shia and the other denominations of the Sunnis comprised a very small population of Muslims in India.

84. Learned counsel emphasized, that the three forms of talaq - `talaqe- ahsan', `talaq-e-hasan' and `talaq-e-biddat' referred to by the petitioners, during the course of hearing, were merely depicting the procedure which a Muslim husband was required to follow, to divorce his wife. It was pointed out, that none of these procedural forms, finds a reference in the Quran. It was asserted, that none of these forms is depicted even in the `hadith'. It was acknowledged, that `hadiths' declared talaq by itself, as not a good practice, and yet - recognized the factum of talaq, and its legal sanctity. It was submitted, that talaq was accepted by all believers of Islam. It was therefore contended, that it was absurd for the petitioners to have submitted that the Quran alone, provided the details with reference to which, and in the manner in which, talaq could be administered. It was therefore asserted, that a close examination of the challenge raised by the petitioners would reveal that talaq as a concept itself was not under challenge at the hands of the petitioners. It was pointed out, that truthfully the petitioners were merely assailing the course adopted by Muslim men, in divorcing their wives through the `talaq-e-biddat' procedure.

85. Learned counsel acknowledged the position adopted on behalf of the petitioners, namely, that Islam represents (i) what is provided for in the Quran, (ii) what was stated and practiced by the Prophet Muhammad from time to time, and (iii) what was memorized and recorded in the `hadiths' which through centuries of generations, Muslim belief represents what the Prophet Muhamad had said and practiced. It was asserted, that the aforestated parameters represent Islamic law being practiced by Mulsims over centuries, which had become part of the religious faith of various Muslim denominations/schools. This ambit of recognized practices, according to learned counsel, falls within the sphere of Muslim `personal law' - `Shariat'.

86. Learned senior counsel then attempted to highlight various verses from the Quran, to substantiate his contention. The same are set out hereunder:

In addition to the above, reference was also made to the Quran with respect to triple talaq. The same are set out hereunder:

In order to demonstrate the complete picture, learned senior counsel invited the Court's attention to the statements attributed to the Prophet Mohamad with reference to talaq which, according to learned counsel, would have a bearing on the determination of the controversy in hand. The same are extracted as under:

87. Having dealt with the verses from the Quran and the statements attributed to the Prophet Muhammad, learned senior counsel invited the Court's attention to `hadiths', in relation to talaq. The same are extracted below:

88. Based on the factual position recorded in the previous three paragraphs, it was submitted, that this Court should not attempt to interpret the manner in which the believers of the faith had understood the process for pronouncement of talaq. It was pointed out, that matters of faith should best be left to be interpreted by the community itself, in the manner in which its members understand their own religion. This, according to learned counsel, was imperative in view of the absolute contradictions which clearly emerge from a collective perusal of the submissions advanced on behalf the petitioners, as also, those canvassed on behalf of the respondents. It was submitted, that different scholars have applied different interpretations. It was also pointed out, that the interpretations relied upon on behalf of the petitioners, were mostly of scholars who did not belong to the Sunni faith, and were therefore irrelevant, for the determination of the interpretation of the believers and followers of the Hanafi school of Sunni Muslims. One of the scholars relied upon, according to learned senior counsel, was a disciple of Mirza Ghulam Ahmed (the founder of the Quadini school), who declared himself to be the Prophet, after the demise of the Prophet Muhammad. It was pointed out, that Quadini's disciple was Mohammed Ali. And, the interpretations relied upon by different High Courts (-for reference, see Part-6 - Judicial pronouncements, on the subject of `talaq-e-biddat'), in recording their conclusions, were based on views attributed to Mohammed Ali. It was submitted, that Mohammed Ali is not recognized by all Muslims, and as such, it would be a travesty of justice if his utterances were to be relied upon and followed, contrary to the faith of Muslims (-especially Muslims belonging to Hanafi school). Having expressed the aforesaid overview, learned senior counsel highlighted from individual judgments of the High Courts (-for details, refer to Part-6 - Judicial pronouncements, on the subject of `talaq-e-biddat') and pointed out, that the reliances on various `hadiths' recorded therein were not appropriate in the background projected above.

89. Having made the above submissions, learned senior counsel attempted to pointedly approach the subject of `talaq-e-biddat' - triple talaq. In this behalf it was reiterated, that talaq was in three forms - `talaq-eahsan', `talaq-e-hasan' and `talaq-e-biddat'. It was pointed out, that none of these forms of talaq are referred to either in the Quran, or the `hadith'. It was submitted, that the aforesaid three forms of talaq, have been so categorized by Islamic scholars. It was pointed out, that what was common in all the forms of talaq, was the finality thereof, in the matter of severance of the matrimonial tie between the husband and wife. Another commonness was also pointed out, namely, that `talaq-e-ahsan', if not revoked, attain finality; that `talaq-e-hasan' if likewise not revoked, is treated as final; and that `talaq-e-biddat' - triple talaq at the time of its pronouncement, is considered as final. It was submitted, that all kinds/forms of talaq when administered three times became irrevocable. Yet again, it was reiterated, that the petitioners before this Court were not challenging the finality of talaq, they were merely challenging the procedure adopted by the Muslim husbands while administering `talaq-e-biddat', which has the immediate consequences of finality.

90. In the context expressed in the preceding paragraph, it was sought to be highlighted, that Imam Abu Hanifa did not himself record his own understanding what the Prophet Muhammad had said. It was pointed out, that he had two disciples - Abu Yusuf and Imam Mohammed. It was submitted, that Imam Abu Yusuf in his book "Ikhtilaaf Abi Hanifah wabni Abi Laila" (first edition, 1357) stated the following on the triple talaq:

91. Reference was also made to writings with respect to `talaq-e-biddat' by scholars of other schools. In this behalf, the Court's attention was invited to the following:

92. Based on the `hadiths' depicted in the foregoing, and in the paragraphs preceding thereto, it was submitted, that for the Hanafi school of Sunni Muslims `talaq-e-biddat' - triple talaq was a part and parcel of their `personal law', namely, a part and parcel of their faith, which they had followed generation after generation, over centuries. That being the position, it was submitted, that `talaq-e-biddat' should be treated as the constitutionally protected fundamental right of Muslims, which could not be interfered with on the touchstone of being violative of the fundamental rights, enshrined in the Constitution - or for that matter, constitutional morality propounded at the behest of the petitioners.

93. Learned senior counsel reiterated, that judicial intereference in the matter of `personal law' is not the proper course to be adopted for achieving the prayers raised by the petitioners. Reference was made by a large number of Muslim countries across the world (-for details, refer to Part-5 - Abrogation of the practice of `talaq-e-biddat' by legislation, the world over, in Islamic, as well as, non-Islamic States), which had provided the necessary succor by legislating on orthodox practices, which were not attuned to present day social norms. It was submitted, that in all the countries in which the practice of `talaq-e-biddat' has been annulled or was being read down, as a matter of interpretation, the legislatures of the respective countries have interfered to bring in the said reform.

94. In order to fully express the ambit and scope of `personal law', and to demonstrate the contours of the freedom of conscience and free profession, practice and propagation of religion propounded in Article 25, learned senior counsel placed reliance on the Constituent Assembly debates. Interestingly reference was, first of all, made to Article 44 of the Constitution, which is extracted below:

It is necessary to notice, that during the Constituent Assembly debates, the present Article 44 was numbered as draft Article 35. During the course of the Constituent Assembly debates, amendments to draft Article 35 were proposed by Mohamed Ismail Sahib, Naziruddin Ahmad, Mahboob Ali Beg, Sahib Bahadur and Pocker Sahib Bahadur. Relevant extract of their amendments and their explanations thereto are reproduced below:

The above stated amendments proposed to draft Article 35 were opposed by K.M. Munshi and Alladi Krishnaswami Ayyar. Relevant extracts of their responses are reproduced below:

Before the amendments were put to vote, Dr. B.R. Ambedker made the following observations:

When the matter was put to vote by the Vice President of the Constituent Assembly, it was resolved as under:

Based on the Constituent Assembly debates with reference to draft Article 35, which was incorporated in the Constitution as Article 44 (extracted above), it was submitted, that as expressed in Article 25(2)(b), so also the debates of Article 44, the intent of the Constituent Assembly was to protect `personal laws' of different communities by elevating their stature to that of other fundamental rights, however with the rider, that the legislature was competent to amend the same.

95. Sequentially, learned senior counsel invited our attention to the Constituent Assembly debates with reference to Article 25 so as to bring home his contention, that the above article preserved to all their `personal laws' by elevating the same to the stature of a fundamental right. The instant elevation, it was pointed out, was by incorporating Articles 25 and 26 as components of Part III - Fundamental Rights, of the Constitution. It would be relevant to record, that Article 25 as it now exists, was debated as draft Article 19 by the Constituent Assembly. It was pointed out, that only one amendment proposed by Mohamed Ismail Sahib and its response by Pt. Laxmikanta Mitra would bring home the proposition being canvassed, namely, that `personal laws' were inalienable rights of individuals and permitted them to be governed in consonance with their faith. The amendment proposed by Mohamed Ismail Sahib and his statement in that behalf before the Constituent Assembly, as is relevant for the present controversy, is being extracted hereunder:

In addition to the above, it is only relevant to mention, that the amendment proposed by Mohamed Ismail Sahib was negatived by the Constituent Assembly.

96. While concluding his submissions Mr. Kapil Sibal, learned Senior Advocate, focused his attention to the Muslim Personal Law (Shariat) Application, 1937 and invited our attention to some of the debates which had taken place when the Bill was presented before the Legislative Assembly. Reference is only necessary to the statements made by H.M. Abdullah and Abdul Qaiyum on the floor of the House. The same are extracted hereunder:

Based on the aforesaid debates and the details expressed hereinabove (-for details, refer to Part-4 - Legislation in India, in the field of Muslim `personal law'), it was contended, that the main object of the legislation was not to express the details of the Muslim `personal law' - `Shariat'. The object was merely to do away with customs and usages as were in conflict with Muslim `personal law' - `Shariat'. It was therefore submitted, that it would not be proper to hold, that by the Shariat Act, the legislature gave statutory status to Muslim `personal law' - `Shariat'. It would be necessary to understand the above enactment, as statutorily abrogating customary practices and usages, as were in conflict with the existing Muslim `personal law' - `Shariat'. It was submitted, that the above enactment did not decide what was, or was not, Muslim `personal law' - `Shariat'. It would therefore be a misnomer to consider that the Muslim Personal Law (Shariat) Application Act, 1937, in any way, legislated on the above subject. It was pointed out, that Muslim `personal law' - `Shariat' comprised of the declarations contained in the Quran, or through `hadiths', `ijmas' and `qiyas' (-for details, refer to Part-2 - The practiced modes of `talaq' amongst Muslims). It was pointed out, that the articles of faith, as have been expressed on a variety of subjects of Muslim `personal law' - `Shariat', have been in place ever since they were declared by the Prophet Mohammed. Insofar as the practice of `talaq-e-biddat' is concerned, it was submitted, that it has been practised amongst Muslims for the last 1400 years. It was submitted, that the same is an accepted mode of divorce amongst Muslims. It was therefore urged, that it was not for this Court to decide, whether the aforesaid practice was just and equitable. The reason for this Court not to interfere with the same, it was submitted was, that the same was a matter of faith, of a majority of Muslims in this country, and this Court would be well advised to leave such a practice of faith, to be determined in the manner as was considered fit by those who were governed thereby. A belief, according to learned senior counsel, which is practiced for 1400 years, is a matter of faith, and is protected under Article 25 of the Constitution. Matters of belief and faith, it was submitted, have been accepted to constitute the fundamental rights of the followers of the concerned religion. Only such practices of faith, permitted to be interfered with under Article 25(1), as are opposed to public order, morality and health. It was pointed out, that in addition to the above, a court could interfere only when articles of faith violated the provisions of Part III - Fundamental Rights, of the Constitution. Insofar as the reliance placed by the petitioners on Articles 14, 15 and 21 is concerned, it was submitted, that Articles 14, 15 and 21 are obligations cast on the State, and as such, were clearly inapplicable to matters of `personal law', which cannot be attributed to State action.

97. While concluding his submissions, learned senior counsel also affirmed, that he would file an affidavit on behalf of the AIMPLB. The aforesaid affidavit was duly filed, which reads as under:

Based on the above affidavit, it was contended, that social reforms with reference to `personal law' must emerge from the concerned community itself. It was reiterated, that no court should have any say in the matter of reforms to `personal law'. It was submitted, that it was not within the domain of judicial discretion to interfere with the matters of `personal law' except on grounds depicted in Article 25(1) of the Constitution. It was contended, that the practice of `talaq-e-biddat' was not liable to be set aside, on any of the above grounds.

98. While supplementing the contentions noticed in the preceding paragraph, it was submitted, that Article 25(2)(b) vested the power with the legislature, to interfere with `personal law' on the ground of social welfare and reform. It was therefore contended, that the prayer made by the petitioner and those supporting the petitioner's case before this Court, should be addressed to the members of the community who are competent to amend the existing traditions, and alternatively to the legislature which is empowered to legislatively abrogate the same, as a measure of social welfare and reform. With the above observations, learned senior counsel prayed for the rejection of the prayers made by the petitioners.

99. Mr. Raju Ramachandran, Senior Advocate, entered appearance on behalf of Jamiat Ulema-i-Hind, i.e., respondent no.1 in Suo Motu Writ Petition (Civil) No.2 of 2015 and respondent no.9 in Writ Petition (Civil) No.118 of 2016. At the beginning of his submissions, learned senior counsel stated, that he desired to endorse each one of the submissions advanced before this Court by Mr. Kapil Sibal, Senior Advocate. We therefore hereby record the aforesaid contention of learned senior counsel.

100. In addition to the above, it was submitted, that the cause raised by the petitioner (and others) before this Court was clearly frivolous. It was submitted, that under the Muslim `personal law' - `Shariat', parties at the time of executing `nikahnama' (marriage deed) are free to incorporate terms and conditions, as may be considered suitable by them. It was submitted, that it was open to the wife, at the time of executing `nikahnama', to provide therein, that her husband would not have the right to divorce her through a declaration in the nature of `talaq-e-biddat'. It was therefore submitted, that it was clearly misconceived for the petitioner to approach this Court to seek a declaration against the validity of `talaq-e-biddat'. Alternatively, it was contended, that after the enactment of the Special Marriage Act, 1954, all citizens of India whether male or female, irrespective of the faith they professed, have the option to be governed by the provisions of the said Act, instead of their own `personal law'. It was therefore contended, that spouses belonging to a particular religious denomination, had the choice to opt for a secular and non-religious law, namely, the Special Marriage Act, 1954, and such of the parties who accept the choice (even if they profess the Muslim religion), would automatically escape from all religious practices, including `talaq-e-biddat'. It was therefore contended, that such of the couples who married in terms of their `personal law', must be deemed to have exercised their conscious option to be regulated by the `personal law', under which they were married. Having exercised the aforesaid option, it was submitted, that it was not open to a Muslim couple to then plead, against the practice of `talaq-e-biddat'. It was submitted, that when parties consent to marry, their consent does not extend to the choice of the person with reference to whom the consent is extended, but it also implicitly extends to the law by which the matrimonial alliances are to be regulated. If the consent is to marry in consonance with the `personal law', then the rigours of `personal law' would regulate the procedure for dissolution of marriage. And likewise, if the consent is to marry under the Special Marriage Act, 1954, the consent is to be governed by the provisions of the aforesaid legislation. In such a situation, it was submitted, that a person, who had consciously opted for the matrimonial alliance under `personal law' cannot complain, that the `personal law' was unfavourable or discriminatory. It was submitted, that in the above view of the matter, the very filing of the instant petition before this Court, and the support of the petitioner's cause by those who have been impleaded, or had appeared to represent the petitioner's cause, must be deemed to be wholly misconceived in law.

101. The second submission advanced at the hands of the learned senior counsel, was that the issues raised by the petitioner with reference to the validity of `talaq-e-biddat' - triple talaq were matters of legislative policy, and could not (though learned counsel truly meant - ought not) be interfered with through the judicial process. In this behalf, learned senior counsel invited the Court's attention to Maharshi Avadhesh v. Union of India, (1994) Suppl. (1) SCC 713 wherein the petitioner had approached this Court by filing a writ petition under Article 32 of the Constitution, with the following prayers:

It was pointed out, that this Court dismissed the above writ petition by observing, "these are all matters for legislature. The court cannot legislate on these matters."

102. Reliance was also placed on the Ahmedabad Women Action Group case. It was submitted that this Court considered the following issues during the course of adjudication of the above matter.

103. It was pointed out, that having heard the above matter, the same was dismissed by recording the following observations in paragraph 4 of the judgment:

104. Having raised the two preliminary objections with reference to the entertainment of the prayer made by the petitioner, learned counsel invited the Court's attention to abolition of the practice of `talaq-e-biddat' in other countries. It was submitted, that (-for details, refer to Part-5 - Abrogation of the practice of `talaq-e-biddat' by legislation, the world over, in Islamic, as well as, non-Islamic States), the above contention was adopted both by the petitioner, as well as, those who supported the petitioner's cause, as also by the Union of India, in order to contend, that the practice of `talaq-e-biddat' has been done away with in other Islamic countries, as a matter of social reform, on account of its being abhorrent, and also unilateral and arbitrary. It was submitted, that the constitutional validity of `personal law' in India, cannot be tested on the basis of enacted legislations of other countries. At this juncture, learned senior counsel desired us to notice, that the instant submission had been advanced without prejudice to the contention being canvassed by him, that the validity of `personal law' cannot be tested at all, with reference to the fundamental rights vested in individuals under Part III of the Constitution, for the reason, that `personal law' cannot be treated as law within the meaning of Article 13 of the Constitution.

105. Mr. Raju Ramachandran, learned senior counsel, then endeavoured to establish the validity of `talaq-e-biddat' - triple talaq. It was submitted, that out of the five schools of Sunni Muslims `talaq-e-biddat' was considered a valid form of divorce of four of the said schools. It was submitted, that the above position was accepted by the Delhi High Court in the Masroor Ahmed case, wherein in paragraph 26, the High Court observed ".....It is accepted by all schools of law that `talaq-e-biddat' is sinful, yet some schools regarded it as valid.....". It has also been acknowledged by the High Courts in different judgments rendered by them (-for details, refer to Part-6 - Judicial pronouncements, on the subject of `talaq-e-biddat'). It was accordingly sought to be inferred, that once it was established as a fact, that certain schools of Shia Muslims believed `talaq-e-biddat' to be a valid form of divorce, the consequence that would follow would be, that cohabitation amongst the spouses after the pronouncement of `talaq-ebiddat' would be sinful, as per the injunction of the Quran, in `sura' 2, Al Baqara Ayah 230. The same is reproduced hereunder:

It was pointed out, that the belief that after a husband has divorced his wife by pronouncing talaq thrice, it had been interfered that the three pronouncements should be treated as a singular pronouncement. It was pointd out, that High Courts have no such jurisdiction as has been exercised by them on the subject of `talaq-e-biddat'. It was accordingly asserted, that the above action constituted the creation of inroads into `personal law' of Muslims, which stood protected under Article 25 of the Constitution. In this behalf, it was also submitted, that while deciding the issue whether a belief or a practice constituted an integral part of religion, this Court held, that the above question needed to be answered on the basis of the views of the followers of the faith, and none else. In order to support his above submission, learned senior counsel, placed reliance on the Sardar Syedna Taher Saifuddin Saheb case, wherein this Court observed as under:

It was pointed out, that the above view of this Court had been affirmed by this Court in N. Adithyan v. Travancore Devasom Board, (2002) 8 SCC 106 wherein in paragraphs 9 and 16, it was observed as under:

In continuation of the above submission, learned senior counsel also placed reliance on Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of U.P., (1997) 4 SCC 606 wherein this Court held as under:

It was the pointed contention of learned senior counsel, that the judgments rendered by the High Courts on the subject of `talaq-e-biddat' (-for details, refer to Part-6 - Judicial pronouncements, on the subject of `talaq-ebiddat'), were unsustainable in law, because the High Courts had substituted their own views with reference to their understanding of `talaqe- biddat'. It was also pointed out, that supplanting of the views of one of the schools on the beliefs of the other four schools, of Sunni Muslims, with reference to `talaq-e-biddat', was in clear breach of the understanding of Muslims.

106. Learned senior counsel also disputed the reliance on International Conventions by all those who had assisted this Court on behalf of the petitioner. In this behalf, it was pointed out, that reliance on International Conventions, particularly on CEDAW was wholly misplaced, since India had expressed a clear reservation to the Conventions in order to support its constitutional policy of non-interference in the personal affairs of any community. In this behalf, while making a particular reference to CEDAW, it was submitted, that the above declarations/reservations were first made at the time of signing the aforesaid conventions and thereafter, even at the time of ratification. In this behalf, it was pointed out, that the first declaration was made by India in the following format:-

In view of the clear stance adopted at the time of signing the Convention, as also, at the time of its ratification, it was submitted, that there could be no doubt, that India had itself committed that it would not interfere with personal affairs of any community, without the initiative and consent of the concerned community. It was submitted, that the aforesaid commitment could not be ignored by the Union of India. While addressing this Court on the issue under reference, it was submitted, that the position adopted by the Union of India, was in clear derogation of the stance adopted on behalf of the India, as has been detailed above.

107. Learned senior counsel also seriously disputed the submissions advanced at the hands of the petitioners based on repudiation of the practice of `talaq-e-biddat' in various secular countries with Muslims in the majority, as also, theocratic States, through express legislation on the issue (-for details, refer to Part-5 - Abrogation of the practice of `talaq-e-biddat' by legislation, the world over, in Islamic, as well as, non-Islamic States). In this behalf, it was submitted, that `personal law' of classes and sections of the society and/or of religious denominations are sought to be protected by the Constitution by raising them to the high position of fundamental rights. It was accordingly asserted, that what was available to such classes and sections of society, as also, to the religious denominations as a matter of fundamental right under the Constitution, could not be negated, because other countries had enacted legislations for such annulment. Further more, it was submitted, that legislation is based on the collective will of the residents of a particular country, and as such, the will of the residents of a foreign country, cannot be thrust upon the will of the residents in India. While adopting the position canvassed on behalf of learned senior counsel who had preceded him, it was pointed out, that it was open to the legislature in India, to likewise provide for such legislation, because entry 5 of the Concurrent List contained in the Seventh Schedule allows legislation even with reference to matters governed by `personal law'. Additionally, it was submitted, that provision in this behalf was available in Article 25(2)(b), which provides that for espousing the cause of social welfare and reform it was open to the legislature even to legislate on matters governed under `personal law'. It was therefore contended that all such submissions advanced on behalf of the petitioners need to be ignored.

108. Mr. V. Giri, Senior Advocate, entered appearance on behalf of Jamiat-ul-Ulama-i-Hind (represented by its General Secretary, 1 Bahadur Shah Zafar Marg, New Delhi) - respondent no.7 in Suo Motu Writ Petition (Civil) No.2 of 2015 and respondent no.6 in Writ Petition (Civil) No. 118 of 2016. It would be relevant to mention, at the outset, that learned senior counsel endorsed the submissions advanced by Mr. Kapil Sibal and Mr. Raju Ramachandra, Senior Advocates, who had assisted this Court before him. Learned senior counsel focused his contentions, firstly to the challenge raised to the validity of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, insofar as, it relates to `talaq-e-biddat' on the ground, that the same being unconstitutional, was unenforceable. Learned senior counsel, in order to raise his challenge, first and foremost, drew our attention to Sections 2 and 3 of the Muslim Personal Law (Shariat) Application Act, 1937 (-for details, refer to Part-4 - Legislation in India, in the field of Muslim `personal law'). It was submitted, that Section 2 aforesaid, commenced with a non obstante clause. It was pointed out, that the aforesaid non obstante clause was referable only to amplify the exclusion of such customs and usages, as were contrary to Muslim `personal law' - `Shariat'. It was submitted, that reference was pointedly made only to such customs and usages as were not in consonance with the Muslim `personal law' - `Shariat'. It was asserted, that the mandate of Section 2 was aimed at making Muslim `personal law' - `Shariat' as "the rule of decision", even when customs and usages were to the contrary. It was sought to be explained, that the Shariat Act neither defined nor expounded, the parameters of the same, with reference to subjects to which Sections 2 and 3 were made applicable. It was therefore submitted, that the enactment under reference did not introduce Muslim `personal law' - `Shariat', as the same was the law applicable to the Muslims even prior to the enactment of the said legislation. In this behalf, it was pointed out, that in different parts of the country customs and usages were being applied even with reference to the Muslims overriding their `personal law'. In order to substantiate the above contention learned senior counsel made a pointed reference to the statement of objects and reasons of the above enactment, which would reveal that Muslims of British India had persistently urged that customary law and usages should not take the place of Muslim `personal law' - `Shariat'. It was also pointed out, that the statement of objects and reasons also highlight that his client, namely, Jamiat-ul-Ulemai- Hind had supported the demand of the applicability of the Muslim `personal law' - `Shariat', for adjudication of disputes amonst Muslims, and had urged, that custom and usage to the contrary, should not have an overriding effect. It was pointed out, that this could be done only because Muslim `personal law' - `Shariat' was in existence and was inapplicable to the adjudication of disputes amongst Muslims, even prior to the above enactment in 1937. Understood in the aforesaid manner, it was submitted, that Muslim `personal law' as a body of law, was only perpetuated, by the Shariat Act. It was submitted, that the Muslim `personal law' had not been subsumed by the statute nor had the 1937 Act codified the Muslim `personal law'. It was submitted, that the 1937 legislation was only statutorily declared that the Muslim `personal law', as a set of rules, would govern the Muslims in India, and that, it would be the Muslim `personal law' that would have an overriding effect over any custom or usage to the contrary. It was therefore reiterated, that the legislature which enacted the Muslim Personal Law (Shariat) Application Act, 1937, neither modified nor amended even in a small measure, the Muslim `personal law' applicable to the Muslims in India, nor did the legislature while enacting the above enactment, subsumed the Muslim `personal law', and therefore, the character of the Muslim `personal law' did not undergo a change on account of the enactment of the Muslim Personal Law (Shariat) Application Act, 1937. According to learned senior counsel, the Muslim `personal law' did not metamorphized into a statute, and as such, the rights and duties of Muslims in India continued to be governed even after the enactment of the Shariat Act, as before. It was pointed out, that the Shariat Act did not substitute, nor did it provide for any different set of rights and obligations other than those which were recognized and prevalent as Muslim `personal law' - `Shariat'. As such, it was contended, that it was wholly unjustified to assume, that Muslim `personal law' - `Shariat' was given statutory effect, through the Shariat Act. It was therefore submitted that a challenge to the validity of Section 2 of the above enactment, so as to assail the validity of `talaq-e-biddat' as being contrary to the fundamental rights contained in Part III of the Constitution, was an exercise in futility. Insofar as the instant assertion is concerned, learned senior counsel advanced two submissions - firstly, that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 did not by itself bring about any law providing for rights and obligations to be asserted and discharged by the Muslims as a community, for the simple reason, that it only reaffirmed the perpetuieties of the Muslim `personal law' - `Shariat', and as such, the rights and obligations of persons which were subjected to Muslim `personal law' - `Shariat', continued as they existed prior to the enactment of the Shariat Act. And secondly, the Muslim `personal law' - `Shariat', was neither transformed nor metamorphized by the Shariat Act, in the nature of crystalised rules and regulations, and as such, even if Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 was struck down, the same would automatically revive the Muslim `personal law' - `Shariat', in view of the mandate contained in Article 25 of the Constitution. Accordingly, it was pointed out, that the parameters of challenge, as were applicable to assail a statutory enactment, would not be applicable in the matter of assailing the Muslim `personal law' - `Shariat'. It was also the contention of learned senior counsel, that under Article 25(1) of the Constitution the right to freely profess, practice and propagate religion, was a universal right, guaranteed to every person, to act in affirmation of his own faith. It was submitted, that the above ambit was the core of the secular nature of the Indian Constitution. It was accordingly pointed out, that the confines of the rights protected under Article 25(1), could be assailed on limited grounds of public order, morality and health, and also if, the provisions of Part III - Fundamental Rights, of the Constitution were breached.

109. It was submitted, that a breach of the provisions contained in Part III - Fundamental Rights under the Constitution, could only be invoked with reference to a State action, as only State action has to conform to Articles 14, 15 and 21. It was therefore submitted, that a facial subjugation of the right under Article 25(1) to the other provisions of the Constitution would be inapplicable in the case of `personal law', that has no source to any statute, or State action. It was submitted, that the Shariat Act affirms the applicability of Muslim `personal law' - `Shariat' and perpetuates it by virtue of Section 2 thereof. And therefore, it would not give the Muslim `personal law' - `Shariat' a statutory flavour.

110. It was also submitted, that Sunnis were a religious denomination within the meaning of Article 25 of the Constitution, and therefore, were subject to public policy, morality and health. Sunni Muslims, therefore had a right inter alia to manage their own affairs in matters relating to religion. It was pointed out, that it could not be gainsaid, that marriage and divorce were matters of religion. Therefore, Sunnis as a religious denomination, were entitled to manage their own affairs in matters of marriage and divorce, which are in consonance with the Muslim `personal law' - `Shariat'. It was therefore submitted, that the provisions relating to marriage and divorce, as were contained in the Muslim `personal law' - `Shariat', were entitled to be protected as a denominational right, under Article 25 of the Constitution.

111. Mr. V. Shekhar, Mr. Somya Chakravarti, Senior Advocates, Mr.Ajit Wagh, Ajmal Khan, Senior Advocate, Mr. V.K. Biju, Mr. Banerjee, Mr. Ashwani Upadhyay, Mr.Vivek C. Solsha, Ms. Rukhsana, Ms. Farah Faiz, Advocates also assisted the Court. Their assistance to the Court, was on issues canvassed by other learned counsel who had appeared before them. The submissions advanced by them, have already been recorded above. For reasons of brevity, it is not necessary for us to record the same submission once again, in the names of learned counsel referred to above. All that needs to be mentioned is, that we have taken due notice of the nuances pointed out, and their emphasis on different aspects of the controversy.

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:

118. Without pointedly examining the issue of the validity of `talaq-ebiddat', under the Muslim `personal law' - `Shariat', this Court in Fuzlunbi v. K. Khader Vali, (1980) 4 SCC 125 recorded the following observations:

The above observations lead to the inference, that the proposition of law pronounced by the Privy Council in the Rashid Ahmad case, needed a relook.

119. It would be relevant to mention, that in the interregnum, the validity of `talaq-e-biddat' was considered by a learned Single Judge (Justice Baharul Islam, as he then was) of the Gauhati High Court, in the Jiauddin Ahmed case, wherein, the High Court took a view different from the one recorded by the Privy Council (-in the Rashid Ahmad case). In doing so, it relied on `hadiths', `ijma' and `qiyas'. The issue was again examined, by a Division Bench of the Gauhati High Court, in the Mst. Rukia Khatun case. Yet again, the High Court (speaking through, Chief Justice Baharul Islam, as he then was), did not concur with the view propounded by the Privy Council. The matter was also examined by a Single Judge (Justice Badar Durrez Ahmed, as he then was) of the Delhi High Court in the Masroor Ahmed case. Herein again, by placing reliance on relevant `hadiths', the Delhi High Court came to the conclusion, that the legal position expressed by the Privy Council on `talaq-e-biddat', was not in consonance with the Muslim `personal law'. The Kerala High Court, in the Nazeer case (authored by, Justice A. Muhamed Mustaque) highlighted the woeful condition of Muslim wives, because of the practice of `talaq-e-biddat', and recorded its views on the matter.

120. In view of the position expressed hereinabove, we are of the considered view, that the opinion expressed by the Privy Council with reference to `talaq-e-biddat', in the Rashid Ahmad case, holding that `talaqe- biddat' results in finally and irrevocably severing the matrimonial tie between spouses, the very moment it is pronounced, needs to be examined afresh. More particularly, because the validity of the same as an approved concept, of Muslim `personal law' - `Shariat', was not evaluated at that juncture (-as it indeed could not have been, as the legislation was not available, when the Privy Council had rendered its judgment), in the backdrop of the Shariat Act, and also, the provisions of the Constitution of India.

II. Has `talaq-e-biddat', which is concededly sinful, sanction of law?

121. The petitioners, and others who support the petitioner's cause, have vehemently contended, that `talaq-e-biddat', does not have its source of origin from the Quran. The submission does not need a serious examination, because even `talaq-e-ahsan' and `talaq-e-hasan' which the petitioners acknowledge as - `the most proper', and - `the proper' forms of divorce respectively, also do not find mention in the Quran. Despite the absence of any reference to `talaq-e-ahsan' and `talaq-e-hasan' in the Quran, none of the petitioners has raised any challenge thereto, on this score. A challenge to `talaq-e-biddat' obviously cannot be raised on this ground. We are satisfied, that the different approved practices of talaq among Muslims, have their origin in `hadiths' and other sources of Muslim jurisprudence. And therefore, merely because it is not expressly provided for or approved by the Quran, cannot be a valid justification for setting aside the practice.

122. The petitioners actually call for a simple and summary disposal of the controversy, by requiring us to hold, that whatever is irregular and sinful, cannot have the sanction of law. The above prayer is supported by contending, that `talaq-e-biddat' is proclaimed as bad in theology. It was submitted, that this practice is clearly patriarchal, and therefore, cannot be sustained in today's world of gender equality. In order to persuade this Court, to accept the petitioners' prayer - to declare the practice of `talaq-ebiddat' as unacceptable in law, the Court's attention was invited to the fact, that the present controversy needed a similar intervention, as had been adopted for doing away with similar patriarchal, irregular and sinful practices amongst Hindus. In this behalf, reference was made to the practices of `Sati', `Devadasi' and `Polygamy'.

123(i). We may only highlight, that `Sati' was commonly described as - widow burning. The practice required a widow to immolate herself, on her husband's pyre (or alternatively, to commit suicide shortly after her husband's death). `Sati' just like `talaq-e-biddat', had been in vogue since time immemorial. It is believed, that the practice of `Sati' relates back to the 1st century B.C.. On the Indian sub-continent, it is stated to have gained popularity from the 10th century A.D. The submission was, that just as `Sati' had been declared as unacceptable, the practice of `talaq-e-biddat' should likewise be declared as unacceptable in law.

(ii) `Devadasi' translated literally means, a girl dedicated to the worship and service of a diety or temple. The surrender and service of the `Devadasi', in terms of the practice, was for life. This practice had also been in vogue since time immorial, even though originally `Devadasis' had a high status in society, because the Rulers/Kings of the time, were patrons of temples. During British rule in India, the Rulers backing and support to temples, waned off. It is believed, that after funds from the Rulers stopped, to sustain themselves `Devadasis' used dancing and singing as a means of livelihood. They also commenced to indulge in prostitution. The life of the `Devadasi', thereupon came into disrepute, and resulted in a life of destitution. The practice had another malady, tradition forbade a `Devadasi' from marrying.

(iii) So far as `polygamy' is concerned, we are of the view that polygamy is well understood, and needs no elaboration.

124. We are of the view, that the practices referred to by the petitioners, to support their claim, need a further examination, to understand how the practices were discontinued. We shall now record details, of how these practices, were abolished:

(i) Insofar as the practice of `Sati' is concerned, its practice reached alarming proportion between 1815-1818, it is estimated that the incidence of `Sati' doubled during this period. A campaign to abolish `Sati' was initiated by Christian missionaries (- like, William Carey), and by Hindu Brahmins (-like, Ram Mohan Roy). The provincial Government of Bengal banned `Sati' in 1829, by way of legislation. This was then followed by similar laws by princely States in India. After the practice was barred by law, the Indian Sati Prevention Act, 1988 was enacted, which crimnalised any type of aiding, abetting or glorifying the practice of `Sati'.

(ii) Insofar as the practice of `Devadasi' is concerned, soon after the end of British rule, independent India passed the Madras Devadasi's (Prevention of Dedication) Act (-also called the Tamil Nadu Devadasis (Prevention of Dedication Act) on 09.10.1947. The enactment made prostitution illegal. The other legislations enacted on the same issue, included the 1934 Bombay Devadasi Protection Act, the 1957 Bombay Protection (Extension) Act, and the Andhra Pradesh Devadasi (Prohibition of Dedication) Act of 1988. It is therefore apparent, that the instant practice was done away with, through legislation.

(iii) The last of the sinful practices brought to our notice was `polygamy'. Polygamy was permitted amongst Hindus. In 1860, the Indian Penal Code made `polygamy' a criminal offence. The Hindu Mariage Act was passed in 1955. Section 5 thereof provides, the conditions for a valid Hindu marriage. One of the conditions postulated therein was, that neither of the parties to the matrimonial alliance should have a living spouse, at the time of the marriage. It is therefore apparent, that the practice of polygamy was not only done away with amongst Hindus, but the same was also made punishable as a criminal offence. This also happened by legislation.

125. The factual and the legal position noticed in the foregoing paragraph clearly brings out, that the practices of `Sati', `Devadasi' and `polygamy' were abhorrent, and could well be described as sinful. They were clearly undesirable and surely bad in theology. It is however important to notice, that neither of those practices came to be challenged before any court of law. Each of the practices to which our pointed attention was drawn, came to be discontinued and invalidated by way of legislative enactments. The instances cited on behalf of the petitioners cannot therefore be of much avail, with reference to the matter in hand, wherein, the prayer is for judicial intervention.

126. We would now venture to attempt an answer to the simple prayer made on behalf of the petitioners, for a summary disposal of the petitioner's cause, namely, for declaring the practice of `talaq-e-biddat', as unacceptable in law. In support of the instant prayer, it was submitted, that it could not be imagined, that any religious practice, which was considered as a sin, by the believers of that very faith, could be considered as enforceable in law. It was asserted, that what was sinful could not be religious. It was also contended, that merely because a sinful practice had prevailed over a long duration of time, it could best be considered as a form of custom or usage, and not a matter of any binding faith. (This submission, is being dealt with in part IV, immediately hereinafter). It was submitted, that no court should find any difficulty, in declaring a custom or usage - which is sinful, as unacceptable in law. It was also the pointed assertion on behalf of the petitioners, that what was sacrilegious could not ever be a part of Muslim `personal law' - `Shariat'. The manner in which one learned counsel expressed the proposition, during the course of hearing, was very interesting. We may therefore record the submission exactly in the manner it was projected. Learned counsel for evoking and arousing the Bench's conscience submitted, "if something is sinful or abhorrent in the eyes of God, can any law by man validate it". It seems to us, that the suggestion was, that `talaq-e-biddat' did not flow out of any religious foundation, and therefore, the practice need not be considered as religious at all. One of the non-professional individuals assisting this Court on behalf of the petitioners', went to the extent of stating, that the fear of the fact, that the wife could be thrown out of the matrimonial house, at any time, was like a sword hanging over the matrimonial alliance, during the entire duration of the marriage. It was submitted, that the fear of `talaq-e-biddat', was a matter of continuous mental torture, for the female spouse. We were told, that the extent of the practice being abhorrent, can be visualized from the aforesaid, position. It was submitted, that the practice was extremely selfeffacing, and continued to be a cause of insecurity, for the entire duration of the matrimonial life. It was pointed out, that this practice violated the pious and noble prescripts of the Quran. It was highlighted, that even those who had appeared on behalf of the respondents, had acknowledged, that the practice of `talaq-e-biddat' was described as irregular and sinful, even amongst Muslims. It was accordingly asserted, that it was accepted by one and all, that the practice was bad in theology. It was also acknowledged, that it had no place in modern day society. Learned counsel therefore suggested, that triple talaq should be simply declared as unacceptable in law, and should be finally done away with.

127. A simple issue, would obviously have a simple answer. Irespective of what has been stated by the learned counsel for the rival parties, there can be no dispute on two issues. Firstly, that the practice of `talaq-e-biddat' has been in vogue since the period of Umar, which is roughly more than 1400 years ago. Secondly, that each one of learned counsel, irrespective of who they represented, (-the petitioners or the respondents), acknowledged in one voice, that `talaq-e-biddat' though bad in theology, was considered as "good" in law. All learned counsel representing the petitioners were also unequivocal, that `talaq-e-biddat' was accepted as a "valid" practice in law. That being so, it is not possible for us to hold, the practice to be invalid in law, merely at the asking of the petitioners, just because it is considered bad in theology.

III. Is the practice of `talaq-e-biddat', approved/disapproved by "hadiths"?

128. At the beginning of our consideration, we have arrived at the conclusion, that the judgment rendered by the Privy Council in the Rashid Ahmad case, needs a reconsideration, in view of the pronouncements of various High Courts including a Single Judge of the Gauhati High Court in the Jiauddin Ahmed case, a Division Bench of the same High Court - the Gauhati High Court in the Rukia Khatun case, by a Single Judge of the Delhi High Court in the Masroor Ahmed case, and finally, on account of the decision of a Single Judge of the Kerala High Court in the Nazeer case.

129. Even though inconsequential, and the same can never - never be treated as a relevant consideration, it needs to be highlighted, that each one of the Judges who authored the judgments rendered by the High Courts referred to above, professed the Muslim religion. They were Sunni Muslims, belonging to the Hanafi school. The understanding by them, of their religion, cannot therefore be considered as an outsider's view. In the four judgments referred to above, the High Courts relied on `hadiths' to support and supplement the eventual conclusion drawn. There is certainly no room for any doubt, that if `hadiths' relied upon by the High Courts in their respective judgments, validly affirmed the position expressed with reference to `talaq-e-biddat', there would be no occasion for us to record a view to the contrary. It is in the aforestated background, that we proceed to examine the `hadiths' relied upon by learned counsel appearing for the rival parties, to support their individual claims.

130. A number of learned counsel who had appeared in support of the petitioners' claim, that the practice of `talaq-e-biddat' was un-Islamic, and that this Court needed to pronounce it as such, invited our attention to a set of `hadiths', to substantiate their position. The assertions made on behalf of the petitioners were opposed, by placing reliance on a different set of `hadiths'. Based thereon, we will endeavour to record a firm conclusion, whether `talaq-e-biddat', was or was not, recognized and supported by `hadiths'.

131. First of all, we may refer to the submissions advanced by Mr. Amit Singh Chadha, Senior Advocate, who had painstakingly referred to the `hadiths' in the four judgments of the High Courts (-for details, refer to Part- 6 - Judicial pronouncements, on the subject of `talaq-e-biddat'). Insofar as the Jiauddin Ahmed case is concerned, details of the entire consideration have been narrated in paragraph 31 hereinabove. Likewise, the consideration with reference to the Rukia Khatun case has been recorded in paragraph 32. The judgment in the Masroor Ahmed case has been dealt with in paragraph 33. And finally, the Nazeer case has been deciphered, by incorporating the challenge, the consideration and the conclusion in paragraph 34 hereinabove. For reasons of brevity, it is not necessary to record all the above `hadiths' for the second time. Referefence may therefore be made to the paragraphs referred to above, as the first basis expressed on behalf of the petitioners, to lay the foundation of their claim, that the practice, of `talaq-e-biddat' cannot be accepted as a matter of `personal law' amongst Muslims, including Sunni Muslims belonging to the Hanafi school. In fact, learned senior counsel, asserted, that the position expressed by the High Courts, had been approved by this Court in the Shamim Ara case.

132. Mr. Anand Grover, Senior Advocate, reiterated and reaffirmed the position expressed in the four judgments (two of the Gauhati High Court, one of the Delhi High Court, and the last one of the Kerala High Court) to emphasize his submissions, as a complete justification for accepting the claims of the petitioners. Interestingly, learned senior counsel made a frontal attack to the `hadiths' relied upon by the AIMPLB. To repudiate the veracity of the `hadiths' relied upon by the respondents, it was pointed out, that it was by now settled, that there were various degrees of reliability and/or authenticity of different `hadiths'. Referring to the Principles of Mohomedan Law by Sir Dinshaw Fardunji Mulla (LexisNexis, Butterworths Wadhwa, Nagpur, 20th edition), it was asserted, that the `hadiths' relied upon by the AIMPLB (to which a reference will be made separately), were far - far removed from the time of the Prophet Mohammad. It was explained, that `hadiths' recorded later in point of time, were less credible and authentic, as with the passage of time, distortions were likely to set in, making them unreliable. It was asserted, that `hadiths' relied upon in the four judgments rendered by the High Courts, were the truly reliable `hadiths', as they did not suffer from the infirmity expressed above. In addition to the above, learned senior counsel drew our attention, to Sunan Bayhaqi 7/547 referred to on behalf of the AIMPLB, so as to point out, that the same was far removed from the time of Prophet Mohammad. As against the above, it was submitted, that the `hadiths' of Bhukahri (published by Darussalam, Saudi Arabia), also relied upon by the AIMPLB, were obvious examples of a clear distortion. Moreover, it was submitted, that the `hadiths', relied upon by the AIMPLB were not found in the Al Bukhari Hadiths. It was therefore submitted, that reliance on the `hadiths' other than those noticed in the individual judgments referred to hereinabove, would be unsafe (-for details, refer to paragraph 42).

133. Learned senior counsel also asserted, that as a historical fact Shia Muslims believe, that during the Prophet's time, and that of the First Caliph - Abu Baqhr, and the Second Caliph - Umar, pronouncements of talaq by three consecutive utterances were treated as one. (Reference in this behalf was made to "Sahih Muslim" compiled by Al-Hafiz Zakiuddin Abdul-Azim Al-Mundhiri, and published by Darussalam). Learned senior counsel also placed reliance on "The lawful and the prohibited in Islam" by Al-Halal Wal Haram Fil Islam (edition - August 2009). It was pointed out, that the instant transcript was of Egyptian origin, and further emphasized, that the same therefore needed to be accepted as genuine and applicable to the dispute, because Egypt was primarily dominated by Sunni Muslims belonging to the Hanafi school. In the above publication, it was submitted, that the practice of instant triple talaq was described as sinful. Reference was then made to "Woman in Islamic Shariah" by Maulana Wahiduddin Khan (published by Goodword Books, reprinted in 2014), wherein, irrespective of the number of times the word `talaq' was pronounced (if pronounced at the same time, and on the same occasion), was treated as a singular pronouncement of talaq, in terms of the `hadith' of Imam Abu Dawud in Fath al-bari 9/27. It was submitted, that the aforesaid `hadith' had rightfully been taken into consideration by the Delhi High Court in the Masroor Ahmed case. In addition to the above, reference was made to "Marriage and family life in Islam" by Prof. (Dr.) A. Rahman (Adam Publishers and Distributors, New Delhi, 2013 edition), wherein by placing reliance on a Hanafi Muslim scholar, it was opined that triple talaq was not in consonance with the verses of the Quran. Reliance was also placed on "Imam Abu Hanifa - Life and Work" by Allamah Shiblinu'mani's of Azamgarh, who founded the Shibli College in the 19th century. Relying upon a prominent Hanafi Muslim scholar, it was affirmed, that Abu Hanifa himself had declared, that it was forbidden to give three divorces at the same time, and whoever did so was a sinner (-for details, refer to paragraph 42). Based on the aforestated text available in the form of `hadiths', it was submitted, that the position adopted by the AIMPLB in its pleadings, was clearly unacceptable, and need to be rejected. And that, the coclusions drawn by the four High Courts referred to above, need to be declared as a valid determination on the subject of `talaq-e-biddat', in exercise of this Court's power under Article 141 of the Constitution.

134. Mr. Kapil Sibal, appearing on behalf of the AIMPLB, contested the submissions advanced on behalf of the petitioners. In the first instance, learned senior counsel placed reliance on verses from the Quran. Reference was made to Quran, Al-Hashr 59:71; Quran, Al-Anfal 8:20; Quran, Al-Nisa 4:64; Quran, Al-Anfal 8:13; Quran, Al-Ahzab 33:36; and Quran, Al-Nisa 4:115 (-for details, refer to paragraph 86 above). Pointedly on the subject of triple talaq, and in order to demonstrate, that the same is not in consonance with the Quranic verses, the Court's attention was drawn to Quran, Al-Baqarah 2:229; Quran, Al-Baqarah 2:229 and 230; Quran, Al- Baqarah 2:232; and Quran, Al-Talaq 65:1 (-for details, refer to paragraph 86 above). Besides the aforesaid, learned senior counsel invited this Court's attention to the statements attributed to the Prophet Mohammad, with reference to talaq. On this account, the Court's attention was drawn to Daraqutni, Kitab Al-Talaq wa Al-Khula wa Al-Aiyla, 5/23, Hadith number: 3992; Daraqutni, 5/81; Kitab al-Talaq wa Al-Khulawa aI-Aiyala, Hadith number: 4020; Sunan Bayhaqi, 7/547, Hadith number: 14955; AI-Sunan AI-Kubra Iil Bayhaqi, Hadith number: 14492; and Sahi al-Bukhari Kitab al- Talaq, Hadith number: 5259 (-for details, refer to paragraph 86 above). Representing the AIMPLB, learned senior counsel, also highlighted `hadiths' on the subject of `talaq' and drew our attention to Sunan Abu Dawud, Bad Karahiya al-Talaq, Hadith no: 2178; Musannaf ibn Abi Shaybah, Bab man kara an yatliq aI rajal imratahuu thalatha fi maqad wahadi wa ajaza dhalika alayhi, Hadith number: 18089; (Musannaf ibn Abi Shayba, Kitab al-Talaq, bab fi al rajal yatlaqu imratahuu miata aw alfa, Hadith number: 18098; Musannaf Abd al-Razzaq, Kitab al-talaq, Hadith number 11340; Musannaf ibn Abi Shayba, Kitab aI-Talaq, Hadith no: 18091; Musannaf Ibn Abi Shayba, Hadith no: 18087; Al-Muhadhdhab, 4/305; and Bukhari, 3/402 (-for details, refer to paragraph 87 above).

135. Having dealt with the position expounded in the Quran and `hadiths' as has been noticed above, learned senior counsel attempted to repudiate the veracity of the `hadiths' relied upon, in all the four judgments rendered by the High Courts. In this behalf learned senior counsel provided the following complilation for this Court's consideration:

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.

It was the submitted on behalf of the AIMPLB, that the views of persons who are not Sunnis, and those who did not belong to the Hanafi school, could not have been validly relied upon. It was submitted, that reliance on Maulana Muhammad Ali was improper because he was a Qadiyani, and that Muslims do not consider the Qadiyani sect to be a part of the Islamic community. Likewise, it was submitted, that reference to Basheer Ahmad Mohyidin was misplaced, as the commentary authored by him, did not deal with the concept of `talaq-e-biddat'. Reference to Tafsir Ibn Kathir was stated to be improper, as he belonged to the Ahl-e-Hadith/Salafi school, which school does not accept triple talaq. It was submitted, that Dr. Tahir Mahmood was a Professor of Law at the Delhi University, and his views must be treated as personal to him, and could not be elevated to the position of `hadiths'. It was pointed out, that Sheikh Yusuf al-Qaradawi, was a follower of Ahl-e-Hadith school, and therefore, his views could not be taken into consideration. So also, it was submitted, that Mahmoud Rida Murad was a follower of Ahl-e-Hadith/Salafi school. Reference to Sayyid Abdul Ala Maududi, it was pointed out, was improperly relied upon, because the view expressed by the above scholar was that "three pronouncements of talaq could be treated as one, depending on the `intention' of the husband". This position, according to learned senior counsel, does not support the position propounded on behalf of the petitioners, because if the `intention' was to make three pronouncements, it would constitute a valid `talaq'. With reference to Dr. Abu Ameenah Bilal Philips, it was submitted, that he was also a follower of the Ahl-e- Hadith/Salafi school. Last of all, with reference to Mohammed Hashim Kamali, it was pointed out, that he was merely a Professor of Law, and the views expressed by him should be considered as his personal views. It was accordingly asserted, that supplanting the views of other schools of Sunni Muslims, with reference to the practice of `talaq-e-biddat' by the proponents of the Hanafi school, and even with the beliefs of Shia Muslims, was a clear breach of a rightful understanding of the school, and the practice in question.

136. Based on the submissions advanced on behalf of the AIMPLB, as have been noticed hereinabove, it was sought to be emphasized, that such complicated issues relating to norms applicable to a religious sect, could only be determined by the community itself. Learned counsel cautioned, this Court from entering into the thicket of the instant determination, as this Court did not have the expertise to deal with the issue.

137. Having given our thoughtful consideration, and having examined the rival `hadiths' relied upon by learned counsel for the parties, we have no other option, but to accept the contention of learned senior counsel appearing on behalf of the AIMPLB, and to accept his counsel, not to enter into the thicket of determining (on the basis of the `hadiths' relied upon) whether or not `talaq-e-biddat' - triple talaq, constituted a valid practice under the Muslim `personal law' - `Shariat'. In fact, even Mr. Salman Khurshid appearing on behalf of the petitioners (seeking the repudiation of the practice of the `talaq-e-biddat') had pointed out, that it was not the role of a court to interprete nuances of Muslim `personal law' - `Shariat'. It was pointed out, that under the Muslim `personal law', the religious head - the Imam would be called upon to decipher the teachings expressed in the Quran and the `hadiths', in order to resolve a conflict between the parties. It was submitted, that the Imam alone, had the authority to resolve a religious conflict, amongst Muslims. It was submitted, that the Imam would do so, not on the basis of his own views, but by relying on the verses from the Quran, and the `hadiths', and based on other jurisprudential tools available, and thereupon he would render the correct interpretation. Mr. Salman Khurshid, learned Senior Advocate also cautioned this Court, that it was not its role to determine the true intricacies of faith.

138. All the submissions noted above, at the behest of the learned counsel representing the AIMPLB would be inconsequential, if the judgment rendered by this Court in the Shamim Ara case, can be accepted as declaring the legal position in respect of `talaq-e-biddat'. Having given a thoughtful consideration to the contents of the above judgment, it needs to be recorded, that this Court in the Shamim Ara case did not debate the issue of validity of `talaq-e-biddat'. No submissions have been noticed for or against, the proposition. Observations recorded on the subject, cannot therefore be treated as ratio decendi in the matter. In fact, the question of validity of talaq-e-biddat' has never been debated before this Court. This is the first occasion that the matter is being considered after rival submissions have been advanced. Moreover, in the above judgment the Court was adjudicating a dispute regarding maintenance under section 125 of the Code of Criminal Procedure. The husband, in order to avoid the liability of maintenance pleaded that he had divorced his wife. This Court in the above judgment decided the factual issue as under:

The liability to pay maintenance was accepted, not because `talaq-e-biddat' - triple talaq was not valid in law, but because the husband had not been able to establish the factum of divorce. It is therefore not possible to accept the submission made by learned counsel on the strength of the Shamim Ara case.

139. Having given our thoughtful consideration on the entirety of the issue, we are persuaded to accept the counsel of Mr. Kapil Sibal and Mr. Salman Khurshid, Senior Advocates. It would be appropriate for us, to refrain from entertaining a determination on the issue in hand, irrespective of the opinion expressed in the four judgments relied upon by learned counsel for the petitioners, and the Quranic verses and `hadiths' relied upon by the rival parties. We truly do not find ourselves, upto the task. We have chosen this course, because we are satisfied, that the controversy can be finally adjudicated, even in the absence of an answer to the proposition posed in the instant part of the consideration.

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. In the two preceding parts of our consideration, we have not been able to persuade ourselves to disapprove and derecognize the practice of `talaq-e-biddat'. It may however still be possible for us, to accept the petitioners' prayer, if it can be concluded, that `talaq-e-biddat' was not a constituent of `personal law' of Sunni Muslims belonging to the Hanafi school. And may be, it was merely a usage or custom. We would, now attempt to determine an answer to the above noted poser.

141. As a historical fact, `talaq-e-biddat' is known to have crept into Muslim tradition more than 1400 years ago, at the instance of Umayyad monarchs. It can certainly be traced to the period of Caliph Umar - a senior companion of Prophet Muhammad. Caliph Umar succeeded Abu Bakr (632-634) as the second Caliph on 23.8.634. If this position is correct, then the practice of `talaq-e-biddat' can most certainly be stated to have originated some 1400 years ago. Factually, Mr. Kapil Sibal had repeatedly emphasized the above factual aspects, and the same were not repudiated by any of learned counsel (-and private individuals) representing the petitioner's cause.

142. The fact, that the practice of `talaq-e-biddat' was widespread can also not be disputed. In Part-5 of the instant judgment - Abrogation of the practice of `talaq-e-biddat' by legislation, the world over, in Islamic, as well as, non-Islamic States, we have dealt with legislations at the hands of Arab States - Algeria, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libiya, Mrocco, Sudan, Syria, Tunesia, United Arab Emirates, Yemen; we have also dealt with legislations by South-east Asian States - Indonesia, Malaysia, Philippines; we have additionally dealt with legislations by sub-continental States - Pakistan and Bangladesh. All these countries have legislated with reference to - `talaq-e-biddat', in one form or the other. What can certainly be drawn from all these legislations is, that `talaq-e-biddat' was a prevalent practice amongst Muslims, in these countries. Had it not been so, legislation would not have been required on the subject. It is therefore clear that the practice of `talaq-e-biddat' was not limited to certain areas, but was widespread.

143. We have also extracted in the submissions advanced by learned counsel representing the rival parties, `hadiths' relied upon by them, to substantiate their rival contentions. The debate and discussion amongst Islamic jurists in the relevant `hadiths' reveal, that the practice of triple talaq was certainly, in vogue amongst Muslims, whether it was considered and treated as irregular or sinful, is quite another matter. All were agreed, that though considered as improper and sacrilegious, it was indeed accepted as lawful. This debate and discussion in the Muslim community - as has been presently demonstrated by the disputants during the course of hearing, and as has been highlighted through articles which appeared in the media (at least during the course of hearing), presumably by knowledgeable individuals, reveal views about its sustenance. The only debate in these articles was about the consistence or otherwise, of the practice of `talaq-e-biddat' - with Islamic values. Not that, the practice was not prevalent. The ongoing discussion and dialogue, clearly reveal, if nothing else, that the practice is still widely prevalent and in vogue.

144. The fact, that about 90% of the Sunnis in India, belong to the Hanafi school, and that, they have been adopting `talaq-e-biddat' as a valid form of divorce, is also not a matter of dispute. The very fact, that the issue is being forcefully canvassed, before the highest Court of the land, and at that - before a Constitution Bench, is proof enough. The fact that the judgment of the Privy Council in the Rashid Ahmad case as far back as in 1932, upheld the severance of the matrimonial tie, based on the fact that `talaq' had been uttered thrice by the husband, demonstrates not only its reality, but its enforcement, for the determination of the civil rights of the parties. It is therefore clear, that amongst Sunni Muslims belonging to the Hanafi school, the practice of `talaq-e-biddat', has been very much prevalent, since time immemorial. It has been widespread amongst Muslims in countries with Muslim popularity. Even though it is considered as irreligious within the religious denomination in which the practice is prevalent, yet the denomination considers it valid in law. Those following this practice have concededly allowed their civil rights to be settled thereon. `Talaq-e-biddat' is practiced in India by 90% of the Muslims (who belong to the Hanafi school). The Muslim population in India is over 13% (-about sixteen crores) out of which 4-5 crores are Shias, and the remaining are Sunnis (besides, about 10 lakhs Ahmadias) - mostly belonging to the Hanafi school. And therefore, it would not be incorrect to conclude, that an overwhelming majority of Muslims in India, have had recourse to the severance of their matrimonial ties, by way of `talaq-e-biddat' - as a matter of their religious belief - as a matter of their faith.

145. We are satisfied, that the practice of `talaq-e-biddat' has to be considered integral to the religious denomination in question - Sunnis belonging to the Hanafi school. There is not the slightest reason for us to record otherwise. We are of the view, that the practice of `talaq-e-biddat', has had the sanction and approval of the religious denomination which practiced it, and as such, there can be no doubt that the practice, is a part of their `personal law'.

V. Did the Muslim Personal Law (Shariat) Application Act, 1937 confer statutory status to the subjects regulated by the said legislation?

146. `Personal law' has a constitutional protection. This protection is extended to `personal law' through Article 25 of the Constitution. It needs to be kept in mind, that the stature of `personal law' is that of a fundamental right. The elevation of `personal law' to this stature came about when the Constitution came into force. This was because Article 25 was included in Part III of the Constitution. Stated differently, `personal law' of every religious denomination, is protected from invasion and breach, except as provided by and under Article 25.

147. The contention now being dealt with, was raised with the object of demonstrating, that after the enactment of the Muslim Personal Law (Shariat) Application Act, 1937, the questions and subjects covered by the Shariat Act, ceased to be `personal law', and got transformed into `statutory law'. It is in this context, that it was submitted, by Ms. Indira Jaising, learned senior counsel and some others, that the tag of `personal law' got removed from the Muslim `personal law' - `Shariat', after the enactment of the Shariat Act, at least for the questions/subjects with reference to which the legislation was enacted. Insofar as the present controversy is concerned, suffice it to notice, that the enactment included "... dissolution of marriage, including talaq ..." amongst the questions/subjects covered by the Shariat Act. And obviously, when the parties are Muslims, `talaq' includes `talaq-e-biddat'. The pointed contention must be understood to mean, that after the enactment of the Shariat Act, dissolution of marriage amongst Muslims including `talaq' (and, `talaq-e-biddat') had to be considered as regulated through a State legislation.

148. Having become a part of a State enactment, before the Constitution of India came into force, it was the submission of learned senior counsel, that all laws in force immediately before the commencement of the Constitution, would continue to be in force even afterwards. For the instant assertion, reliance was placed on Article 372 of the Constitution. We may only state at this juncture, if the first proposition urged by the learned senior counsel is correct (that dissolution of marriage amongst Muslims including `talaq' was regulated statutorily after the 1937 Act), then the latter part of the submission advanced, has undoubtedly to be accepted as accurate.

149. We have already enumerated the relevant provisions of the Shariat Act (-for details, refer to Part-4 - Legislation in India, in the field of Muslim `personal law'). A perusal of Section 2 thereof (extracted in paragraph 23 above) reveals, that on the questions/subjects of intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of `personal law', marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs, "... the rule of decision ...", where the parties are Muslims, shall be "... the Muslim Personal Law - Shariat. The submission of the learned counsel representing the petitioners, in support of the instant contention was, that since the "rule of the decision" inter alia with reference to `talaq' (-`talaq-e-biddat'), was thereafter to be regulated in terms of the Shariat Act, what was `personal law' (-prior to the above enactment), came to be transformed into `statutory law'. This, according to learned counsel for the petitioners, has a significant bearing, inasmuch as, what was considered as `personal law' prior to the Shariat Act, became an Act of the State. Having become an Act of the State, it was submitted, that it has to satisfy the requirements of Part III - Fundamental Rights, of the Constitution. This, it was pointed out, is indeed the express mandate of Article 13(1), which provides that laws in force immediately before the commencement of the Constitution, insofar as they are inconsistent with the provisions of Part III of the Constitution, shall to the extent of such inconsistency, be considered as void.

150. In order to support the issue being canvassed, it was submitted, that no "rule of decision" can be violative of Part III of the Constitution. And "rule of decision" on questions/subjects covered by the Shariat Act, would be deemed to be matters of State determination. Learned senior counsel was however candid, in fairly acknowledging, that `personal laws' which pertained to disputes between the family and private individuals (where the State had no role), cannot be subject to a challenge on the ground, that they are violative of the fundamental rights contained in Part III of the Constitution. The simple logic canvassed by learned counsel was, that all questions pertaining to different `personal laws' amongst Muslims having been converted into "rule of decision" could no longer be treated as private matters between the parties, nor would they be treated as matters of `personal law''. In addition, the logic adopted to canvass the above position was, that if it did not alter the earlier position, what was the purpose of bringing in the legislation (the Shariat Act).

151. On the assumption, that `personal law' stood transformed into `statutory law', learned senior counsel for the petitioners assailed the constitutional validity of `talaq-e-biddat', on the touchstone of Articles 14, 15 and 21 of the Constitution.

152. Mr. Kapil Sibal, learned senior counsel appearing for the AIMPLB, drew our attention to the debates in the Legislative Assembly, whereupon, the Muslim Personal Law (Shariat) Application Act, 1937 was enacted (for details, refer to paragraph 94). Having invited our attention to the above debates and more particularly to the statements of Abdul Qaiyum (representing North-West Frontier Province), it was contended, that the legislation under reference, was not enacted with the object of giving a statutory status to the Muslim `personal law' - `Shariat'. It was asserted, that the object was merely to negate the effect of usages and customs. It was pointed out, that even though Muslims were to be regulated under the Muslim `personal law' - `Shariat', yet customs and usages to the contrary were being given an overriding effect. To the extent that customs and usages even of local tribes (-as also of local villages), were being given an overriding position over Muslim `personal law', in the course of judicial determination, even where the parties were Muslims. It was therefore asserted, that it would be wrong to assume, that the aim and object of the legislators, while enacting the Shariat Act, was to give statutory status to Muslim `personal law' - `Shariat'. In other words, it was the contention of learned senior counsel, that the Shariat Act should only be understood as having negated customary practices and usages, which were in conflict with the existing Muslim `personal law' - `Shariat'.

153. Mr. V. Giri, learned senior counsel, supported the above contention by placing reliance on Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, on behalf of the AIMPLB. It was asserted, that Section 2 has a non obstante clause. It was pointed out, that aforestated non obstante clause was merely relatable to customs and usages. A perusal of Section 2, according to learned senior counsel, would leave no room for any doubt, that the customs and usages referred to in Section 2 of the Shariat Act, were only such customs and usages as were in conflict with the Muslim `personal law' - `Shariat'. It was accordingly submitted, that the object behind Section 2 of the Shariat Act was to declare the Muslim `personal law' - `Shariat', as the "rule of decision", in situations where customs and usages were to the contrary.

154. Learned senior counsel for the respondents desired us to accept their point of view, for yet another reason. It was submitted, that the Muslim Personal Law (Shariat) Application Act, 1937, did not decide what was, and what was not, Muslim `personal law' - `Shariat'. It was therefore pointed out, that it would be a misnomer to consider, that the Shariat Act, legislated in the field of Muslim `personal law' - `Shariat' in any manner on Muslim `personal law' - `Shariat'. It was submitted, that Muslim `personal law' - `Shariat' remained what it was. It was pointed out, that articles of faith as have been expressed on the questions/subjects regulated by the Shariat Act, have not been dealt with in the Act, they remained the same as were understood by the followers of that faith. It was accordingly contended, that the Muslim `personal law' - `Shariat', was not introduced/enacted through the Shariat Act. It was also pointed out, that the Shariat Act did not expound or propound the parameters on different questions or subjects, as were applicable to the Sunnis and Shias, and their different schools. It was accordingly submitted, that it would be a misnomer to interpret the provisions of the Shariat Act, as having given statutory status to different questions/subjects, with respect to `personal law' of Muslims. It was therefore contended, that the Muslim `personal law' - `Shariat' was never metamorphosed into a statute. It was therefore contended, that it would be wholly improper to assume that Muslim `personal law' - `Shariat' was given statutory effect, through the Muslim Personal Law (Shariat) Application Act, 1937.

155. Based on the above contentions, it was submitted, that the Muslim Personal Law (Shariat) Application Act, 1937 cannot be treated as having conferred statutory status on the Muslim `personal law' - `Shariat', and as such, the same cannot be treated as a statutory enactment, so as to be tested for its validity in the manner contemplated under Article 13(1) of the Constitution.

156. We have given our thoughtful consideration to the submissions advanced at the hands of learned counsel for the rival parties. Having closely examined Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, we are of the view, that the limited purpose of the aforesaid provision was to negate the overriding effect of usages and customs over the Muslim `personal law' - `Shariat'. This determination of ours clearly emerges even from the debates in the Legislative Assembly before the enactment of Muslim Personal Law (Shariat) Application Act, 1937. In fact, the statements of H.M. Abdullah (representing West Central Punjab) and Abdul Qaiyum (representing North-West Frontier Province), leave no room for any doubt, that the objective sought to be achieved by the `Shariat' was inter alia to negate the overriding effect on customs and usages over the Muslim `personal law' - `Shariat'. The debates reveal that customs and usages by tribals were being given overriding effect by courts while determining issues between Muslims. Even usages and customs of particular villages were given overriding effect over Muslim `personal law' - `Shariat'. We are also satisfied to accept the contention of the learned senior counsel, that a perusal of Section 2 and the non obstante clause used therein, has that effect. The Shariat Act, in our considered view, neither lays down nor declares the Muslim `personal law' - `Shariat'. Not even, on the questions/subjects covered by the legislation. There is no room for any doubt, that there is substantial divergence of norms regulating Shias and Sunnis. There was further divergence of norms, in their respective schools. The Shariat Act did not crystalise the norms as were to be applicable to Shias and Sunnis, or their respective schools. What was sought to be done through the Shariat Act, in our considered view, was to preserve Muslim `personal law' - `Shariat', as it existed from time immemorial. We are of the view, that the Shariat Act recognizes the Muslim `personal law' as the `rule of decision' in the same manner as Article 25 recognises the supremacy and enforceability of `personal law' of all religions. We are accordingly satisfied, that Muslim `personal law' - `Shariat' as body of law, was perpetuated by the Shariat Act, and what had become ambiguous (due to inundations through customs and usages), was clarified and crystalised. In contrast, if such a plea had been raised with reference to the Dissolution of Muslim Marriages Act, 1939, which legislatively postulated the grounds of divorce for Muslim women, the submission would have been acceptable. The 1939 Act would form a part of `statutory law', and not `personal law'. We are therefore constrained to accept the contention advanced by learned counsel for the respondents, that the proposition canvassed on behalf of the petitioners, namely, that the Muslim Personal Law (Shariat) Application Act, 1937 conferred statutory status, on the questions/subjects governed by the Shariat Act, cannot be accepted. That being the position, Muslim `personal law' - `Shariat' cannot be considered as a State enactment.

157. In view of the conclusions recorded in the foregoing paragraph, it is not possible for us to accept, the contention advanced on behalf of the petitioners, that the questions/subjects covered by the Muslim Personal Law (Shariat) Application Act, 1937 ceased to be `personal law' and got transformed into `statutory law'. Having concluded as above, we must also hold (-which we do), that the practices of Muslim `personal law' - `Shariat' cannot be required to satisfy the provisions contained in Part III - Fundamental Rights, of the Constitution, applicable to State actions, in terms of Article 13 of the Constitution.

VI. Does `talaq-e-biddat', violate the parameters expressed in Article 25 of the Constitution?

158. In our consideration recorded hereinabove, we have held, that the provisions of the Muslim Personal Law (Shariat) Application Act, 1937 did not alter the `personal law' status of the Muslim `personal law' - `Shariat'. We shall now deal with the next step. Since `talaq-e-biddat' remains a matter of `personal law', applicable to a Sunni Muslim belonging to the Hanafi school, can it be declared as not enforceable in law, as it violates the parameters expressed in Article 25 (which is also one of the pointed contentions of those supporting the petitioners case)?

159. The above proposition is strenuously opposed by all the learned counsel who appeared on behalf of the respondents, more particularly, learned senior counsel representing the AIMPLB. During the course of the instant opposition, our attention was invited to the judgment rendered by the Bombay High Court in the Narasu Appa Mali case. We may briefly advert thereto. In the said judgment authored by M.C. Chagla, CJ, in paragraph 13 and Gajendragadkar, J. (as he then was) in paragraph 23, recorded the following observations:

160. It seems to us, that the position expressed by the Bombay High Court, as has been extracted above, deserves to be considered as the presently declared position of law, more particularly, because it was conceded on behalf of the learned Attorney General for India, that the judgment rendered by the Bombay High Court in the Narasu Appa Mali case, has been upheld by the Court in the Shri Krishna Singh case and the Maharshi Avadhesh cases, wherein, this Court had tested the `personal laws' on the touchstone of fundamental rights in the cases of Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 (by a 5-Judge Constitution Bench), Daniel Latifi v. Union of India, 2001(4) RCR (Criminal) 468 : (2001) 7 SCC 740 (by a 5-Judge Constitution Bench), and in the John Vallamattom case, (by a 3-Judge Division Bench). An extract of the written submissions placed on the record of the case, on behalf of the Union of India, has been reproduced verbatim in paragraph 71 above.

161. The fair concession made at the hands of the learned Attorney General, is reason enough for us to accept the proposition, and the legal position expressed by the Bombay High Court, relevant part whereof has been extracted above. Despite our instant determination, it is essential for us to notice a few judgments on the issue, which would put a closure to the matter.

(i) Reference may first of all be made to the Shri Krishna Singh case. The factual position which arose in the above case, may be noticed as under:

In recording its conclusions with reference to Article 25, in the above disputed issue, this Court held as under:

(ii) Reference is also essential to Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125, wherein this Court observed a under:

(iii) In the Ahmedabad Women Action Group case, this Court recorded the questions arising for consideration in pargraphs 1 to 3, which are reproduced below:

The position expressed in respect of the above questions, after noticing the legal position propounded by this Court in the Madhu Kishwar case, was recorded in paragraph 4 as under:

(iv) Reference may also be made to the Sardar Syedna Taher Saifuddin Saheb case, wherein, this Court held as under:

(v) It is also essential to note the N. Adithyan case, wherein this Court observed as under:

(vi) Relevant to the issue is also the judgment in the Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi case, wherein it was held:

(vii) The position seems to be clear, that the judicial interference with `personal law' can be rendered only in such manner as has been provided for in Article 25 of the Constitution. It is not possible to breach the parameters of matters of faith, as they have the protective shield of Article 25 (except as provided in the provision itself).

162. To be fair to the learned Attorney General, it is necessary to record, that he contested the determination recorded by the Bombay High Court in the Narasu Appa Mali case, and the judgments rendered by this Court affirming the same, by assuming the stance that the position needed to be revisited (-for details, refer to paragraph 71 above). There are two reasons for us not to entertain this plea. Firstly, even according to the learned Attorney General, the proposition has been accepted by this Court in at least two judgments rendered by Constitution Benches (-of 5-Judge each), and as such, we (-as a 5-Judge Bench) are clearly disqualified to revisit the proposition. And secondly, a challenge to `personal law' is also competent under Article 25, if the provisions of Part III - Fundamental Rights, of the Constitution, are violated, which we shall in any case consider (hereinafter) while examining the submissions advanced on behalf of the petitioners. Likewise, we shall not dwell upon the submissions advanced in rebuttal by Mr. Kapil Sibal, Senior Advocate.

163. So far as the challenge to the practice of `talaq-e-biddat', with reference to the constitutional mandate contained in Article 25 is concerned, we have also delved into the submissions canvassed, during the course of hearing. It would be pertinent to mention, that the constitutional protection to tenets of `personal law' cannot be interfered with, as long as the same do not infringe "public order, morality and health", and/or "the provisions of Part III of the Constitution". This is the clear position expressed in Article 25(1).

164. We will now venture to examine the instant challenge with reference to the practice of `talaq-e-biddat'. It is not possible for us to accept, that the practice of `talaq-e-biddat' can be set aside and held as unsustainable in law for the three defined purposes expressed in Article 25(1), namely, for reasons of it being contrary to public order, morality and health. Viewed from any angle, it is impossible to conclude, that the practice impinges on `public order', or for that matter on `health'. We are also satisfied, that it has no nexus to `morality', as well. Therefore, in our considered view, the practice of `talaq-e-biddat' cannot be struck down on the three non permissible/prohibited areas which Article 25 forbids even in respect of `personal law'. It is therefore not possible for us to uphold the contention raised on behalf of the petitioners on this account.

165. The only remaining ground on which the challenge to `talaq-ebiddat' under Article 25 could be sustainable is, if `talaq-e-biddat' can be seen as violative of the provisions of Part III of the Constitution. The challenge raised at the behest of the petitioners, as has been extensively noticed during the course of recording the submissions advanced on behalf of the petitioners, was limited to the practice being allegedly violative of Articles 14, 15 and 21. We shall now examine the veracity of the instant contention. The fundamental rights enshrined in Articles 14, 15 and 21 are as against State actions. A challenge under these provisions (Articles 14, 15 and 21) can be invoked only against the State. It is essential to keep in mind, that Article 14 forbids the State from acting arbitrarily. Article 14 requires the State to ensure equality before the law and equal protection of the laws, within the territory of India. Likewise, Article 15 prohibits the State from taking discriminatory action on the grounds of religion, race, caste, sex or place of birth, or any of them. The mandate of Article 15 requires, the State to treat everyone equally. Even Article 21 is a protection from State action, inasmuch as, it prohibits the State from depriving anyone of the rights enuring to them, as a matter of life and liberty (-except, by procedure established by law). We have already rejected the contention advanced on behalf of the petitioners, that the provisions of the Muslim Personal Law (Shariat) Application Act, 1937, did not alter the `personal law' status of `Shariat'. We have not accepted, that after the enactment of the Shariat Act, the questions/subjects covered by the said legislation ceased to be `personal law', and got transformed into `statutory law'. Since we have held that Muslim `personal law' - `Shariat' is not based on any State Legislative action, we have therefore held, that Muslim `personal law' - `Shariat', cannot be tested on the touchstone of being a State action. Muslim `personal law' - `Shariat', in our view, is a matter of `personal law' of Muslims, to be traced from four sources, namely, the Quran, the `hadith', the `ijma' and the `qiyas'. None of these can be attributed to any State action. We have also already concluded, that `talaq-e-biddat' is a practice amongst Sunni Muslims of the Hanafi school. A practice which is a component of the `faith' of those belonging to that school. `Personal law', being a matter of religious faith, and not being State action, there is no question of its being violative of the provisions of the Constitution of India, more particularly, the provisions relied upon by the petitioners, to assail the practice of `talaq-e-biddat', namely, Articles 14, 15 and 21 of the Constitution.

VII. Constitutional morality and `talaq-e-biddat':

166. One of the issues canvassed on behalf of the petitioners, which was spearheaded by the learned Attorney General for India, was on the ground, that the constitutional validity of the practice of `talaq-e-biddat' - triple talaq, was in breach of constitutional morality. The question raised before us was, whether under a secular Constitution, women could be discriminated against, only on account of their religious identity? It was asserted, that women belonging to any individual religious denomination, cannot suffer a significantly inferior status in society, as compared to women professing some other religion. It was pointed out, that Muslim women, were placed in a position far more vulnerable than their counterparts, who professed other faiths. It was submitted, that Hindu, Christian, Zoroastrian, Buddhist, Sikh, Jain women, were not subjected to ouster from their matrimonial relationship, without any reasonable cause, certainly not, at the whim of the husband; certainly not, without due consideration of the views expressed by the wife, who had the right to repel a husband's claim for divorce. It was asserted, that `talaq-e-biddat', vests an unqualified right with the husband, to terminate the matrimonial alliance forthwith, without any reason or justification. It was submitted, that the process of `talaq-e-biddat' is extra-judicial, and as such, there are no remedial measures in place, for raising a challenge, to the devastating consequences on the concerned wife. It was pointed out, that the fundamental right to equality, guaranteed to every citizen under Article 14 of the Constitution, must be read to include, equality amongst women of different religious denominations. It was submitted, that gender equality, gender equity and gender justice, were values intrinsically intertwined in the guarantee assured to all (-citizens, and foreigners) under Article 14. It was asserted, that the conferment of social status based on patriarchal values, so as to place womenfolk at the mercy of men, cannot be sustained within the framework of the fundamental rights, provided for under Part III of the Constitution. It was contended, that besides equality, Articles 14 and 15 prohibit gender discrimination. It was pointed out, that discrimination on the ground of sex, was expressly prohibited under Article 15. It was contended, that the right of a woman to human dignity, social esteem and self-worth were vital facets, of the right to life under Article 21. It was submitted, that gender justice was a constitutional goal, contemplated by the framers of the Constitution. Referring to Article 51A(e) of the Constitution, it was pointed out, that one of the declared fundamental duties contained in Part IV of the Constitution, was to ensure that women were not subjected to derogatory practices, which impacted their dignity. It was pointed out, that gender equality and dignity of women, were nonnegotiable. It was highlighted, that women constituted half of the nation's population, and inequality against women, should necessarily entail an inference of wholesale gender discrimination.

167. In order to support the submissions advanced on behalf of the petitioners, as have been noticed hereinabove, reliance was placed on Sarla Mudgal v. Union of India, (1995) 3 SCC 635. Our pointed attention was drawn to the following observations recorded therein:

Reliance was also placed on the Valsamma Paul case, wherefrom learned counsel emphasized on the observations recorded in the following paragraphs:

Reference was also made to the decision of this Court in the John Vallamattom case, wherefrom learned counsel for the petitioner highlighted the following observations:

Last of all, our attention was drawn to the Masilamani Mudaliar case, wherefrom reliance was placed on the following:

168. We have given our thoughtful consideration to the submissions noticed in the foregoing paragraphs. We are of the view, that in the determination of the matter canvassed, the true purport and substance of Articles 25 and 44 have to be understood. We shall now endeavour to deal with the above provisions.

169. During the course of hearing our attention has been drawn to the Constituent Assembly debates, with reference to Article 25 (-draft Article 19). The debates reveal that the members of the Constituent Assembly understood a clear distinction between `personal law' and the `civil code'. `Personal law' was understood as based on the practices of members of communities. It was to be limited to the community itself, and would not affect members of other communities. The `civil code' on the other hand, had an unlimited reach. The `civil code' was understood to apply to every citizen of the land, to whatever community he may belong. So far as `personal law' is concerned, it was recognized as arising out of, practices followed by members of particular communities, over the ages. The only member of the Assembly, who made a presentation during the debates (- Mohammed Ismail Sahib) stated, "This practice of following `personal law' has been there amongst the people for ages. What we want under this amendment is that that practice should not be disturbed now and I want only the continuance of a practice that has been going on among the people for ages past ..... Under this amendment what I want this House to accept is that when we speak of the State doing anything with reference to the secular aspect of religion, the question of personal law shall not be brought in and it shall not be affected. ..... The question of professions, practicing and propagating one's faith is a right which the human being had from the very beginning of time and that has been recognized as an inalienable right of every human being, not only in this land, but the world over and I think that nothing should be done to affect that right of man as a human being. That part of the article as it stands is properly worded and it should stand as it is." It is apparent, that the position expressed in the Sarla Mudgal case, clearly reiterates the above exposition during the Constituent Assembly debates. The response to the above statement (-of Mohammed Ismail Sahib), was delivered by Laksnmikanta Mitra, who observed, "This Article 19 of the Draft Constitution confers on all persons the right to profess, practise and propagate any religion they like but this right has been circumscribed by certain conditions which the State would be free to impose in the interests of public morality, public order and public health and also in so far as the right conferred here does not conflict in any way with the other provisions elaborated under this part of the Constitution. Some of my Friends argued that this right ought not to be permitted in this Draft Constitution for the simple reason that we have declared time and again that this is going to be a secular State and as such practice of religion should not be permitted as a fundamental right. It has been further argued that by conferring the additional right to propagate a particular faith or religion the door is opened for all manner of troubles and conflicts which would eventually paralyse the normal life of the State. We would say at once that this conception of a secular State is wholly wrong. By secular State, as we understand it, is meant that the State is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. This means in essence that no particular religion in the State will receive any State patronage whatsoever. The State is not going to establish, patronise or endow any particular religion to the exclusion of or in preference to others and that no citizen in the State will have any preferential treatment or will be discriminated against simply on the ground that he professed a particular form of religion. ..... At the same time we must be very careful to see that this land of ours we do not deny to anybody the right not only to profess or practise but also to propagate any particular religion. .....Therefore I feel that the Constitution has rightly provided for this not only as a right but also as a fundamental right. In the exercise of this fundamental right every community inhabiting this State professing any religion will have equal right and equal facilities to do whatever it likes in accordance with its religion provided it does not clash with the conditions laid down here."

170. The debates in the Constituent Assembly with reference to Article 25, leave no room for any doubt, that the framers of the Constitution were firm in making `personal law' a part of the fundamental rights. With the liberty to the State to provide for social reform. It is also necessary to notice at this stage, that the judgment in the Valsamma Paul case, cannot be the basis for consideration in the present controversy, because it did not deal with issues arising out of `personal law' which enjoy a constitutional protection. What also needs to be recorded is, that the judgment in the John Vallamattom case, expresses that the matters of the nature, need to be dealt with through legislation, and as such, the view expressed in the above judgment cannot be of any assistance to further the petitioners' cause.

171. The debates of the Constituent Assembly with reference to Article 44, are also relevant. We may refer to draft Article 25 (which came to be enacted as Article 44). The Article requires the State to endeavour to secure a uniform `civil code'. A member who debated the provision during the deliberations of the Constituent Assembly, canvassed that groups and sections of religious denominations be given the right to adhere to their own personal law (-Mohamed Ismail Sahib), as it was felt, that interference in `personal law' would amount to interfering with "...the way of life and religion of the people...". It was also argued (-by Naziruddin Ahmad), that what was extended as a protection through Article 25 (-draft Article 19), namely, "...all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion...", was sought to be taken away via Article 44. The position highlighted, was that all religious practices should remain, beyond the purview of law. One member of the Constituent Assembly (-Mahbood Ali Baig Sahib Bahadur), said that the uniform civil code, in the Article, should not include `personal law'. He refuted the suggestions of M.Ananthasayanam Ayyangar by asserting, that practices of Muslims, in vogue for 1350 years could not be altered. Another member - Pocker Sahib Bahadur, supported the suggestion of Mohamed Ismail Sahib. The question he posed was "...whether by the freedom we have obtained for this country, are we going to give up the freedom of conscience and that freedom of religion practices and that freedom of following ones own personal law..." But all these submissions were rejected. All this leads to the clear understanding, that the Constitution requires the State to provide for a uniform civil code, to remedy and assuage, the maladies expressed in the submissions advanced by the learned Attorney General.

172. There can be no doubt, that the `personal law' has been elevated to the stature of a fundamental right in the Constitution. And as such, `personal law' is enforceable as it is. All constitutional Courts, are the constitutional guardians of all the Fundamental Rights (- included in Part III of the Constitution). It is therefore the constitutional duty of all Courts to protect, preserve and enforce, all fundamental rights, and not the other way around. It is judicially unthinkable for a Court, to accept any prayer to declare as unconstitutional (-or unacceptable in law), for any reason or logic, what the Constitution declares as a fundamental right. Because, in accepting the prayer(s), this Court would be denying the rights expressly protected under Article 25.

173. It is not possible to adopt concepts emerging from the American Constitution, over the provisions of the Indian Constitution. It is therefore not possible to refer to substantive due process, as the basis of the decision of the present controversy, when there are express provisions provided for, on the matter in hand, under the Indian Constitution. It is also not possible, to read into the Constitution, what the Constituent Assembly consciously and thoughtfully excluded (-or, to overlook provisions expressly incorporated). One cannot make a reference to decisions of the U.S. Supreme Court, though there would be no difficulty of their being taken into consideration for persuasive effect, in support of a cause, in consonance with the provisions of the Constitution of India and the laws. In fact, this Court is bound by the judgments of the Supreme Court of India, which in terms of Article 141 of the Constitution, are binding declarations of law.

174. The prayer made to this Court by those representing the petitioners' cause, on the ground that the practice of `talaq-e-biddat' is violative of the concept of constitutional morality cannot be acceded to, and is accordingly declined.

VIII. Reforms to `personal law' in India:

175. In our consideration, it is also necessary to briefly detail legislation in India with regard to matters strictly pertaining to `personal law', and particularly to the issues of marriage and divorce, i.e., matters strictly within the confines of `personal law'.

176(i). Reference in this context may first of all be made to the Divorce Act, 1869. The Statement of objects and reasons of the Bill, delineates the purpose that was sought to be achieved through the enactment. Relevant part thereof, is reproduced hereunder:-

(ii) The Divorce Act, 1869 provided for the grounds for dissolution of marriage in Section 10 thereof. The same is extracted hereunder:-

(iii) In addition to the above, consequent upon a further amendment, Section 10A was added thereto, to provide for dissolution of marriage by consent. What is sought to be highlighted is, that it required legislation to provide for divorce amongst the followers of the Christian faith in India. The instant legislation provided for grounds on which Christian husbands and wives could obtain divorce.

177 (i). Parsis in India, are the followers of the Iranian prophet Zoroaster. The Parsis, are stated to have migrated from Iran to India, to avoid religious persecution by the Muslims. Parsis in India were governed in the matter of marriage and divorce by their `personal law'. For the first time in 1865, the Parsi Marriage and Divorce Act was passed. The same was substituted by the Parsi Marriage and Divorce Act, 1936 after substantial amendments to the original enactment. The statement of objects and reasons of the Parsi Marriage and Divorce Act, 1936 clearly demonstrates the above position. The same is reproduced below:-

(ii) Chapter II of the aforesaid enactment, deals with the subject of marriages between Parsis. Section 3 provides for requisites of a valid Parsi marriage. Section 6 denotes a requirement of a certificate of marriage. Chapter IV provides for a variety of matrimonial suits, wherein Section 30 deals with suits for nullity. Section 31 deals with suits for dissolution of marriage. The grounds for divorce are set out in Section 32, which is reproduced herein below:-

(iii) In addition to the above, Section 32B introduced by way of an amendment, provides for divorce by mutual consent, and Section 34 provides for suits for judicial separation, and Section 36 provides for suits for restitution of conjugal rights.

178(i). The Special Marriage Act, 1872 provided for inter-faith marriages. The same came to be replaced by the Special Marriage Act, 1954. The statement of objects and reasons thereof is reproduced hereunder:-

(ii) The subject of solemnization of special marriages, is provided for in Section 4 of the above enactment. Section 4 lays down the conditions related to solemnization of special marriages, which requires a notice of the parties intending to get married, the procedure and conditions whereof are contained in Section 5. The provisions of the enactment require, entering a copy of the notice in the `marriage notice book', and the publication thereof by affixation of the copy thereof to some conspicuous place in the office of marriage officer. Objections to the contemplated marriage can be preferred under Section 7. The manner in which the objections have to be dealt with is provided for in Sections 8, 9 and 10. Consequent upon the completion of the formalities postulated in Chapter II of the enactment, parties are permitted to solemnize their marriage, for which the marriage officer shall issue a certificate of marriage, that would be considered as conclusive evidence of the fact that parties are married under the provisions of the Special Marriages Act, 1954.

(iii) Parties who have entered into a matrimonial alliance by way of ceremonies of marriage conducted under different faiths, and have been living together, are also permitted to register their marriage under the Special Marriage Act, 1954, under Section 15 thereof.

(iv) Chapter IV of the enactment deals with consequences of marriage under the Act. Chapter V provides the remedies of restitution of conjugal rights and judicial separation. Chapter VI defines void and voidable marriages, and provides for nullity of marriage and divorce. Section 27 included in Chapter VI incorporates the grounds for divorce, which are extracted hereunder:-

In addition to the above, Section 28 provides for divorce by mutual consent.

179. The Foreign Marriage Act, 1969 followed the Special Marriage Act, 1954. It was enacted on account of uncertainty of law related to foreign marriages. The statement of objects and reasons of the Foreign Marriage Act, 1969 expresses the holistic view, which led to the passing of the legislation. The same is reproduced below:-

(ii) Chapter II of the Foreign Marriage Act, 1969 provides for the solemnization of the foreign marriages. Section 4 contained therein expresses the conditions relating to solemnization of foreign marriages. The notice of an intended marriage is provided for in Section 5. The incorporation of the said marriage in the `marriage notice book' is contained in Section 6. The publication of such notice is provided for in Section 7. Objections to the proposed marriage can be filed under Section 8. Consequent upon the fulfillment of the conditions and determination by the marriage officer, the place and form of solemnization of marriage are detailed in Section 13, whereupon, the marriage officer is required to enter a certificate of marriage, which is accepted as evidence of the fact that the marriage between the parties had been solemnized. Chapter III mandates the registration of foreign marriages, solemnized under other laws. Section 17 provides for necessary requirements therefor.

(v) It would be relevant to mention, that matrimonial reliefs as are provided for under the Special Marriage Act, 1954 (- which are contained in Chapters IV, V and VI thereof) have been adopted for marriages registered under the Foreign Marriage Act, 1969 (-see paragraph 179 above).

180. Muslims are followers of Islam. Muslims consider the Quran their holy book. For their personal relations, they follow the Muslim `personal law' - `Shariat'. The Muslim Personal Law (Shariat) Application Act, 1937, as already noticed above provided, "the rule of decision" in matters pertaining, inter alia, to marriage, dissolution of marriage including talaq, ila, zihar, lian, khula and mubaraat would be the Muslim `personal law' - `Shariat', and not, any custom or usage to the contrary. It is therefore, that by a statutory intervention, customs and usages in conflict with Muslim `personal law', were done away with, in connection with `personal law' matters, in relation to Muslims. The Dissolution of Muslim Marriages Act, 1939 provided, grounds for dissolution of marriage to Muslim women, under Section 2 of the above enactment. Details with reference to 1937 and 1939 legislations, have already been narrated, in Part IV - Legislation in India, in the field of Muslim `personal law'. Reference may, therefore, be made to Part IV above.

181 (i). The law of marriage and divorce amongst Hindus, has had a chequered history. A marriage, according to Hindu law, is a holy sacrament, and not a contract (as is the case of Muslims). Originally there were eight forms of Hindu marriages, four of which were considered regular - and the rest irregular. The choice of marriage, was limited only to one's own religion and caste. Polygamy was permitted amongst Hindus, but not polyandry. Widow marriage was also not permitted. Legislation in respect of Hindu marriages commenced in 1829 when Sati was abolished by law. In 1856, Hindu Widows' Remarriage Act, legalized the marriage of Hindu widows. In 1860, the Indian Penal Code made polygamy a criminal offence. In 1866, Native Converts Marriage Dissolution Act facilitated divorce for Hindus, who had adopted the Christian faith. In 1872, Special Marriage Act was enacted, but it excluded Hindus. In 1869, the Indian Divorce Act was passed, but this too remained inapplicable to Hindus. In 1909, the Anand Marriage Act legalized marriages amongst Sikhs (called - Anand). In 1923, by an amendment to the Special Marriage Act, inter-religious civil marriages between Hindus, Buddhists, Sikhs and Jains were legalized. In 1937, the Arya Marriage Validation Act legalized the inter-caste marriages, and marriages with converts to Hinduism, among the followers of Arya Samaj. In 1949, Hindu Marriages Validity Act legalized inter-religious marriages.

(ii) The Hindu Marriage Act, was passed in 1955. Section 5 of the Hindu Marriage Act, 1955, provides for the conditions of a valid Hindu marriage. Section 7 incorporates the ceremonies required for a Hindu marriage. Section 8 provides for the requirement of registration of Hindu marriages. The remedies of restitution of conjugal rights and judicial separation, are provided for in Sections 9 and 10 respectively. Provisions related to nullity of marriages and divorce are contained in Sections 11 and 12. The grounds of divorce have been expressed in Section 13, which is reproduced below:-

By subsequent amendments, Section 13B was introduced, which provides for divorce by mutual consent.

182. A perusal of the details pertaining to legislation in India with regard to matters pertaining to `personal law', and particularly to issues of marriage and divorce for different religious communities reveals, that all issues governed by `personal law', were only altered by way of legislation. There is not a singular instance of judicial intervention, brought to our notice except a few judgments rendered by High Courts (-for details, refer to Part-6 - Judicial pronouncements, on the subject of `talaq-e-biddat'). These judgments, however, attempted the interpretative course, as against an invasive one. The details depicted above relate to marriage between Christians, Parsis, inter-faith marriages, Muslims and Hindus, including Buddhists, Sikhs and Jains. The unbroken practice during the preindependence period, and the post independence period - under the Constitution, demonstrates a clear and unambiguous course, namely, reform in the matter of marriage and divorce (which are integral components of `personal law') was only introduced through legislation. Therefore in continuation of the conclusion already recorded, namely, that it is the constitutional duty of all courts to preserve and protect `personal law' as a fundamental right, any change thereof, has to be only by legislation under Articles 25(2) and 44, read with entry 5 of the Concurrent List contained in the Seventh Schedule to the Constitution.

IX. Impact of international conventions and declarations on `talaq-ebiddat':

183. A number of learned counsel who assisted us in support of the petitioners' cause were emphatic, that the practice of `talaq-e-biddat' was rendered impermissible, as soon as, India accepted to be a signatory to international conventions and declarations, with which the practice was in clear conflict. It was submitted, that continuation of the practice of `talaq-ebiddat', sullied the image of the country internationally, as the nation was seen internationally as a defaulters to those conventions and declarations. It was pointed out, that by not consciously barring `talaq-e-biddat', and by knowingly allowing the practice to be followed, India was seen as persisting and propagating, what the international community considers abhorrent. It was therefore submitted, that the practice of `talaq-e-biddat' be declared as unacceptable in law, since it was in conflict with international conventions and declarations.

184. We may, in the first instance, briefly point out to the submissions advanced by Ms. Indira Jaising, learned senior counsel. She placed reliance on the Universal Declaration of Human Rights, adopted by the United Nations General Assembly as far back as in 1948. She drew our attention to the preamble thereof, to emphasise, that the declaration recognized the inherent dignity of human beings as equal and inalienable. She highlighted the fact, that the declaration envisioned equal rights for men and women - both in dignity and rights. For this, she placed reliance on Article 1 of the Declaration. Referring to Article 2, she asserted, that there could be no discrimination on the basis of sex. Learned senior counsel evoked the conscience of this Court, to give effect to the declaration, to which India was a signatory. This Court's attention was also invited to the International Conventions on Economic, Social and Cultural Rights (ICESCR). The pointed aim whereof was to eliminate all forms of discrimination, including discrimination on the basis of sex. It was highlighted, that the International Conventions Bill for Rights for Women was ratified by 189 States. Referring to Article 1 thereof, it was submitted, that the objective of the convention was to eradicate discrimination against women. Having signed the aforesaid convention, it was submitted, that it was the obligation of all the signatory States, to take positive and effective steps for elimination of all facets of discrimination against women. It was highlighted, that `talaq-ebiddat' was the worst form of discrimination, against women.

185. Learned Attorney General for India strongly supported the instant contention. It was his pointed assertion, that the Indian State was obligated to adhere the principles enshrined in international conventions. It was highlighted, that India was a founding member of the United Nations, and was bound by its charter. It was submitted, that gender equality as a human right, had been provided for in various conventions and declarations. We do not consider the necessity to repeat the submissions canvassed at the hands of the learned Attorney General, who painstakingly adverted to the same, to support his prayer, that `talaq-e-biddat' was a practice which violated a number of conventions to which India was a signatory. Details in this behalf, have been recorded by us in paragraph 74, while recording the submissions advanced by the learned Attorney General. The same be read herein, in continuation of the submissions briefly noticed above.

186. We have considered the submissions advanced on behalf of the petitioners, pointedly with reference to international conventions and declarations. We have not the least doubt, that the Indian State is committed to gender equality. This is the clear mandate of Article 14 of the Constitution. India is also committed to eradicate discrimination on the ground of sex. Articles 15 and 16 of the Constitution, prohibit any kind of discrimination on the basis of sex. There is therefore no reason or necessity while examining the issue of `talaq-e-biddat', to fall back upon international conventions and declarations. The Indian Constitution itself provides for the same.

187. The reason for us, not to accede to the submissions advanced at the behest of those who support the petitioners' cause, with pointed reference to international conventions and declarations, is based on Article 25 of the Constitution, whereby `personal law' of all religious denominations, is sought to be preserved. The protection of `personal laws' of religious sections, is elevated to the stature of a fundamental right, inasmuch as Article 25 of the Constitution, which affords such protection to `personal law' is a part of Part III (- Fundamental Rights), of the Constitution. It is therefore apparent, that whilst the Constitution of India supports all conventions and declarations which call for gender equality, the Constitution preserves `personal law' through which religious communities and denominations have governed themselves, as an exception.

188. Our affirmation, that international conventions and declarations are not binding to the extent they are in conflict with domestic laws, can be traced from a series of judgments rendered by this Court on the subject. Reference is being made to some of them herein below:

(i) Apparel Export Promotion Council v. A.K. Chopra, 1999(1) S.C.T. 642 : (1999) 1 SCC 759.,

(ii) 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

In the instant case, this Court relied upon international conventions to determine the true import of `burden of proof', under the Negotiable Instruments Act, 1881. This Court held as under:

(iii) State of Kerala v. Peoples Union for Civil Liberties, (2009) 8 SCC 46

The issue that arose for consideration in the instant case was with reference to the binding nature of the Indigenous and Tribal Populations Convention, 1957 and the declarations on the Rights of Indigenous People, 2007. Even though India had ratified convention and declaration, it was held, that the same were not binding. Reference may be made to the following observations recorded in the above judgment:

(iv) Safai Karamchari Andolan v. Union of India, (2014) 11 SCC 224

In the instant case, the question that arose for consideration revolved around the validity of the inhuman practice of manually removing night soil, which involves removal of human excrements from dry toilets with bare hands, brooms or metal scrappers, and thereupon, carrying the same in baskets to dumping sites for disposal. Dealing with the issue in the context of international conventions and declarations, this Court observed as under:

189. In view of the above, we are satisfied, that international conventions and declarations are of utmost importance, and have to be taken into consideration while interpreting domestic laws. But, there is one important exception to the above rule, and that is, that international conventions as are not in conflict with domestic law, alone can be relied upon. We are of the firm opinion, that the disputation in hand falls in the above exception. Insofar as `personal law' is concerned, the same has constitutional protection. Therefore if `personal law' is in conflict with international conventions and declarations, `personal law' will prevail. The contention advanced on behalf of the petitioners to hold the practice of `talaq-e-biddat', on account it being in conflict with conventions and declarations to which India is a signatory can therefore not be acceded to.

X. Conclusions emerging out of the above consideration:

190. The following conclusions emerge from the considerations recorded at I to IX above:

The declaration:

191. The whole nation seems to be up in arms. There is seemingly an overwhelming majority of Muslim-women, demanding that the practice of `talaq-e-biddat' which is sinful in theology, be declared as impermissible in law. The Union of India, has also participated in the debate. It has adopted an aggressive posture, seeking the invalidation of the practice by canvassing, that it violates the fundamental rights enshrined in Part III of the Constitution, and by further asserting, that it even violates constitutional morality. During the course of hearing, the issue was hotly canvassed in the media. Most of the views expressed in erudite articles on the subject, hugely affirmed that the practice was demeaning. Interestingly even during the course of hearing, learned counsel appearing for the rival parties, were in agreement, and described the practice of `talaq-e-biddat' differently as, unpleasant, distasteful and unsavory. The position adopted by others was harsher, they considered it as disgusting, loathsome and obnoxious. Some even described it as being debased, abhorrent and wretched.

192. We have arrived at the conclusion, that `talaq-e-biddat', is a matter of `personal law' of Sunni Muslims, belonging to the Hanafi school. It constitutes a matter of their faith. It has been practiced by them, for at least 1400 years. We have examined whether the practice satisfies the constraints provided for under Article 25 of the Constitution, and have arrived at the conclusion, that it does not breach any of them. We have also come to the conclusion, that the practice being a component of `personal law', has the protection of Article 25 of the Constitution.

193. Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion. The Constitution allows the followers of every religion, to follow their beliefs and religious traditions. The Constitution assures believers of all faiths, that their way of life, is guaranteed, and would not be subjected to any challenge, even though they may seem to others (-and even rationalists, practicing the same faith) unacceptable, in today's world and age. The Constitution extends this guarantee, because faith constitutes the religious consciousness, of the followers. It is this religious consciousness, which binds believers into separate entities. The Constitution endevours to protect and preserve, the beliefs of each of the separate entities, under Article 25.

194. Despite the views expressed by those who challenged the practice of `talaq-e-biddat', being able to demonstrate that the practice transcends the barriers of constitutional morality (emerging from different provisions of the Constitution), we have found ourselves unable to persuade ourselves, from reaching out in support of the petitioners concerns. We cannot accept the petitioners' claim, because the challenge raised is in respect of an issue of `personal law' which has constitutional protection.

195. In continuation of the position expressed above, we may acknowledge, that most of the prayers made to the Court (-at least on first blush) were persuasive enough, to solicit acceptance. Keeping in mind, that this opportunity had presented itself, so to say, to assuage the cause of Muslim women, it was felt, that the opportunity should not be lost. We are however satisfied that, that would not be the rightful course to tread. We were obliged to keep reminding ourselves, of the wisdoms of the framers of the Constitution, who placed matters of faith in Part III of the Constitution. Therefore, any endeavour to proceed on issues canvassed before us would, tantamount to overlooking the clear letter of law. We cannot nullify and declare as unacceptable in law, what the Constitution decrees us, not only to protect, but also to enforce. The authority to safeguard and compel compliance, is vested under a special jurisdiction in constitutional Courts (- under Article 32, with the Supreme Court; and under Article 226, with the High Courts). Accepting the petitioners prayers, would be in clear transgression of the constitutional mandate contained in Article 25.

196. Such a call of conscience, as the petitioners desire us to accept, may well have a cascading effect. We say so, because the contention of the learned Attorney General was, that `talaq-e-ahsan' and `talaq-e-hasan' were also liable to be declared unconstitutional, for the same reasons as have been expressed with reference to `talaq-e-biddat' (-for details, refer to paragraph 77 above). According to the learned Attorney General, the said forms of talaq also suffered from the same infirmities as `talaq-e-biddat'. The practices of `polygamy' and `halala' amongst Muslims are already under challenge before us. It is not difficult to comprehend, what kind of challenges would be raised by rationalists, assailing practices of different faiths on diverse grounds, based on all kinds of enlightened sensibilities. We have to be guarded, lest we find our conscience traversing into every nook and corner of religious practices, and `personal law'. Can a court, based on a righteous endeavour, declare that a matter of faith, be replaced - or be completely done away with. In the instant case, both prayers have been made. Replacement has been sought by reading the three pronouncements in `talaq-e-biddat', as one. Alternatively, replacement has been sought by reading into `talaq-e-biddat', measures of arbitration and conciliation, described in the Quran and the `hadiths'. The prayer is also for setting aside the practice, by holding it to be unconstitutional. The wisdom emerging from judgments rendered by this Court is unambiguous, namely, that while examining issues falling in the realm of religious practices or `personal law', it is not for a court to make a choice of something which it considers as forward looking or non-fundamentalist. It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and `personal law', must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be (-including self-proclaimed rationalists, of the same faith). Article 25 obliges all Constitutional Courts to protect `personal laws' and not to find fault therewith. Interference in matters of `personal law' is clearly beyond judicial examination. The judiciary must therefore, always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem. It is therefore, that this Court had the occasion to observe, "..... However laudible, desirable and attractive the result may seem ... an activist Court is not fully equipped to cope with the intricacies of the legislative subject and can at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading it to awaken, march and reach the goal. For, in whatever measure be the concern of this Court, it compulsively needs to apply, motion, described in judicial parlance as self-restraint ....."30

197. We have arrived at the conclusion, that the legal challenge raised at the behest of the petitioners must fail, on the judicial front. Be that as it may, the question still remains, whether this is a fit case for us to exercise our jurisdiction under Article 142, "...for doing complete justice ...", in the matter. The reason for us to probe the possibility of exercising our jurisdiction under Article 142, arises only for one simple reason, that all concerned are unequivocal, that besides being arbitrary the practice of `talaq-e-biddat' is gender discriminatory.

198. A perusal of the consideration recorded by us reveals, that the practice of `talaq-e-biddat' has been done away with, by way of legislation in a large number of egalitarian States, with sizeable Muslim population and even by theocratic Islamic States. Even the AIMPLB, the main contestant of the petitioners' prayers, whilst accepting the position canvassed on behalf of the petitioners, assumed the position, that it was not within the realm of judicial discretion, to set aside a matter of faith and religion. We have accepted the position assumed by the AIMPLB. It was however acknowledged even by the AIMPLB, that legislative will, could salvage the situation. This assertion was based on a conjoint reading of Articles 25(2) and Article 44 of the Constitution, read with entry 5 of the Concurrent List contained in the Seventh Schedule of the Constitution. There can be no doubt, and it is our definitive conclusion, that the position can only be salvaged by way of legislation. We understand, that it is not appropriate to tender advice to the legislature, to enact law on an issue. However, the position as it presents in the present case, seems to be a little different. Herein, the views expressed by the rival parties are not in contradiction. The Union of India has appeared before us in support of the cause of the petitioners. The stance adopted by the Union of India is sufficient for us to assume, that the Union of India supports the petitioners' cause. Unfortunately, the Union seeks at our hands, what truly falls in its own. The main party that opposed the petitioners' challenge, namely, the AIMPLB filed an affidavit before this Court affirming the following position:

A perusal of the above affidavit reveals, that the AIMPLB has undertaken to issue an advisory through its website, to advise those who enter into a matrimonial alliance, to agree in the `nikah-nama', that their marriage would not be dissolvable by `talaq-e-biddat'. The AIMPLB has sworn an affidavit to prescribe guidelines, to be followed in matters of divorce, emphasizing that `talaq-e-biddat' be avoided. It would not be incorrect to assume, that even the AIMPLB is on board, to assuage the petitioner's cause.

199. In view of the position expressed above, we are satisfied, that this is a case which presents a situation where this Court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution. We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to `talaq-e-biddat'. We hope and expect, that the contemplated legislation will also take into consideration advances in Muslim `personal law' - `Shariat', as have been corrected by legislation the world over, even by theocratic Islamic States. When the British rulers in India provided succor to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind. Measures have been adopted for other religious denominations (see at IX - Reforms to `personal law' in India), even in India, but not for the Muslims. We would therefore implore the legislature, to bestow its thoughtful consideration, to this issue of paramount importance. We would also beseech different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation.

200. Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing `talaq-e-biddat' as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining `talaq-ebiddat' (three pronouncements of `talaq', at one and the same time) - as one, or alternatively, if it is decided that the practice of `talaq-e-biddat' be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.

201. Disposed of in the above terms.

Kurian, J. - What is bad in theology was once good in law but after Shariat has been declared as the personal law, whether what is Quranically wrong can be legally right is the issue to be considered in this case. Therefore, the simple question that needs to be answered in this case is only whether triple talaq has any legal sanctity. That is no more res integra. This Court in Shamim Ara v. State of UP and Another, (2002) 7 SCC 518 has held, though not in so many words, that triple talaq lacks legal sanctity. Therefore, in terms of Article 141[46*], Shamim Ara is the law that is applicable in India.

202. Having said that, I shall also make an independent endeavor to explain the legal position in Shamim Ara and lay down the law explicitly.

203. The Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as "the 1937 Act") was enacted to put an end to the unholy, oppressive and discriminatory customs and usages in the Muslim community.[47*] Section 2 is most relevant in the face of the present controversy.

(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*]

207. There are four sources for Islamic law- (i) Quran (ii) Hadith (iii) Ijma (iv) Qiyas. The learned author has rightly said that the Holy Quran is the "first source of law". According to the learned author, pre-eminence is to be given to the Quran. That means, sources other than the Holy Quran are only to supplement what is given in it and to supply what is not provided for. In other words, there cannot be any Hadith, Ijma or Qiyas against what is expressly stated in the Quran. Islam cannot be anti-Quran. According to Justice Bader Durrez Ahmad in Masroor Ahmed v. State (NCT of Delhi) & Another, ILR (2007) II Delhi 1329 :

(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:

Verse 35 in Sura IV of the Quran speaks on arbitration for reconciliation-

Sura II contains the following verses pertaining to divorce:

210. These instructive verses do not require any interpretative exercise. They are clear and unambiguous as far as talaq is concerned. The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality.[51*] In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.

(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:

212. More than two decades later, Shamim Ara has referred to, as already noted above, the legal perspective across the country on the issue of triple talaq starting with the decision of the Calcutta High Court in Furzund Hossein v. Janu Bibee, ILR (1878) 4 Cal 588 in 1878 and finally, after discussing two decisions of the Gauhati High Court namely Jiauddin Ahmed v. Anwara Begum, (1981) 1 Gau LR 358 and Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 Gau LR 375, this Court held as follows-

(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.

214. Khalid, J. has been more vocal in Mohd. Haneefa:

215. After a detailed discussion on the aforementioned cases, it has been specifically held by this Court in Shamim Ara, at paragraph 15 that "...there are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq." It has to be particularly noted that this conclusion by the Bench in Shamim Ara is made after "respectful agreement" with Jiauddin Ahmed that "talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters - one from the wife's family and the other from the husband's; if the attempts fail, `talaq' may be effected." In the light of such specific findings as to how triple talaq is bad in law on account of not following the Quranic principles, it cannot be said that there is no ratio decidendi on triple talaq in Shamim Ara.

216. Shamim Ara has since been understood by various High Courts across the country as the law deprecating triple talaq as it is opposed to the tenets of the Holy Quran. Consequently, triple talaq lacks the approval of Shariat.

217. The High Court of Andhra Pradesh, in Zamrud Begum v. K. Md. Haneef and another, (2003) 3 ALD 220, is one of the first High Courts to affirm the view adopted in Shamim Ara. The High Court, after referring to Shamim Ara and all the other decisions mentioned therein, held in paragraphs 13 and 17 as follows:

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:

232. It is in this historical setting that it is necessary to advert to the various sub-sects of the Sunnis. Four major sub-sects are broadly recognized schools of Sunni law. They are the Hanafi school, Maliki school, Shafi'i school and Hanbali school. The overwhelming majority of Sunnis in India follow the Hanafi school of law. Mulla in Principles of Mahomedan Law (20th Ed.), pg. xix to xxi, has this to say about the Hanafi school:

233. Needless to add, the Hanafi school has supported the practice of Triple Talaq amongst the Sunni Muslims in India for many centuries.

234. Marriage in Islam is a contract, and like other contracts, may under certain circumstances, be terminated. There is something astonishingly modern about this - no public declaration is a condition precedent to the validity of a Muslim marriage nor is any religious ceremony deemed absolutely essential, though they are usually carried out. Apparently, before the time of Prophet Mahomed, the pagan Arab was absolutely free to repudiate his wife on a mere whim, but after the advent of Islam, divorce was permitted to a man if his wife by her indocility or bad character renders marital life impossible. In the absence of good reason, no man can justify a divorce for he then draws upon himself the curse of God. Indeed, Prophet Mahomed had declared divorce to be the most disliked of lawful things in the sight of God. The reason for this is not far to seek. Divorce breaks the marital tie which is fundamental to family life in Islam. Not only does it disrupt the marital tie between man and woman, but it has severe psychological and other repercussions on the children from such marriage.

235. This then leads us to the forms of divorce recognized in Islamic Law. Mulla (supra), at pages 393-395, puts it thus:

[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:

239. A word as to the meaning of the expression "Shariat". A.A.A. Fyzee (supra), at pages 9-11, describes "Shariat" as follows:

240. It can be seen that the 1937 Act is a preconstitutional legislative measure which would fall directly within Article 13(1) of the Constitution of India, which reads as under:

241. However, learned counsel for the Muslim Personal Board as well as other counsel supporting their stand have argued that, read in light of the Objects and Reasons, the 1937 Act was not meant to enforce Muslim personal law, which was enforceable by itself through the Courts in India. The 1937 Act was only meant, as the non-obstante clause in Section 2 indicates, to do away with custom or usage which is contrary to Muslim personal law.

242. We are afraid that such a constricted reading of the statute would be impermissible in law. True, the Objects and Reasons of a statute throw light on the background in which the statute was enacted, but it is difficult to read the non-obstante clause of Section 2 as governing the enacting part of the Section, or otherwise it will become a case of the tail wagging the dog. A similar attempt was made many years ago and rejected in Aswini Kumar Ghosh v. Arabinda Bose, 1953 SCR 1. This Court was concerned with Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951. Section 2 of the said Act read as follows:

243. The argument made before this Court was that the non-obstante clause furnishes the key to the proper interpretation of the scope of the Section and the enacting clause must, therefore, be construed as conferring only a right co-extensive with the disability removed by the opening clause. This argument was rejected by this Court as follows:

(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:

250. "Religion" has been given the widest possible meaning by this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 at 1023-1024. In this country, therefore, atheism would also form part of "religion". But one important caveat has been entered by this Court, namely, that only what is an essential religious practice is protected under Article 25. A few decisions have laid down what constitutes an essential religious practice. Thus, in Javed v. State of Haryana, 2003 (8) SCC 369, this Court stated as under:

(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:

Obviously, Triple Talaq does not fall within the first degree, since even assuming that it forms part of the Koran, Hadis or Ijmaa, it is not something "commanded". Equally Talaq itself is not a recommended action and, therefore, Triple Talaq will not fall within the second degree. Triple Talaq at best falls within the third degree, but probably falls more squarely within the fourth degree. It will be remembered that under the third degree, Triple Talaq is a permissible action as to which religion is indifferent. Within the fourth degree, it is reprobated as unworthy. We have already seen that though permissible in Hanafi jurisprudence, yet, that very jurisprudence castigates Triple Talaq as being sinful. It is clear, therefore, that Triple Talaq forms no part of Article 25(1). This being the case, the submission on behalf of the Muslim Personal Board that the ball must be bounced back to the legislature does not at all arise in that Article 25(2)(b) would only apply if a particular religious practice is first covered under Article 25(1) of the Constitution.

252. And this brings us to the question as to when petitions have been filed under Article 32 of the Constitution of India, is it permissible for us to state that we will not decide an alleged breach of a fundamental right, but will send the matter back to the legislature to remedy such a wrong.

253. In Prem Chand Garg v. Excise Commissioner, U.P., 1963 (Supp.) 1 SCR 885, this Court held:

254. We are heartened to note that in a recent U.S. Supreme Court decision the same thing has been said with respect to knocking at the doors of the U.S. Supreme Court in order to vindicate a basic right. In Obergefell v. Hodges, 135 S. Ct. 2584 at 2605, decided on June 26, 2015, the U.S. Supreme Court put it thus:

255. However, counsel for the Muslim Personal Board relied heavily on this Court's decision in Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573. This judgment refers to several earlier decisions to hold that the declarations sought for did not deserve disposal on merits, which involve issues of State policy that courts ordinarily do not have concern with. This Court, therefore, declined to entertain writ petitions that asked for very sweeping reliefs which, interestingly enough, included a declaration of voidness as to "unilateral talaq". This Court referred in detail to the judgment of the Bombay High Court in Narasu Appa (supra) in declining to review Muslim personal law. However, when it came to the challenge of a statutory enactment, Muslim Women (Protection of Rights on Divorce) Act, 1986, this Court did not wish to multiply proceedings in that behalf, as a challenge was pending before a Constitution Bench regarding the same.

256. Hard as we tried, it is difficult to discover any ratio in this judgment, as one part of the judgment contradicts another part. If one particular statutory enactment is already under challenge, there is no reason why other similar enactments which were also challenged should not have been disposed of by this Court. Quite apart from the above, it is a little difficult to appreciate such declination in the light of Prem Chand Garg (supra). This judgment, therefore, to the extent that it is contrary to at least two Constitution Bench decisions cannot possibly be said to be good law.

257. It is at this point that it is necessary to see whether a fundamental right has been violated by the 1937 Act insofar as it seeks to enforce Triple Talaq as a rule of law in the Courts in India.

258. Article 14 of the Constitution of India is a facet of equality of status and opportunity spoken of in the Preamble to the Constitution. The Article naturally divides itself into two parts- (1) equality before the law, and (2) the equal protection of the law. Judgments of this Court have referred to the fact that the equality before law concept has been derived from the law in the U.K., and the equal protection of the laws has been borrowed from the 14th Amendment to the Constitution of the United States of America. In a revealing judgment, Subba Rao, J., dissenting, in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14 at 34 further went on to state that whereas equality before law is a negative concept, the equal protection of the law has positive content. The early judgments of this Court referred to the "discrimination" aspect of Article 14, and evolved a rule by which subjects could be classified. If the classification was "intelligible" having regard to the object sought to be achieved, it would pass muster under Article 14's anti-discrimination aspect. Again, Subba Rao, J., dissenting, in Lachhman Das v. State of Punjab, (1963) 2 SCR 353 at 395, warned that overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the Article of its glorious content. He referred to the doctrine of classification as a "subsidiary rule" evolved by courts to give practical content to the said Article.

259. In the pre-1974 era, the judgments of this Court did refer to the "rule of law" or "positive" aspect of Article 14, the concomitant of which is that if an action is found to be arbitrary and, therefore, unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground. In S.G. Jaisinghani v. Union of India, (1967) 2 SCR 703, this Court held:

(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:

In fact, Mithu v. State of Punjab, (1983) 2 SCC 277, followed a Constitution Bench judgment in Sunil Batra v. Delhi Administration & Ors., (1978) 4 SCC 494. In that case, Section 30(2) of the Prisons Act was challenged as being unconstitutional, because every prisoner under sentence of death shall be confined in a cell apart from all other prisoners, that is to say he will be placed under solitary confinement. The Constitution Bench read down Section 30(2) to refer only to a person who is sentenced to death finally, which would include petitions for mercy to the Governor and/or to the President which have not yet been disposed of. In so holding, Desai, J. speaking for four learned Judges, held (at pages 574-575):

[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):

A binding judgment of five learned Judges of this Court cannot be said to be of "no assistance" by stating that the decision turned mainly on Article 21, though Article 14 was also referred to. It is clear that the ratio of the said Constitution Bench was based both on Article 14 and Article 21 as is clear from the judgment of the four learned Judges in paragraphs 19 and 23 set out supra.[66*] A three Judge Bench in the teeth of this ratio cannot, therefore, be said to be good law. Also, the binding Constitution Bench decision in Sunil Batra (supra), which held arbitrariness as a ground for striking down a legislative provision, is not at all referred to in the three Judge Bench decision in Mcdowell (supra).

271. The thread of reasonableness runs through the entire fundamental rights Chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three Judges' Bench decision in McDowell (supra) when it is said that a constitutional challenge can succeed on the ground that a law is "disproportionate, excessive or unreasonable", yet such challenge would fail on the very ground of the law being "unreasonable, unnecessary or unwarranted". The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.

272. We only need to point out that even after McDowell (supra), this Court has in fact negated statutory law on the ground of it being arbitrary and therefore violative of Article 14 of the Constitution of India. In Malpe Vishwanath Acharya v. State of Maharashtra, 1998(1) RCR (Rent) 17 : (1998) 2 SCC 1, this Court held that after passage of time, a law can become arbitrary, and, therefore, the freezing of rents at a 1940 market value under the Bombay Rent Act would be arbitrary and violative of Article 14 of the Constitution of India (see paragraphs 8 to 15 and 31).

273. Similarly in Mardia Chemicals Ltd. & Ors. v. Union of India & Ors. etc. etc., 2004(2) RCR (Civil) 665 : (2004) 4 SCC 311 at 354, this Court struck down Section 17(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, as follows:

274. In two other fairly recent judgments namely State of Tamil Nadu v. K. Shyam Sunder, (2011) 8 SCC 737 at paragraphs 50 to 53, and A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy, (2011) 9 SCC 286 at paragraph 29, this Court reiterated the position of law that a legislation can be struck down on the ground that it is arbitrary and therefore violative of Article 14 of the Constitution.

275. In a Constitution Bench decision in Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 at 524, an extravagant argument that the impugned legislation was intended to please a section of the community as part of the vote catching mechanism was held to not be a legally acceptable plea and rejected by holding that:

276. A subsequent Constitution Bench in K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1, dealt with the constitutional validity of the Roerich and Devikarani Roerich Estate (Acquisition and Transfer) Act, 1996, the legal validity of Section 110 of the Karnataka Land Reforms Act, 1961, Notification No. RD 217 LRA 93 dated 8-3-1994 issued by the State Government thereunder and the scope and content of Article 300A of the Constitution. While examining the validity of a legislation which deprives a person of property under Article 300-A, this Court when faced with Mcdowell (supra) pointed out that (at page 58):

[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):

279. However, in State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453 at paragraph 22, in State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312 at paragraphs 17 to 19, in Rajbala v. State of Haryana & Ors., (2016) 2 SCC 445 at paragraphs 53 to 65 and Binoy Viswam v. Union of India, (2017) 7 SCC 59 at paragraphs 80 to 82, McDowell (supra) was read as being an absolute bar to the use of "arbitrariness" as a tool to strike down legislation under Article 14. As has been noted by us earlier in this judgment, Mcdowell (supra) itself is per incuriam, not having noticed several judgments of Benches of equal or higher strength, its reasoning even otherwise being flawed. The judgments, following McDowell (supra) are, therefore, no longer good law.

280. To complete the picture, it is important to note that subordinate legislation can be struck down on the ground that it is arbitrary and, therefore, violative of Article 14 of the Constitution. In Cellular Operators Association of India v. Telecom Regulatory Authority of India, (2016) 7 SCC 703, this Court referred to earlier precedents, and held:

(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.

.