Reportable
IN THE SUPREME COURT OF INDIA
Original Civil Jurisdiction Writ Petition (C) No. 118 of
2016
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 versus Jamiat Ulma-I-Hind Writ Petition(C) No. 288 of 2016
Aafreen Rehman … Petitioner versus Union of India and others … Respondents Writ
Petition(C) No. 327 of 2016 Gulshan Parveen … Petitioner versus Union of India
and others … Respondents Writ Petition(C) No. 665 of 2016 Ishrat Jahan …
Petitioner versus Union of India and others … Respondents Writ Petition(C) No.
43 of 2017 Atiya Sabri … Petitioner versus Union of India and others …
Respondents
J U D G M E N T
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 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 190-190 3 consideration 10. Part-10 The declaration 191-201 Part-1. The
petitioner’s marital discord, and the petitioner’s prayers: 1. 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 4
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 5 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
XXXVI-B of the Supreme Court Rules, 1966, for the transfer of Matrimonial Case
No.1144 of 2015, 6 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: “2.3 The Petitioner who hails from Kashipur,
Uttarakhand is unemployed and her father is a government employee. The only
source of income is the Petitioner’s father who has a low income and despite
this the Petitioner during the time of marriage had made arrangements beyond
their capacity. But soon after the marriage the Respondent husband started
demanding for additional dowry and made unreasonable demands for a car and
cash. 2.4 The Petitioner who rightfully denied the demands of the Respondent
was tortured and physically abused by the Respondent and his family. She was
often beaten and kept hungry in a closed room for days. The family of the
Respondent administered her with medicines that caused her memory to fade. Due
to the medicines she remained unconscious for long hours. xxx xxx xxx 2.6 On
09.04.2015, the Respondent attempted to kill the Petitioner by administering
medicines. These medicines on inspection by a doctor on a later date were
revealed to cause loss of mental balance after regular consumption. The
Respondent brought the Petitioner to Moradabad in a critical near-death
condition with the intention of abandoning her if his dowry demands were not
fulfilled. 2.7. Thereafter on 10.04.2015 the Respondent called the parents of
the Petitioner to Moradabad to take their daughter. The parents of the
Petitioner requested him to come to Kashipur to meet and settle the issue. He
refused to go to Kashipur and said that they should come and take their
daughter or fulfil his demands for more dowry. He demanded Rs.5,00,000/-
(Rupees Five Lakh Only). 2.8. Due to the unreasonable demands and the torturous
behaviour of the Respondent husband, the Petitioner’s parents came to Moradabad
to take her and she was forced to stay with her parents after 10.04.2015. xxx
xxx xxx 2.13 The Respondent has filed for restitution despite the fact that he
himself had asked the Petitioner wife’s father to either fulfil his dowry
demands or to take the Petitioner back to her maternal home and in pursuance of
the same had drugged the Petitioner and had left her in Moradabad.” 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 7 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 Madam, Shayra Bano D/o Iqbal Ahmad. Be it clear that I
Rizwan Ahmed married with you without any dowry to spend a peaceful and happy
marital life. After marriage you came in my marital tie. From the relation
between you and me two issues namely Irfan Ahmad aged about 13 years and Kumari
Humaira Naz @ Muskan aged about 11 years were born who are receiving education
living under my guardianship. With a great sorrow it is being written that you,
just after 6 months of marriage, with your unreasonable and against Sharia acts
started to pressurize me to live separately from my parents. I, in order to
keep you happy and as per your wish started to live at a rented house at
Mohalla Ghausnagar and while working as a clerk under a builder tried my level
best to spend peaceful marital life with you and children. However, you, in an
unreasonable manner and against Shriah continued to create problem and quarrel
in house on regular basis. When you were asked the reason in a very
affectionate manner about two years ago, you had put a condition that now when
your other relatives are not with you in such situation come with me to my
parents’ house and live further life there. I being a person from a
self-respecting family refused to live as ‘son in law living at in-laws house’.
Then you, under the influence of your parents, continued to fake various mental
and physical pains and continued to behave life a mental patient. When tried to
know the reason then you after much difficulty told that you had med with a
serious accident before marriage. I for the sake of my children and you
tolerated that. I became despondent from your persistent demand of living at
your parental house and your being of stubborn nature, your giving threat of
implicating in false case and threat of inflicting injury to yourself and of
consuming poison and implicating me in false case on that count given on daily
basis and complained about the same to your paternal uncle but your father
replied that whenever you do such acts sleeping pills be given to you. I found
this very baffling, upon asking your father told that since the time before
your marriage you had been under treatment for mental ailment. I ignored such a
big incident and the information received about you. Resultantly you became
audacious in your behavior. When reported all these things to your father, your
father told me that this is the time of children’s 8 holidays you be sent to
your parents’ house with children. You take them back after the atmosphere is
changed and summer vacations are over. Acting on the words of your father I
left you at your parents’ place along with children and while going, you took
away gold jewelry given by me including a gold neck set of two Tolas, gold
bangles of one and a half Tola, two gold rings of half Tola and cash
Rs.15,000/-. I continued to visit you enquiring your wellbeing and giving you
expenses from time to time. That in the month of May and June when I tried to
bring you then you gave excuses and pleas. I continued to make repeated
attempts between May to July to bring you back but ultimately on 03.07.2015 you
clearly refused to return and on 07.07.2015 you father brought both the
children at Allahabad Railway Station and left them there informing me and gave
threat on phone that either you will come here and live or shall perform the
role of father and mother of both the children. In this regard when I enquired
from you then you also refused to return in clear words and said to the extent
that you raise the children and forget me or separate from me to bring another
mother for the children. On this also I could not satisfy myself, whereupon I
filed a suit for bringing you back. After receiving notice, out of the blues
you threatened me on phone that I will soon file a case and will tell you how a
son in law is kept at the inlaws house. Being fed up with your unreasonable
conduct and against Sharaih acts I found it better to separate from you,
therefore, I on 8.10.2015 applied for dismissal of the suit for bringing you
back and now I, in my full senses and in the presence of marginal witnesses,
release you from my marriage in the light of Shariah through tripel talaq by
uttering ‘I give talaq’, ‘I give talaq’, ‘I give talaq’. From today the
relation of husband and wife forever ends between you and me. After today you
are unlawful for me and I have become unlawful for you. You are free to spend
your life the way you want. Note: So far is the question of your dower (Mehr)
and expenses of waiting period (iddat) that I am paying through demand draft
no.096976 dated 06.10.2015 drawn at Allahabad Bank, Karaili, Allahabad Branch,
which comprises a sum of Rs.10,151 towards payment of dower and Rs.5,500/-
towards the expenses of waiting period which I am sending along with this
written deed of divorce, you kindly take paid to accept the same. Dated
10.10.2015 Witnesses:- 1. Mohd. Yaseen, s/o Abdul Majid, R/o J.K. Colony, Ghaus
Nagar, Karaili, Allahabad; 2. Ayaz Ahmed S/o Imtiyaz Hussain R/o G.T.B. Nagar,
Karaili Scheme, Allahabad Only Sd/ Hindi Rizwan Ahmed (Rizwan Ahmed) S/o Iqbal
Ahmed Ghaus Nagar, Karaili, Allahabad” 9 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 10 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 11 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
12 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. 13 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).
14 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: “222. They ask thee Concerning women’s courses.
Say : They are A hurt and a pollution : So keep away from women In their
courses, and do not Approach them until They are clean. But when they have
Purified themselves, Ye may approach them In any manner, time, or place
Ordained for you by God. For God loves those Who turn to Him constantly And he
loves those Who keep themselves pure and clean. 223.Your wives are As a tilth
unto you ; So approach your tilth When or how ye will ; But do some good act
For your souls beforehand ; And fear God, And know that ye are 15 To meet Him
(in the Hereafter), And give (these) good tidlings To those who believe.” 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: “224. And make not God’s (name) an excuse
In your oaths against Doing good, or acting rightly, 16 Or making peace Between
persons; For God is one Who heareth and knoweth All things. 225. God will not
Call you to account For thoughtlessness In your oaths, But for the intention In
your hearts; And He is Oft-forgiving Most Forbearing. 226. For those who take
An oath for abstention From their wives, A waiting for four months Is ordained;
If then they return, God is Oft-forgiving, Most Merciful. 227. But if their
intention Is firm for divorce, God heareth And knoweth all things. 228.
Divorced women Shall wait concerning themselves For three monthly periods. Nor
is it lawful for them To hide what God Hath created in their wombs, If they
have faith In God and the Last Day. And their husbands Have the better right To
take them back In that period, if They wish for reconciliation. And women shall
have rights Similar to the rights Against them, according To what is equitable;
But men have a degree (Of advantage) over them And God is Exalted in Power
Wise.” 17 ‘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 18
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: “229. A divorce is only Permissible twice: after
that, The parties should either hold Together on equitable terms, Or separate
with kindness. It is not lawful for you, (Men), to take back Any of your gifts
(from your wives), Except when both parties Fear that they would be Unable to
keep the limits Ordained by God. If ye (judges) do indeed Fear that they would
be Unable to keep the limits Ordained by God, There is no blame on either Of
them if she give Something for her freedom. These are the limits Ordained by
God; So do not transgress them If any do transgress The limits ordained by God,
Such persons wrong (Themselves as well as others) 19 230.So if a husband
Divorces his wife (irrevocably), He cannot, after that, Re-marry her until
After she has married Another husband and He has divorced her. In that case
there is No blame on either of them If they re-unite, provided They feel that
they Can keep the limits Ordained by God. Such are the limits Ordained by God,
Which He makes plain To those who understand. 231.When ye divorce Women, and
they fulfil The term of their (‘Iddat’) Either taken them back On equitable
terms Or set them free On equitable terms; But do not take them back To injure
them, (or) to take Undue advantage; If any one does that, He wrongs his own
soul. Do not treat God’s Signs As a jest, But solemnly rehearse God’s favours
on you, And the fact that He Send down to you The Book And Wisdom, For your
instruction. And fear God, And know that God Is well acquainted With all
things.” 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 20 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 21 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: “232. When ye
divorce Women, and they fulfil The term of their (‘Iddat’), Do not prevent them
From marrying Their (former) husbands, If they mutually agree On equitable
terms. This instruction Is for all amongst you, Who believe in God And the Last
Day. That is (the course Making for) more virtue And purity amongst you, And
God knows, And ye know not. 233. The mothers shall give suck To their offspring
For two whole years, If the father desires To complete the term. But he shall
bear the cost Of their food and clothing On equitable terms. No soul shall have
A burden laid on it 22 Greater than it can bear. No mother shall be Treated
unfairly On account of his child, An heir shall be chargeable In the same way.
If they both decide On weaning, By mutual consent, And after due consultation,
There is no blame on them. If ye decide On a foster-mother For your offspring, There
is no blame on you, Provided ye pay (the mother) What ye offered, On equitable
terms. But fear God and know That God sees well What ye do.” 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 23 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: “237. And if ye divorce them Before consummation, But after
the fixation Of a dower for them, Then the half of the dower (Is due to them),
unless They remit it Or (the man’s half) is remitted By him in whose hands Is
the marriage tie; And the remission (Of the man’s half) Is the nearest to
righteousness. And do not forget Liberality between yourselves. For God sees
well All that ye do.” 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: “34. Men
are the protectors And maintainers of women, Because God has given The one more
(strength) Than the other, and because They support them 24 From their means.
Therefore the righteous women Are devoutly obedient, and guard In (the
husband’s) absence What God would have them guard. As to those women On whose
part ye fear Disloyalty and ill-conduct, Admonish them (first), (Next), refuse
to share their beds, (And last) beat them (lightly); But if they return to
obedience, Seek not against them Means (of annoyance): For God is Most High,
Great (above you all). 35. If ye fear a breach Between them twain, Appoint
(two) arbiters, One from his family, And the other from hers; If they wish for
peace, God will cause Their reconciliation: For God hath full knowledge, And is
acquainted With all things.” Section 19, Sura IV “128.If a wife fears Cruelty
or desertion On her husband’s part, There is no blame on them, If they arrange
An amicable settlement Between themselves; And such settlement is best; Even
though men’s souls Are swayed by greed. But if ye do good And practice
self-restraint God is well-acquainted With all that ye do.” 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 25 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. 26 20. The last relevant ‘verses’ – 1 and
2, are contained in ‘section’ 1 of ‘sura’ – LXV. The same are reproduced below:
“1. Prophet! When ye Do divorce women, Divorce them at their Prescribed
periods, And count (accurately) Their prescribed periods: And fear God your
Lord: And turn them not out Of their houses, nor shall They (themselves) leave,
Except in case they are Guilty of some open lewdness, Those are limits Set by
God: and any Who transgresses the limits Of God, does verily Wrong his (own)
soul: Thou knowest not if Perchance God will Bring about thereafter Some new
situation. 2. Thus when they fulfil Their term appointed, Either take them back
On equitable terms Or part with them On equitable terms; And take for witness
Two persons from among you, Endued with justice, And establish the evidence
(As) before God. Such Is the admonition given To him who believes In God and
the Last Day. And for those who fear God, He (ever) prepares A way out,”
‘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
27 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 petitoner’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’. 28 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: “For several years past it has been the
cherished desire of the Muslims of British India that Customary Law should in
no case take the place of Muslim Personal Law. The matter has been repeatedly
agitated in the press as well as on the platform. The Jamiat-ul-Ulema-i-Hind,
the greatest Moslem religious body has supported the demand and invited the
attention of all concerned to the urgent necessity of introducing a measure to
this effect. Customary Law is a misnomer inasmuch as it has not any sound basis
to stand upon and is very much liable to frequent changes and cannot be
expected to attain at any time in the future that certainty and definiteness
which must be the characteristic of all laws. The status of Muslim women under
the so-called Customary Law is simply disgraceful. All the Muslim Women
Organisations have therefore condemned the Customary Law as it adversely
affects their rights. They demand that the Muslim Personal Law (Shariat) should
be made applicable to them. The introduction of Muslim Personal Law will
automatically raise them to the position to which they are naturally entitled.
In addition to this present measure, if enacted, would have very salutary
effect on society because it would ensure certainty and 29 definiteness in the
mutual rights and obligations of the public. Muslim Personal Law (Shariat)
exists in the form of a veritable code and is too well known to admit of any
doubt or to entail any great labour in the shape of research, which is the
chief feature of Customary Law.” 23. Sections 2, 3 and 5 of the Shariat Act are
relevant and are extracted hereunder: “2. Application of personal law to
Muslims.- Notwithstanding any customs or usage to the contrary, in all
questions (save questions relating to agricultural land) regarding 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 (other than charities and charitable institutions and charitable and
religious endowments) the rule of decision in cases where the parties are
Muslims shall be the Muslim Personal Law (Shariat).” 3. Power to make a
declaration.- (1) Any person who satisfies the prescribed authority- (a) that
he is a Muslim, and (b) that he is competent to contract within the meaning of
section 11 of the Contract Act, 1872 (9 of 1872), and (c) that he is a resident
of the territories to which this Act extends, may by declaration in the
prescribed form and filed before the prescribed authority declare that he
desires to obtain the benefit of the provisions of this section, and thereafter
the provisions of section 2 shall apply to the declarant and all his minor
children and their descendants as if in addition to the matters enumerated
therein adoption, wills and legacies were also specified. (2) Where the
prescribed authority refuses to accept a declaration under sub-section (1), the
person desiring to make the same may appeal to such officer as the Government
may, by general or special order, appoint in this behalf, and such officer may,
if he is satisfied that the appellant is entitled to make the declaration,
order the prescribed authority to accept the same. xxx xxx xxx 5. Dissolution
of marriage by Court in certain circumstances.-The District Judge may, on
petition made by a Muslim married woman, dissolve a marriage on any ground recognized
by Muslim Personal Law (Shariat).” 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 30 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 31
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: “There is no proviso in the Hanafi Code of
Muslim Law enabling a married Muslim woman to obtain a decree from the Court
dissolving her marriage in case the husband neglects to maintain her, makes her
life miserable by deserting or persistently maltreating her or absconds leaving
her unprovided for and under certain other circumstances. The absence of such a
provision has entailed unspeakable misery to innumerable Muslim women in
British India. The Hanafi Jurists however, have clearly laid down that in cases
in which the application of Hanafi Law causes hardship, it is permissible to
apply the provisions of the “Maliki, Shafii or Hambali Law”. Acting on this
principle the Ulemas have issued fatwas to the effect that in cases enumerated
in clause 3, Part A of this Bill (now see section 2 of the Act), a married
Muslim woman may obtain a decree dissolving her marriage. A lucid exposition of
this principle can be found in the book called “Heelatun Najeza” published by
Maulana Ashraf Ali Sahib who has made an exhaustive study of the provisions of
Maliki Law which under the circumstances prevailing in India may be applied to
such cases. This has been approved by a large number of Ulemas who have put their
seals of approval on the book. As the Courts are sure to hesitate to apply the
Maliki Law to the case of a Muslim woman, legislation recognizing and enforcing
the above mentioned principle is called for in order to relieve the sufferings
of countless Muslim women. One more point remains in connection with the
dissolution of marriages. It is this. The Courts in British India have held in
a number of cases that the apostasy of a married Muslim woman ipso facto
dissolves her marriage. This view has been repeatedly challenged at the bar,
but the Courts continue to stick to precedents created by rulings based on an
erroneous view of the Muslim Law. The Ulemas have issued Fatwas supporting
non-dissolution of marriage by reason of wife’s apostasy. The Muslim community
has, again and again, given expression to its supreme dissatisfaction with the
view held by the Courts. Any number of articles have been appearing in the
press demanding legislation to rectify the mistake committed by the Courts;
hence clause 5 (now see section 4) is proposed to be incorporated in this Bill.
Thus, by this Bill the whole Law relating to dissolution of marriages is
brought at one place and consolidated in the hope that it would supply a very
long felt want of the Muslim Community in India”. 32 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:
“2. Grounds for decree for dissolution of marriage.—A woman married under
Muslim law shall be entitled to obtain a decree for the dissolution of her
marriage on any one or more of the following grounds, namely:— (i) that the
whereabouts of the husband have not been known for a period of four years; (ii)
that the husband has neglected or has failed to provide for her maintenance for
a period of two years; (iii) that the husband has been sentenced to
imprisonment for a period of seven years or upwards; (iv) that the husband has
failed to perform, without reasonable cause, his marital obligations for a
period of three years; (v) that the husband was impotent at the time of the
marriage and continues to be so; (vi) that the husband has been insane for a
period of two years or is suffering from leprosy or virulent venereal disease;
(vii) that she, having been given in marriage by her father or other guardian
before she attained the age of fifteen years, repudiated the marriage before
attaining the age of eighteen years: Provided that the marriage has not been
consummated; (viii) that the husband treats her with cruelty, that is to say,—
(a) habitually assaults her or makes her life miserable by cruelty of conduct
even if such conduct does not amount to physical ill-treatment, or (b)
associates with women of evil repute or leads an infamous life, or (c) attempts
to force her to lead an immoral life, or (d) disposes of her property or
prevents her exercising her legal rights over it, or (e) obstructs her in the
observance of her religious profession or practice, or (f) if he has more wives
than one, does not treat her equitably in accordance with the injunctions of
the Quran; (ix) on any other ground which is recognised as valid for the
dissolution of marriages under Muslim law: Provided that— (a) no decree shall
be passed on ground (iii) until the sentence has become final; (b) a decree
passed on ground (i) shall not take effect for a period of six months from the
date of such decree, and if the husband appears either in person or through an
authorised agent within that period and satisfies the Court that he is prepared
to perform his conjugal duties, the Court shall set aside the said decree; and
33 (c) before passing a decree on ground (v) the Court shall, on application by
the husband, make an order requiring the husband to satisfy the Court within a
period of one year from the date of such order that he has ceased to be
impotent, and if the husband so satisfies the Court within such period, no
decree shall be passed on the said ground.” 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. 34 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: Code of Family Law 1984 Law No.84-11 of 1984 as amended
in 2005 “Article 49. Divorce cannot be established except by a judgment of the
court, preceded by an attempt at reconciliation for a period not exceeding
three months.” (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: Law of Personal Status 1929 Law 25 of 1929 as amended by Law 100 of
1985 “Article 1. A Talaq pronounced under the effect of intoxication or
compulsion shall not be effective. Article 2. A conditional Talaq which is not
meant to take effect immediately shall have no effect if it is used as an
inducement to do some act or to abstain from it. Article 3. A Talaq accompanied
by a number, expressly or impliedly, shall not be effective except as a single
revocable divorce. Article 4. Symbolic expressions of talaq, i.e., words which
may or may not bear the implication of a divorce, shall not effect a divorce
unless the husband actually intended it.” (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:
Code of Personal Status 1959 Law 188 of 1959 as amended by Law 90 of 1987
“Article 35. No divorce shall be effective when pronounced by the persons
mentioned below: (a) one who is intoxicated, insane or imbecile, under duress,
or not in his senses due to anger, sudden calamity, old age or sickness; (b) a
person in death-sickness or in a condition which in all probabilities is fatal
and of which he actually dies, survived by his wife.” xxx xxx xxx Article 37.
(1) Where a Talaq is coupled with a number, express or implied, not more than
one divorce shall take place. 35 (2) If a woman is divorced thrice on three
separate occasions by her husband, no revocation or remarriage would be
permissible after that. xxx xxx xxx Article 39. (1) When a person intends to
divorce his wife, he shall institute a suit in the Court of Personal Status
requesting that it be effected and that an order be issued therefor. If a
person cannot so approach the court, registration of the divorce in the court
during the period of Iddat shall be binding on him. (2) The certificate of
marriage shall remain valid till it is cancelled by the court.” (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: Code of Personal
Status 1976 Law 61 of 1976 “Article 88. (1) Talaq shall not be effective if
pronounced under intoxication, bewilderment, compulsion, mental disorder,
depression or effect of sleep. (2) ‘Bewildered’ is one who has lost senses due
to anger or provocation, etc., and cannot understand what he is saying. xxx xxx
xxx Article 90. A divorce coupled with a number, expressly or impliedly, as
also a divorce repeated in the same sitting, will not take effect except as a
single divorce. xxx xxx xxx Article 94. Every divorce shall be revocable except
the final third, one before consummation and one with consideration. xxx xxx
xxx Article 98. Where an irrevocable Talaq was pronounced once or twice,
renewal of marriage with the consent of parties is not prohibited.” (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: Code of Personal Status 1984 Law 51 of 1984
“Article 102. Talaq may be effected by major and sane men acting by their free
will and understanding the implications of their action. Therefore Talaq shall
not take effect if the husband is mentally handicapped, imbecile, under
coercion, mistake, intoxication, fear or high anger affecting his speech and
action. xxx xxx xxx 36 Article 109. If a Talaq is pronounced with a number
(two, three) by words, signs or writing, only one Talaq shall take effect.”
(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: Family Rights Law 1962 Law of 16 July 1962
“Article 104. A divorce by a drunk person shall have no effect. Article 105. A
divorce pronounced under coercion shall have no effect.” (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: Family Law 1984 Law 10 of 1984 as amended by Law 15
of 1984 “Article 28. Divorce is termination of the marriage bond. No divorce
will become effective in any case except by a decree of a competent court and
subject to the provision of Article 30. Article 29. Divorce is of two kinds –
revocable and irrevocable. Revocable divorce does not terminate the marriage
till the expiry of Iddat. Irrevocable divorce terminates the marriage
forthwith. Article 30. All divorces shall be revocable except a third-time divorce,
one before consummation of marriage, one for a consideration, and those
specified in this law to be irrevocable. Article 31. A divorce shall be
effective only if pronounced in clear words showing intention to dissolve the
marriage. Symbolic or metaphorical expression will not dissolve the marriage.
Article 32. A divorce pronounced by a minor or insane person, or if pronounced
under coercion, or with no clear intention to dissolve the marriage, shall have
no legal effect. Article 33. (1) A divorce meant to be effect on some action or
omission of the wife shall have no legal effect. (2) A divorce given with a
view to binding the wife to an oath or restrain her from doing something shall
have no legal effect. (3) A divorce to which a number is attached, by express
words or a gesture, shall effect only a single revocable divorce, except when
it is pronounced for the third time. xxx xxx xxx Article 35. The marriage may
be dissolved by mutual consent of the parties. Such a divorce must be
registered with the court. If the parties cannot agree on the terms of such a
divorce, they shall approach the 37 court and it will appoint arbitrators to
settle the matter or reconcile them. xxx xxx xxx Article 47. A divorce must be
pronounced in a court and in the presence of the other party or his or her
representative. The court shall before giving effect to a divorce exhaust all
possibilities of reconciliation.” (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: Code of Personal Status 2004 Law 70.03 of 2004 “Article 79.
Whoever divorces his wife by Talaq must petition the court for permission to
register it with the Public Notaries of the area where the matrimonial home is
situate, or where the wife resides, or where the marriage took place. Article
80. The petition will mention the identity of spouses, their professions,
addresses, number of children, if any, with their age, health condition and
educational status. It must be supported by a copy of the marriage agreement
and a document stating the husband’s social status and financial obligations.
Article 81. The court shall summon the spouses and attempt reconciliation. If
the husband deliberately abstains, this will be deemed to be withdrawal of the
petition. If the wife abstains, the court will notify her that if she does not
present herself the petition may be decided in her absence. If the husband has
fraudulently given a wrong address for the wife, he may be prosecuted at her
instance. Article 82. The court will hear the parties and their witnesses in
camera and take all possible steps to reconcile them, including appointment of
arbitrators or a family reconciliation council, and if there are children such
efforts shall be exhausted within thirty days. If reconciliation takes place, a
report will be filed with the court. Article 83. If reconciliation attempts
fail, the court shall fix an amount to be deposited by the husband in the court
within thirty days towards payment of the wife’s post-divorce dues and
maintenance of children. xxx xxx xxx Article 90. No divorce is permissible for
a person who is not in his senses or is under coercion or provocation. xxx xxx
xxx Article 92. Multiple expressions of divorce, oral or written, shall have
the effect of a single divorce only. xxx xxx xxx Article 123. Every divorce
pronounced by the husband shall be revocable, except a third-time divorce,
divorce before consummation of 38 marriage, divorce by mutual consent, and
divorce by Khula or Talaq-eTafweez. (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: Law on Talaq 1935 Judicial Proclamation No.4 of 1935 “Article 1. A
divorce uttered in a state of intoxication or under duress shall be invalid and
ineffective. Article 2. A contingent divorce which is not meant to be effective
immediately and is used as an inducement or threat shall have not effect.
Article 3. A formula of divorce coupled with a number, expressly or impliedly,
shall effect only one divorce. Article 4. Metaphorical expressions used for a
divorce shall have the effect of dissolving the marriage only if the husband
actually meant a divorce.” (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: Code of Personal Status 1953 Law 59 of 1953 as amended
by Law 34 of 1975 “Article 89. No divorce shall take place when the man is
drunk, out of his senses, or under duress. A person is out of his senses when
due to anger, etc. he does not appreciate what he says. Article 90. A
conditional divorce shall have no effect if not actually intended and used only
as an inducement to do or abstain from doing something or as an oath or
persuasion. xxx xxx xxx Article 92. If a divorce is coupled with a number,
expressly or impliedly, not more than one divorce shall take place. xxx xxx xxx
Article 94. Every divorce shall be revocable except a third-time divorce, one
before consummation, a divorce with a consideration, and a divorce stated in
this Code to be irrevocable. xxx xxx xxx Article 117. Where a person divorces
his wife the court may, if satisfied that he has arbitrarily done so without
any reasonable cause and that as a result of the divorce the wife shall suffer
damage and become destitute, give a decision, with due regard to the husband’s
financial condition and the amount of wife’s suffering, that he should pay her
compensation not exceeding three years’ maintenance, in addition to maintenance
payable 39 during the period of Iddat. It may be directed to be paid either in
a lump sum or in instalments as the circumstances of a case may require. (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: Code of Personal Status 1956
Law 13-8 of 1956 as amended by Law 7 of 1981 “Article 31.(1) A decree of
divorce shall be given: (i) with the mutual consent of the parties; or (ii) at
the instance of either party on the ground of injury; or (iii) if the husband
insists on divorce or the wife demands it. The party causing material or mental
injury by the fact of divorce under clauses (ii) and (iii) shall be directed to
indemnify the aggrieved spouse. (2) As regards the woman to be indemnified for
material injury in terms of money, the same shall be paid to her after the
expiry of Iddat and may be in the form of retention of the matrimonial home.
This indemnity will be subject to revision, increase or decrease in accordance
with the changes in the circumstances of the divorced wife until she is alive
or until she changes her marital status by marrying again. If the former
husband dies, this indemnity will be a charge on his estate and will have to be
met by his heirs if they consent to it and will be decided by the court if they
disagree. They may pay her in a lump sum within one year from the former
husband’s death the indemnity claimable by her. Article 32 (1) No divorce shall
be decreed except after the court has made an overall inquiry into the causes
of rift and failed to effect reconciliation. (2) Where no reconciliation is
possible the court shall provide, even if not asked to, for all important
matters relating to the residence of the spouses, maintenance and custody of
children and meeting the children, except when the parties specifically agree
to forgo all or any of these rights. The court shall fix the maintenance on the
basis of all those facts which it comes to know while attempting
reconciliation. All important matters shall be provided for in the decree, which
shall be nonappealable but can be reviewed for making additional provisions.
(3) The court of first instance shall pass orders in the matters of divorce and
all concerning matters including the compensation money to which the divorced
wife may be entitled after the expiry of Iddat. The portions of the decree
relating to custody, maintenance, compensation, residence and right to visit
children shall be executed immediately.” (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 40 the Shia sect constitute its majority.
On the issue in hand, it has the following legislation in place: Law of
Personal Status 2005 Federal Law No.28 of 2005 “Article 140(1). If a husband
divorces his wife after consummation of a valid marriage by his unilateral
action and without any move for divorce from her side, she will be entitled to
compensation besides maintenance for Iddat. The amount of compensation will be
decided with due regard to the means of the husband and the hardship suffered
by the wife, but it shall not exceed the amount of one year’s maintenance
payable in law to a woman of her status. (2) The Kazi may decree the
compensation, to be paid as a lump sum or in instalments, according to the
husband’s ability to pay.” (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: Decree on
Personal Status 1992 Decree 20 of 1992 “Article 61. A divorce shall not be
effective if pronounced by a man who is drunk, or has lost his senses, or has
no power of discernment, if this is shown by his condition and action. xxx xxx
xxx Article 64. A divorce to which a number is attached, whatever be the
number, will effect only a single revocable divorce. Article 65. The words
saying that if the wife did or failed to do something she will stand divorced
will not effect a divorce. Article 66. The words that if an oath or vow is
broken it will effect a divorce will not dissolve the marriage even if the said
oath or vow is broken. Article 67. A divorce can be revoked by the husband
during the Iddat period. After the expiry of Iddat, a direct remarriage between
them will be lawful. xxx xxx xxx Article 71. If a man arbitrarily divorces his
wife without any reasonable ground and it causes hardship to her, the court may
grant her compensation payable by the husband not exceeding maintenance for one
year in accordance with her status. The court may decide if the compensation
will be paid as a lump sum or in instalments.” 41 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: (a) Law of Marriage 1974
Law 1 of 1974 “Article 38. A divorce shall be effected only in the court and
the court shall not permit a divorce before attempting reconciliation between
the parties. Divorce shall be permissible only for sufficient reasons
indicating breakdown of marriage. xxx xxx xxx Article 41. In the event of a
divorce both the parents shall continue to be responsible for the maintenance
of their children. As regards custody of children, in case of a dispute between
them the court shall take a decision. Expenses of maintenance and education
shall be primarily the father’s liability, but if he is unable to discharge
this liability the court may transfer it to the mother. The court may also
direct the former husband to pay alimony to the divorced wife.” (b) Marriage
Regulations 1975 Regulation 9 of 1975 “Article 14. A man married under Islamic
law wanting to divorce his wife shall by a letter notify his intention to the
District Court seeking proceedings for that purpose. Article 15. On receiving a
letter the court shall, within thirty days, summon the parties and gather from
them all relevant facts. Article 16. If the court is satisfied of the existence
of any of the grounds mentioned in Article 19 below and is convinced that no
reconciliation between the parties is possible it will allow a divorce. Article
17. Immediately after allowing a divorce as laid down in Article 16 above the
court shall issue a certificate of divorce and send it to the Registrar for
registration of the divorce. xxx xxx xxx Article 19. A divorce may be allowed
on the petition of either party if the other party: (a) has committed adultery
or become addict to alcohol, drugs, gambling or another serious vice; (b) has
deserted the aggrieved party for two years or more without any legal ground and
against the said party’s will; (c) has been imprisoned for at least five years;
(d) has treated the aggrieved party with cruelty of an injurious nature; 42 (e)
has been suffering from a physical deformity affecting conjugal duties, or
where relations between the spouses have become too much strained making
reconciliation impossible.” (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: Islamic Family Law Act 1984 Act 304 of 1984 “Article 47. (1) A
husband or a wife who desires a divorce shall present an application for
divorce to the court in the prescribed form accompanied by a statutory
declaration containing (a) particulars of the marriage and the name, ages and
sex of the children, if any, of the marriage; (b) particulars of the facts
giving the court jurisdiction under Section 45; (c) particulars of any previous
matrimonial proceedings between the parties, including the place of the
proceedings; (d) a statement as to the reasons for desiring divorce; (e) a
statement as to whether any, and if so, what steps have been taken to effect
reconciliation; (f) the terms of any agreement regarding maintenance and
habitation of the wife and the children of the marriage, if any, and the
division of any assets acquired through the joint effort of the parties, if
any, or where no such agreement has been reached, the applicant’s proposals
regarding those matters; and (g) particulars of the order sought. (2) Upon
receiving an application for divorce, the court shall cause summons to be
served on the other party together with a copy of the application and the
statutory declaration made by the applicant, and the summons shall direct the
other party to appear before the court so as to enable it to inquire whether or
not the other party consents to the divorce. (3) If the other party consents to
the divorce and the court is satisfied after due inquiry and investigation that
the marriage has irretrievably broken down, the court shall advise the husband
to pronounce one Talaq before the court. (4) The court shall record the fact of
the pronouncement of one Talaq and shall send a certified copy of the record to
the appropriate Registrar and to the Chief Registrar for registration. (5)
Where the other party does not consent to the divorce or it appears to the
court that there is reasonable possibility of a reconciliation between the
parties, the court shall as soon as possible appoint a Conciliatory Committee
consisting of a religious officer as Chairman and two other persons, one to act
for the husband and the other for the wife, and refer the case to the
Committee. 43 (6) In appointing the two persons under sub-section (5) the court
shall, where possible, give preference to close relatives of the parties having
knowledge of the circumstances of the case. (7) The court may give directions
to the Conciliatory Committee as to the conduct of the conciliation and it
shall conduct it in accordance with such directions. (8) If the Committee is
unable to agree or if the court is not satisfied with its conduct of the
conciliation, the court may remove the Committee and appoint another Committee
in its place. (9) The Committee shall endeavour to effect reconciliation within
a period of six months from the date of its being constituted or such further
period as may be allowed by the court. (10) The Committee shall require the
attendance of the parties and shall give each of them an opportunity of being
heard and may hear such other persons and make such inquiries as it thinks fit
and may, if it considers it necessary, adjourn its proceedings from time to
time. (11) If the Conciliatory Committee is unable to effect reconciliation and
is unable to persuade the parties to resume their conjugal relationship, it
shall issue a certificate to that effect and may append to the certificate such
recommendations as it thinks fit regarding maintenance and custody of the minor
children of the marriage, if any, regarding division of property and other
matters related to the marriage. (12) No advocate and solicitor shall appear or
act for any party in any proceeding before a Conciliatory Committee and no
party shall be represented by any person other than a member of his or her
family without the leave of the Conciliatory Committee. (13) Where the Committee
reports to the court that reconciliation has been effected and the parties have
resumed their conjugal relationship, the court shall dismiss the application
for divorce. (14) Where the Committee submits to the court a certificate that
it is unable to effect reconciliation and to persuade the parties to resume the
conjugal relationship, the court shall advise the husband to pronounce one
Talaq before the court, and where the court is unable to procure the presence
of the husband before the court to pronounce one Talaq, or where the husband
refuses to pronounce one Talaq, the court shall refer the case to the Hakams
[arbitrators] for action according to section 48. (15) The requirement of
sub-section (5) as to reference to a Conciliatory Committee shall not apply in
any case (a) where the applicant alleges that he or she has been deserted by an
does not know the whereabouts of the other party; (b) where the other party is
residing outside West Malaysia and it is unlikely that he or she will be within
the jurisdiction of the court within six months after the date of the
application; (c) where the other party is imprisoned for a term of three years
or more; (d) where the applicant alleges that the other party is suffering from
incurable mental illness; or (e) where the court is satisfied that there are
exceptional circumstances which make reference to a Conciliatory Committee
impracticable. 44 (16) Save as provided in sub-section (17), a Talaq pronounced
by the husband or an order made by the court shall not be effective until the
expiry of the Iddat. (17) If the wife is pregnant at the time the Talaq is
pronounced or the order is made, the Talaq or the order shall not be effective
until the pregnancy ends.” (iii) Philippines: Is a secular State. Christians constitute
its majority. On the issue in hand, it has the following legislation in place:
Code of Muslim Personal Law 1977 Decree No.1083 of 1977 “Article 46. (1) A
divorce by Talaq may be effected by the husband in a single repudiation of his
wife during her Tuhr [non-menstrual period] within which he has totally
abstained from carnal relations with her. (2) Any number of repudiations made
during one Tuhr [non-menstrual period] shall constitute only one repudiation
and shall become irrevocable after the expiration of the prescribed Iddat. (3)
A husband who repudiates his wife, either for the first or second time, shall
have the right to take her back within the Iddat period by resumption of
cohabitation without need of a new contract of marriage. Should he fail to do
so, the repudiation shall become irrevocable. xxx xxx xxx Article 85. Within
seven days after the revocation of a divorce the husband shall, with the wife’s
consent, send a statement thereof to the Circuit Registrar in whose records the
divorce was previously entered. xxx xxx xxx Article 161. (1) A Muslim male who
has pronounced a Talaq shall, without delay, file with the Clerk of the Sharia
Circuit Court of the place where his family resides a written notice of such
fact and the circumstances attending thereto, after having served a copy to the
wife concerned. The Talaq pronounced shall not become irrevocable until after
the expiration of the prescribed Iddat. (2) Within seven days from receipt of
notice the Clerk of the Court shall require each of the parties to nominate a
representative. The representatives shall be appointed by the court to
constitute, with the Clerk of the Court as Chairman, an Agama [religious
scholars] Arbitration Council which shall try and submit to the court a report
on the result of arbitration on the basis of which, and such other evidence as
may be allowed, the court will pass an order. (3) The provisions of this
Article will be observed if the wife exercises right to Talaq-e-Tafweez. xxx
xxx xxx 45 Article 183. A person who fails to comply with the requirements of
Article 85, 161 and 162 of this Code shall be penalized by imprisonment or a
fine of two hundred to two thousand Pesos, or both.” 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: Muslim Family Laws Ordinance 1961 Ordinance VIII of 1961 amended in
Bangladesh by Ordinance 114 of 1985 (Bangladesh changes noted below relevant
provisions) “Section 7. (1) Any man who wishes to divorce his wife shall, as
soon as may be after the pronouncement of Talaq in any form whatsoever, give
the Chairman a notice in writing of his having done so, and shall supply a copy
thereof to the wife. (2) Whoever contravenes the provision of sub-section (1)
shall be punishable with simple imprisonment for a term which may extend to one
year, or with fine which may extend to five thousand rupees, or with both.
[Bangladesh: ten thousand taka] (3) Save as provided in sub-section (5), a
Talaq unless revoked earlier, expressly or otherwise, shall not be effective
until the expiration of ninety days from the day on which notice under subsection
(1) is delivered to the Chairman. (4) Within thirty days of the receipt of
notice under sub-section (1) the Chairman shall constitute an Arbitration
Council for the purpose of bringing about reconciliation between the parties,
and the Arbitration council shall take all steps necessary to bring about such
reconciliation. (5) If the wife be pregnant at the time Talaq is pronounced,
Talaq shall not be effective until the period mentioned in sub-section (3) or
of pregnancy, whichever is later, ends. (6) Nothing shall debar a wife whose
marriage has been terminated by Talaq effective under this section from
re-marrying the same husband without any intervening marriage with a third
person, unless such termination is for the third time so effective.” (ii) Sri Lanka:
Is a secular State. Buddhists constitute its majority. On the issue in hand, it
has the following legislation in place: Muslim Marriage and Divorce Act 1951
Act 6 of 1951 as amended by Act 40 of 2006 46 “Section 17 (4) Save as otherwise
hereinafter expressly provided, every marriage contracted between Muslims after
the commencement of this Act shall be registered, as hereinafter provided,
immediately upon the conclusion of the Nikah ceremony connected therewith. (5)
In the case of each such marriage, the duty of causing it to be registered is
hereby imposed upon the following persons concerned in the marriage; (a) the
bridegroom, (b) the guardian of the bride, and (c) the person who conducted the
Nikah ceremony connected with the marriage. Section 27. Where a husband desires
to divorce his wife the procedure laid down in Schedule II shall be followed.”
(2) Where a wife desires to effect a divorce from her husband on any ground not
referred to in sub-section (1), being a divorce of any description permitted to
a wife by the Muslim law governing the sect to which the parties belong, the
procedure laid down in the Schedule III shall be followed so far as the nature
of the divorce claimed in each case renders it possible or necessary to follow
that procedure. 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
Khatun1. (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 Rs.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 1 AIR 1932 PC 25 47 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 Rs.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: “15.
Their Lordships are of opinion that the pronouncement of the triple talak by
Ghiyas-ud-din constituted an immediately effective divorce, and, while they are
satisfied that the High Court were not justified in such a conclusion on the
evidence in the present case, they are of opinion that the validity and
effectiveness of the divorce would not be affected by Ghiyas-ud-din’s mental
intention that it should not be a genuine divorce, as such a view is contrary
to all authority. A talak actually pronounced under compulsion or in jest is
valid and effective: Baillie’s Digest, 2nd edn., p. 208; Ameer Ali's Mohammedan
Law, 3rd edn., vol. ii, p. 518; Hamilton's Hedaya, vol. i, p. 211. 16. The
respondents sought to found on the admitted fact that for about fifteen years
after the divorce Ghiyas-ud-din treated Anisa Fatima as his wife and his
children as legitimate, and on certain admissions of their status said to have
been made by appellant No. 1 and respondent pro 48 forma No. 10, who are
brothers of Ghiyas-ud-din, but once the divorce is held proved such facts could
not undo its effect or confer such a status on the respondents. 17. While
admitting that, upon divorce by the triple talak, Ghiyas-ud-din could not
lawfully remarry Anisa Fatima until she had married another and the latter had
divorced her or died, the respondents maintained that the acknowledgment of
their legitimacy by Ghiyas-ud-din, subsequent to the divorce, raised the
presumption that Anisa Fatima had in the interval married another, who had died
or divorced her, and that Ghiyas-ud-din had married her again, and that it was
for the appellants to displace that presumption. In support of this contention,
they founded on certain dicta in the judgment of this Board in Habibur Rahman
Chowdhury v. Altaf Ali Chowdhury L.R. 48 I.A. 114. Their Lordships find it
difficult to regard this contention as a serious one, for these dicta directly
negative it. The passage relied on, which related to indirect proof of
Mahomedan marriage by acknowledgment of a son as a legitimate son is as
follows: “It must not be impossible upon the face of it, i.e., it must not be
made when the ages are such that it is impossible in nature for the
acknowledgor to be the father of the acknowledgee, or when the mother spoken to
in an acknowledgment, being the wife of another, or within prohibited degrees
of the acknowledgor, it would be apparent that the issue would be the issue of
adultery or incest. The acknowledgment may be repudiated by the acknowledgee.
But if none of these objections occur, then the acknowledgment has more than
evidential value. It raises a presumption of marriage – a presumption which may
be taken advantage of either by a wife-claimant or a son-claimant. Being,
however, a presumption of fact, and not juris et de jure, it is, like every
other presumption of fact capable of being set aside by contrary proof. 18. The
legal bar to re-marriage created by the divorce in the present case would
equally prevent the raising of the presumption. If the respondents had proved the
removal of that bar by proving the marriage of Anisa Fatima to another after
the divorce and the death of the latter or his divorce of her prior to the
birth of the children and their acknowledgment as legitimate, the respondents
might then have had the benefit of the presumption, but not otherwise. 19.
Their Lordships are, therefore, of opinion that the appeal should be allowed,
that the decree of the High Court should be reversed, and that the decree of
the Subordinate Judge should be restored, the appellants to have the costs of
his appeal and their costs in the High Court. Their Lordships will humbly
advise His Majesty accordingly.” (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 49 cohabit for 15 long years thereafter, wherefrom 5 offsprings
were born to them 31. Jiauddin Ahmed v. Anwara Begum2, (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 2 (1981) 1 Gau.L.R. 358 50
Maulana Mohammad Ali) and the views of jurists (Ameer Ali and Fyzee), with
pointed reference to ‘talaq’, which was narrated as under: “Islam tried to
maintain the married state as far as possible, especially where children are
concerned, but it is against the restriction of the liberty of men and women in
such vitally important matters as love and family life. It will check hasty
action as far as possible and leave the door to reconciliation open at many
stages. Even after divorce a suggestion of reconciliation is made, subject to
certain precautions against thoughtless action. A period of waiting (Iddat) for
three monthly courses is prescribed, in order to see if the marriage
conditionally dissolved is likely to result in issue. But this is not necessary
where the divorced woman is a virgin. It is definitely declared that women and
men shall have similar rights against each other. Yusuf Ali has further
observed: "Where divorce for mutual incompatibility is allowed, there is
danger that the parties might act hastily, then repent, and again wish to
separate. To prevent such capricious action repeatedly, a limit is prescribed.
Two divorces (with a reconciliation between) are allowed. After that the
parties must unitedly make up their minds, either to dissolve their union
permanently, or to live honourable lives together in mutual love and
forbearance to 'hold together on equitable terms, 'neither party worrying the
other nor grumbling nor evading the duties and responsibilities of marriage''.
Yusuf Ali proceeds: "All the prohibitions and limits prescribed here are
in the interests of good and honourable lives for both sides, and in the
interests of a clean and honourable social life, without public or private
scandals..." * * * * "Two divorces followed by re-union are
permissible; the third time the divorce becomes irrevocable, until the woman
marries some other man and he divorces her. This is to set an almost impossible
condition. The lesson is: if a man loves a woman he should not allow a sudden
gust of temper or anger to induce him to take hasty action... If the man takes
back his wife after two divorces, he must do so only on equitable terms, i.e.
he must not put pressure on the woman to prejudice her rights in any way, and
they must live clean and honourable lives, respecting each other's
personalities..." The learned Commentator further observes : "The
termination of a marriage bond is a most serious matter for family and social
life. An every lawful device is approved which can equitably bring back those
who have lived together, provided only there is mutual love and they can live
on honourable terms with each other. If these conditions are fulfilled, it is
no right for outsiders to prevent or hinder reunion. They may be swayed by
property or other considerations." 51 (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: "An excellent plan for settling family
disputes, without too much publicity or mud-throwing, or resort to the
chicaneries of the law. The Latin countries recognise this plan in their legal
system. It is a pity that Muslims do not resort to it universally, as they
should. The arbiters from each family would know the idiosyncrasies of both
parties, and would be able, with God's help, effect a real reconciliation."
Maulana Mohammad Ali has commented on the above verse thus: "This verse
lays down the procedure to be adopted when a case for divorce arises. It is not
for the husband to put away his wife; it is the business of the judge to decide
the case. Nor should the divorce case be made too public. The Judge is required
to appoint two arbitrators, one belonging to the wife's family and the other to
the husband's. These two arbitrators will find out the facts but their
objective must be to effect a reconciliation between the parties. If all hopes
of reconciliation fail, a divorce is allowed. But the final decision rests with
the judge who is legally entitled to pronounce a divorce. Cases were decided in
accordance with the directions contained in this verse in the early days of
Islam.” The same learned author commenting on the above verse (IV: 35) in his
the Religion of Islam has observed: "From what has been said above, it is
clear that not only must there be a good cause for divorce, but that all means
to effect reconciliation must have been exhausted before resort is had to this
extreme measure. The impression that a Muslim husband may put away his wife at
his mere caprice, is a grave distortion of the Islamic institution of
divorce." Fyzee denounces talaq as "absurd and unjust". Abdur
Rahim says: "I may remark that the interpretation of the law of divorce by
the jurists, specially of the Hanafi School, is one flagrant instance where
because of literal adherence to mere words and a certain tendency towards
subtleties they have reached a result in direct antagonism to the admitted
policy of the law on the subject." 12. Mohammad Ali has observed:-
"Divorce is thus discouraged: 'If you hate them (i.e. your wives) it may
be that you dislike a thing while Allah has placed abundant good in it."
Remedies are also suggested to avoid divorce so long as possible: "And if
you fear a breach between the two (i.e. the husband and the wife), then appoint
a judge from his people and a judge from her people; if they both desire
agreement, Allah will effect harmony between them. It was due to such teachings
of the Holy Quran that the Holy Prophet declared divorce to be the most hateful
of all things permitted....The mentality of the Muslim is to face the
difficulties of the married life along with its comforts and to avoid
disturbing the disruption of the family 52 relations as long as possible,
turning to divorce only as a last resort." The learned author has further
observed: "The principle of divorce spoken of in the Holy Quran and which
in fact includes to a greater or less extent all causes, is the decision no
longer to live together as husband and wife. In fact, marriage itself is
nothing but an agreement to live together as husband and wife and when either
of the parties finds him or herself unable to agree to such a life, divorce
must follow. It is not, of course, meant that every disagreement between them
would lead to divorce; it is only the disagreement to live any more as husband
and wife...” He then refers to the condition laid down in Sura IV verse 35. The
learned author proceeds: "The 'shiqaq' or breach of the marriage agreement
may also arise from the conduct of either party; for instance, if either of
them misconducts himself or herself, or either of them is consistently cruel to
the other, or, as may sometimes happen there is incompatibility of temperament
to such an extent that they cannot live together in marital agreement. The
'shiqaq' in these cases is more express, but still it will depend upon the
parties whether they can pull on or not. Divorce must always follow when one of
the parties finds it impossible to continue the marriage agreement and is
compelled to break it off. At first sight it may look like giving too much
latitude to the parties to allow them to end the marriage contract thus, even
if there is no reason except incompatibility of temperament, but this much is
certain that if there is such disagreement that the husband and the wife cannot
pull together, it is better for themselves, for their offspring and for society
in general that they should be separated than that they should be compelled to
live together. No home is worth the name wherein instead of peace there is
wrangling; and marriage is meaningless if there is no spark of love left between
the husband and the wife. It is an error to suppose that such latitude tends to
destroy the stability of marriage, because marriage is entered into as a
permanent and sacred relation based on love between a man and a woman, and
divorce is only a remedy when marriage fails to fulfill its object.'' With
regard to the husband's right of pronouncing divorce the learned author has
found; "Though the Holy Quran speaks of the divorce being pronounced by
the husband, yet a limitation is placed upon the exercise of this right."
He then refers to the procedure laid down in Sura IV Verse 35 quoted above, and
says : "It will be seen that in all disputes between the husband and the
wife, which it is feared will lead to a breach, two judges are to be appointed
from the respective people of the two parties. These judges are required first
to try to reconcile the parties to each other, failing which divorce is to be
effected. Therefore, though it is the husband who pronounces the divorce, he is
as much bound by the decision of the judges, as is the wife. This shows that
the husband cannot repudiate the marriage at will. The case must first be
referred to two judges and their decision is 53 binding......The Holy Prophet
is reported to have interfered and disallowed a divorce pronounced by a
husband, restoring the marital relations (Bu. 68: 2). It was no doubt matter of
procedure, but it shows that the authority constituted by law has the right to
interfere in matters of divorce." The learned author has further observed:
"Divorce may be given orally, or in writing, but it must take place in the
presence of witnesses.” (iv) The conclusion: Based on the Quranic verses
referred to above, the High Court concluded as under: “13. A perusal of the
Quranic verses quoted above and the commentaries thereon by well-recognized
Scholars of great eminence like Mahammad Ali and Yusuf Ali and the
pronouncements of great jurists like Ameer Ali and Fyzee completely rule out
the observation of Macnaghten that "there is no occasion for any particular
cause for divorce, and mere whim is sufficient", and the observation of
Batchelor, J. (ILR 30 Bom. 537) that "the whimsical and capricious divorce
by the husband is good in law, though bad in theology". These observations
have been based on the concept that women were chattal belonging to men, which
the Holy Quran does not brook. Costello, J. In 59 Calcutta 833 has not, with
respect, laid down the correct law of talaq. In my view the correct law of
talaq as ordained by the Holy Quran is 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 the other from the husband's.
If the attempts fail, talaq may be effected. xxx xxx xxx 16. In the instant case
the petitioner merely alleged in his written statement before the Magistrate
that he had pronounced talaq to the opposite party; but he did not examine
himself, nor has he adduced any evidence worth the name to prove 'talaq'. There
is no proof of talaq, or its registration. Registration of marriage and divorce
under the Assam Muslim Marriages and Divorces Registration Act, 1935 is
voluntary, and unilateral. Mere registration of divorce (or marriage) even if
proved, will not render valid divorce which is otherwise invalid under Muslim
Law.” 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, 54 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 Laskar3, (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 3 (1981) 1 Gau. L.R. 375 55 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. “7. The first point to be decided, therefore,
is whether the opposite party divorced the Petitioner. The equivalent of the
word 'divorce' is 'talaq' in Muslim Law. What is valid 'talaq' in Muslim law
was considered by one of us (Baharul Islam, J. as he then was) sitting singly
in Criminal Revision No. 199/77 (supra). The word 'talaq' carries the literal
significance of 'freeing' or 'the undoing of knot'. 'Talaq' means divorce of a
woman by her husband. Under the Muslim law marriage is a civil contract. Yet
the rights and responsibilities consequent upon it are of such importance to
the welfare of the society that a high degree of sanctity is attached to it.
But in spite of the sacredness of the character of the marriagetic, Islam
recognizes the necessity in exceptional circumstances of keeping the way open for
its dissolution. There has been a good deal of misconception of the institution
of 'talaq' under the Muslim law. From the Holy Quran and the Hadis, it appears
that though divorce was permitted, yet the right could be exercised only under
exceptional circumstances. The Holy Prophet is reported to have said:
"Never did Allah allow anything more hateful to Him than “divorce.”
According to a report of Ibn Umar, the Prophet said: "With Allah the most
detestable of all things permitted is divorce". (See the Religion of Islam
by Maulana Muhammed Ali at page 671). In the case of Ahmed Kasim Molla v.
Khatun Bibi reported in ILR Cal 833, which has so long been regarded as a
leading case on the law of divorce, Justice Costello held: “Upon that point
(divorce), there are a number of authorities and I have carefully considered
this point as dealt with in the very early authorities to see whether I am in
agreement with the mere recent decisions of the Courts. I regret that I have to
come to the conclusion that at the law stands at present, any Mohamedan may
divorce his wife at his mere whim and caprice.” 56 Following Macnaghten, J. who
held: "there is no occasion for any particular cause for divorce, and mere
whim is sufficient,'' and Batchelor, J, in case of Sarabai v. Babiabai (ILR 30
Bombay 537) Costello, J. held:— “It is good in law, though bad in theology.”
Ameer Ali, in his Treatise on Mahomedan Law has observed: “The Prophet
pronounced talaq to be a most destable thing before the Almighty God of all
permitted things. If 'talaq' is given without any reason it is stupidity and
ingratitude to God.” The learned Author in the same book has also observed “The
author of the Multeka (Ibrohim Halebi) is more concise. He says- ‘The law gives
to the man primarily the power of dissolving the marriage, if the wife, by her
indocility or her bad character, renders the married life unhappy; but in the
absence of serious reasons, no Musalman can justify a divorce either in the
eyes of the religion or the law. If he abandons his wife or put her away from
simple caprice, he draws, upon himself the divine anger, for 'the curse of
God', said the Prophet, 'rests on him who repudiates his wife capriciously.” In
ILR Madras 22, a Division Bench of the Madras High Court, consisting of Munro and
Abdur Rahim, JJ., held: “No doubt an arbitrary or unreasonable exercise of the
right to dissolve the marriage is strongly condemned in the Quran and in the
reported saying of the Prophet (Hadith) and is treated as a spiritual offence.
But the impropriety of the husband's conduct would in no way affect the legal
validity of a divorce duly effected by the husband.” What Munro and Abdur
Rahmim, JJ. in ILR 30 Madras 22 precisely held was that impropriety of the
husband's conduct would in no way affect the legal validity of a divorce duly
effected by the husband. The emphasis was that a talaq would be valid only if
it is effected in accordance with the Muslim Law. In ILR 5, Rangoon 18, their
Lordships of the Privy Council observed: “According to that law (the Muslim
Law), a husband can effect a divorce whenever he desires.” But the Privy
Council has not said that the divorce need not be duly effected or that
procedure enjoined by the Quran need not be followed. 8. It is needless to say
that Holy Quran is the primary source and is the weightiest authority on any
subject under the Muslim Law. The Single Judge in Criminal Revision No. 199/77
in his judgment quoted the relevant verses of the Quran, to deal with divorce.
We need not refer to all the Verses. It will be sufficient if we refer to only
one of them, which is Sura IV verse 35. It reads: “If ye fear a breach Between
them twain, Appoint two arbiters One from his family, And the other from hers;
If they wish for peace, God will cause 57 Their reconciliation: For God hath
full knowledge, And is acquainted With all things.” From the verse quoted
above, it appears that there is a condition precedent which must be complied
with before the talaq is effected. The condition precedent if when the
relationship between the husband and the wife is strained and the husband
intends to give 'talaq' to his wife he must chose an arbiter from his side and
the wife an arbiter from her side, and the arbiters must attempt at
reconciliation, with a time gap so that the passions of the parties may call
down and reconciliation may be possible. If ultimately conciliation is not
possible, the husband will be entitled to give 'talaq'. The 'talaq' must be for
good cause and must not be at the mere desire, sweet will, whim and caprice of
the husband. It must not be secret. Maulana Mohammad Ali, an eminent Muslim
jurist, in his Religion of Islam, after referring to, and considering, the
relevant verses on the subject has observed: From what has been said above, it
is clear that not only must there be a good cause for divorce, but that all
means to effect reconciliation must have been exhausted before resort is had to
this extreme measure. The impression that a Muslim husband may put away his
wife at his mere caprice, is a grave distortion of the Islamic institution of
divorce.” The learned Jurist also has observed: “Divorce must always follow
when one of the parties finds it impossible to continue the marriage agreement
and is compelled to break it off.” 9. Costello, J. in ILR 59 Calcutta 833 (supra)
considered the judgments of Munro and Abdur Rahim, JJ. in ILR 33 Mad. 22
(supra) and of the Privy Council in ILR 5, Rangoon 18, (supra) but he preferred
the opinions of Machaghten and Batchalor, JJ. in ILR 30 Bombay 537 (supra). The
reason perhaps is, as observed by Krishna Ayer, J. (now of the Supreme Court)
in the case of A. Yusuf Rowther v. Sowramma, reported in AIR 1971 Kerala 261:
“Marginal distortions are inevitable when the Judicial Committee in Downing
Street has to interpret Manu and Muhammad of India and Arabia. The soul of a
Culture law is largely the formalised and enforceable expression of a
community's culture norms-cannot be fully understood by alien minds.” 10.
Krishna Ayer, J., in AIR 1971 Kerala 261 (supra) has further observed: “The view
that the Muslim husband enjoys an arbitrary, unilateral power to inflict
instant divorce does not accord with Islamic injunctions... Indeed, a deeper
study of the subject disclosed a surprisingly rational, realistic and modern
law of divorce.... …..” The learned Judge has further observed: “It is a
popular fallacy that a Muslim male enjoys, under the Quranic law, Unbridled
Authority to liquidate the marriage. The whole Quran 58 expressly forbids a man
to seek pretexts for divorcing his wife, so long as she remains faithful and
obedient to him, 'if they (namely, women) obey you, then do not seek a way
against them' (Quran IV: 34)” (iv) The conclusion: Based on the above
consideration above, the High Court recorded the following conclusion: “11. In
our opinion the correct law of 'talaq' as ordained by Holy Quran is: (i) that
'talaq' must be for a reasonable cause; and (ii) that it must be preceded by an
attempt at reconciliation between the husband and wife by two arbiters, one
chosen by the wife from her family and the other by the husband from his. If
their attempts fail, 'talaq' may be effected. In our opinion the Single Judge
has correctly laid down the law in Criminal Revision No. 199/77 (supra), and,
with respect the Calcutta High Court in ILR 59 Calcutta 833 and the Bombay High
Court in ILR 30 Bombay 537 have not laid down the correct law.” 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. 59 33. Masroor Ahmed v. State (NCT of Delhi)4, (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 4 2008 (103) DRJ 137 60 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: “12. Several questions impinging
upon muslim law concepts arise for consideration. They are:- (1) What is the
legality and effect of a triple talaq? (2) Does a talaq given in anger result
in dissolution of marriage? (3) What is the effect of non-communication of the
talaq to the wife? (4) Was the purported talaq of October 2005 valid? (5) What
is the effect of the second nikah of 19.4.2006?” (iii) The consideration: While
considering the legality and effect of ‘talaq-ebiddat’, the High Court recorded
the following consideration: “Sanctity and effect of Talaq-e-bidaat or triple
talaq. 24. There is no difficulty with ahsan talaq or hasan talaq. Both have
legal recognition under all fiqh schools, sunni or shia. The difficulty lies
with triple talaq which is classed as bidaat (an innovation). Generally
speaking, the shia schools do not recognise triple talaq as bringing about a
valid divorce1. There is, however, difference of opinion even within the sunni
schools as to whether the triple talaq should be treated as three talaqs,
irrevocably bringing to an end the marital relationship or as one rajai
(revocable) talaq2, operating in much the same way as an ahsan talaq.” 1 With
regard to triple talaq, Fyzee comments: Such a talaq is lawful, although
sinful, in Hanafi law; but in Ithna 'Ashari and the Fatimid laws it is not
permissible. p. 154. Ameer Ali notes: The Shiahs and the Malikis do not
recognise the validity of the talak-ul-bid'at, whilst the Hanafi and the
Shaf'eis agree in holding that a divorce is effective, if pronounced in the
bid'at form, though in its commission the man incurs a sin. p. 435. These
statements may not be accurate as to the views of Malikis and Shaf'eis, but it
is universally recognized that the above-mentioned Shi'a schools do not find
triple talaq to be a valid form of divorce. 2 Classical Hanafi law, especially
as it is practiced in India, seems to take the opinion that triple talaq is
sinful yet effective as an irrevocable divorce. See, e.g., Mulla p. 261-62; The
Hedaya, p. 72-73, 83. On 61 (iv) The conclusion: Based3 on4 the5 consideration
recorded above, the High Court arrived at the following conclusions: “26. It is
accepted by all schools of law that talaq-e-bidaat is sinful6. Yet some schools
regard it as valid. Courts in India have also held it to be the other hand,
Ameer Ali suggests that a triple talaq can be revoked within the iddat period.
p. 436. Maulana 'Umar Ahmad ‘Usmani, in The Quran, Women and Modern Society, by
Asghar Ali Engineer, New Dawn: New Delhi (2005), states that Muhammad ibn
Muqatil, a Hanafi jurist, gave evidence indicating that Imam Abu Hanifa developed
a second opinion that a triple talaq constitutes one talaq and that it can
therefore be revoked within the iddat period. Maulana ‘Umar Ahmad ‘Usmani
quotes from Fath al-Bari by Hafiz Ibn Jahar al-Asqalani, who states that many
eminent jurists have held the opinion that three talaqs pronounced in one
sitting constitute only one talaq. Maulana Wahiduddin Khan, in Concerning
Divorce, Goodword Books: New Delhi (2003), p. 29, says that in the case of a
man who was 'emotionally overwrought' when pronouncing talaq three times, “His
three utterances of the word talaq may be taken as an expression of the
intensity of his emotions and thus the equivalent of only one such utterance”.
He further gives the example of a Hadith recorded by Imam Abu Dawud in which Rukana
ibn Abu Yazid said talaq to his wife three times in one sitting, and then
regretted his action. When he told the Prophet Muhammad (peace be upon him) how
he had divorced his wife, the Prophet (pbuh) observed, “All three count as only
one. If you want, you may revoke it.” p. 28-29 (original Hadith found in Musnad
Ahmad ibn Hanbal). There is also a Hadith reported by Abdullah ibn Abbas that
in the Prophet's (pbuh) lifetime, during the caliphate of Abu Bakr, and during
the first two years of Umar ibn al-Khattab's caliphate, triple talaq was
counted as one talaq only, but that Umar then made triple talaq binding upon
his people so that they learned the consequences of their hasty actions. Sahih
Muslim 3491. Maulana Wahiduddin Khan observes this rule was of a “temporary
nature” and was specific to the people of the time, and that the 'ijma of the
Companions on Umar's decision was also temporary, as 'ijma cannot override the
system of divorce prescribed in the Quran. p. 30, 32. He notes that the Shariah
is eternal, but that a Muslim ruler can make exceptions in special
circumstances and can ensure that women affected by such a ruling are fully
compensated. p. 30-31. He concludes that scholars today cannot justify
enforcing triple talaq by citing Umar's ruling because they do not have the
powers of a Caliph as Umar had. p. 32. It seems that modern Indian Hanafi
scholars have taken this opinion as well: the Compendium of Islamic Laws, 2001,
Part II, Section 24, states the following: “If a person pronouncing talaq says
that he intended only a single talaq and repeated the words of talaq only to
put emphasis and these words were not meant to pronounce more than one talaq,
his statement on oath will be accepted”. Translated by Mahmood. (Also see: The
Muslim Law of India, 3rd ed., Tahir Mahmood, Lexis Nexis Butterworths: New
Delhi (2002),p.107, where the learned author noted: “In India there has been no
legislation in this regard, but the muftis of the time now agree that if a man
pronounces the so-called 'triple talaq' but later swears that he did not mean
it, his declaration may be given the effect of a single talaq revocable during
iddat and, if not so revoked, leaving room for a fresh nikah thereafter with
the wife's consent”). Such a view is, perhaps, based upon an application of the
following legal maxim of Islamic law - Al-umuru bimaqasidiha: Acts are judged
by the intention behind them. Sheikh Sayyed Sabiq in Fiqh As-Sunnah states on
the subject of triple talak that although the majority opinion is that triple talak
will count as three divorces, other scholars such as Ibn Taymiyyah and Ibn
alQayyim, as well as Companions like 'Ata', Tawuus, Ibn Dinar, 'Ali ibn Abi
Talib, Ibn Mas'ud, 'AbdurRahman ibn 'Awf, Az-Zubayr, were of the opinion that
it counts as only one pronouncement of divorce. He then says, “This latter view
is believed to be the most correct.” Some go as far as to argue that there is
ijma 'that triple talak counts as three talaks. However, according to the
requirements for ijma '(in the Hanafi madhab), 'no opinion to the contrary
should have been expressed on the question by any of the Companions, or by
other Mujtahids before the formation of the Ijma',” and “none of the Mujtahids
taking part in the decision should have afterwards changed his opinion.” Abdur
Rahim, p. 145. Here, the first condition is certainly not met, and the second
is arguably not met. Finally, many Muslim countries, including Algeria, Egypt,
Jordan, Morocco, Sudan, Syria, and Yemen, have implemented laws that uphold the
notion that a triple talak counts as only one talak. Personal Law in Islamic
Countries, Tahir Mahmood, Academy of Law and Religion: New Delhi (1987). 3 4 5
6 See supra, fn 25 & 26, for the opinion of the Hanafi madhab that triple
talaq is sinful. 62 valid. The expression - bad in theology but valid in law -
is often used in this context. The fact remains that it is considered to be
sinful. It was deprecated by prophet Muhammad7. It is definitely not
recommended or even approved by any school. It is not even considered to be a
valid divorce by shia schools. There are views even amongst the sunni schools
that the triple talaq pronounced in one go would not be regarded as three
talaqs but only as one. Judicial notice can be taken of the fact that the harsh
abruptness of triple talaq has brought about extreme misery to the divorced
women and even to the men who are left with no chance to undo the wrong or any
scope to bring about a reconciliation. It is an innovation which may have
served a purpose at a particular point of time in history8 but, if it is rooted
out such a move would not be contrary to any basic tenet of Islam or the Quran
or any ruling of the Prophet Muhammad. 27. In this background, I would hold
that a triple talaq (talaq-e-bidaat), even for sunni muslims be regarded as one
revocable talaq. This would enable the husband to have time to think and to
have ample opportunity to revoke the same during the iddat period. All this
while, family members of the spouses could make sincere efforts at bringing
about a reconciliation. Moreover, even if the iddat period expires and the
talaq can no longer be revoked as a consequence of it, the estranged couple
still has an opportunity to re-enter matrimony by contracting a fresh nikah on
fresh terms of mahr etc.” 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. 7 Once the
Prophet (pbuh) was informed about a man who had pronounced three divorces at
one time. He got up in anger, saying, “Is sport being made of the Book of Allah
while I am (yet) among you?” Reported by an-Nasai'i. 8 The exact Hadith is as
follows: “Abdullah ibn Abbas reported that the pronouncement of three divorces
during the lifetime of Allah's Messenger (pbuh) and that of Abu Bakr and two
years of the caliphate of Umar was treated as one. But Umar ibn al-Khattab
said, “Verily the people have begun to hasten in the matter in which they are
required to observe respite. So if we had imposed this upon them, [it would
have deterred them from doing so!] and he imposed it upon them.” Sahih Muslim
3491. 34.1 234 Nazeer v. Shemeema5, (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 1 2 3 4 5 2017 (1) KLT 300 64
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: “12. This case only symptomize the harsh realities
encountered by women belonging to Muslim community, especially of the lower
strata. It is a reminder to the court unless the plight of sufferers is alleviated
in a larger scheme through legislation by the State, justice will be a distant
dream deflecting the promise of justice by the State "equality before the
law". The State is constitutionally bound and committed to respect the
promise of dignity and equality before law and it cannot shirk its
responsibility by remaining mute spectator of the malady suffered by Muslim
women in the name of religion and their inexorable quest for justice broke all
the covenants of the divine law they professed to denigrate the believer and
faithful. Therefore, the remainder of the judgment is a posit to the State and
contribution for settlement of the 'legal vex' which remains unconcluded more
than four decades after this court's reminder in Mohamed Haneefas' case (supra).
13. The State is constitutionally obliged to maintain coherent order in the
society, foundation of which is laid by the family. Thus sustenance or purity
of the marriage will lay a strong foundation for the society, without which
there would be neither civilisation nor progress. My endeavour in this judgment
would have been over with the laying of correct principles related to triple
talaq in Qur'anic perspective to declare the law and to decide the matter.
However, I find the dilemma in this context is not a 65 singular problem arisen
demanding a resolution of the dispute between the litigants by way of
adjudication. But rather it require a State intervention by way of legislation
to regulate triple talaq in India. Therefore, settlement of law relating to talaq
is necessary and further discussion is to be treated as an allude for the State
to consider for possible reforms of divorce Law of Muslim in this Country. The
empirical research placed herein justifies such course of action to remind the
State for action. It is to be noted, had the Muslim in India been governed by
the true Islamic law, Penal law would have acted as deliverance to sufferings
of Muslim women in India to deter arbitrary talaq in violation of Qur'anic
injunction. xxx xxx xxx 15. This takes me to the question why the State is so
hesitant to reforms. It appears from public debate that resistance is from a
small section of Ulemas (scholars within the society) on the ground that Sharia
is immutable and any interference would amount to negation of freedom of
religion guaranteed under the Constitution. I find this dilemma of Ulema is on
a conjecture of repugnancy of divine law and secular law. The State also
appears as reluctant on an assumption that reforms of religious practice would
offend religious freedom guaranteed under the Constitution of India. This leads
me to discuss on facets of Islamic law. I also find it equally important to
discuss about the reforms of personal law relating to triple talaq within the
constitutional polity, as the ultimately value of its legality has to be tested
under the freedom of religious practices.” (iv) The conclusion: In the
background of the above consideration, the High Court held as under: “The
W.P.(C) 37436 of 2003 is filed by the husband alleging that the triple talaq
pronounced by him is not valid in accordance with Islamic law. Therefore,
proceedings initiated before the Magistrate under Section 3 of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 and consequent order will have to
be set aside. This case depicts the misuse of triple talaq, wife appears to
have accepted the talaq and moved the Magistrate court on a folly created by
husband. There are innumerable cases as revealed from the empirical data
referred in the research in which neither party are aware of the procedure of
talaq according to the personal law. This Court under Article 226 of the
Constitution of India is not expected to go into the disputed questions of
fact. The entire exercise in this judgment is to alert the State that justice
has become elusive to the Muslim woman and the remedy thereof lies in
codification of law of divorce. This court cannot grant any relief to the writ
petitioner as the true application of the law to be considered in a given facts
is upon the Court trying the matter. It is for the subordinate court to decide
whether there was application of Islamic law in effecting divorce by triple
talaq. Therefore, declining jurisdiction, this writ petition is dismissed. 66
W.P.(C) Nos. 25318 & 26373 of 2015 and 11438 of 2016 In these Writ
Petitions question of validity of triple talaq does not arise. However this
question was considered in larger perspective for the reason that if court
grant any relief based on admission of the parties as to the repudiation of marriage
by triple talaaq, that would amount to recognition of a triple talaq effected
not in accordance with law, as this court has no mechanism to find out the
manner in which talaq is effected. The Court cannot become a party to a
proceedings to recognise an ineffective divorce in the guise of directions
being given to passport authorities to accept the divorce. The legal effect of
such divorce has to be probed by a fact finding authority in accordance with
the true Islamic law. Stamp of approval being given by the court by ordering
passport authority to accept divorce effected not in accordance with the law,
will create an impression that court transgressed its limits while directing a
public authority to honour an act which was done not in accordance with law.
Though in these Writ Petitions, considering the urgency of the matters, this
court granted interim order directing the passport authorities to act upon the
request of the petitioners. Considering the large number of similar reliefs
sought before this court in various Writ Petitions, this court is of the view
that the issue can be resolved only through a larger remedy of codification of
law in the light of the discussion as above. In the light of interim order,
these Writ Petitions are disposed of. Conclusion: Courts interpret law and
evolve justice on such interpretation of law. It is in the domain of the
legislature to make law. Justice has become elusive for Muslim women in India
not because of the religion they profess, but on account of lack of legal formalism
resulting in immunity from law. Law required to be aligned with justice. The
search for solution to this predicament lies in the hands of the law makers. It
is for the law makers to correlate law and social phenomena relating to divorce
through the process of legislation to advance justice in institutionalized
form. It is imperative that to advance justice, law must be formulated without
any repugnance to the religious freedom guaranteed under the Constitution of
India. It is for the State to consider the formulation of codified law to
govern the matter. Therefore, I conclude by drawing attention of those who
resist any form of reform of the divorce law of Muslim community in India to
the following verses of Holy Quran. (Chapter 47:2) "And those who believe
and do good works and believe in that which is revealed unto Muhammad - and it
is the truth from their Lord-He riddeth them of their ill deeds and improveth
their state." "Thus we display the revelations for people who have
sense" (Chapter 30:28) The Registry shall forward the copy of this
judgment to Union Law Ministry and Law Commission of India.” 67 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 68 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 Kerala6, and
Minerva Mills Ltd. v. Union of India7 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
Ahmed2, and the Rukia Khatun3 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’ 6 (1973) 4 SCC 225 7 (1980) 3 SCC 625 69
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 India8, wherein this Court observed as under: “The
Constitution of India is a living instrument with capabilities of enormous
dynamism. It is a Constitution made for a progressive society. Working of such
a Constitution depends upon the prevalent atmosphere and conditions. Dr
Ambedkar had, throughout the debate, felt that the Constitution can live and
grow on the bedrock of constitutional morality. Speaking on the same, he said:
“Constitutional morality is not a natural sentiment. It has to be cultivated.
We must realise that our people have yet to learn it. Democracy in India is
only a top-dressing on an Indian soil, which is essentially undemocratic.”
[Constituent Assembly Debates, 1948, Vol. VII, 38.] The principle of
constitutional morality basically means to bow down to the norms of the
Constitution and not to act in a manner which would become violative of the
rule of law or reflectible of action in an arbitrary manner. It actually works
at the fulcrum and guides as a laser beam in institution building. The
traditions and conventions have to grow to sustain the value of such a
morality. The democratic values survive and become successful where the people
at large and the persons in charge of the institution are strictly guided by
the constitutional parameters without paving the path of deviancy and
reflecting in action the primary concern to maintain institutional integrity
and the requisite constitutional restraints. Commitment to the Constitution is
a facet of constitutional morality…” 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 8 (2014) 9 SCC 1 70 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 India9, Javed v. State of Haryana10, and Khursheed Ahmad Khan v. State of
Uttar Pradesh11. 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. 9 (2003) 6 SCC 611 10
(2003) 8 SCC 369 11 (2015) 8 SCC 439 71 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: “12.60 I am aware that the enforcement of laws which are
violated is the duty of Govt., and in a number of recent cases that duty has
not been 72 discharged. Again, in the last instance, blatant violation of
religious freedom by the arbitrary action of religious heads has to be dealt
with firmly by our highest Court. This duty has resolutely discharged by our
High Courts and the Privy Council before our Constitution. No greater service
can be done to our country than by the Sup. Ct. and the High Courts discharging
that duty resolutely, disregarding popular clamour and disregarding personal
predilections. I am not unaware of the present political and judicial climate.
But I would like to conclude with the words of very great man “never despair”,
for when evil reaches a particular point, the antidote of that evil is near at
hand.” 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 73 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 case1. 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 case2 – by a Single Bench, and by the
same High Court in the Rukia Khatun case3 – by a Division Bench. By the Delhi
High Court in the Masroor Ahmed case4 – by a Single Bench, and finally by the
Kerala High Court in the Nazeer case5 – 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 74 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.12, 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 case4, and by the Kerala High Court in the
Nazeer case5 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.
12 (2002) 7 SCC 518 75 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 Mills13, wherein this Court refused to
test the constitutional validity of certain provisions, by holding as under:
“7. On behalf of the appellant Mr Lal Narain Sinha has contended that the High
Court was in error in holding that the proviso to Section 14A violates either
Article 20(1) or Article 31(2) of the Constitution. He has addressed us at
length in support of his case that neither of the two articles is violated by
the impuged proviso. On the other hand, the learned Solicitor-General has
sought to support the findings of the High Court on the said two constitutional
points; and he has pressed before us as a preliminary point his argument that
on a fair and reasonable construction, the proviso cannot be applied to the
case of the first respondent. We would, therefore, first deal with this
preliminary point. In cases where the vires of statutory provisions are
challenged on constitutional grounds, it is essential that the material facts
should first be clarified and ascertained with a view to determine whether the
impugned statutory provisions are attracted; if they are, the constitutional
challenge to their validity must be examined and decided. If, however, the
facts admitted or proved do not attract the impugned provisions there is no
occasion to decide the issue about the vires of the said provisions. Any
decision on the said question would in such a case be purely academic. Courts
are and should be reluctant to decide constitutional points merely as matters
of academic importance. xxx xxx xxx 19. In view of this conclusion it is
unnecessary to consider the objections raised by the first respondent against
the validity of the proviso on the ground that it contravenes Articles 20(1)
and 31(2) of the Constitution..…” 13 AIR 1960 SC 378 76 In the context of
‘personal law’, it was submitted, that in Shabnam Hashmi v. Union of India14,
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,
14 (2014) 4 SCC 1 77 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 AlMundhiri, 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 78 submitted, that the views of the above author,
were also relied upon by the Delhi High Court in the Masroor Ahmed case4.
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 case1 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 79 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 80 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 81
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
India15, 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 15 (2015) 1 SCC 192 82
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. These bye-laws have been certified by the Registrar of
Trade Unions in exercise of the statutory power. Clause 4, as is demonstrable,
violates Section 21 of the Act, for the Act has not made any distinction
between men and women. Had it made a bald distinction it would have been
indubitably unconstitutional. The legislature, by way of amendment in Section
21-A, has only fixed the age. It is clear to us that the clause, apart from
violating the statutory command, also violates the constitutional mandate which
postulates that there cannot be any discrimination on the ground of sex. Such
discrimination in the access of employment and to be considered for the
employment unless some justifiable riders are attached to it, cannot withstand
scrutiny. When the access or entry is denied, Article 21 which deals with
livelihood is offended. It also works against the fundamental human rights.
Such kind of debarment creates a concavity in her capacity to earn her
livelihood. xxx xxx xxx 50. From the aforesaid enunciation of law, the
signification of right to livelihood gets clearly spelt out. A clause in the
bye-laws of a trade union, which calls itself an Association, which is accepted
by the statutory authority, cannot play foul of Article 21.” 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 83 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 84 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 85 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 Article 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 86 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’. 87 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: “i. [3652] 1 – (1471) It was narrated from Ibn
‘Umar that he divorced his wife while she was menstruating, at the time of the
Messenger of Allah ‘Umar bin Al-Khattâb asked the Messenger of Allah about that
and the Messenger of Allah said to him: “Tell him to take her back, then wait
until she has become pure, then menstruated again, then become pure again. Then
if he wishes he may keep her, or if he wishes he may divorce her before he has
intercourse with her. That is the ‘Iddah (prescribed periods) for which Allah
has enjoined the divorce of women.” 88 ii. [3673] 15 – (1472) It was narrated
that Ibn ‘Abbâs said: “During the time of the Messenger of Allah it, Abü Bakr
and the first two years of ‘Umar’s Khjlâfah, a threefold divorce (giving
divorce thrice in one sitting) was counted as one. Then ‘Umar bin Al-Khattâb
said : ‘People have become hasty in a matter in which they should take their
time. I am thinking of holding them to it.’ So he made it binding upon them.”
iii. [3674] 16 – (…) Ibn Tawüs narrated from his father that Abü AsSahbâ’ said
to Ibn ‘Abbâs: “Do you know that the threefold divorce was regarded as one at
the time of the Messenger of Allah iW and Abü Bakr, and for three years of
‘Umar’s leadership? “He said: “Yes”. iv. [3675] 17 – (…) It was narrated from
Tawüs that AN As-Sahbâ’ said to Ibn ‘Abbâs: “Tell us of something interesting
that you know. Wasn’t the threefold divorce counted as one at the time of the
Messenger of Allah and Abü Bakr?” He said: “That was so, then at the time of
‘Umar the people began to issue divorces frequently, so he made it binding upon
them. v. “Mahmud-b, Labeed reported that the Messenger of Allah was informed
about a man who gave three divorces at a time to his wife. Then he got up
enraged and said, ‘Are you playing with the Book of Allah who is great and
glorious while I am still amongst you? So much so that a man got up and said;
shall I not kill him.” vi. According to an Hadith quoted by M. Mohammed Ali in
Manual of Hadeth p. 2861 from Masnad of Imam Ahmad bin Hanbul 1:34, the procedure
during the time of Prophet and the caliphate of Abu Bakr, and the first two
years of Hazrat Umar was that divorce uttered thrice was considered as one
divorce. The Umar said, “people had made haste in a matter in which that was
moderation for them, so we may make it take effect with regard to them. So he
made it take effect to them.” The Holy Quran is however very clear on the point
that such a divorce must be deemed to be a single divorce. vii. There is
another tradition reported by Rokanah-b. Abu Yazid that he gave his wife
Sahalmash an irrevocable divorce, and he conveyed it to the Messenger of Allah
and said: by Allah, I have not intended but one divorce. Then messenger of
Allah asked Have you not intended but one (divorce)? Rokana said: By Allah, I did
not intend but one divorce. The Messenger of Allah then returned her back to
him. Afterwards he divorced her for second time at the time of Hadrat Omar and
third time at the time of Hadrat Osman. viii. The Quranic philosophy of divorce
is further buttressed by the Hadith of the Prophet wherein he warned, ‘of all
things which have been permitted, divorce is the most hated by Allah’. The
Prophet told his people: “Al-Talaqu indallah-I abghad al-mubahat”, meaning
“Divorce is most detestable in the sight of God; abstain from it.” ix. [2005]
43 – (867) It was narrated that Jâbir bin ‘Abdullâh said: “When the Messenger
of Allah delivered a Khutbah, his eyes would turn red, his voice would become
loud, and his anger would increase, until it was as if he was warning of an
attacking army, saying: ‘The enemy will attack in the morning or in the
evening.’ He said: ‘The Hour and I have 89 been sent like these two,’ and he
held his index finger and middle finger up together. And he would say: ‘The
best of speech is the Book of Allah, the best of guidance is the guidance of
Muhammad, and the worst of matters are those which are newly-invented, and
every innovation is a going astray.’ Then he would say: ‘I am closer to every
believer than his own self. Whoever leaves behind wealth, it is for his family;
whoever leaves behind a debt or dependants, then the responsibility of paying
it off and of caring for them rests upon me. x. [2006] 44 – (…) Jâbir bin
‘Abdullâh said: “In the Khutbah of the Prophet on Friday, he would praise Allah,
then he would say other things, raising his voice…” a similar Hadith (as
no.2005). xi. [4796] 59 – (1852) It was narrated that Ziyâd bin ‘Ilâqah said:
“I heard ‘Arfajah say: ‘I heard the Messenger of Allah say: “There will be
Fitnah and innovations. Whoever wants to divide this Ummah when it is united,
strike him with the sword, no matter who he is.” xii. [4797] (…) A similar
report (as no.2796) was narrated from ‘Arfajah from the Prophet, except that in
their Hadith it says: “…kill him”.” 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’, 90 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: “(a) Caliph Umar, finding that the checks imposed by the
Prophet on the facility of repudiation interfered with the indulgence of their
caprice, endeavoured to find an escape from the strictness of the law, and
found in the pliability of the jurists a loophole to effect their purpose. (b)
When the Arabs conquered Syria, Egypt, Perisa, etc. they found women there much
better in appearance as compared to Arabian women and hence they wanted to
marry them. But the Egyptian and Syrian women insisted that in order to marry
them, they should divorce their existing wives instantaneously, by pronouncing
three divorces in one sitting. (c) The condition was readily acceptable to the
Arabs, because they knew that in Islam divorce was permissible only twice in
two separate period of tuhr and its repetition in one sitting was considered
un-Islamic, void and not effective. In this way, they could not only marry
these women, but also retain their existing wives. This fact was reported to
the second Caliph Hazrat Umar. (d) The Caliph Umar then, in order to prevent
misuse of the religion by the unscrupulous husbands decreed, that even
repetition of the word talaq, talaq, talaq at one sitting, would dissolve the
marriage irrevocably. It was, however, a mere administrative measure of Caliph
Umar, to meet an emergency situation, and not to make it a legally binding
precedent permanently.” 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 91
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 92 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. 93 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 case4, by giving a meaningful
interpretation to ‘talaq-e- 94 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 95 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 96
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, 97 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 98 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 51-A of the Constitution, which is extracted below: “(e) to promote
harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women;” 99 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 Thirukoil16, wherein a 3-Judge Bench of this Court
observed as under: “15. It is seen that if after the Constitution came into
force, the right to equality and dignity of person enshrined in the Preamble of
the Constitution, Fundamental Rights and Directive Principles which are a
trinity intended to remove discrimination or disability on grounds only of
social status or gender, removed the pre-existing impediments that stood in the
way of female or weaker segments of the society. In S.R. Bommai v. Union of
India [(1994) 3 SCC 1] this Court held that the Preamble is part of the basic
structure of the Constitution. Handicaps should be removed only under rule of law
to enliven the trinity of justice, equality and liberty with dignity of person.
The basic structure permeates equality of status and opportunity. The personal
laws conferring inferior status on women is anathema to equality. 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. Right to equality is
a fundamental right…. 16 (1996) 8 SCC 525 100 16. The General Assembly of the
United Nations adopted a declaration on 4-12-1986 on “The Development of the
Right to Development” in which India played a crusading role for its adoption
and ratified the same. Its preamble recognises that all human rights and
fundamental freedoms are indivisible and interdependent. All Nation States are
concerned at the existence of serious obstacles to development and complete
fulfilment of human beings, denial of civil, political, economic, social and
cultural rights. In order to promote development, equal attention should be
given to the implementation, promotion and protection of civil, political,
economic, social and political rights. 17. Article 1(1) assures right to
development an inalienable human right, by virtue of which every person and all
people are entitled to participate in, contribute to, and enjoy economic,
social, cultural and political development in which all human rights and
fundamental freedoms can be fully realised. Article 6(1) obligates the State to
observance of all human rights and fundamental freedoms for all without any
discrimination as to race, sex, language or religion. Sub-article (2) enjoins
that … equal attention and urgent consideration should be given to implement,
promotion and protection of civil, political, economic, social and political
rights. Sub-article (3) thereof enjoins that: “State should take steps to
eliminate obstacle to development, resulting from failure to observe civil and
political rights as well as economic, social and economic rights. Article 8
casts duty on the State to undertake, … necessary measures for the realisation
of right to development and ensure, inter alia, equality of opportunity for all
in their access to basic resources … and distribution of income.” Effective
measures should be undertaken to ensure that women have an active role in the
development process. Appropriate economic and social reforms should be carried
out with a view to eradicate all social injustice. 18. Human rights are derived
from the dignity and worth inherent in the human person. Human rights and
fundamental freedom have been reiterated by the Universal Declaration of Human
Rights. Democracy, development and respect for human rights and fundamental
freedoms are interdependent and have mutual reinforcement. The human rights for
women, including girl child are, therefore, inalienable, integral and
indivisible part of universal human rights. The full development of personality
and fundamental freedoms and equal participation by women in political, social,
economic and cultural life are concomitants for national development, social
and family stability and growth, culturally, socially and economically. All
forms of discrimination on grounds of gender is violative of fundamental
freedoms and human rights.” Reference was also made to Anuj Garg v. Hotel
Association of India17, wherein it was submitted, that this Court had
emphasized on the value of 17 (2008) 3 SCC 1 101 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 Rajasthan18, 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 case15, 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 India19,
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 18 (1997) 6 SCC 241 19 (1999) 2 SCC 228 102 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- 103 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
University20, and drew the Court’s attention to the following: “16.The
Constitution seeks to establish secular socialist democratic republic in which
every citizen has equality of status and of opportunity, to promote among the
people dignity of the individual, unity and integrity of the nation
transcending them from caste, sectional, religious barriers fostering
fraternity among them in an integrated Bharat. The emphasis, therefore, is on a
citizen to improve excellence and equal status and dignity of person. With the
advancement of human rights and constitutional philosophy of social and
economic democracy in a democratic polity to all the citizens on equal footing,
secularism has been held to be one of the basic features of the Constitution
(Vide: S.R. Bommai v. Union of India, (1994) 3 SCC 1 and egalitarian social
order is its foundation. Unless free mobility of the people is allowed
transcending 20 (1996) 3 SCC 545 104 sectional, caste, religious or regional
barriers, establishment of secular socialist order becomes difficult. In State
of Karnataka v. Appu Balu Ingale & Ors., AIR (1993) SC 1126 this Court has
held in paragraph 34 that judiciary acts as a bastion of the freedom and of the
rights of the people. The Judges are participants in the living stream of
national life, steering the law between the dangers of rigidity and
formlessness in the seemless web of life. Judge must be a jurist endowed with
the legislator's wisdom, historian's search for truth, prophet's vision,
capacity to respond to the needs of the present, resilience to cope with the
demands of the future to decide objectively, disengaging himself/herself from every
personal influence or predilections. The Judges should adapt purposive
interpretation of the dynamic concepts under the Constitution and the act with
its interpretive armoury to articulate the felt necessities of the time. Social
legislation is not a document for fastidious dialects but means of ordering the
life of the people. To construe law one must enter into its spirit, its setting
and history. Law should be capable to expand freedom of the people and the
legal order can weigh with utmost equal care to provide the underpinning of the
highly inequitable social order. Judicial review must be exercised with insight
into social values to supplement the changing social needs. The existing social
inequalities or imbalances are required to be removed readjusting the social
order through rule of law.…” The learned Attorney General then submitted, that
in paragraph 20 of the Valsamma Paul case20, 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: “21. The
Constitution through its Preamble, Fundamental Rights and Directive Principles
created secular State based on the principle of equality and non-discrimination
striking a balance between the rights of the individuals and the duty and
commitment of the State to establish an egalitarian social order. Dr. K.M.
Munshi contended on the floor of the Constituent Assembly that "we want to
divorce religion from personal law, from what may be called social relations,
or from the rights of 105 parties as regards inheritance or succession. What
have these things got to do with religion, I fail to understand? We are in a
stage where we must unify and consolidate the nation by every means without
interfering with religious practices. If, however, in the past, religious
practices have been so construed as to cover the whole field of life, we have
reached a point when we must put our foot down and say that these matters are
not religion, they are purely matters for secular legislation. Religion must be
restricted to spheres which legitimately appertain to religion, and the rest of
life must be regulated, unified and modified in such a manner that we may
evolve, as early as possible, a strong and consolidated nation" (Vide:
Constituent Assembly Debates, Vol. VII 356-8). 22. In the onward march of
establishing an egalitarian secular social order based on equality and dignity
of person, Article 15(1) prohibits discrimination on grounds of religion or
caste identities so as to foster national identity which does not deny
pluralism of Indian culture but rather to preserve it. Indian culture is a
product or blend of several strains or elements derived from various sources,
in spite of inconsequential variety of forms and types. There is unity of
spirit informing Indian culture throughout the ages. It is this underlying
unity which is one of the most remarkable everlasting and enduring feature of
Indian culture that fosters unity in diversity among different populace. This
generates and fosters cordial spirit and toleration that make possible the
unity and continuity of Indian traditions. Therefore, it would be the endeavour
of everyone to develop several identities which constantly interact and
overlap, and prove a meeting point for all members of different religious
communities, castes, sections, subsections and regions to promote rational approach
to life and society and would establish a national composite and cosmopolitan
culture and way of life.” 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 106
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 Mysore21. 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). 21 1958 SCR 895 107 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: “25. Freedom of conscience and free profession, practice
and propagation of religion. – (1) Subject to public order, morality and health
and to the other provisions of this Part, all persons are equally entitled to
freedom of conscience and the right freely to profess, practise and propagate
religion. (2) 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. Explanation I.- The wearing
and carrying of kirpans shall be deemed to be included in the profession of the
Sikh religion. Explanation II.- In sub-clause (b) of clause reference to Hindus
shall be construed as including a reference to persons professing the Sikh,
Jaina or Buddhist religion, and the reference to Hindu religious institutions
shall be construed accordingly.” 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. 108 “Religion”, according to the learned Attorney General,
has been explained by this Court in A.S. Narayana Deekshitulu v. State of A.P.
22, as under : “86. A religion undoubtedly has its basis in a system of beliefs
and doctrine which are regarded by those who profess religion to be conducive
to their spiritual well-being. A religion is not merely an opinion, doctrine or
belief. It has outward expression in acts as well. It is not every aspect of
religion that has been safeguarded by Articles 25 and 26 nor has the
Constitution provided that every religious activity cannot be interfered with.
Religion, therefore, cannot be construed in the context of Articles 25 and 26
in its strict and etymological sense. Every religion must believe in a
conscience and ethical and moral precepts. Therefore, whatever binds a man to
his own conscience and whatever moral or ethical principles regulate the lives
of men believing in that theistic, conscience or religious belief that alone
can constitute religion as understood in the Constitution which fosters feeling
of brotherhood, amity, fraternity and equality of all persons which find their
foothold in secular aspect of the Constitution. Secular activities and aspects
do not constitute religion which brings under its own cloak every human
activity. There is nothing which a man can do, whether in the way of wearing
clothes or food or drink, which is not considered a religious activity. Every
mundane or human activity was not intended to be protected by the Constitution
under the guise of religion. The approach to construe the protection of
religion or matters of religion or religious practices guaranteed by Articles
25 and 26 must be viewed with pragmatism since by the very nature of things, it
would be extremely difficult, if not impossible, to define the expression
religion or matters of religion or religious belief or practice. 87. In
pluralistic society like India, as stated earlier, there are numerous religious
groups who practise diverse forms of worship or practise religions, rituals,
rites etc., even among Hindus, different denominants and sects residing within
the country or abroad profess different religious faiths, beliefs, practices.
They seek to identify religion with what may in substance be mere facets of
religion. It would, therefore, be difficult to devise a definition of religion
which would be regarded as applicable to all religions or matters of religious
practices. To one class of persons a mere dogma or precept or a doctrine may be
predominant in the matter of religion; to others, rituals or ceremonies may be
predominant facets of religion; and to yet another class or persons a code of
conduct or a mode of life may constitute religion. Even to different persons
professing the same religious faith some of the facets or religion may have
varying significance. It may not be possible, therefore, to devise a precise
definition of universal application as to what is religion and what are matters
of religious belief or religious practice. That is far from saying that it is
not possible to state with reasonable certainty the 22 (1996) 9 SCC 548 109
limits within which the Constitution conferred a right to profess religion.
Therefore, the right to religion guaranteed under Article 25 or 26 is not an
absolute or unfettered right to propagating religion which is subject to
legislation by the State limiting or regulating any activity – economic,
financial, political or secular which are associated with religious belief,
faith, practice or custom. They are subject to reform on social welfare by
appropriate legislation by the State. Though religious practices and
performances of acts in pursuance of religious belief are as much a part of
religion as faith or belief in a particular doctrine, that by itself is not
conclusive or decisive. What are essential parts of religion or religious
belief or matters or religion and religious practice is essentially a question
of fact to be considered in the context in which the question has arisen and
the evidence – factual or legislative or historic – presented in that context
is required to be considered and a decision reached.” In order to support the
above view, the Court’s attention was also drawn to the Javed case10, wherein
this Court observed as under : “49. In State of Bombay v. Narasu Appa Mali [AIR
1952 Bom 84:53 Cri LJ 354] the constitutional validity of the Bombay Prevention
of Hindu Bigamous Marriages Act (25 of 1946) was challenged on the ground of
violation of Articles 14, 15 and 25 of the Constitution. A Division Bench,
consisting of Chief Justice Chagla and Justice Gajendragadkar (as His Lordship
then was), held: “A sharp distinction must be drawn between religious faith and
belief and religious practices. What the State protects is religious faith and
belief. If religious practices run counter to public order, morality or health
or a policy of social welfare upon which the State has embarked, then the
religious practices must give way before the good of the people of the State as
a whole.” 50. Their Lordships quoted from American decisions that the laws are
made for the governance of actions, and while they cannot interfere with mere
religious beliefs and opinions, they may with practices. Their Lordships found
it difficult to accept the proposition that polygamy is an integral part of
Hindu religion though Hindu religion recognizes the necessity of a son for
religious efficacy and spiritual salvation. However, proceeding on an
assumption that polygamy is a recognized institution according to Hindu
religious practice, Their Lordships stated in no uncertain terms: “The right of
the State to legislate on questions relating to marriage cannot be disputed.
Marriage is undoubtedly a social institution an institution in which the State
is vitally interested. Although there may not be universal recognition of the
fact, still a very large volume of opinion in the world today admits that
monogamy is a very desirable and praiseworthy institution. If, therefore, the
State of Bombay compels Hindus to become monogamists, it is a measure of social
reform, and if it is a measure of social reform then the State is empowered to
legislate 110 with regard to social reform under Article 25(2)(b)
notwithstanding the fact that it may interfere with the right of a citizen
freely to profess, practise and propagate religion.” 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
Mali23. 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 23 AIR 1952 Bom. 84 111 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 case23, 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: “13.
Laws inconsistent with or in derogation of the fundamental rights.- (1) All
laws in force in the territory of India immediately before the commencement of
this Constitution, in so far as they are inconsistent with the provisions of
this Part, shall, to the extent of such inconsistency, be void. (2) The State
shall not make any law which takes away or abridges the rights conferred by
this Part and any law made in contravention of this clause shall, to the extent
of the contravention, be void. (3) In this article, unless the context
otherwise requires,- (a) “law” includes any Ordinance, order, bye law, rule,
regulation, notification, custom or usage having in the territory of India the
force of law; (b) “laws in force” includes laws passed or made by a Legislature
or other competent authority in the territory of India before the commencement
of this Constitution and not previously repealed, notwithstanding that any such
law or any part thereof may not be then in operation either at all or in
particular areas. (4) Nothing in this article shall apply to any amendment of
this Constitution made under article 368.” 112 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 case23, 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 case23, 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 113 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 case23
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: “(e) Pertinently, despite this ruling that was
later followed in Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689 and Maharshi
Avdhesh v. Union of India, (1994) Supp (1) SCC 713, the Supreme Court has
actively tested personal laws on the touchstone of fundamental rights in cases
such as Daniel Latifi v. Union of India, (2001) 7 SCC 740 (5-Judge Bench),
Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 (5- Judge Bench), John
Vallamatom v. Union of India, (2003) 6 SCC 611 (3- Judge Bench) etc. Furher, in
Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, (1996) 8 SCC 525,
…..” However, reference was nevertheless made to the Masilamani Mudaliar
case16, wherein, it was submitted, that this Court had adopted a contrary
position to the Narasu Appa Mali case23 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 114
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 case23, 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 Mutt24, wherein this Court held as under:
“20. The contention formulated in such broad terms cannot, we think, be
supported. In the first place, what constitutes the essential part of a
religion is primarily to be ascertained with reference to the doctrines of that
religion itself. If the tenets of any religious sect of the Hindus 24 AIR 1954
SC 282 115 prescribe that offerings of food should be given to the idol at
particular hours of the day, that periodical ceremonies should be performed in
a certain way at certain periods of the year or that there should be daily
recital of sacred texts or oblations to the sacred fire, all these would be regarded
as parts of religion and the mere fact that they involve expenditure of money
or employment of priests and servants or the use of marketable commodities
would not make them secular activities partaking of a commercial or economic
character; all of them are religious practices and should be regarded as
matters of religion within the meaning of Article 26(b). What Article 25(2)(a)
contemplates is not regulation by the State of religious practices as such, the
freedom of which is guaranteed by the Constitution except when they run counter
to public order, health and morality but regulation of activities which are
economic, commercial or political in their character though they are associated
with religious practices. We may refer in this connection to a few American and
Australian cases, all of which arose out of the activities of persons connected
with the religious association known as “Jehova's Witnesses”. This association
of persons loosely organised throughout Australia, U.S.A. and other countries regard
the literal interpretation of the Bible as fundamental to proper religious
beliefs. This belief in the supreme authority of the Bible colours many of
their political ideas. They refuse to take oath of allegiance to the king or
other constituted human authority and even to show respect to the national
flag, and they decry all wars between nations and all kinds of war activities.
In 1941 a company of “Jehova's Witnesses” incorporated in Australia commenced
proclaiming and teaching matters which were prejudicial to war activities and
the defence of the Commonwealth and steps were taken against them under the
National Security Regulations of the State. The legality of the action of the
Government was questioned by means of a writ petition before the High Court and
the High Court held that the action of the Government was justified and that
Section 116, which guaranteed freedom of religion under the Australian
Constitution, was not in any way infringed by the National Security Regulations
(Vide Adelaide Company v. Commonwealth, 67 CLR 116, 127). These were
undoubtedly political activities though arising out of religious belief
entertained by a particular community. In such cases, as Chief Justice Latham
pointed out, the provision for protection of religion was not an absolute
protection to be interpreted and applied independently of other provisions of
the Constitution. These privileges must be reconciled with the right of the
State to employ the sovereign power to ensure peace, security and orderly
living without which constitutional guarantee of civil liberty would be a
mockery.” 116 Reference was then made to Ratilal v. State of Bombay25, wherein
it was observed as under: “13. Religious practices or performances of acts in
pursuance of religious belief are as much a part of religion as faith or belief
in particular doctrines. Thus if the tenets of the Jain or the Parsi religion
lay down that certain rites and ceremonies are to be performed at certain times
and in a particular manner, it cannot be said that these are secular activities
partaking of commercial or economic character simply because they involve
expenditure of money or employment of priests or the use of marketable
commodities. No outside authority has any right to say that these are not
essential parts of religion and it is not open to the secular authority of the
State to restrict or prohibit them in any manner they like under the guise of
administering the trust estate. Of course, the scale of expenses to be incurred
in connection with these religious observances may be and is a matter of
administration of property belonging to religious institutions; and if the
expenses on these heads are likely to deplete the endowed properties or affect
the stability of the institution, proper control can certainly be exercised by
State agencies as the law provides. We may refer in this connection to the
observation of Davar, J. in the case of Jamshed ji v. Soonabai [33 Bom 122] and
although they were made in a case where the question was whether the bequest of
property by a Parsi testator for the purpose of perpetual celebration of
ceremonies like Muktad baj, Vyezashni, etc., which are sanctioned by the
Zoroastrian religion were valid charitable gifts, the observations, we think,
are quite appropriate for our present purpose. “If this is the belief of the
community” thus observed the learned Judge, “and it is proved undoubtedly to be
the belief of the Zoroastrian community,—a secular Judge is bound to accept
that belief—it is not for him to sit in judgment on that belief, he has no
right to interfere with the conscience of a donor who makes a gift in favour of
what he believes to be the advancement of his religion and the welfare of his
community or mankind”. These observations do, in our opinion, afford an indication
of the measure of protection that is given by Article 26(b) of our
Constitution.” Our attention was also drawn to Qureshi v. State of Bihar 26,
wherein this Court held as under: “13. Coming now to the arguments as to the
violation of the petitioners' fundamental rights, it will be convenient to take
up first the complaint founded on Article 25(1). That article runs as follows:
25 AIR 1954 SC 388 26 AIR 1958 SC 731 117 “Subject to public order, morality
and health and to the other provisions of this Part, all persons are equally
entitled to freedom of conscience and the right freely to profess, practice and
propagate religion.” After referring to the provisions of clause (2) which lays
down certain exceptions which are not material for our present purpose this
Court has, in Ratilal Panachand Gandhi v. The State of Bombay [(1954) SCR 1055,
1062-1063] explained the meaning and scope of this article thus: “Thus, subject
to the restrictions which this article imposes, every person has a fundamental
right under our Constitution not merely to entertain such religious belief as
may be approved of by his judgment or conscience but to exhibit his belief and
section also violates the fundamental rights of the petitioners ideas in such
overt acts as are enjoined or sanctioned by his religion and further to
propagate his religious views for the edification of others. It is immaterial
also whether the propagation is made by a person in his individual capacity or
on behalf of any church or institution. The free exercise of religion by which
is meant the performance of outward acts in pursuance of religious belief, is,
as stated above, subject to State regulation imposed to secure order, public
health and morals of the people.” What then, we inquire, are the materials placed
before us to substantiate the claim that the sacrifice of a cow is enjoined or
sanctioned by Islam? The materials before us are extremely meagre and it is
surprising that on a matter of this description the allegations in the petition
should be so vague. In the Bihar Petition No. 58 of 1956 are set out the
following bald allegations: “That the petitioners further respectfully submit
that the said impugned guaranteed under Article 25 of the Constitution
in-as-much as on the occasion of their Bakr Id Day, it is the religious
practice of the petitioners' community to sacrifice a cow on the said occasion.
The poor members of the community usually sacrifice one cow for every 7 members
whereas it would require one sheep or one goat for each member which would entail
considerably more expense. As a result of the total ban imposed by the impugned
section the petitioners would not even be allowed to make the said sacrifice
which is a practice and custom in their religion, enjoined upon them by the
Holy Quran, and practised by all Muslims from time immemorial and recognised as
such in India.” The allegations in the other petitions are similar. These are
met by an equally bald denial in paragraph 21 of the affidavit in opposition.
No affidavit has been filed by any person specially competent to expound the
relevant tenets of Islam. No reference is made in the petition to any
particular Surah of the Holy Quran which, in terms, requires the sacrifice of a
cow. All that was placed before us during the argument were Surah XXII, Verses
28 and 33, and Surah CVIII. What the Holy book enjoins is that people should
pray unto the Lord and make sacrifice. We have no affidavit before us by any
Maulana explaining the implications of those verses or throwing any light on
this problem. We, 118 however, find it laid down in Hamilton's translation of
Hedaya Book XLIII at p. 592 that it is the duty of every free Mussulman,
arrived at the age of maturity, to offer a sacrifice on the Yd Kirban, or
festival of the sacrifice, provided he be then possessed of Nisab and be not a
traveller. The sacrifice established for one person is a goat and that for
seven a cow or a camel. It is therefore, optional for a Muslim to sacrifice a
goat for one person or a cow or a camel for seven persons. It does not appear
to be obligatory that a person must sacrifice a cow. The very fact of an option
seems to run counter to the notion of an obligatory duty. It is, however,
pointed out that a person with six other members of his family may afford to
sacrifice a cow but may not be able to afford to sacrifice seven goats. So
there may be an economic compulsion although there is no religious compulsion.
It is also pointed out that from time immemorial the Indian Mussalmans have
been sacrificing cows and this practice, if not enjoined, is certainly
sanctioned by their religion and it amounts to their practice of religion
protected by Article 25. While the petitioners claim that the sacrifice of a
cow is essential, the State denies the obligatory nature of the religious practice.
The fact, emphasised by the respondents, cannot be disputed, namely, that many
Mussalmans do not sacrifice a cow on the Bakr Id Day. It is part of the known
history of India that the Moghul Emperor Babar saw the wisdom of prohibiting
the slaughter of cows as and by way of religious sacrifice and directed his son
Humayun to follow this example. Similarly Emperors Akbar, Jehangir, and Ahmad
Shah, it is said, prohibited cow slaughter. Nawab Hyder Ali of Mysore made cow
slaughter an offence punishable with the cutting of the hands of the offenders.
Three of the members of the Gosamvardhan Enquiry Committee set up by the Uttar
Pradesh Government in 1953 were Muslims and concurred in the unanimous
recommendation for total ban on slaughter of cows. We have, however, no
material on the record before us which will enable us to say, in the face of
the foregoing facts, that the sacrifice of a cow on that day is an obligatory
overt act for a Mussalman to exhibit his religious belief and idea. In the
premises, it is not possible for us to uphold this claim of the petitioners.”
Learned Attorney General also cited, State of Gujarat v. Mirzapur Moti Kureshi
Kassab Jamat27, and placed reliance on the following observations: “22. In
State of W.B. v. Ashutosh Lahiri [(1995) 1 SCC 189] this Court has noted that
sacrifice of any animal by Muslims for the religious purpose on BakrI'd does
not include slaughtering of cows as the only way of carrying out that
sacrifice. Slaughtering of cows on BakrI'd is neither essential to nor
necessarily required as part of the religious ceremony. An optional religious
practice is not covered by Article 25(1). On the contrary, it is common
knowledge that the cow and its progeny 27 (2005) 8 SCC 534 119 i.e. bull,
bullocks and calves are worshipped by Hindus on specified days during Diwali
and other festivals like Makar Sankranti and Gopashtmi. A good number of
temples are to be found where the statue of “Nandi” or “Bull” is regularly
worshipped. However, we do not propose to delve further into the question as we
must state, in all fairness to the learned counsel for the parties, that no one
has tried to build any argument either in defence or in opposition to the
judgment appealed against by placing reliance on religion or Article 25 of the Constitution.”
Finally, our attention was invited to Sardar Syedna Taher Saifuddin Saheb v.
State of Bombay28, wherein it was observed as under: “60. But very different
considerations arise when one has to deal with legislation which is claimed to
be merely a measure “providing for social welfare and reform”. To start with,
it has to be admitted that this phrase is, as contrasted with the second
portion of Article 25(2)(b), far from precise and is flexible in its content.
In this connection it has to be borne in mind that limitations imposed on
religious practices on the ground of public order, morality or health have
already been saved by the opening words of Article 25(1) and the saving would
cover beliefs and practices even though considered essential or vital by those
professing the religion. I consider that in the context in which the phrase
occurs, it is intended to save the validity only of those laws which do not
invade the basic and essential practices of religion which are guaranteed by
the operative portion of Article 25(1) for two reasons: (1) To read the saving
as covering even the basic essential practices of religion, would in effect
nullify and render meaningless the entire guarantee of religious freedom — a
freedom not merely to profess, but to practice religion, for very few pieces of
legislation for abrogating religious practices could fail to be subsumed under
the caption of “a provision for social welfare or reform”. (2) If the phrase
just quoted was intended to have such a wide operation as cutting at even the
essentials guaranteed by Article 25(1), there would have been no need for the
special provision as to “throwing open of Hindu religious institutions” to all
classes and sections of Hindus since the legislation contemplated by this provision
would be par excellence one of social reform.” 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 28 AIR 1962 SC 853 120 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 121 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 122 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 123
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. 124 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 125 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 126 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. 127 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: “The law that
governs a person’s family matters, regardless of where the person goes. In
common law systems, personal law refers to the law of the person’s domicile. In
civil-law systems, it refers to the law of the individual’s nationality (and so
is sometimes called lex patriae).” 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: “The idea of the personal law is based
on the conception of man as a social being, so that those transactions of his
daily life which affect him most closely in a personal sense, such as marriage,
divorce, legitimacy, many kinds of capacity, and succession, may be governed
universally by that system of law deemed most suitable and adequate for the
purpose …” 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 128 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 case23. Learned senior counsel, also placed reliance on
Shri Krishna Singh v. Mathura Ahir29, 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 India30, 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 29 (1981) 3 SCC 689 30 (1997)
3 SCC 573 129 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: “112. Law to be
administered in cases of inheritance and succession. – The high courts at
Calcutta, Madras and Bombay, in the exercise of their original jurisdiction in
suits against inhabitants of Calcutta, Madras or Bombay, as the case may be,
shall, in maters of inheritance and succession to lands, rents and goods, and
in matters of contract and dealing between party and party, when both parties
are subject to the same personal law or custom having the force of law, decide
according to that personal law or custom, and when the parties are subject to
different personal laws or customs having the force of law, decide according to
the law or custom to which the defendant is subject.” 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 130 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 case31.
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, 31 (1996) ALT 1138(-Writ Petition No.9717 of 1983, decided
on 9.10.1996) 131 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’ 132 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: “i. Whatever ‘Allah has passed on to His Messenger
from the people of the towns is for Allah and for the Messenger, and for the
kinsmen and the orphans and the needy and the wayfarer, so that it may not
circulate only between the rich among you. And whatever the Messenger gives
you, take it, and whatever he forbids you from, abstain (from it). And fear
Allah. Indeed Allah is severe in punishment. (Quran, Al-Hashr 59:71) ii. O you
who believe, obey Allah and His Messenger, and do not turn away from Him whn
you listen (to him). (Quran, Al-Anfal 8:20) iii. We did not send any Messenger
but to be obeyed by the leave of Allah. Had they, after having wronged
themselves, come to you and sought forgiveness from Allah, and had the
Messenger prayed for their forgiveness, they would certainly have found Allah
Most-Relenting, VeryMerciful (Quran, Al-Nisa 4:64) iv. That is because they
were hostile to Allah and His Messenger; and whoever becomes hostile to Allah
and His Messenger, then, Allah is severe at punishment. (Quran, Al-Anfal 8:13)
v. It is not open for a believing man or a believing woman, once Allah and His
messenger have decided a thing, that they should have a choice about their
mattr; and whoever disobeys Allah and His messenger, he indeed gets off the
track, falling into an open error. (Quran, Al-Ahzab 33:36) vi. Whoever breaks
away with the Messenger after the right path has become clear to him, and
follows what is not the way of the believers, we shall let him have what he
chose, and We shall admit him to Jahannam, which is an evil place to return.
(Quran, Al-Nisa 4:115)” In addition to the above, reference was also made to
the Quran with respect to triple talaq. The same are set out hereunder: 133 “i.
Divorce is twice; then either to retain in all fairness, or to release nicely.
It is not lawful for you to take back anything from what you have given them,
unless both apprehend that they would not be able to maintain the limits set by
Allah. Now, if you apprehend that they would not maintain the limits set by
Allah, then, there is no sin or them in what she gives up to secure her
release. These are the limits set by Allah. Therefore, do not exceed them.
Whosoever exceeds the limits set by Allah, then, those are the transgressors.
(Quran, Al-Baqarah 2:229) ii. Thereafter, if he divorces her, she shall no
longer remain lawful for him unless she marries a man other than him. Should he
too divorce her, then there is no sin on them in their returning to each other,
if they think they would maintain the limits set by Allah. These are the limits
set by Allah that He makes clear to a people who know (that Allah is alone
capable of setting these limits. (Quran, Al-Baqarah 2:229 and 230) iii. When
you have divorced women, and they have reached (the end of) their waiting
period, do not prevent them from marrying their husbands when they mutually
agree with fairness. Thus, the advice is given to everyone of you who believes
in Allah and in the Hereafter. This is more pure and clean for you. Allah knows
and you do not know. (Quran, AlBaqarah, 2:232) iv. O Prophet, when you people
divorce women, divorce them at a time when the period of Iddah may start. And
count the period of Iddah, and fear Allah, your Lord. Do not expel them from
their houses, nor should they go out, unless they come up with a clearly shameless
act. These are the limits prescribed by Allah. And whoever exceeds the limits
prescribed by Allah wrongs his own self. You do not know (what will happen in
future); it may be that Allah brings about a new situation thereafter. (Quran,
Al-Talaq, 65:1)” 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: “i. Salmah bid Abi Salmah narrated to his father that
when Hafs bin Mughaira resorted to Triple Talaq, the Prophet (Pbuh) held it as
valid. All the three pronouncements were made with a single word so the Prophet
(Pubh) separated her from him irrevocably. And it didn’t reach to us that the
Prophet (Pubh) rebuked him for that (Daraqutni, Kitab Al-Talaq wa Al-Khula wa
Al-Aiyla,5/23, Hadith number:3992) ii. Amas recpimts pm Muadh’s authority: “I
heard the Prophet (Pbuh) sying : O Muadh, whoever resorts to bidaa divorce, be
it one, two or 134 three. We will make his divorce effective. (Daraqutni, 5/81.
Kitab alTalaq wa Al-Khulawa aI-Aiyala, Hadith number: 4020) iii. (When Abdullah
Ibn Umar divorced his wife once while she was having menses. The Prophet (Pbuh)
asked him to retain his wife saying, O Ibn e Umar, Allah Tabarak wa taala
didn’t command like this: “You acted against Sunnah. And sunnah is that you
wait for Tuhar then divorce at every purity period. He said so Prophet (Pbuh)
Ordered me so I retained her. Then he said to me: When she becomes pure divorce
at that time or keep (her) So Abdullah ibn Umar asked: “Had I resorted to
Triple Talaq then, could I retain her?” The Prophet (Pbuh) replied: “No, she
would be separated from you and such an ction oyour part would have been a sin”
(Sunan Bayhaqi, 7/547, Hadith number: 14955). iv. Aishah Khathmiya was Hasan
bin Ali’s wife. When Ali was killed and Hasan bin Ali was made caliph. Hasan
bin Ali visited her and she congratulated him for the caliphate. Hasan bin Ali
replied, “you have expressed happiness over the killing of Ali. So you are
divorced thrice”. She covered herself with her cloth and said, “By Allah I did
not mean this”. She stayed until her iddat lapsed and she departed. Hasan bin
Ali sent her the remaining dower and a gift of twenty thousand dirhams. When
the messenger reached her and she saw the money she said “this is a very small
gift from the beloved from whom I have been separated”. When the messenger
informed Hasan bin Ali about this he broke into tears saying, “Had I not heard
from my father reporting from my grandfather that the Prophet (Pbuh) said that
whoever pronounced triple talaaq upon his wife, she will not be permitted to
him till the time she marries a husband other than he, I would have taken her
back. (AISunan AI-Kubra Iil Bayhaqi, Hadith number: 14492) v. Uwaymar Ajlani
complained to the Prophet (Pbuh) that he had seen his wife committing adultery.
His wife denied this charge. In line with the Quranic command, the Prophet
(Pbuh) initiated “a proceeding for the couple. Upon the completion of the
process, Uwaymar said: “If I retain her, I Will be taken as a liar”. So in the
Prophet’s presence, and without the Prophet’s command, he pronounced Triple
Talaq. (Sahi al-Bukhari Kitab al-Talaq, Hadith number: 5259)” 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: “(i) Of all the things
permitted by Allah, divorce is the most undesirable act. (Sunan Abu Dawud, Bad
Karahiya al-Talaq, Hadith no: 2178). (ii) If a person who had pronounced Triple
Talaq in one go was brought to Caliph Umar he would put him to pain by beating
and thereafter separate the couple. (Musannaf ibn Abi Shaybah, Bab man kara an
135 yatliq aI rajal imratahuu thalatha fi maqad wahadi wa ajaza dhalika alayhi.
Hadith number: 18089. (iii) Alqama narrated from Abdullah that he was asked
about a person who pronounced hundred divorces to his wife. He said three made
her prohibited (to him) and ninety seven is transgression (Musannaf ibn Abi
Shayba, Kitab al-Talaq, bab fi al rajal yatlaqu imratahuu miata aw alfa. Hadith
number: 18098) (iv) A man met another playful man in Medinah. He saidk, “Did
you divorce your wife? He said, “Yes”. He said, “How many thousand? (How many?
He replied: thousand). So he was presented before Umar. He said so you have
divorced your wife? He said I was playing. So he mounted upon him with the whip
and said out of these three will suffice you. Another narrator reports Umar
saying: “Triple Talaq will suffice you” (Musannaf Abd al-Razzaq, Kitab
al-talaq, Hadith number 11340). (v) Abdullah Ibn Umar said: “Whoever resorts to
Triple Talaq, he disobeys his Lord and wife is alienated from him.” (Musannaf
ibn Abi Shayba, Kitab aI-Talaq, Hadith no: 18091). (vi) Imran Ibn Hussain was
asked about a person who divorced his wife by Triple Talaq in single session.
He said that the person had disobeyed his Lord and his wife had become
prohibited to him. (Musannaf Ibn Abi Shayba, Hadith no: 18087) (vii) If one
tells his wife with whom he did not have conjugal relations: Triple Talaq be
upon you it will be effective. For he divorced her while she was his wife. Same
holds true for his wife with whom his marriage was consummated.”
(Al-Muhadhdhab, 4/305) (viii) Chapter heading runs thus: “The sance of those
who take the Quranic statement: ‘Divorce can be pronounced twice, then either
honourable retention or kind release; to mean that Triple Talaq becomes
effective. (Bukhari, 3/402)” 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 136 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. 137 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: “i. If the man said to his wife, “Your matter is in your hand:,
she said, “I have divorced myself three times”. Abu Haneefah (may Allah be
pleased with him) says: “If the husband intends three times, then it is three.”
138 Reference was also made to the writings of Imam Abu Mohammed in his book
entitled “Al-Mautta” (first volume), wherein he asserted as under: “i. Muhammad
says: So we follow this that if she chooses her husband then it will not be
counted a divorce, and if she chooses herself then it is accorfding to what her
husband intended, if his intention is one hen it will be counted one
irrevocable (Baainah) divorce, and if his is three it will be three divorces.
This is the saying of Abu Hanifah.” 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: “(i) Most of the Ulema take
the innovative divorce as effective (Baday alsanay, fasl Hukum Talaq-al Bidaa,
Kitab al-Talaq, 3/153). (ii) What do you think about the effectiveness of
pronouncing divorce thrice upon one’s pregnant wife either in one go or in
three different sessions, Imam Malik replied in the affirmative. (AI-Mudawwana,
2/68) (iii) The validity of triple talaq is also endorsed by all Ahl Al Sunnah
jurists. Allama Ibn Quda ma adds that: “This view is attributed to Abdul/ah ibn
Abbas. The same stance is shared by most of the successors and later scholars.”
(AI-Mughni Ii Ibn Qudama, 10/334) (iv) The Book, Sunnah, and the consensus view
of classical authorities is that Triple Talaq is effective, even if pronounced
in one go. The act in itself is, however, a sin.” (Ahkam al-Quran Iil Jassas,
2/85) (v) Imam Shafe’I (of Shafe’I School) has stated as follows in his book
entitled as Al-Umm (fifth volume): If he says you are divorced absolutely, with
the intention of triple divorce then it will be considered triple divorce and
if he intends one it will be considered one divorce and if he says you are
divorced with the intention of three it will be considered three. (page 359)
(vi) Mauffaqud Din Abi Muhammed Abdillah Ben Ahmed Ben Muhammed Ben Qudamah
Al-Muqaddasi Al-Jammaili Al-Dimashqi AlSalihi Al-Hanbali (of the Hanbali
School) in his book entitled as AlMughni (tenth volume) has stated as follows:
Ahmed said: If he says to wife: Divorce yourself, intending three, and she has
divorced herself thrice, it will be considered three, and if he has intended
one then it will considered one. (page 394) (vii) Allama Ibn Qudama, a Hanbali
jurist is of the view that if one divorces thrice with a single utterance, this
divorce will be effective and she will be unlawful for him until she marries
domeone else. Consummation of marriage is immaterial. The validity of Triple
Talaq is also endorsed by all Ahl Al Sunnah juristics. Allama Ibn Qudamma adds
that: “This view is attributed to Abdullah ibn Abbas, Abu Huraira, Umar,
Abdullah ibn Umar, Abdullah ibn Amr ibn Aas, Abdullah ibn Masud, and 139 Anas.
The same stance is shared by most of the successors and later scholars.””
(Al-Mughni li Ibn Qudama, 10,334)”. 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
petitoners. 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 140 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 Contitution, which is extracted below:
“44. Uniform civil code for the citizens.- The State shall endeavour to secure
for the citizens a uniform civil code throughout the territory of India.” 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: “Mr. Mohamad Ismail Sahib (Madras:
Muslim): Sir, I move that the following proviso be added to article 35:
"Provided that any group, section or community of people shall not be
obliged to give up its own personal lawin case it has such a law." The
right of a group or a community of people to followand adhere to its own
personal law is among the fundamentalrights and this provision should really be
made amongst thestatutory and justiciable fundamental rights. It is for
thisreason that I along with other friends have given amendmentsto certain
other articles going previous to this which I will move at the proper time. Now
the right to follow personal law is part of the wayof life of those people who
are following such laws; it ispart of their religion and part of their culture.
Ifanything is done affecting the personal laws, it will betantamount to interference
with the way of life of thosepeople who have been observing these laws for
generationsand ages. This secular State which we are trying to createshould not
do anything to interfere with theway of life and religion of the people. The
matter ofretaining personal law is nothing new; we have precedents inEuropean
countries. Yugoslavia, for instance, that is, thekingdom of the Serbs, Croats
and Slovenes, is obliged undertreaty obligations to guarantee the rights of
minorities.The clause regarding rights of Mussulmans reads as follows: 141
"The Serb, Croat and Slovene State agrees to grant tothe Mussulmans in the
matter of family law and personalstatus provisions suitable for regulating
these matters inaccordance with the Mussulman usage." We find similar clauses
in several other Europeanconstitutions also. But these refer to minorities
while myamendment refers not to the minorities alone but to allpeople including
the majority community, because it says,"Any group, section or community
of people shall not beobliged" etc. Therefore it seeks to secure the
rights of allpeople in regard to their existing personal law. Again this
amendment does not seek to introduce anyinnovation or bring in a new set of
laws for the people, butonly wants the maintenance of the personal law already
existing among certain sections of people. Now why do peoplewant a uniform
civil code, as in article 35? Their ideaevidently is to secure harmony through
uniformity. But Imaintain that for that purpose it is not necessary toregiment
the civil law of the people including the personallaw. Such regimentation will
bring discontent and harmonywill be affected. But if people are allowed to
follow theirown personal law there will be no discontent ordissatisfaction.
Every section of the people, being free tofollow its own personal law will not
really come in conflictwith others. Mr. Naziruddin Ahmad: Sir, I beg to move:
"That to article 35, the following proviso be added, namely: - Provided
that the personal law of any community which has been guaranteed by the statue
shall not be changedexcept with the previous approval of the community
ascertained in such manner as the Union Legislature maydetermine by law."
In moving this, I do not wish to confine my remarks tothe inconvenience felt by
the Muslim community alone. I would put it on a much broader ground. In fact,
eachcommunity, each religious community has certain religious laws, certain
civil laws inseparably connected withreligious beliefs and practices. I believe
that in framing a uniform draft code these religious laws or semi-religious
laws should be kept out of its way. There are several reasons which underlie
this amendment. One of them is that perhaps it clashes with article 19 of the
Draft Constitution. In article 19 it is provided that `subject to public order,
morality and health and to the other provisions of this Part, all persons are
equally entitled to freedom of conscience and the right freely to profess,
practise and propagate religion. In fact, this is so fundamental that the Drafting
Committee has very rightly introduced this in this place. Then in clause(2) of
the same article it has been further provided by way of limitation of the right
that `Nothing in this article shall affect the operation of any existing law or
preclude the State from making any law regulating or restricting any economic,
financial, political or other secular activity which may be associated with
religious practice'. I can quite see that there may be many pernicious
practices which may accompany religious practices and they may be controlled.
But there are certain religious practices, certain religious laws which do not
come within the exception in clause (2), viz. financial, political or other
secular 142 activity which may be associated with religious practices. Having
guaranteed, and very rightly guaranteed the freedom of religious practice and
the freedom to propagate religion, I think the present article tries to undo
what has been given in article 19. I submit, Sir, that we must try to prevent
this anomaly. In article 19 we enacted a positive provision which is
justiciable and which any subject of a State irrespective of his caste and
community can take to a Court of law and seek enforcement. On the other hand,
by the article under reference we are giving the State some amount of latitude
which may enable into ignore the right conceded. And this right is not
justiciable. It recommends to the State certain things and therefore it gives a
right to the State. But then the subject has not been given any right under
this provision. Submit that the present article is likely to encourage testate
to break the guarantees given in article 19. I submit, Sir, there are certain
aspects of the Civil Procedure Code which have already interfered with our
personal laws and very rightly so. But during the 175 years of British rule,
they did not interfere with certain fundamental personal laws. They have
enacted the Registration Act, the Limitation Act, the Civil Procedure Code, the
Criminal Procedure Code, the Penal Code, the Evidence Act, the Transfer of
Property Act, the Sarda Act and various other Acts. They have been imposed
gradually as occasion arose and they were intended to make the laws uniform
although they clash with the personal laws of particular community. But take
the case of marriage practice and the laws of inheritance. They have never
interfered with them. It will be difficult at this stage of our society to ask
the people to give up their ideas of marriage, which are associated with
religious institutions in many communities. The laws of inheritance are also
supposed to be the result of religious injunctions. I submit that the
interference with these matters should be gradual and must progress with the
advance of time. I have no doubt that a stage would come when the civil law
would be uniform. But then that time has not yet come. We believe that the
power that has been given to the State to make the Civil Code uniform is in
advance of the time. As it is, any State would be justified under article 35 to
interfere with the settled laws of the different communities at once. For
instance, there remarriage practices in various communities. If we want to
introduce a law that every marriage shall be registered and if not it will not
be valid, we can do so under article 35. But would you invalidate a marriage
which is valid under the existing law and under the present religious beliefs
and practices on the ground that it has not been registered under any new law
and thus bastardize the children born? This is only one instance of how
interference can go too far. As I have already submitted, the goal should be
towards a uniform civil code but it should be gradual and with the consent of
the people concerned. I have therefore in my amendment suggested that religious
laws relating to particular communities should not be affected except with
their consent to be ascertained in such manner as Parliament may decide by law.
Parliament may well decide to ascertain the consent of the community through
their representatives, and this could be secured by the 143 representatives by
their election speeches and pledges. In fact, this may be made an article of
faith in an election, and a vote on that could be regarded as consent. These
are matters of detail. I have attempted by my amendment to leave it to the
Central Legislature to decide how to ascertain this consent. Submit, Sir, that
this is not a matter of mere idealism. It is a question of stern reality which
we must not refuse to face and I believe it will lead to a considerable amount
of misunderstanding and resentment amongst the various sections of the country.
What the British in 175 years failed to door was afraid to do, what the Muslims
in the course of 500 years refrained from doing, we should not give power to
testate to do all at once. I submit, Sir, that we should proceed not in haste
but with caution, with experience, with statesmanship and with sympathy.
Mahbood Ali Baig Sahib Bahadur: Sir, I move that the following proviso be added
to article 35: "Provided that nothing in this article shall affect the
personal law of the citizen." My view of article 35 is that the words
"Civil Code" do not cover the strictly personal law of a citizen. The
Civil Code covers laws of this kind: laws of property, transfer of property,
law of contract, law of evidence etc. The law as observed by a particular
religious community is not covered by article 35. That is my view. Anyhow, in
order to clarify the position that article 35 does not affect the personal law
of the citizen, I have given notice of this amendment. Now, Sir, if for any
reason the framers of this article have got in their minds that the personal
law of the citizen is also covered by the expression "Civil Code", I
wish to submit that they are overlooking the very important fact of the
personal law being so much dear and near to certain religious communities. As
far as the Mussalmans are concerned, their laws of succession, inheritance,
marriage and divorce are completely dependent upon their religion. Shri M.
Ananthasayanam Ayyangar: It is a matter of contract. Mahboob Ali Baig Sahib
Bahadur: I know that Mr.Ananthasayanam Ayyangar has always very queer ideas
about the laws of other communities. It is interpreted as contract, while the
marriage amongst the Hindus is a Samskara and that among Europeans it is a
matter of status. I know that very well, but this contract is enjoined on the
Mussalmans by the Quran and if it is not followed, marriage is not a legal
marriage at all. For 1350 years this law has been practised by Muslims and recognised
by all authorities in all states. If today Mr. Ananthasayanam Ayyangar is going
to say that some other method of proving the marriage is going to be
introduced, we refuse to abide by it because it is not according to our
religion. It is not according to the code that is laid down for us for all
times in this matter. Therefore, Sir, it is not a matter to be treated so
lightly. I know that in the case of some other communities also, their personal
law depends entirely upon their religious tenets. If some communities have got
their own way of dealing with their religious tenets and practices, that cannot
be imposed on a community which insists that their religious tenets should be
observed. 144 B. Pocker Sahib Bahadur (Madras: Muslim): Mr. Vice-President,
Sir, I support the motion which has already been moved by Mr. Mohamed Ismail
Sahib to the effect that the following proviso be added to article 35: -
"Provide that any group, section or community of people shall not be
obliged to give up its own personal law in casein has such a law." It is a
very moderate and reasonable amendment to this article 35. Now I would request
the House to consider this amendment not from the point of view of the
Mussalman community alone, but from the point of view of the various
communities that exist in this country, following various codes of law, with
reference to inheritance, marriage, succession, divorce, endowments and so many
other matters. The House will not that one of the reasons why the Britisher,
having conquered this country, has been able to carry on the administration of
this country for the last 150 years and over was that he gave a guarantee of
following their own personal laws to each of the various communities in the
country. That is one of the secrets of success and the basis of the
administration of justice on which even the foreign rule was based. I ask, Sir,
whether by the freedom we have obtained for this country, are we going to give
up that freedom of conscience and that freedom of religious practices and that
freedom of following one's own personal law and try or aspire to impose upon
the whole country one code of civil law, whatever it may mean, - which I say,
as it is, may include even all branches of civil law, namely, the law of
marriage, law of inheritance, law of divorce and so many other kindred matters?
In the first place, I would like to know the real intention with which this
clause has been introduced. If the words "Civil Code" are intended
only to apply to matters procedure like the Civil Procedure Code and such other
laws which are uniform so far as India is concerned at present well, nobody has
any objection to that, but the various civil Courts Acts in the various
provinces in this country have secured for each community the right to follow their
personal laws as regards marriage, inheritance, divorce, etc. But if it is
intended that the aspiration of the State should be to override all these
provisions and to have uniformity of law to be imposed upon the whole people on
these matters which are dealt with by the Civil Courts Acts in the various
provinces, well, I would only say, Sir, that it is a tyrannous provision which
ought not to be tolerated; and let it not be taken that I am only voicing forth
the feelings of the Mussalmans. In saying this, I am voicing forth the feelings
of ever so many sections in this country who feel that it would be really
tyrannous to interfere with the religious practices, and with the religious
laws, by which they are governed now. xxx xxx xxx If such a body as this
interferes with the religious rights and practices, it will be tyrannous. These
organisations have used a much stronger language than I amusing, Sir.
Therefore, I would request the Assembly not to consider what I have said
entirely as coming from the point of view of the Muslim community. I know there
are great differences in the law of 145 inheritance and various other matters
between the various sections of the Hindu community. Is this Assembly going to
set aside all these differences and make them uniform? By uniform, I ask, what
do you mean and which particular law, of which community are you going to take
as the standard? What have you got in your mind in enacting a clause like this?
There are the mitakshara and Dayabaga systems; there are so many other systems
followed by various other communities. What is it that you are making the
basis? Is it open to us to do anything of this sort? By this one clause you are
revolutionising the whole country and the whole setup. There is no need for it.
Sir, as already pointed out by one of my predecessors in speaking on this
motion, this is entirely antagonistic tithe provision made as regards
Fundamental Rights in article19. If it is antagonistic, what is the purpose
served by clause like this? Is it open to this Assembly to pass by one stroke
of the pen an article by which the whole country is revolutionised? Is it
intended? I do not know what the framers of this article mean by this. On a
matter of such grave importance, I am very sorry to find that the framers or
the draftsmen of this article have not bestowed sufficiently serious attention
to that. Whether it is copied from anywhere or not, I do not know. Anyhow, if
it is copied from anywhere, I must condemn that provision even in that
Constitution. It is very easy to copy sections from other constitutions of
countries where the circumstances are entirely different. There are ever so
many multitudes of communities following various customs for centuries or
thousands of years. By one stroke of the pen you want to annul all that and
make them uniform. What is the purpose served? What is the purpose served by
this uniformity except to murder the consciences of the people and make them
feel that they are being trampled upon as regards their religious rights and practices?
Such a tyrannous measure ought not to find a place in our Constitution. I
submit, Sir, there are ever so many sections of the Hindu community who are
rebelling against this and who voice forth their feelings in much stronger
language than I am using. If the framers of this article say that even the
majority community is uniform in support of this, I would challenge them to say
so. It is not so. Even assuming that the majority community is of this view, I
say, it has to be condemned and it ought not to be allowed, because, in a
democracy, as I take it, it is the duty of the majority to secure the sacred
rights of every minority. It is a misnomer to call it a democracy if the
majority rides rough-shod over the rights of the minorities. It is not democracy
at all; it is tyranny. Therefore, I would submit to you and all the Members of
this House to take very serious notice of this article; it is not a light thing
to be passed like this. In this connection, Sir, I would submit that I have
given notice of an amendment to the Fundamental Right article also. This is
only a Directive Principle.” 146 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: Shri K. M. Munshi (Bombay:
General): Mr. Vice-President, I beg to submit a few considerations. This
particular clause which is now before the House is not brought for discussion
for the first time. It has been discussed in several committees and at several
places before it came to the House. The ground that is now put forward against
it is, firstly that it infringes the Fundamental Right mentioned in article 19;
and secondly, it is tyrannous to the minority. As regards article 19 the House
accepted it and made it quite clear that- "Nothing in this article shall
affect the operation of any existing law or preclude the State from making any
law (a) regulating or restricting"-I am omitting the unnecessary
words-"or other secular activity which maybe associated with religious
practices; (b) for social welfare and reforms". Therefore the House has
already accepted the principle that if a religious practice followed so far
covers a secular activity or falls within the field of social reform or social
welfare, it would be open to Parliament to make laws about it without
infringing this Fundamental Right of a minority. It must also be remembered
that if this clause is not put in, it does not mean that the Parliament in
future would have no right to enact a Civil Code. The only restriction touch a
right would be article 19 and I have already pointed out that article 19,
accepted by the House unanimously, permits legislation covering secular
activities. The whole object of this article is that as and when the Parliament
thinks proper or rather when the majority in the Parliament thinks proper an
attempt may be made to unify the personal law of the country. A further
argument has been advanced that the enactment of a Civil Code would be
tyrannical to minorities. Is it tyrannical? Nowhere in advanced Muslim
countries the personal law of each minority has been recognised as so
sacrosanct as to prevent the enactment of a Civil Code. Take for instance
Turkey or Egypt. No minority in these countries is permitted to have such
rights. But I go further. When the Shariat Act was passed or when certain laws
were passed in the Central Legislature in the old regime, the Khojas and Cutchi
Memons were highly dissatisfied. They then followed certain Hindu customs; for
generations since they became converts they had done so. They did not want to
conform to the Shariat; and yet by legislation of the Central Legislature
certain Muslim members who felt that Shariat law should be enforced upon the
whole community carried their point. The Khojas and Cutchi Memons most
unwillingly had to submit to it. Where were the rights of minority then? When
you want to consolidate a community, you have to take into consideration the
benefit which may accrue to the whole community and motto the customs of a part
of it. It is not therefore correct to say that 147 such an act is tyranny of
the majority. If you will look at the countries in Europe which have a Civil
Code, everyone who goes there from any part of the world and every minority,
has to submit to the Civil Code. It is not felt to be tyrannical to the
minority. The point however is this, whether we are going to consolidate and
unify our personal law in such a way that the way of life of the whole country
may in course of time be unified and secular. We want to divorce religion from
personal law, from what may be called social relations or from the rights of
parties as regards inheritance or succession. What have these things got to do
with religion I really fail to understand. Take for instance the Hindu Law
Draft which is before the Legislative Assembly. If one looks at Manu and
Yagnyavalkya and all the rest of them, I think most of the provisions of the
new Bill will run counter to their injunctions. But after all we are an
advancing society. We are in a stage where we must unify and consolidate the
nation by every means without interfering with religious practices. If however
the religious practices in the past have been so construed as to cover the
whole field of life, we have reached a point when we must put our foot down and
say that these matters are not religion, they are purely matters for secular
legislation. This is what is emphasised by this article. Now look at the
disadvantages that you will perpetuate if there is no Civil Code. Take for
instance the Hindus. We have the law of Mayukha applying in some parts of
India; we have Mithakshara in others; and we have the law-Dayabagha in Bengal.
In this way even the Hindus themselves have separate laws and most of our
Provinces and States have started making separate Hindu law for themselves. Are
we going to permit this piecemeal legislation on the ground that it affects the
personal law of the country? It is therefore not merely a question for
minorities but it also affects the majority. I know there are many among Hindus
who do not like a uniform Civil Code, because they take the same view as the
honourable Muslim Members who spoke last. They feel that the personal law of
inheritance, succession etc. is really apart of their religion. If that were
so, you can never give, for instance, equality to women. But you have already
passed a Fundamental Right to that effect and you have an article here which
lays down that there should be no discrimination against sex. Look at Hindu
Law; you get any amount of discrimination against women; and if that is part of
Hindu religion or Hindu religious practice, you cannot pass a single law which
would elevate the position of Hindu women to that of men. Therefore, there is
no reason why there should not be a civil code throughout the territory of
India. xxx xxx xxx Shri Alladi Krishanaswami Ayyar (Madras: General): Mr.
Vice-President, after the very full exposition of my friend the Honourable Mr.
Munshi, it is not necessary to cover the whole ground. But it is as well to
understand whether there can be any real objection to the article as it runs.
148 "The State shall endeavour to secure for the citizens a uniform civil
code throughout the territory of India." xxx xxx xxx Now, my friend Mr.
Pocker levelled an attack against the Drafting Committee on the ground that
they did not know their business. I should like to know whether he has
carefully read what happened even in the British regime. You must know that the
Muslim law covers the field of contracts, the field of criminal law, the field
of divorce law, the field of marriage and every part of law as contained in the
Muslim law. When the British occupied this country, they said, we are going to
introduce one criminal law in this country which will be applicable to all
citizens, be they Englishmen, be they Hindus, be they Muslims. Did the Muslims
take exception, and did they revolt against the British for introducing a
single system of criminal law? Similarly we have the law of contracts governing
transactions between Muslims and Hindus, between Muslims and Muslims. They are
governed not by the law of the Koran but by the Anglo-Indian jurisprudence, yet
no exception was taken to that. Again, there are various principles in the law
of transfer which have been borrowed from the English jurisprudence. Therefore,
when there is impact between two civilizations or between two cultures, each
culture must be influenced and influence the other culture. If there is a
determined opposition, or if there is strong opposition by any section of the
community, it would be unwise on the part of the legislators of this country to
attempt to ignore it. Today, even without article 35, there is nothing to
prevent the future Parliament of India from passing such laws. Therefore, the
idea is to have a uniform civil code. Now, again, there are Muslims and there
are Hindus, there are Catholics, there are Chistians, there are Jews,
indifferent European countries. I should like to know from Mr.Pocker whether
different personal laws are perpetuated in France, in Germany, in Italy and in
all the continental countries of Europe, or whether the laws of succession
aren’t coordinated and unified in the various States. He must have made a
detailed study of Muslim jurisprudence and found out whether in all those
countries, there is a single system of law or different systems of law. Leave
alone people who are there. Today, even in regard to people in other parts of
the country, if they have property in the continent of Europe where the German
Civil Code or the French Civil Code obtains, the people are governed by the law
of the place in very many respects. Therefore, it is incorrect to say that we
are invading the domain of religion. Under the Moslem law, unlike under Hindu
law, marriage is purely a civil contract. The idea of a sacrament does not
enter into the concept of marriage in Muslim jurisprudence though the incidence
of the contract may be governed by what is laid down in the Koran and by
theater jurists. Therefore, there is no question of religion being in danger.
Certainly no Parliament, no Legislature will be so unwise as to attempt it,
apart from the power of the Legislature to interfere with religious 149 tenets
of peoples. After all the only community that is willing to adapt itself to
changing times seems to be the majority community in the country. They are
willing to take lessons from the minority and adapt their Hindu Laws and take a
leaf from the Muslims for the purpose of reforming even the Hindu Law.
Therefore, there is no force to the objection that is put forward to article
35. The future Legislatures may attempt a uniform Civil Code or they may not.
The uniform Civil Code will run into every aspect of Civil Law. In regard to
contracts, procedure and property uniformity is sought to be secured by their
finding a place in the Concurrent List. In respect of these matters the
greatest contribution of British jurisprudence has been to bring about a
uniformity in these matters. We only go a step further than the British who
ruled in this country. Why should you distrust much more a national indigenous
Government than a foreign Government which has been ruling? Why should our
Muslim friends have greater confidence, greater faith in the British rule than
in a democratic rule which will certainly have regard to the religious tenets
and beliefs of all people? Therefore, for those reasons, I submit that the
House may unanimously pass this article which has been placed before the
Members after due consideration.” Before the amendments were put to vote, Dr.
B.R. Ambedker made the following observations: The Honourable Dr. B. R.
Ambedkar: Sir, I am afraid I cannot accept the amendments which have been moved
to this article. In dealing with this matter, I do not propose to touch on the
merits of the question as to whether this country should have a Civil Code or
it should not. That is a matter which I think has been dealt with sufficiently
for the occasion by my friend, Mr. Munshi, as well as by Shri Alladi
Krishnaswami Ayyar. When the amendments to certain fundamental rights are
moved, it would be possible for me to make a full statement on this subject,
and I therefore do not propose to deal with it here. My friend, Mr. Hussain
Imam, in rising to support the amendments, asked whether it was possible and desirable
to have a uniform Code of laws for a country so vast as this is. Now I must
confess that I was very much surprised at that statement, for the simple reason
that we have in this country a uniform code of laws covering almost every
aspect of human relationship. We have a uniform and complete Criminal Code
operating throughout the country, which is contained in the Penal Code and the
Criminal Procedure Code. We have the Law of Transfer of Property, which deals
with property relations and which is operative throughout the country. Then
there are the Negotiable Instruments Acts: and I can cite innumerable
enactments which would prove that this country has practically a Civil Code,
uniform in its content and applicable to the whole of the country. The only
province the Civil Law has not been able to invade so far is Marriage and
Succession. It is this 150 little corner which we have not been able to invade
so far and it is the intention of those who desire to have article 35 as part
of the Constitution to bring about that change. Therefore, the argument whether
we should attempt such a thing seems to me somewhat misplaced for the simple
reason that we have, as a matter of fact, covered the whole lot of the field
which is covered by a uniform Civil Code in this country. It is therefore too
late now to ask the question whether we could do it. As I say, we have already
done it. Coming to the amendments, there are only two observations which I
would like to make. My first observation would be to state that members who put
forth these amendments say that the Muslim personal law, so far as this country
was concerned, was immutable and uniform through the whole of India. Now I wish
to challenge that statement. I think most of my friends who have spoken on this
amendment have quite forgotten that up to 1935 the North-West Frontier Province
was not subject to the Shariat Law. It followed the Hindu Law in the matter of
succession and in other matters, so much so that it was in 1939 that the
Central Legislature had to come into the field and to abrogate the application
of the Hindu Law to the Muslims of the North-West Frontier Province and to
apply the Shariat Law to them. That is not all. My honourable friends have
forgotten, that, apart from the North-West Frontier Province, up till 1937 in
the rest of India, in various parts, such as the United Provinces, the Central
Provinces and Bombay, the Muslims to a large extent were governed by the Hindu
Law in the matter of succession. In order to bring them on the plane of uniformity
with regard to the other Muslims who observed the Shariat Law, the Legislature
had to intervene in 1937 and to pass an enactment applying the Shariat Law to
the rest of India. I am also informed by my friend, Shri Karunakara Menon, that
in North Malabar the Marumakkathayam Law applied to all-not only to Hindus but
also to Muslims. It is to be remembered that the Marumakkathayam Law is a
Matriarchal form of law and not a Partriarchal form of law. The Mussulmans,
therefore, in North Malabar were up to now following the Marumakkathyam law. It
is therefore no use making a categorical statement that the Muslim law has been
an immutable law which they have been following from ancient times. That law as
such was not applicable in certain parts and it has been made applicable ten
years ago. Therefore if it was found necessary that for the purpose of evolving
a single civil code applicable to all citizens irrespective of their religion,
certain portions of the Hindus, law, not because they were contained in Hindu
law but because they were found to be the most suitable, were incorporated into
the new civil code projected by article 35, I am quite certain that it would
not be open to any Muslim to say that the framers of the civil code had done
great violence to the sentiments of the Muslim community. My second observation
is to give them an assurance. I quite realise their feelings in the matter, but
I think they have read rather too much into article 35, which merely proposes
that the State shall endeavour to 151 secure a civil code for the citizens of
the country. It does not say that after the Code is framed the State shall
enforce it upon all citizens merely because they are citizens. It is perfectly
possible that the future parliament may make a provision byway of making a
beginning that the Code shall apply only to those who make a declaration that
they are prepared to be bound by it, so that in the initial stage the
application of the Code may be purely voluntary. Parliament may feel the ground
by some such method. This is not a novel method. It was adopted in the Shariat
Act of 1937 when it was applied to territories other than the North-West
Frontier Province. The law said that here is a Shariat law which should be
applied to Mussulmans who wanted that he should be bound by the Shariat Act
should go to an officer of the state, make a declaration that he is willing to
be bound by it, and after he has made that declaration the law will bind him
and his successors. It would be perfectly possible for parliament to introduce
a provision of that sort; so that the fear which my friends have expressed here
will be altogether nullified. I therefore submit that there is no substance in
these amendments and I oppose them.” When the matter was put to vote by the
Vice President of the Constituent Assembly, it was resolved as under: “Mr.
Vice-President: The question is: "That the following proviso be added to
article 35: `Provided that any group, section or community or people shall not
be obliged to give up its own personal law in case it has such a law'."
The motion was negatived.” 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 152 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: “Mr. Mohamed Ismail Sahib: Thank you very much, Sir,
forgiving me another opportunity to put my views before the House on this very
important matter. I beg to move: "That after clause (2) of article 19, the
following new clause be added: ‘(3) Nothing in clause (2) of this article shall
affect the right of any citizen to follow the personal law of the group or the
community to which he belongs or professes to belong.'" Sir, this provision
which I am suggesting would only recognise the age long right of the people to
follow their own personal law, within the limits of their families and
communities. This does not affect in any way the members of other communities.
This does not encroach upon the rights of the members of other communities to
follow their own personal law. It does not mean any sacrifice at all on the
part of the members of any other community. Sir, here what we are concerned
with is only the practice of the members of certain families coming under one
community. It is a family practice and in such cases as succession, inheritance
and disposal of properties by way of wakf and will, the personal law operates.
It is only with such matters that we are concerned under personal law. In other
matters, such as evidence, transfer of property, contracts and in innumerable
other questions of this sort, the civil code will operate and will apply to
every citizen of the land, to 153 whatever community he may belong. Therefore,
this will not in any way detract from the desirable amount of uniformity which
the state may try to bring about, in the matter of the civil law. This practice
of following personal law has been there amongst the people for ages. What I
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. On a previous occasion Dr. Ambedkar spoke about certain
enactments concerning Muslim personal law, enactments relating to Wakf, Shariat
law and Muslim marriage law. Here there was no question of the abrogation of
the Muslim personal law at all. There was no revision at all and in all those
cases what was done was that the Muslim personal law was elucidated and it was
made clear that these laws shall apply to the Muslims. They did not modify them
at all. Therefore those enactments and legislations cannot be cited now as
matters of precedents for us to do anything contravening the personal law of
the people. Under this amendment what I want the House to accept is that when
we speak of the State doing anything with reference to the secular aspect of
religion, the question of the personal law shall not be brought in and it shall
not be affected. xxx xxx xxx The question of professing, practising and
propagating one’s faith is a right which the human being had from the very
beginning of time and that has been recognised as an inalienable right of every
human being, not only in this land but the whole 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. That is
my view. Another honourable Member spoke about the troubles that had arisen as
a result of the propagation of religion. I would say that the troubles were not
the result of the propagation of religion or the professing or practicing of
religion. They arose as a result of the misunderstanding of religion. My point
of view, and I say that that is the correct point of view, is that if only
people understand their respective religions aright and if they practise them
aright in the proper manner there would be no trouble whatever; and because
there was some trouble due to some cause it does not stand to reason that the
fundamental right of a human being to practise and propagate his religion
should be abrogated in any way.” The response of Pt. Laxmikanta Mitra is
reproduced below: “Pandit Lakshmi Kanta Mitra (West Bengal: General): Sir, I
feel myself called upon to put in a few words to explain the general
implications of this article so as to remove some of the misconceptions that
have arisen in the minds of some of my honourable Friends over it. This article
19 of the Draft Constitution confers on all person 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 154 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. I would say at once that this conception of a secular State
is wholly wrong. (By secular State, as I 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. In other words in the affairs of the State the professing of
any particular religion will not be taken into consideration at all.) This I
consider to be the essence of a secular state. 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. Mr.
Vice-President, this glorious land of ours is nothing if it does not stand for
lofty religious and spiritual concepts and ideals. India would not be occupying
any place of honour on this globe if she had not reached that spiritual height
which she did in her glorious past. 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.” 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
155 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: “Mr H. M. Abdullah (West Central Punjab: Muhammadan): Sir, I beg to
move: "That the Bill to make provision for the application of the Moslem
Personal Law (Shariat) to Moslems in British India, as reported by the Select
Committee, be taken into consideration." The object of the Bill, as the
House is already aware, is to replace the customary law by the Shari at law in
certain matters where the parties to a dispute are Muslims. By doing so, it
also helps the weaker sex as it enables women to succeed to the ancestral
property and to claim dissolution of marriage on certain grounds. After explaining
the object of the Bill briefly, it gives me great pleasure to say that the Bill
has met with a unanimous support from the Select Committee except in one or two
points. Objection has been taken to the words "or Law" in clause 2 of
the Bill by Messrs Mudie, Muhammad Azhar Ali and Sir Muhammad Yarnin Khan in
their minutes of dissent. As there is an amendment on the agenda for the
omission of these words, I shall deal with it when it is moved. Meanwhile, I
would confine my remarks to the modifications suggested by the Select
Committee. The main changes made by it are two, one relating to the exclusion
of the agricultural land from the purview of the Bill, and the other concerning
the amplification of the word "divorce". As succession to agricultural
land is an exclusively provincial subject under the Government of India Act,
1935, it had, much against my wish, to be excluded from the Bill. Having regard
to the different forms of dissolution of marriage recognised by the Shariat, it
was considered necessary to provide for all of them. In order to implement the
provisions in this respect, a new clause 3 has been inserted in the Bill
empowering the District Judge to grant dissolution of marriage on petition of a
married Muslim woman on certain grounds. These changes have been introduced in
the interest of the females who, in such matters, are at present at the mercy
of their husbands. I am sure that these wholesome changes will be supported by
the House. In addition to the above, the Select Committee have made a few other
amendments which are fully explained in the report, and I need not take the
time of the House in dilating upon them. I hope that the Bill in its present
form will meet with the approval of the whole House. Sir, I move. Mr Deputy
President (Mr Akhil Chandra Dattas): Motion moved: "That the Bill to make
provision for the application of the Moslem Personal Law (Shariat) to Moslems
in British India, as reported by the Select Committee, be taken into
consideration." Mr Abdul Qaiyum (North-West Frontier Province: General):
Sir, I am in sympathy with the objects which this very useful Bill aims at.
There is a great awakening among the Muslim masses, and they are terribly 156
conscious of their wretched condition socially, politically and economically. There
is a desire in the 107 108 Appendix B community for an advance in all these
directions. The feelings of the Muslim community have been expressed in public
meetings throughout the length and breadth of this country. This feeling, I
have great pleasure in stating, is not merely confined to males but it has
spread to the females also, and for the first time the Muslim women in India
have given expression to their strong feelings against the dead hand of
customary law which has reduced them into the position of chattels. Sir, these
feelings have been expressed by various organisations of Muslim women
throughout India. A representative body of Muslim Ulema like the
Jamait-ulUlemai-Hind has also expressed its sympathy with the objects of this
Bill. Sir, there is something in the word Shariat, -may be it is Arabic, -
which gives a sort of fright to some of my Honourable friends, but I think if
they try to read the Muhammadan Law on the point, especially on the point of
succession, they will realise that this Bill was long overdue and that it is a
step in the right direction. People have no idea of what terrible conditions
the Muslim women have had to endure in my own Province: I can say that whenever
a Muslim died, at least before the Frontier Shariat Law was enacted in the
North-West Frontier Province, his daughter, his sister and his wife all used to
be thrown into the street, and the reversioner in the tenth degree would come
round and collar all his property. I think that the conscience of all those who
believe in progress, social, political and economic will revolt against such
practice and once people realise that this Bill is primarily intended to
improve the status of women and to confer upon them benefits which are lawfully
their due under the Muhammadan law, then they will gladly support this measure.
'Custom' is a very indefinite term. I know it as a lawyer that in my Province
whenever a question of custom used to crop up it used to involve any amount of
research work, lawyers used to indulge in research work to find out cases, look
up small books on customary law and it was found that the custom varied from
tribe to tribe, from village to village and it has been held, by the High Court
in our Province before the Shariat Act came into force, that custom varied from
one part of the village to the other. The position was so uncertain that people
had to spend so much money on litigation that by the time litigation came to an
end the property for which people were fighting would disappear. It was with a
view to put an end to this uncertainty that people in the Frontier Province
pressed for an Act which was subsequently passed into law. I have only one
thing to say. Personally I want the Muslims in India in matters affecting them
to follow the personal law of the Muslims as far as they can. I want them to
move in this direction because it is a thing which is going to help the Muslims
and because the Muslims form a very important minority community in this
country- they are 80 millions - all well-wishers of this country will agree
with me that if it enhances the states of Muslims, if it brings the much needed
relief to the Muslim women, it will be a good thing for the cause of the Indian
nation. Therefore, in our Province an Act was passed which goes much further 157
than this particular Bill which is now under discussion before this House. It
is a very well-known fact that under the new Government of India Act,
agricultural land and waqfs and religious trusts are provincial subjects and
that this Honourable House cannot legislate about matters which are now on the
provincial legislative list. The Act which we have in the Frontier Province,
Act VI of 1935, goes much further than this Bill because it includes
agricultural land and religious trusts. Therefore, I have tabled an amendment
that this particular Bill - though I heartily agree with the principles of
Appendix B 109 the Bill - when enacted into law, should not be extended to our
Province. If it is so extended, it would mean that the people of the Frontier
Province would be taking a step backward and not forwards. It is well-known
fact and it is laid down in the Government of India Act, Section 107, that
where a Federal Law comes into conflict with a Provincial Law and even if the
Federal Law has been passed after the Provincial Law, then to that extent it
over-rides the Provincial law and the Provincial Law becomes null and void.
Therefore, my submission is that the intention with which I tabled my amendment
was not with any idea of opposing the object of this Bill, but my reason for
moving this amendment is that this Bill does not go as far as we wish to go -at
least in one Province, namely, the North-West Frontier Province. I submit this
is a measure which has been long overdue. I have known cases where a widow who
was enjoying life estate - and whose reversioners were waiting for her death -
did not die but happened to have a very long life. There have been cases in the
Northwest Frontier Province where people have taken the law into their own
hands and in order to get the property they have murdered the widow. I can cite
other cases before this Honourable House. There have been cases which I have
come across in my legal and professional career where, when a man dies leaving
a wife who by customary law has to enjoy the property till her death or
remarriage, certain reversioners come forward and bring a suit to declare that
the widow had married one of the reversioners with a view to proving that she
was no longer a widow and with a view to terminate her life estate. There have
been numerous cases where families have been ruined, murderers and stabbings
have taken place because the dead hand of customary law stood in the way of the
reversioners who were anxious to get what they could not get and in order to
deprive the poor widow, false cases have been tromped up that she had
remarried. There have been many other illegal tricks resorted to by people with
a view to get hold of the property. I submit, Sir, that the dead hand of
customary law must be removed. We are living in an age in which very important
changes are taking place. After all this customary law is a thing of the past
When many other things are going the way of all flesh, when even systems of
Government have to change, when even mighty Empires have disappeared, when we
see signs of softening even in the hearts of the Government of India, when we
have got popular Congress Governments in seven Provinces - a thing which nobody
would have believed six months ago or one year ago. I submit that it is high
time that we got rid of this dead hand of custom. After all custom is a
horrible 158 thing as far as this particular matter is concerned, and by
endorsing the principles of this Bill we would be doing justice to millions of
Indian women who profess Muslim faith. I hope, Sir, the day is not far off when
other communities will also bring similar measures and when in India women and
men will be treated equally in the eyes of law in the matter of property,
political rights, social rights and in all other respects. I have, therefore,
great pleasure in supporting the principles of this Bill.” 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 159 ‘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: 160 “1. I am the Secretary of All India Muslim Personal
Law Board which has been arraigned as Respondent No.3 and as Respondent No.8
respectively to the above-captioned Writ Petitions. I am conversant with the
facts and circumstances of the present case and I am competent to swear this
Affidavit. 2. I say and submit that the All India Muslim Personal Law Board
will issue an advisory through its Website, Publications and Social Media
Platforms and thereby advise the persons who perform ‘Nikah’ (marriage) and request
them to do the following:- (a) At the time of performing ‘Nikah’ (Marriage),
the person performing the ‘Nikah’ will advise the Bridegroom/Man that in case
of differences leading to Talaq the Bridegroom/Man shall not pronounce three
divorces in one sitting since it is an undesirable practice in Shariat; (b)
That at the time of performing ‘Nikah’ (Marriage), the person performing the
‘Nikah’ will advise both the Bridegroom/Man and the Bride/Woman to incorporate
a condition in the ‘Nikahnama’ to exclude resorting to pronouncement of three
divorces by her husband in one sitting. 3. I say and submit that, in addition,
the Board is placing on record, that the Working Committee of the Board had
earlier already passed certain resolutions in the meeting held on 15th and 16th
April, 2017 in relation to Divorce (Talaq) in the Muslim community. Thereby it
was resolved to convey a code of conduct/guidelines to be followed in the
matters of divorce particularly emphasizing to avoid pronouncement of three
divorces in one sitting. A copy of the resolution dated April 16, 2017
alongwith the relevant Translation of Resolution Nos. 2, 3, 4 & 5 relating
to Talaq (Divorce) is enclosed herewith for the perusal of this Hon’ble Court
and marked as Annexure A-1 (Colly) [Page Nos.4 to 12] to the present
Affidavit.” 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. 161 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 162
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 163 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 India32,
wherein the petitioner had approached this Court by filing a writ petition
under Article 32 of the Constitution, with the following prayers: “(i) A writ
of mandamus to the respondents to consider the question of enacting a common
civil code for all citizens of India. (ii) To declare Muslim Women (Protection
of Rights on Divorce) Act, 1986 as void being arbitrary and discriminatory and
in violation of Articles 14 and 15 and Articles 44, 38 39 and 39-A of the
Constitution of India. (iii) To direct the respondents not to enact Shariat Act
in respect of those adversely affecting the dignity and rights of Muslim women
and against their protection.” 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.” 32 (1994) Suppl. (1) SCC 713 164
102. Reliance was also placed on the Ahmedabad Women Action Group case30. It
was submitted that this Court considered the following issues during the course
of adjudication of the above matter. “(i) Whether Muslim Personal Law which
allows Polygamy is void as offending Articles 14 and 15 of the Constitution.
(ii) Whether Muslim Personal Law which enables a Muslim male to give unilateral
Talaq to his wife without her consent and without resort to judicial process of
courts, is void as it offends Articles 13, 14 and 15 of the Constitution. (iii)
Whether the mere fact that a Muslim husband takes more than one wife is an act
of cruelty.” 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: “At the outset, we would like to state that these writ petitions
do not deserve disposal on merits inasmuch as the arguments advanced by the
learned Senior Advocate before us wholly involve issues of State policies with
which the Court will not ordinarily have any concern. Further, we find that
when similar attempts were made, of course by others, on earlier occasions this
Court held that the remedy lies somewhere else and not by knocking at the doors
of the courts.” 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. 165 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 case4, 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: 166 “And if he has divorced her
(for the third time), then she is not lawful to him afterward until (after) she
marries a husband other than him. And if the latter husband divorces her (or
dies), there is no blame upon the woman and her former husband for returning to
each other if they think that they can keep (within)the limits of Allah. These
are the limits of Allah, which He makes clear to a people who know.” 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
case28, wherein this Court observed as under: “The content of Articlles 25 and
26 of the Constitution came up for consideration before this Court in the
Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Matt; Mahant Jagannath Ramanuj Das v. The State of
Orissa; Sri Ventatamana Devaru v. The State of Mysore; Durgah Committee, Ajmer
v. Syed Hussain Ali and several other cases and the main principles underlying
these provisions have by these decisions been placed beyond controversy. The
first is that the protection of these articles is not limited to matters of
doctrine or belief they extend also to acts done in pursuance of religion and
therefore contain a guarantee for rituals and observances, ceremonies and modes
of worship which are integral parts of religion. The second is that what
constitutes an essential part of a religious or religious practice has to be
decided by the courts with 167 reference to the doctrine of a particular
religion and include practices which are regarded by the community as a part of
its religion”. It was pointed out, that the above view of this Court had been
affirmed by this Court in N. Adithyan v. Travancore Devasom Board33, wherein in
paragraphs 9 and 16, it was observed as under: “9. This Court, in Seshammal v.
State of T.N., (1972) 2 SCC 11 again reviewed the principles underlying the
protection engrafted in Articles 25 and 26 in the context of a challenge made
to abolition of hereditary right of Archaka, and reiterated the position as
hereunder : (SCC p.21, paras 13-14) “13. This Court in Sardar Taher Saifuddin
Saheb v. State of Bombay AIR 1962 SC 853 has summarized the position in law as
follows (pp.531 and 532): ‘The content of Articles 25 and 26 of the
Constitution came up for consideration before this Court in Commr., Hindu
Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,
Mahant Jagannath Ramanuj Das v. State of Orissa, Venkataramana Devaru v. State
of Mysore, Durgah Committee, Ajmer v. Syed Hussain Ali15 and several other
cases and the main principles underlying these provisions have by these
decisions been placed beyond controversy. The first is that the protection of
these articles is not limited to matters of doctrine or belief they extend also
to acts done in pursuance of religion and therefore contain a guarantee for
rituals and observances, ceremonies and modes of worship which are integral
parts of religion. The second is that what constitutes an essential part of a
religion or religious practice has to be decided by the courts with reference
to the doctrine of a particular religion and include practices which are
regarded by the community as a part of its religion.’ 14. Bearing these
principles in mind, we have to approach the controversy in the present case.”
16. It is now well settled that Article 25 secures to every person, subject of
course to public order, health and morality and other provisions of Part III,
including Article 17 freedom to entertain and exhibit by outward acts as well
as propagate and disseminate such religious belief according to his judgment
and conscience for the edification of others. The right of the State to impose
such restrictions as are desired or found necessary on grounds of public order,
health and morality is inbuilt in Articles 25 and 26 itself. Article 25(2)(b)
ensures the right of the State to make a law providing for social welfare and
reform besides throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus and any such rights of the Sate
or of the communities or classes of society were also considered to need due
regulation in the process of 33 (2002) 8 SCC 106 168 harmonizing the various
rights. The vision of the founding fathers of the Constitution to liberate the
society from blind and ritualistic adherence to mere traditional superstitious
beliefs sans reason or rational basis has found expression in the form of
Article 17. The legal position that the protection under Articles 25 and 26
extends a guarantee for rituals and observances, ceremonies and modes of
worship which are integral parts of religion and as to what really constitutes
an essential part of religion or religious practice has to be decided by the
courts with reference to the doctrine of a particular religion or practices
regarded as parts of religion, came to be equally firmly laid down.” 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.34, wherein this Court held as under: “28…..All secular activities which
may be associated with religion but which do not relate or constitute an
essential part of it may be amenable to State regulations but what constitutes
the essential part of religion may be ascertained primarily from the doctrines
of that religion itself according to its tenets, historical background and
change in evolved process etc. The concept of essentiality is not itself a
determinative factor. It is one of the circumstances to be considered in
adjudging whether the particular matters of religion or religious practices or
belief are an integral part of the religion. It must be decided whether the
practices or matters are considered integral by the community itself. Though
not conclusive, this is also one of the facets to be noticed. The practice in
question is religious in character and whether it could be regarded as an
integral and essential part of the religion and if the court finds upon
evidence adduced before it that it is an integral or essential part of the
religion, Article 25 accords protection to it. …..” 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 34 (1997) 4 SCC 606 169 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:- “i) With regard to articles 5(a) and 16(1) of the Convention
on the Elimination of All Forms of Discimination Against Women, the Governmetn
of the Republic of India declares that it shall abide by and ensure these
provisions in conformity with its policy of non-interefernece in the personal
affairs of any Community without its initiative and consent." 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 170 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), 171
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 172 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, 173 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 174 ‘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, 175 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 provisons 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
176 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. 177 113. 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 178 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 case1 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 case1 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 case1 was rendered in 1932. The 179 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 case1 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 180 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 case1, 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. Sowramma35, wherein, the High Court examined the
above decision of the Privy Council in the Rashid Ahmad case1, 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: “7. There has been considerable argument
at the bar – and precedents have been piled up by each side – as to the meaning
to be given to the expression ‘failed to provide for her maintenance’ and about
the grounds recognised as valid for dissolution under Muslim law. Since
infallibility is not an attribute of the judiciary, the view has been ventured
by Muslim jurists that the Indo-Anglian judicial exposition of the Islamic 35
AIR 1971 Ker 261 181 law of divorce has not exactly been just to the Holy
Prophet or the Holy Book. Marginal distortions are inevitable when the Judicial
Committee in Downing Street has to interpret Manu and Muhammad of India and
Arabia. The soul of a culture – law is largely the formalized and enforceable
expression of a community’s cultural norms – cannot be fully understood by
alien minds. The view that the Muslim husband enjoys an arbitrary, unilateral
power to inflict instant divorce does not accord with Islamic injunctions …. It
is a popular fallacy that a Muslim male enjoys, under the Quaranic law,
unbridled authority to liquidate the marriage. “The whole Quoran expressly
forbids a man to seek pretexts for divorcing his wife, so long as she remains
faithful and obedient to him, “if they (namely, women) obey you, then do not
seek a way against them”.” (Quaran IV:34). The Islamic “law gives to the man
primarily the faculty of dissolving the marriage, if the wife, by her
indocility or her bad character, renders the married life unhappy; but in the
absence of serious reasons, no man can justify a divorce, either in the eye of
religion or the law. If he abandons his wife or puts her away in simple
caprice, he draws upon himself the divine anger, for the curse of God, said the
Prophet, rests on him who repudiates his wife capriciously.” As the learned
author, Ahmad A. Galwash notices, the pagan Arab, before the time of the
Prophet, was absolutely free to repudiate his wife whenever it suited his whim,
but when the Prophet came He declared divorce to he “the most disliked of
lawful things in the sight of God. He was indeed never tired of expressing his
abhorrence of divorce. Once he said: ‘God created not anything on the face of
the earth which He loveth more than the act of manumission. (of slaves) nor did
He create anything on the face of the earth which he detesteth more than the
act of divorce”. Commentators on the Quoran have rightly observed – and this
tallies with the law now administered in some Mulsim countries like Iraq – that
the husband must satisfy the court about the reasons for divorce. However,
Muslim law, as applied in India, has taken a course contrary to the spirit of
what the Prophet or the Holy Quoran laid down and the same misconception
vitiates the law dealing with the wife’s right to divorce.” 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 Vali36,
recorded the following observations: “20. Before we bid farewell to Fazlunbi it
is necessary to mention that Chief Justice Baharul Islam, in an elaborate
judgment replete with quotes from the Holy Quoran, has exposed the error of
early English authors and judges who dealt with talaq in Muslim Law as good
even if pronounced at whim or in tantrum, and argued against the diehard view
36 (1980) 4 SCC 125 182 of Batchelor J. ILR 30 Bom 539 that this view ‘is good
in law, though bad in theology’. Maybe, when the point directly arises, the
question will have to be considered by this court, but enough unto the day the
evil thereof and we do not express our opinion on this question as it does not
call for a decision in the present case.” The above observations lead to the
inference, that the proposition of law pronounced by the Privy Council in the
Rashid Ahmad case1, 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 case2, wherein, the High Court took a view
different from the one recorded by the Privy Council (-in the Rashid Ahmad
case1). 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 case3. 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
case4. 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 case5 (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. 183
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 case1, 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 petitoner’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 184 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. 185 (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 186 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 187
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 188 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. 189 127.
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 case1,
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 case2,
a Division Bench of the same High Court – the Gauhati High Court in the Rukia
Khatun case3, by a Single Judge of the Delhi High Court in the Masroor Ahmed
case4, and finally, on account of the decision of a Single Judge of the Kerala
High Court in the Nazeer case5. 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 190 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 case2 is concerned,
details of the entire consideration 191 have been narrated in paragraph 31
hereinabove. Likewise, the consideration with reference to the Rukia Khatun
case3 has been recorded in paragraph 32. The judgment in the Masroor Ahmed
case4 has been dealt with in paragraph 33. And finally, the Nazeer case5 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 case12.
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 192 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 193 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 case4. 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 194 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, AlBaqarah 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 alTalaq, Hadith number: 5259 (-for details,
refer to paragraph 86 above). Representing the AIMPLB, learned senior counsel,
also highlighted ‘hadiths’ 195 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: 1. The
Jiauddin Ahmed case2 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. 2. The Rukia
Khatun case3 Sl. No. Reference Comments (i) Authorities in this judgment are
identical to the above mentioned judgment of Jiauddin Ahmed v. Anwara Begum.
196 3. The Masroor Ahmed case4 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. 4. The Nazeer
case5. 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. 197 (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, 198 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-eHadith/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.
199 136. 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. 200 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
case12, 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
case12 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: “15. The plea taken by Respondent
2 husband in his written statement may be renoticed. Respondent 2 vaguely makes
certain generalized accusations against the appellant wife and states that ever
since the marriage he found his wife to be sharp, shrewd and mischievous.
Accusing the wife of having brought disgrace to the family, Respondent 2
proceeds to state, vide para 12 (translated into English) — “The answering
respondent, feeling fed up with all such activities unbecoming of the
petitioner wife, has divorced her on 11-7-1987.” The particulars of the alleged
talaq are not pleaded nor the circumstances under which and the persons, if
any, in whose presence talaq was pronounced have been stated. Such deficiency
continued to prevail even during the trial and Respondent 2, except examining
himself, adduced no evidence in proof of 201 talaq said to have been given by
him on 11-7-1987. There are no reasons substantiated in justification of talaq
and no plea or proof that any effort at reconciliation preceded the talaq. 16.
We are also of the opinion that the talaq to be effective has to be pronounced.
The term “pronounce” means to proclaim, to utter formally, to utter
rhetorically, to declare, to utter, to articulate (see Chambers 20th Century
Dictionary, New Edition, p. 1030). There is no proof of talaq having taken
place on 11-7-1987. What the High Court has upheld as talaq is the plea taken
in the written statement and its communication to the wife by delivering a copy
of the written statement on 5-12-1990. We are very clear in our mind that a
mere plea taken in the written statement of a divorce having been pronounced
sometime in the past cannot by itself be treated as effectuating talaq on the
date of delivery of the copy of the written statement to the wife. Respondent 2
ought to have adduced evidence and proved the pronouncement of talaq on
11-7-1987 and if he failed in proving the plea raised in the written statement,
the plea ought to have been treated as failed. We do not agree with the view
propounded in the decided cases referred to by Mulla and Dr Tahir Mahmood in
their respective commentaries, wherein a mere plea of previous talaq taken in
the written statement, though unsubstantiated, has been accepted as proof of
talaq bringing to an end the marital relationship with effect from the date of
filing of the written statement. A plea of previous divorce taken in the
written statement cannot at all be treated as pronouncement of talaq by the
husband on the wife on the date of filing of the written statement in the Court
followed by delivery of a copy thereof to the wife. So also the affidavit dated
31-8-1988, filed in some previous judicial proceedings not inter partes,
containing a selfserving statement of Respondent 2, could not have been read in
evidence as relevant and of any value. 17. For the foregoing reasons, the
appeal is allowed. Neither the marriage between the parties stands dissolved on
5-12-1990 nor does the liability of Respondent 2 to pay maintenance comes to an
end on that day. Respondent 2 shall continue to remain liable for payment of
maintenance until the obligation comes to an end in accordance with law. The
costs in this appeal shall be borne by Respondent 2.” 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 case12. 202 139. 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 203 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 204 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 case1 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 205 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 25 206 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 207
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 208 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. 209 152. 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 210 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 211 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 212 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 213 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 214 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 case23. 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: “13. That this distinction is recognised by the Legislature is
clear if one looks to the language of S. 112, Government of India Act, 1915.
That section deals with the law to be administered by the High Courts and it
provides that the High Courts shall, in matters of inheritance and succession
to lands, rents and goods, and in matters of contract and dealing between party
and party, when both parties are subject to the same personal law or custom having
the force of law, decide according to that personal law or custom, and when the
parties are subject to different personal laws or customs having the force of
law, decide according to the law or custom to which the defendant is subject.
Therefore, a clear distinction is drawn between personal law and custom having
the force of law. This is a provision in the Constitution Act, and having this
model before them the Constituent Assembly in defining “law” in Art. 13 have
expressly and advisedly used only the expression “custom or usage” and have
omitted personal law. This, in our opinion, is a very clear pointer to the
intention of the Constitution-making body to exclude personal law from the
purview of Art. 13. There are other pointers as well. Article 17 abolishes
untouchability and forbids its practice in any form. Article 25(2)(b) enables
the State to make laws for the purpose of throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus. Now,
if Hindu personal law became void by reason of Art. 13 and by reason of any of
its provisions contravening any fundamental right, then it was unnecessary
specifically to provide in Art. 17 and Art. 25(2)(b) for certain aspects of
Hindu personal law which contravened Arts. 14 and 15. This clearly shows that
only in certain respects has the Constitution dealt with personal law. The very
presence of Art. 44 in the Constitution recognizes the existence of separate
personal laws, and Entry No. 5 in the Concurrent List gives power to the
Legislatures to pass laws affecting personal law. The scheme of the
Constitution, therefore, seems to be to leave personal law unaffected except
where specific provision is made with 215 regard to it and leave it to the
Legislatures in future to modify and improve it and ultimately to put on the
statute book a common and uniform Code. Our attention has been drawn to S. 292,
Government of India Act, 1935, which provides that all the law in force in
British India shall continue in force until altered or repealed or amended by a
competent Legislature or other competent authority, and S. 293 deals with
adaptation of existing penal laws. There is a similar provision in our
Constitution in Art. 372(1) and Art. 372(2). It is contended that the laws which
are to continue in force under Art. 372(1) include personal laws, and as these
laws are to continue in force subject to the other provisions of the
Constitution, it is urged that by reason of Art. 13(1) any provision in any
personal law which is inconsistent with fundamental rights would be void. But
it is clear from the language of Arts. 372(1) and (2) that the expression “laws
in force” used in this article does not include personal law because Art.
372(2) entitles the President to make adaptations and modifications to the law
in force by way of repeal or amendment, and surely it cannot be contended that
it was intended by this provision to authorise the President to make
alterations or adaptations in the personal law of any community. Although the
point urged before us is not by any means free from difficulty, on the whole
after a careful consideration of the various provisions of the Constitution, we
have come to the conclusion that personal law is not included in the expression
“laws in force” used in Art. 13(1). 23. …..The Constitution of India itself
recognises the existence of these personal laws in terms when it deals with the
topics falling under personal law in item 5 in the Concurrent List—List III.
This item deals with the topics of 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.
Thus it is competent either to the State or the Union Legislature to legislate
on topics falling within the purview of the personal law and yet the expression
“personal law” is not used in Art. 13. because, in my opinion, the framers of
the Constitution wanted to leave the personal laws outside the ambit of Part
III of the Constitution. They must have been aware that these personal laws
needed to be reformed in many material particulars and in fact they wanted to
abolish these different personal laws and to evolve one common code. Yet they
did not wish that the provisions of the personal laws should be challenged by
reason of the fundamental rights guaranteed in Part III of the Constitution and
so they did not intend to include these personal laws within the definition of
the expression “laws in force.” Therefore, I agree with the learned Chief
Justice in holding that the personal laws do not fall within Art. 13(1) at
all.” 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 216
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 case23, has been upheld by the
Court in the Shri Krishna Singh case29 and the Maharshi Avadhesh32 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 Begum37 (by a
5-Judge Constitution Bench), Daniel Latifi v. Union of India38 (by a 5-Judge
Constitution Bench), and in the John Vallamattom case9, (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 case29. The
factual position which arose in the above case, may be noticed as under: ‘S’, a
Hindu ascetic, established the Garwaghat Math at Varanasi in 1925. The ‘math’
(monastery) comprised of Bangla Kuti and other buildings and 37 (1985) 2 SCC
556 38 (2001) 7 SCC 740 217 lands endowed by his devotees. ‘S’ belonged to the
Sant Math Sampradaya, which is a religious denomination of the Dasnami sect,
founded by the ‘Sankaracharya’ (head of a monastery). During this lifetime, ‘S’
initiated ‘A’ as his ‘chela’ (disciple) and gave him full rights of initiation
and ‘bhesh’ (spiritual authority). After the death of ‘S’, his ‘bhesh’ and
sampradaya (succession of master or disciples) gave ‘A’ the ‘chadar mahanti’
(cloak of the chief priest) of the ‘math’ and made him the ‘mahant’ (chief
priest), according to the wishes of ‘S’. ‘A’ thereafter initiated the
plaintiff, a ‘sudra’ (lowest caste of the four Hindu castes), as his ‘chela’
according to the custom and usage of the sect and after this death, in
accordance with his wishes the ‘mahants’ and ‘sanyasis’ (persons leading a life
of renunciation) of the ‘bhesh’ and ‘sampradaya’ gave the ‘chadar mahanti’ to
the plaintiff, and installed him as the ‘mahant’ of the ‘math’ in the place of
‘A’, by executing a document to that effect. ‘A’ during his life time purchased
two houses in the city of Varanasi, from out of the income of the ‘math’. When
the plaintiff became the ‘mahant’, he brought a suit for ejectment of
Respondents 2 to 5 from one of those houses, on the ground that Respondent 2
after taking the house on rent from ‘A’, had unlawfully sublet the premises to
Respondents 3 to 5. The defendant respondents inter alia pleaded, that they
were in occupation of the house as ‘chelas’ of ‘A’, in their own rights, by
virtue of a licence granted to them by ‘A’, and therefore, on his death his
natural son and disciple, the appellant became the owner thereof. One of the
questions which needed to be determined in the above controversy, was
formulated as under: 218 (1) Whether the plaintiff being a ‘sudra’ could not be
ordained to a religious order and become a ‘sanyasi’ or ‘yati’ and therefore,
installed as ‘mahant’ according to the tenets of the Sant Mat Sampradaya? In
recording its conclusions with reference to Article 25, in the above disputed
issue, this Court held as under: “17. It would be convenient, at the outset, to
deal with the view expressed by the High Court that the strict rule enjoined by
the Smriti writers as a result of which Sudras were considered to be incapable
of entering the order of yati or sanyasi, has ceased to be valid because of the
fundamental rights guaranteed under Part III of the Constitution. In our
opinion, the learned Judge failed to appreciate that Part III of the
Constitution does not touch upon the personal laws of the parties. In applying
the personal laws of the parties, he could not introduce his own concepts of
modern times but should have enforced the law as derived from recognised and
authoritative sources of Hindu law i.e. Smritis and commentaries referred to,
as interpreted in the judgments of various High Courts, except, where such law
is altered by any usage or custom or is modified or abrogated by statute.” (ii)
Reference is also essential to Madhu Kishwar v. State of Bihar39, wherein this
Court observed a under: “It is worthwhile to account some legislation on the
subject. The Hindu Succession Act governs and prescribes rules of succession
applicable to a large majority of Indians being Hindus, Sikhs, Buddhists, Jains
etc. whereunder since 1956, if not earlier, the female heir is put on a par
with a male heir. Next in the line of numbers is the Shariat law, applicable to
Muslims, whereunder the female heir has an unequal share in the inheritance, by
and large half of what a male gets. Then comes the Indian Succession Act which
applies to Christians and by and large to people not covered under the
aforesaid two laws, conferring in a certain manner heirship on females as also
males. Certain chapters thereof are not made applicable to certain communities.
Sub-section (2) of Section 2 of the Hindu Succession Act significantly provides
that nothing contained in the Act shall apply to the members of any Scheduled
Tribe within the meaning of clause (25) of Article 366 of the Constitution,
unless otherwise directed by the Central Government by means of a notification
in the Official Gazette. Section 3(2) further provides that in the Act, unless
the context otherwise requires, words importing the masculine gender shall not
be taken to include females. General rule of legislative practice is that
unless there is anything repugnant in the subject or context, words importing
the masculine gender used in statutes are to be 39 (1996) 5 SCC 125 219 taken
to include females. Attention be drawn to Section 13 of the General Clauses
Act. But in matters of succession the general rule of plurality would have to
be applied with circumspection. The afore provision thus appears to have been
inserted ex abundanti cautela. Even under Section 3 of the Indian Succession Act,
the State Government is empowered to exempt any race, sect or tripe from the
operation of the Act and the tribes of Mundas, Oraons, Santhals etc. in the
State of Bihar, who are included in our concern, have been so exempted. Thus
neither the Hindu Succession Act, nor even the Shariat law is applicable to the
customgoverned tribals. And custom, as is well recognized, varies from people
to people and region to region.” In the face of these divisions and visible
barricades put up by the sensitive tribal people valuing their own customs,
traditions and usages, judicially enforcing on them the principles of personal
laws applicable to others, on an elitist approach or on equality principle, by
judicial activism, is a difficult and mind-boggling effort. Brother K.
Ramaswamy, J. seems to have taken the view that Indian legislatures (and
Governments too) would not prompt themselves to activate in this direction
because of political reasons and in this situation, an activist court.
apolitical as it avowedly is, could get into action and legislate broadly on
the lines as suggested by the petitioners in their written submissions. However
laudable, desirable and attractive the result may seem, it has happily been
viewed by our learned brother that an activist court is not fully equipped to
cope with the details and 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 the court, it compulsively needs to apply, motion,
described in judicial parlance as self-restraint. We agree therefore with
brother K. Ramaswamy, J. as summed up by him in the paragraph ending on p.36
(para 46) of his judgment that under the circumstances it is not desirable to
declare the customs of tribal inhabitants as offending Articles 14, 45 and 21
of the Constitution and each case must be examined when full facts are placed
before the court. With regard to the statutory provisions of the Act, he has
proposed to the reading down of Sections 7 and 8 in order to preserve their
constitutionality. This approach is available from p.36 (paras 47, 48) onwards
of his judgment. The words "male descendant wherever occurring , would include
"female descendants". It is also proposed that even though the
provisions of the Hindu Succession Act, 1925 in terms would not apply to the
Schedule Tribes, their general principles composing of justice, equity and fair
play would apply to them. On this basis it has been proposed to take the view
that the Scheduled Tribe women would succeed to the estate of paternal parent,
brother or husband as heirs by intestate succession and inherit the property in
equal shares with the male heir with absolute rights as per the principles of
the Hindu Succession Act as also the Indian Succession Act. However, much we
may like the law to be so we regret our inability to subscribe to 220 the means
in achieving such objective. If this be the route of return on the court's
entering the thicket, it would follow a beeline for similar claims in diverse
situations, not stopping at tribal definitions, and a deafening uproar to bring
other systems of law in line with the line with the systems of law in line with
the Hindu Succession Act and the Indian Succession Act as models. Rules of
succession are, indeed susceptible of providing differential treatment, not
necessarily equal. Non-uniformities would not in all events violate Article 14.
Judge-made amendments to provisions, should normally be avoided. We are thus
constrained to take this view. even though it may appear to be conservative for
adopting a cautious approach, and the one proposed by our learned brother is,
regretfully not acceptable to us.” (iii) In the Ahmedabad Women Action Group
case30, this Court recorded the questions arising for consideration in
pargraphs 1 to 3, which are reproduced below: “All these Writ Petitions are
filed as Public Interest Litigation. In W.P. (C) No. 494 of 1996, the reliefs
prayed for are as follows: (a) to declare Muslim Personal Law which allows
polygamy as void as offending Articles 14 and 15 of the Constitution; (b) to
declare Muslim Personal Law which enables a Muslim male to give unilateral
Talaq to his wife without her consent and without resort to judicial process of
courts, as void, offending Articles 13, 14 and 15 of the Constitution; (c) to
declare that the mere fact that a Muslim husband takes more than one wife is an
act of cruelty within the meaning of Clause VIII (f) of Section 2 of
Dissolution of Muslim Marriages Act, 1939; (d) to declare that Muslim Women
(Protection of Rights on Divorce) Act, 1986 is void as infringing Articles 14
and 15; (e) to further declare that the provisions of Sunni and Shia laws of
inheritance which discriminate against females in their share as compared to
the share of males of the same status, void as discriminating against females
only on the ground of sex. 2. In writ Petition (C) No. 496 of 1996, the reliefs
prayed for are the following:- (a) to declare Sections 2(2), 5(ii) and (iii), 6
and Explanation to Section 30 of Hindu Succession Act, 1956, as void offending
Articles 14 and 15 read with Article 13 of the Constitution of India; (b) to
declare Section (2) of Hindu Marriage Act, 1955, as void offending Articles 14
and 15 of the Constitution of India; (c) to declare Sections 3 (2), 6 and 9 of
the Hindu Minority and Guardianship Act read with Section 6 of Guardians and
Wards Act void; 221 (d) to declare the unfettered and absolute discretion allowed
to a Hindu spouse to make testamentary disposition without providing for an
ascertained share of his or her spouse and dependant, void. 3. In writ Petition
(C) No. 721 of 1996, the reliefs prayed for are the following : (a) to declare
Sections 10 and 34 of Indian Divorce Act void and also to declare Sections 43
to 46 of the Indian Succession Act void.” The position expressed in respect of
the above questions, after noticing the legal position propounded by this Court
in the Madhu Kishwar case39, was recorded in paragraph 4 as under: “4. At the
outset. we would like to state that these Writ Petitions do not deserve
disposal on merits inasmuch as the arguments advanced by the learned Senior
Advocate before us wholly involve issues of State policies with which the Court
will not ordinarily have any concern. Further, we find that when similar
attempts were made, of course by others, on earlier occasions this Court held
that the remedy lies somewhere else and not by knocking at the doors of the
courts.” (iv) Reference may also be made to the Sardar Syedna Taher Saifuddin
Saheb case28, wherein, this Court held as under: “The content of Articles 25
and 26 of the Constitution came up for consideration before this Court in the
Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Matt; Mahant Jagannath Ramanuj Das v. The State of
Orissa; Sri Ventatamana Devaru v. The State of Mysore; Durgah Committee, Ajmer
v. Syed Hussain Ali and several other cases and the main principles underlying
these provisions have by these decisions been placed beyond controversy. The
first is that the protection of these articles is not limited to matters of
doctrine or belief they extend also to acts done in pursuance of religion and
therefore contain a guarantee for rituals and observances, ceremonies and modes
of worship which are integral parts of religion. The second is that what
constitutes an essential part of a religion or religious practice has to be
decided by the courts with reference to the doctrine of a particular religion
and include practices which are regarded by the community as a part of its
religion”. (v) It is also essential to note the N. Adithyan case33, wherein
this Court observed as under: “9. This Court, in Seshammal v. State of T.N.,
(1972) 2 SCC 11 again reviewed the principles underlying the protection
engrafted in Articles 25 222 and 26 in the context of a challenge made to
abolition of hereditary right of Archaka, and reiterated the position as
hereunder: (SCC p.21, paras 13-14) “13. This Court in Sardar Taher Saifuddin
Saheb v. State of Bombay AIR 1962 SC 853 has summarized the position in law as
follows (pp.531 and 532): ‘The content of Articles 25 and 26 of the
Constitution came up for consideration before this Court in Commr., Hindu
Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,
Mahant Jagannath Ramanuj Das v. State of Orissa, Venkataramana Devaru v. State
of Mysore, Durgah Committee, Ajmer v. Syed Hussain Ali and several other cases
and the main principles underlying these provisions have by these decisions
been placed beyond controversy. The first is that the protection of these
articles is not limited to matters of doctrine or belief they extend also to
acts done in pursuance of religion and therefore contain a guarantee for
rituals and observances, ceremonies and modes of worship which are integral
parts of religion. The second is that what constitutes an essential part of a
religion or religious practice has to be decided by the courts with reference
to the doctrine of a particular religion and include practices which are
regarded by the community as a part of its religion.’ 14. Bearing these
principles in mind, we have to approach the controversy in the present case.”
16. It is now well settled that Article 25 secures to every person, subject of
course to public order, health and morality and other provisions of Part III,
including Article 17 freedom to entertain and exhibit by outward acts as well
as propagate and disseminate such religious belief according to his judgment
and conscience for the edification of others. The right of the State to impose
such restrictions as are desired or found necessary on grounds of public order,
health and morality is inbuilt in Articles 25 and 26 itself. Article 25(2)(b)
ensures the right of the State to make a law providing for social welfare and
reform besides throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus and any such rights of the Sate
or of the communities or classes of society were also considered to need due
regulation in the process of harmonizing the various rights. The vision of the
founding fathers of the Constitution to liberate the society from blind and
ritualistic adherence to mere traditional superstitious beliefs sans reason or
rational basis has found expression in the form of Article 17. The legal
position that the protection under Articles 25 and 26 extends a guarantee for
rituals and observances, ceremonies and modes of worship which are integral
parts of religion and as to what really constitutes an essential part of
religion or religious practice has to be decided by the courts with reference
to the doctrine of a particular religion or practices regarded as parts of
religion, came to be equally firmly laid down.” 223 (vi) Relevant to the issue
is also the judgment in the Sri Adi Visheshwara of Kashi Vishwanath Temple,
Varanasi case34, wherein it was held: “28…..All secular activities which may be
associated with religion but which do not relate or constitute an essential
part of it may be amenable to State regulations but what constitutes the
essential part of religion may be ascertained primarily from the doctrines of
that religion itself according to its tenets, historical background and change
in evolved process etc. The concept of essentiality is not itself a
determinative factor. It is one of the circumstances to be considered in
adjudging whether the particular matters of religion or religious practices or
belief are an integral part of the religion. It must be decided whether the
practices or matters are considered integral by the community itself. Though
not conclusive, this is also one of the facets to be noticed. The practice in
question is religious in character and whether it could be regarded as an
integral and essential part of the religion and if the court finds upon
evidence adduced before it that it is an integral or essential part of the
religion, Article 25 accords protection to it. …..” (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 case23, 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), 224 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- 225
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’ 226 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 227 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 228 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 India40. Our
pointed attention was drawn to the following observations recorded therein:
“44. Marriage, inheritance, divorce, conversion are as much religious in nature
and content as any other belief or faith. Going round the fire seven rounds or
giving consent before Qazi are as much matter of faith and conscience as the
worship itself. When a Hindu becomes a convert by reciting Kalma or a Mulsim
becomes Hindu by reciting certain Mantras it is a matter of belief and
conscience. Some of these practices observed by members of one religion may
appear to be excessive and even violative of human rights to members of
another. But these are matters of faith. Reason and logic have little role to
play. The sentiments and emotions have to be cooled and tempered by sincere effort.
But today there is no Raja Ram Mohan Rai who single handedly brought about that
atmosphere which paved the way for Sati abolition. Nor is a statesman of 40
(1995) 3 SCC 635 229 the stature of Pt. Nehru who could pilot through,
successfully, the Hindu Succession Act and Hindu Marriage Act revolutionising
the customary Hindu Law. The desirability of uniform Code can hardly be
doubted. But it can concretize only when social climate is properly built up by
elite of the society, statesmen amongst leaders who instead of gaining personal
mileage rise above and awaken the masses to accept the change.” Reliance was
also placed on the Valsamma Paul case20, wherefrom learned counsel emphasized
on the observations recorded in the following paragraphs: “6. The rival contentions
give rise to the question of harmonising the conflict between the personal law
and the constitutional animation behind Articles 16(4) and 15(4) of the
Constitution. The concepts of “equality before law” and “equal protection of
the laws” guaranteed by Article 14 and its species Articles 15(4) and 16(4) aim
at establishing social and economic justice in political democracy to all
sections of society, to eliminate inequalities in status and to provide
facilities and opportunities not only amongst individuals but also amongst
groups of people belonging to Scheduled Castes (for short ‘Dalits’), Scheduled
Tribes (for short ‘Tribes’) and Other Backward Classes of citizens (for short
‘OBCs’) to secure adequate means of livelihood and to promote with special care
the economic and educational interests of the weaker sections of the people, in
particular, Dalits and Tribes so as to protect them from social injustice and
all forms of exploitation. By 42nd Constitution (Amendment) Act, secularism and
socialism were brought in the Preamble of the Constitution to realise that in a
democracy unless all sections of society are provided facilities and
opportunities to participate in political democracy irrespective of caste,
religion and sex, political democracy would not last long. Dr Ambedkar in his
closing speech on the draft Constitution stated on 25-11-1949 that “what we
must do is not to be attained with mere political democracy; we must make our
political democracy a social democracy as well. Political democracy cannot last
unless there lies on the base of it a social democracy”. Social democracy means
“a way of life which recognises liberty, equality and fraternity as principles
of life”. They are not separate items in a trinity but they form union of
trinity. To diversity one from the other is to defeat the very purpose of
democracy. Without equality, liberty would produce the supremacy of the few
over the many. Equality without liberty would kill individual initiative.
Without fraternity, liberty and equality could not become a natural course of
things. Articles 15(4) and 16(4), therefore, intend to remove social and
economic inequality to make equal opportunities available in reality. Social
and economic justice is a right enshrined for the protection of society. The
right to social and economic justice envisaged in the Preamble and elongated in
the 230 Fundamental Rights and Directive Principles of the Constitution, in
particular, Articles 14, 15, 16, 21, 38, 39 and 46 of the Constitution, is to
make the quality of the life of the poor, disadvantaged and disabled citizens
of society, meaningful. Equal protection in Article 14 requires affirmative
action for those unequals by providing facilities and opportunities. While
Article 15(1) prohibits discrimination on grounds of religion, race, caste,
sex, place of birth, Article 15(4) enjoins upon the State, despite the above
injunction and the one provided in Article 29(2), to make special provision for
the advancement of any socially and educationally backward classes of citizens
or for the Dalits and Tribes. Equally, while Article 16(1) guarantees equality
of opportunity for all citizens in matters relating to employment or
appointment to any office under the State, Article 16(4) enjoins upon the State
to make provision for reservation for these sections which in the opinion of
the State are not adequately represented in the services under the State.
Article 335 of the Constitution mandates that claims of the members of the
Dalits and Tribes shall be taken into consideration in making appointments to
services and posts in connection with affairs of the Union or of a State
consistent with the maintenance of efficiency of administration. Therefore,
this Court interpreted that equal protection guaranteed by Articles 14, 15(1)
and 16(1) is required to operate consistently with Articles 15(4), 16(4), 38,
39, 46 and 335 of the Constitution, vide per majority in Indra Sawhney v.Union
of India [1992 Supp (3) SCC 217] known as Mandal case [1992 Supp (3) SCC 217].
In other words, equal protection requires affirmative action for those unequals
handicapped due to historical facts of untouchability practised for millennium
which is abolished by Article 17; for tribes living away from our national
mainstream due to social and educational backwardness of OBCs. xxx xxx xxx 16.
The Constitution seeks to establish a secular socialist democratic republic in
which every citizen has equality of status and of opportunity, to promote among
the people dignity of the individual, unity and integrity of the nation
transcending them from caste, sectional, religious barriers fostering
fraternity among them in an integrated Bharat. The emphasis, therefore, is on a
citizen to improve excellence and equal status and dignity of person. With the
advancement of human rights and constitutional philosophy of social and
economic democracy in a democratic polity to all the citizens on equal footing,
secularism has been held to be one of the basic features of the Constitution
(Vide: S.R. Bommai v. Union of India (1994) 3 SCC 1) and egalitarian social
order is its foundation. Unless free mobility of the people is allowed
transcending sectional, caste, religious or regional barriers, establishment of
secular socialist order becomes difficult. In State of Karnataka v. Appa Balu
Ingale [1995 Supp (4) SCC 469] this Court has held in para 34 that judiciary
acts as a bastion of the freedom and of the rights of the people. The Judges
are participants in the living stream of national life, steering the law
between the dangers of rigidity and formlessness in the seamless web of life. A
Judge must be a jurist endowed with the legislator's 231 wisdom, historian's
search for truth, prophet's vision, capacity to respond to the needs of the
present, resilience to cope with the demands of the future to decide
objectively, disengaging himself/herself from every personal influence or
predilections. The Judges should adapt purposive interpretation of the dynamic
concepts under the Constitution and the Act with its interpretative armoury to
articulate the felt necessities of the time. Social legislation is not a
document for fastidious dialects but means of ordering the life of the people.
To construe law one must enter into its spirit, its setting and history. Law
should be capable to expand freedom of the people and the legal order can weigh
with utmost equal care to provide the underpinning of the highly inequitable
social order. Judicial review must be exercised with insight into social values
to supplement the changing social needs. The existing social inequalities or
imbalances are required to be removed readjusting the social order through rule
of law. In that case, the need for protection of right to take water, under the
Civil Rights Protection Act, and the necessity to uphold the constitutional
mandate of abolishing untouchability and its practice in any form was
emphasised. xxx xxx xxx 21. The Constitution through its Preamble, Fundamental
Rights and Directive Principles created a secular State based on the principle
of equality and non-discrimination, striking a balance between the rights of
the individuals and the duty and commitment of the State to establish an
egalitarian social order. Dr K.M. Munshi contended on the floor of the
Constituent Assembly that “we want to divorce religion from personal law, from
what may be called social relations, or from the rights of parties as regards
inheritance or succession. What have these things got to do with religion, I
fail to understand? We are in a stage where we must unify and consolidate the
nation by every means without interfering with religious practices. If,
however, in the past, religious practices have been so construed as to cover
the whole field of life, we have reached a point when we must put our foot down
and say that these matters are not religion, they are purely matters for
secular legislation. Religion must be restricted to spheres which legitimately
appertain to religion, and the rest of life must be regulated, unified and
modified in such a manner that we may evolve, as early as possible, a strong
and consolidated nation” [Vide: Constituent Assembly Debates, Vol. VII, pp.
356-58]. xxx xxx xxx 26. Human rights are derived from the dignity and worth
inherent in the human person. Human rights and fundamental freedoms have been
reiterated in the Universal Declaration of Human Rights. Democracy, development
and respect for human rights and fundamental freedoms are interdependent and
have mutual reinforcement. The human rights for women, including girl child
are, therefore, inalienable, integral and an indivisible part of universal
human rights. The full development of personality and fundamental freedoms and
equal participation by women in political, social, economic and cultural life
are concomitants for 232 national development, social and family stability and
growth — cultural, social and economical. All forms of discrimination on
grounds of gender is violative of fundamental freedoms and human rights.
Convention for Elimination of all forms of Discrimination Against Women (for
short, “CEDAW”) was ratified by the UNO on 18-12-1979 and the Government of
India had ratified as an active participant on 19-6-1993 acceded to CEDAW and
reiterated that discrimination against women violates the principles of
equality of rights and respect for human dignity and it is an obstacle to the
participation on equal terms with men in the political, social, economic and
cultural life of their country; it hampers the growth of the personality from
society and family, making more difficult for the full development of
potentialities of women in the service of the respective countries and of
humanity.” Reference was also made to the decision of this Court in the John
Vallamattom case9, wherefrom learned counsel for the petitioner highlighted the
following observations: “42. Article 25 merely protects the freedom to practise
rituals and ceremonies etc. which are only the integral parts of the religion.
Article 25 of the Constitution of India will, therefore, not have any
application in the instant case. xxx xxx xxx 44. Before I part with the case, I
would like to state that Article 44 provides that the State shall endeavour to
secure for the citizens a uniform civil code throughout the territory of India.
The aforesaid provision is based on the premise that there is no necessary
connection between religious and personal law in a civilized society. Article
25 of the Constitution confers freedom of conscience and free profession,
practice and propagation of religion. The aforesaid two provisions viz. Articles
25 and 44 show that the former guarantees religious freedom whereas the latter
divests religion from social relations and personal law. It is no matter of
doubt that marriage, succession and the like matters of a secular character
cannot be brought within the guarantee enshrined under Articles 25 and 26 of
the Constitution. Any legislation which brings succession and the like matters
of secular character within the ambit of Articles 25 and 26 is a suspect
legislation, although it is doubtful whether the American doctrine of suspect
legislation is followed in this country. In Sarla Mudgal v. Union of India
(1995) 3 SCC 635 it was held that marriage, succession and like matters of
secular character cannot be brought within the guarantee enshrined under Articles
25 and 26 of the Constitution. It is a matter of regret that Article 44 of the
Constitution has not been given effect to. Parliament is still to step in for
framing a common civil code in the country. A common civil code will 233 help
the cause of national integration by removing the contradictions based on
ideologies.” Last of all, our attention was drawn to the Masilamani Mudaliar
case16, wherefrom reliance was placed on the following: “15. It is seen that if
after the Constitution came into force, the right to equality and dignity of
person enshrined in the Preamble of the Constitution, Fundamental Rights and
Directive Principles which are a trinity intended to remove discrimination or
disability on grounds only of social status or gender, removed the pre-existing
impediments that stood in the way of female or weaker segments of the society.
In S.R. Bommai v. Union of India (1994) 3 SCC 1 this Court held that the
Preamble is part of the basic structure of the Constitution. Handicaps should
be removed only under rule of law to enliven the trinity of justice, equality
and liberty with dignity of person. The basic structure permeates equality of
status and opportunity. The personal laws conferring inferior status on women
is anathema to equality. 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. Right to equality is a fundamental right. Parliament,
therefore, has enacted Section 14 to remove pre-existing disabilities fastened
on the Hindu female limiting her right to property without full ownership
thereof. The discrimination is sought to be remedied by Section 14(1) enlarging
the scope of acquisition of the property by a Hindu female appending an
explanation with it.” 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 234 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 case40, 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 235
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 236 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 case20, 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 case9,
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 237 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, 238 ‘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 239 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:- “Statement of objects and reasons The object
of Indian Divorce Bill is to place the Matrimonial Law administered by the High
Courts, in the exercise of their original jurisdiction, on the same footing as
the Matrimonial Law administered by the court for Divorce and Matrimonial
Causes in England. The 9th Section of the Act of Parliament for establishing
High Courts of Judicature in India (24 and 25 Vic., C.104) provides that the
High Courts shall exercise such Matrimonial Jurisdiction as Her Majesty by
Letters Patent shall grant and direct. Under the authority thus conferred by
Parliament, the 35th Section of the Letters Patent, constituting the High
Courts of Judicature, provides as follows:— "And we do further ordain that
the said High Court of Judicature at Fort William in Bengal shall have
jurisdiction in matters matrimonial between our subjects professing the
Christian religion, and that such jurisdiction shall extend to the local limits
within which the Supreme Court now has Ecclesiastical Jurisdiction. Provided
always that nothing herein contained shall be held to interfere with the
exercise of any Jurisdiction in matters matrimonial by any court not
established by Royal Charter within the said Presidency lawfully possessed
thereof." In the Despatch of the Secretary of State transmitting the
Letters Patent the 33rd and 34th paragraphs are to the following effect:— “33.
Her Majesty's Government are desirous of placing the Christian subjects of the
Crown within the Presidency in the same position under the High Court, as to
matters matrimonial in general as they now are under the Supreme Court, and
this they believe to be effected by Clause 35 of the Charter. But they consider
it expedient that the High Court 240 should possess, in addition, the power of
decreeing divorce which the Supreme Court does not possess, in other words,
that the High Court should have the same jurisdiction as the Court for Divorce
and Matrimonial Causes in England, established in virtue of the Act 20 and 21
Vic., C. 85, and in regard to which further provisions were made by 22 and 23
Vic., C.61, and 23 and 24 Vic., C.144. The Act of Parliament for establishing
the High Courts, however, does not purport to give to the Crown the power of
importing into the Charter all the provisions of the Divorce Court Act, and
some of them, the Crown clearly could not so import, such, for instance, as
those which prescribe the period of remarriage, and those which exempt from
punishment clergymen refusing to re-marry adulterers. All these are, in truth,
matters for Indian legislation, and I request that you will immediately take
the subject into your consideration, and introduce into your Council a Bill for
conferring upon the High Court, the jurisdiction and powers of the Divorce
Court in England, one of the provisions of which should be to give an appeal to
the Privy Council in those cases in which the Divorce Court Act gives an appeal
to the House of Lords. 34. The objects of the provision at the end of Clause 35
is to obviate any doubt that may possibly arise as to whether, by vesting the
High Court with the powers of the Court for Divorce and Matrimonial Causes in
England, it was intended to take away from the Courts within Divisions of the
Presidency, not established by Royal Charter, any jurisdiction which they might
have in matters matrimonial, as for instance in a suit for alimony between
Armenians or Native Christians. With any such jurisdiction it is not intended
to interfere." In addition to the Act of Parliament mentioned by the
Secretary of State as regulating the jurisdiction of the England Divorce Court
the Statute 25 and 26 Vic., Ch.81 has been passed in the year just expired
(1862). The object of this statute is to render perpetual 23 and 24 Vic., Ch.
144 the duration of which had been originally limited to two years. The draft
of a Bill has been prepared to give effect to the Secretary of State’s
instructions, but some variations from the English Statutes in respect of Procedure
have been adopted. With a view to uniformity in practice in the several
branches of jurisdiction, the Bill provides that the Procedure of the Code of
Civil Procedure shall be followed, instead of the Rules of Her Majesty's Court
for Divorce and Matrimonial Causes in England, and it omits the provision in 20
and 21 Vic., Ch. 85 respecting the occasional trial of questions of fact by
juries.” (ii) The Divorce Act, 1869 provided for the grounds for dissolution of
marriage in Section 10 thereof. The same is extracted hereunder:- “10.Grounds
for dissolution of marriage.-(1) Any marriage solemnized, whether before or
after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a
petition presented to the District 241 Court either by the husband or the wife,
be dissolved on the ground that since the solemnization of the marriage, the
respondent— (i) has committed adultery; or (ii) has ceased to be Christian by
conversion to another religion; or (iii) has been incurably of unsound mind for
a continuous period of not less than two years immediately preceding the
presentation of the petition; or (iv) has, for a period of not less than two
years immediately preceding the presentation of the petition, been suffering
from a virulent and incurable form of leprosy; or (v) has, for a period of not
less than two years immediately preceding the presentation of the petition,
been suffering from venereal disease in a communicable form; or (vi) has not
been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of the respondent if the respondent had
been alive; or (vii) has wilfully refused to consummate the marriage and the
marriage has not therefore been consummated; or (viii) has failed to comply
with a decree for restitution of conjugal rights for a period of two years or
upwards after the passing of the decree against the respondent; or (ix) has
deserted the petitioner for at least two years immediately preceding the
presentation of the petition; or (x) has treated the petitioner with such
cruelty as to cause a reasonable apprehension in the mind of the petitioner
that it would be harmful or injurious for the petitioner to live with the
respondent. (2) A wife may also present a petition for the dissolution of her
marriage on the ground that the husband has, since the solemnization of the
marriage, been guilty of rape, sodomy or bestiality.” (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 242
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:- “Statement of objects and reasons The Parsi Marriage and
Divorce Act at present in force was passed in 1865. Since then circumstances
have greatly altered and to some extent there has also been a change in the
sentiments and views of the Parsi community. Hence a necessity for some change
in the law has been felt for years. The Parsi Central Association took up the
question in 1923 and appointed a Sub-Committee to suggest amendments. The
SubCommittee submitted a report which the Association got printed and
circulated for opinion to most other Parsi Associations as well as prominent
members of the community both in Bombay and outside. Many suggestions were
made, and among them by the Trustees of the Bombay Parsi Panchayat who had the
advantage of seeing the suggestions of others. The Central Association adopted
the suggestions of the Panchayat Trustees and reprinted the whole and again
circulated it. Fresh suggestions were thereupon made in the press, on the
platform, by associations and individuals. These were fully considered by the
Trustees as well as the Association and the present draft is the result. On the
whole it represents, the views of the great majority of the community, and has
been approved by leading Parsis like Sir Dinshaw E. Wacha and the late Rt. Hon.
Sir Dinshaw F. Mulla.” (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:- 243 “32.Grounds for divorce.- Any married
person may sue for divorce on any one or more of the following grounds, namely:—
(a) that the marriage has not been consummated within one year after its
solemnization owing to the wilful refusal of the defendant to consummate it;
(b) that the defendant at the time of the marriage was of unsound mind and has
been habitually so up to the date of the suit: Provided that divorce shall not
be granted on this ground, unless the plaintiff; (1) was ignorant of the fact
at the time of the marriage, and (2) has filed the suit within three years from
the date of the marriage; (bb) that the defendant has been incurable of the
unsound mind for a period of two years or upwards immediately preceding the
filing of the suit or has been suffering continuously or intermittently from
mental disorder of such kind and to such an extent that the plaintiff cannot
reasonable be expected to live with the defendant. Explanation.- In this
clause,- (a) the expression “mental disorder” means mental illness, arrested or
incomplete development of mind, psychopathic disorder or any other disorder or
disability of mind and includes schizophrenia; (b) the expression “psychopathic
disorder” means a persistent disorder of disability of mind (whether or not
including subnormality of intelligence) which results in abnormally aggressive
or seriously irresponsible conduct on the part of the defendant, and whether or
not it requires or is susceptible to medical treatment; (c) that the defendant
was at the time of marriage pregnant by some person other than the plaintiff:
Provided that divorce shall not be granted on this ground, unless: (1) the
plaintiff was at the time of the marriage ignorant of the fact alleged, (2) the
suit has been filed within two years of the date of marriage, and (3) marital
intercourse has not taken place after the plaintiff came to know of the fact; (d)
that the defendant has since the marriage committed adultery or fornication or
bigamy or rape or an unnatural offence: Provided that divorce shall not be
granted on this ground if the suit has been filed more than two years after the
plaintiff came to know of the fact; (dd) that the defendant has since the
solemnization of the marriage treated the plaintiff with cruelty or has behaved
in such a way as to render it in the judgment of the Court improper to compel
the plaintiff to live with the defendant: Provided that in every suit for
divorce on this ground it shall be in the discretion of the Court whether it
should grant a decree for divorce or for judicial separation only; (e) that the
defendant has since the marriage voluntarily caused grievous hurt to the
plaintiff or has infected the plaintiff with venereal disease or, where the
defendant is the husband, has compelled the wife to submit herself to
prostitution: 244 Provided that divorce shall not be granted on this ground if
the suit has been filed more than two years (i) after the infliction of the
grievous hurt, or (ii) after the plaintiff came to know of the infection, or
(iii) after the last act of compulsory prostitution; (f) that the defendant is
undergoing a sentence of imprisonment for seven years or more for an offence as
defined in the Indian Penal Code (45 of 1860): Provided that divorce shall not
be granted on this ground, unless the defendant has prior to the filing of the
suit undergone at least one year's imprisonment out of the said period; (g)
that the defendant has deserted the plaintiff for at least two years; (h) that
an order has been passed against the defendant by a Magistrate awarding
separate maintenance to the plaintiff, and the parties have not had marital
intercourse for one year or more since such decree or order; (j) that the
defendant has ceased to be a Parsi by conversion to another religion; Provided
that divorce shall not be granted on this ground if the suit has been filed
more than two years after the plaintiff came to know of the fact. (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:- “Statement
of objects and reasons This Bill revises and seeks to replace the Special
Marriage Act of 1872 so as to provide a special form of marriage which can be
taken advantage of by any person in India and by all Indian nationals in
foreign countries irrespective of the faith which either party to the marriage
may profess. The parties may observe any ceremonies for the solemnization of
their marriage, but certain formalities are prescribed before the marriage can
be registered by the Marriage Officers. For the benefit of Indian citizens abroad,
the Bill provides for the appointment of Diplomatic and Consular Officers as
Marriage Officers for solemnizing and registering marriages between citizens of
India in a foreign country. 2. Provision is also sought to be made for
permitting persons who are already married under other forms of marriage to
register their marriages under this Act and thereby avail themselves of these
provisions. 245 3. The bill is drafted generally on the lines of the existing
Special Marriage Act of 1872 and the notes on clauses attached hereto explain
some of the changes made in the Bill in greater detail.” (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 246
marriages, and provides for nullity of marriage and divorce. Section 27
included in Chapter VI incorporates the grounds for divorce, which are extracted
hereunder:- “27.Divorce.-(1) Subject to the provisions of this Act and to the
rules made thereunder, a petition for divorce may be presented to the district
court either by the husband or the wife on the ground that the respondent— (a)
has, after the solemnization of the marriage, had voluntary sexual intercourse
with any person other than his or her spouse; or (b) has deserted the
petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition; or (c) is undergoing a sentence of
imprisonment for seven years or more for an offence as defined in the Indian
Penal Code (45 of 1860); (d) has since the solemnization of the marriage
treated the petitioner with cruelty; or (e)has been incurably of unsound mind,
or has been suffering continuously or intermittently from mental disorder of
such a kind and to such an extent that the petitioner cannot reasonably be
expected to live with the respondent. Explanation.—In this clause,— (a) the
expression “mental disorder” means mental illness, arrested or incomplete
development of mind, psychopathic disorder or any other disorder or disability
of mind and includes schizophrenia; (b) the expression “psychopathic disorder”
means a persistent disorder or disability of mind (whether or not including
sub-normality of intelligence) which results in abnormally aggressive or
seriously irresponsible conduct on the part of the respondent, and whether or
not it requires or is susceptible to medical treatment; or (f) has been suffering
from venereal disease in a communicable form; or (g)has been suffering from
leprosy, the disease not having been contacted from the petitioner; or (h)has
not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of the respondent if the respondent had
been alive; Explanation.—In this sub-section, the expression “desertion” means
desertion of the petitioner by the other party to the marriage without
reasonable cause and without the consent or against the wish of such party, and
includes the wilful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate expressions shall be
construed accordingly; (1A)A wife may also present a petition for divorce to
the district court on the ground,— (i) that her husband has, since the
solemnization of the marriage, been guilty of rape, sodomy or bestiality; 247
(ii)that in a suit under section 18 of the Hindu Adoptions and Maintenance Act,
1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code
of Criminal Procedure, 1898) (5 of 1898), a decree or order, as the case may
be, has been passed against the husband awarding maintenance to the wife
notwithstanding that she was living apart and that since the passing of such
decree or order, cohabitation between the parties has not been resumed for one
year or upwards. (2) Subject to the provisions of this Act and to the rules
made thereunder, either party to a marriage, whether solemnized before or after
the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970),
may present a petition for divorce to the district court on the ground— (i)
that there has been no resumption of cohabitation as between the parties to the
marriage for a period of one year or upwards after the passing of a decree for
judicial separation in a proceeding to which they were parties; or (ii)that
there has been no restitution of conjugal rights as between the parties to the
marriage for a period of one year or upwards after the passing of a decree for
restitution of conjugal rights in a proceeding to which they were parties.” 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:- “Statement of objects and reasons This Bill seeks to
implement the Twenty-third Report of the Law Commission on the law relating to
foreign marriages. There is, at present considerable uncertainty as to the law
on the subject, as the existing legislation touches only the fringes of the
subject and the matter is governed by principles of private international law
which are by no means well-settled, and which cannot readily be applied to a
country such as ours in which different marriage laws apply to different
communities. The Special Marriage Act, 1954 sought to remove the uncertainty to
some extent by providing that marriages abroad between citizens of India who are
domiciled in India might be solemnized under it. In the course of the debates
in relation to that Act in Parliament, it was urged that a provision should be
made for marriages abroad where one of 248 the parties alone is an Indian
citizen. In this context, an assurance was given that Government would, after
careful consideration, introduce comprehensive legislation on the subject of
foreign marriages. The present Bill is the outcome of that assurance. (2) The
Bill is modelled on the Special Marriage Act, 1954, and the existing English
and Australian Legislation on the subject of foreign marriages, subject to
certain important modifications rendered necessary by the peculiar conditions
obtaining in our country. The following are the salient features of the Bill:—
(i) It provides for an enabling form of marriage more or less on the same lines
as the Special Marriage Act, 1954 which can be availed of outside India where
one of the parties to the marriage is an Indian citizen; the form of marriage
thus provided being not in supersession of, but only in addition to or as an
alternative to, any other form that might be permissible to the parties. (ii)
It seeks to lay down certain rules in respect of capacity of parties and
conditions of validity of marriage and also provides for registration of
marriage on lines similar to those in the Special Marriage Act, 1954. (iii) The
provisions of the Special Marriage Act, 1954, in regard to matrimonial reliefs
are sought to be made applicable, with suitable modifications, not only to
marriages solemnized or registered under the proposed legislation, but also to
other marriages solemnized abroad to which a citizen of India is a party.” (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 249 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 250
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
251 12. The grounds of divorce have been expressed in Section 13, which is
reproduced below:- “13.Divorce.- (1) Any marriage solemnized, whether before or
after the commencement of this Act, may, on a petition presented by either the
husband or the wife, be dissolved by a decree of divorce on the ground that the
other party- (i) has, after the solemnization of the marriage had voluntary
sexual intercourse with any person other than his or her spouse; or (ia) has,
after the solemnization of the marriage, treated the petitioner with cruelty;
or (ib) has deserted the petitioner for a continuous period of not less than
two years immediately preceding the presentation of the petition; or (ii) has
ceased to be a Hindu by conversion to another religion; or (iii) has been
incurably of unsound mind, or has been suffering continuously or intermittently
from mental disorder of such a kind and to such an extent that the petitioner
cannot reasonably be expected to live with the respondent. Explanation- In this
clause,- (a) the expression "mental disorder" means mental illness,
arrested or incomplete development of mind, psychopathic disorder or any other
disorder or disability of mind and include schizophrenia; (b) the expression
"psychopathic disorder" means a persistent disorder or disability of
mind (whether or not including sub-normality of intelligence) which results in
abnormally aggressive or seriously irresponsible conduct on the part of the
other party and whether or not it requires or is susceptible to medical
treatment; or (iv) has been suffering from a virulent and incurable form of
leprosy; or (v) has been suffering from veneral disease in a communicable form;
or (vi) has renounced the world by entering any religious order; or (vii) has
not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of it, had that party been alive;
Explanation.- In this sub-section, the expression "desertion" means
the desertion of the petitioner by the other party to the marriage without
reasonable cause and without the consent or against the wish of such party, and
includes the willful neglect of the petitioner by the other party to the
marriage, and its grammatical variations and cognate expression shall be
construed accordingly. (1-A) Either party to a marriage, whether solemnized
before or after the commencement of this Act, may also present a petition for
the dissolution of the marriage by a decree of divorce on the ground- (i) that
there has been no resumption of cohabitation as between the parties to the
marriage for a period of one year or upwards after the passing of a decree for
judicial separation in a proceeding to which they were parties; or 252 (ii)
that there has been no restitution of conjugal rights as between the parties to
the marriage for a period of one year or upward after the passing of a decree
of restitution of conjugal rights in a proceeding to which they were parties.
(2) A wife may also present a petition for the dissolution of her marriage by a
decree of divorce on the ground- (i) in the case of any marriage solemnized
before the commencement of this Act, that the husband had married again before
such commencement or that any other wife of the husband married before such
commencement was alive at the time of the solemnization of the marriage of the
petitioner: Provided that in either case the other wife is alive at the time of
the presentation of the petition; or (ii)that the husband has, since the
solemnization of the marriage, been guilty of rape, sodomy or bestiality; or
(iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance
Act, 1956 (78 of 1956), or in a proceeding under Section 125 of the Code of
Criminal Procedure, 1973, (2 of 1974) or under corresponding Section 488 of the
Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case
may be, has been passed against the husband awarding maintenance to the wife notwithstanding
that she was living apart and that since the passing of such decree or order,
cohabitation between the parties has not been resumed for one year or upwards;
or (iv) that her marriage (whether consummated or not) was solemnized before
she attained the age of fifteen years and she has repudiated the marriage after
attaining that age but before attaining the age of eighteen years.
Explanation.- This clause applies whether the marriage was solemnized before or
after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of
1976).” 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 253 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 254
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 255 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 256 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.
Chopra41, The question that arose for consideration before this Court, in the
instant case was, whether an action of a superior against a sub-ordinate female
employee, which is against moral sanctions can withstand the test of 41 (1999)
1 SCC 759 257 decency and modesty, not amounting to sexual harassment? The
question that arose was, whether the allegation that a superior tried to molest
an inferior female employee at the work place, constituted an act unbecoming of
the conduct and behaviour expected from the superior? And, whether an inferior
female employee, has recourse to a remedial action? While examining the above
proposition, this Court relying on international conventions and declarations
arrived at the conclusion, that the same have to be given effect to unless they
were contrary to domestic laws, by holding as under: “26. There is no
gainsaying that each incident of sexual harassment at the place of work,
results in violation of the fundamental right to gender equality and the right
to life and liberty — the two most precious fundamental rights guaranteed by
the Constitution of India. As early as in 1993, at the ILO Seminar held at
Manila, it was recognized that sexual harassment of women at the workplace was
a form of “gender discrimination against women”. In our opinion, the contents
of the fundamental rights guaranteed in our Constitution are of sufficient
amplitude to encompass all facets of gender equality, including prevention of
sexual harassment and abuse and the courts are under a constitutional
obligation to protect and preserve those fundamental rights. That sexual
harassment of a female at the place of work is incompatible with the dignity
and honour of a female and needs to be eliminated and that there can be no
compromise with such violations, admits of no debate. The message of
international instruments such as the Convention on the Elimination of All
Forms of Discrimination Against Women, 1979 (“CEDAW”) and the Beijing
Declaration which directs all State parties to take appropriate measures to
prevent discrimination of all forms against women besides taking steps to
protect the honour and dignity of women is loud and clear. The International
Covenant on Economic, Social and Cultural Rights contains several provisions
particularly important for women. Article 7 recognises her right to fair
conditions of work and reflects that women shall not be subjected to sexual
harassment at the place of work which may vitiate the working environment.
These international instruments cast an obligation on the Indian State to
gender-sensitise its laws and the courts are under an obligation to see that
the message of the international instruments is not allowed to be drowned. This
Court has in numerous cases emphasised that while discussing constitutional
requirements, court and counsel must never forget the core principle embodied
in the international 258 conventions and instruments and as far as possible,
give effect to the principles contained in those international instruments. The
courts are under an obligation to give due regard to international conventions
and norms for construing domestic laws, more so, when there is no inconsistency
between them and there is a void in domestic law. (See with advantage — Prem
Shankar Shukla v. Delhi Admn. Mackinnon Mackenzie and Co. Ltd. v. Audrey D’
Costa; Sheela Barse v. Secy., Children’s Aid Society SCC at p. 54; Vishaka v.
State of Rajasthan People’s Union for Civil Liberties v. Union of India and
D.K. Basu v. State of W.B. SCC at p. 438.) 27. In cases involving violation of
human rights, the courts must forever remain alive to the international
instruments and conventions and apply the same to a given case when there is no
inconsistency between the international norms and the domestic law occupying
the field. In the instant case, the High Court appears to have totally ignored
the intent and content of the international conventions and norms while dealing
with the case.” (ii) Krishna Janardhan Bhat v. Dattaraya G. Hegde42 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: “44. The presumption of innocence is a human right.
(See Narendra Singh v. State of M.P., Ranjitsing Brahmajeetsing Sharma v. State
of Maharashtra and Rajesh Ranjan Yadav v. CBI.) Article 6(2) of the European
Convention on Human Rights provides: “Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.” Although
India is not bound by the aforementioned Convention and as such it may not be
necessary like the countries forming European countries to bring common law into
land with the Convention, a balancing of the accused’s rights and the interest
of the society is required to be taken into consideration. In India, however,
subject to the statutory interdicts, the said principle forms the basis of
criminal jurisprudence. For the aforementioned purpose the nature of the
offence, seriousness as also gravity thereof may be taken into consideration.
The courts must be on guard to see that merely on the application of
presumption as contemplated under Section 139 of the Negotiable Instruments
Act, the same may not lead to injustice or mistaken conviction. It is for the
aforementioned reasons that we have taken into consideration the decisions
operating in the field where the difficulty of proving a negative has been
emphasised. It is not suggested that a negative can never be proved but there
are cases where such 42 (2008) 4 SCC 54 259 difficulties are faced by the
accused e.g. honest and reasonable mistake of fact. In a recent article The
Presumption of Innocence and Reverse Burdens: A Balancing Duty published in
2007 CLJ (March Part) 142 it has been stated: “In determining whether a reverse
burden is compatible with the presumption of innocence regard should also be
had to the pragmatics of proof. How difficult would it be for the prosecution
to prove guilt without the reverse burden? How easily could an innocent
defendant discharge the reverse burden? But courts will not allow these
pragmatic considerations to override the legitimate rights of the defendant.
Pragmatism will have greater sway where the reverse burden would not pose the
risk of great injustice—where the offence is not too serious or the reverse
burden only concerns a matter incidental to guilt. And greater weight will be
given to prosecutorial efficiency in the regulatory environment.” 45. We are
not oblivious of the fact that the said provision has been inserted to regulate
the growing business, trade, commerce and industrial activities of the country
and the strict liability to promote greater vigilance in financial matters and
to safeguard the faith of the creditor in the drawer of the cheque which is
essential to the economic life of a developing country like India. This,
however, shall not mean that the courts shall put a blind eye to the ground
realities. Statute mandates raising of presumption but it stops at that. It
does not say how presumption drawn should be held to have rebutted. Other
important principles of legal jurisprudence, namely, presumption of innocence
as human rights and the doctrine of reverse burden introduced by Section 139
should be delicately balanced. Such balancing acts, indisputably would largely
depend upon the factual matrix of each case, the materials brought on record
and having regard to legal principles governing the same.” (iii) State of
Kerala v. Peoples Union for Civil Liberties43 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: 43 (2009) 8 SCC 46 260 “105. We may notice that in Indigenous and
Tribal Populations Convention, 1957 which has been ratified by 27 countries
including India contained the following clauses: “Article 11.—The right of
ownership, collective or individual, of the members of the populations
concerned over the lands which these populations traditionally occupy shall be
recognised. Article 12.—1. The populations concerned shall not be removed
without their free consent from their habitual territories except in accordance
with national laws and regulations for reasons relating to national security,
or in the interest of national economic development or of the health of the
said populations. 2. When in such cases removal of these populations is
necessary as an exceptional measure, they shall be provided with lands of
quality at least equal to that of the lands previously occupied by them,
suitable to provide for their present needs and future development. In cases
where chances of alternative employment exist and where the populations
concerned prefer to have compensation in money or in kind, they shall be so
compensated under appropriate guarantees. 3. Persons thus removed shall be
fully compensated for any resulting loss or injury. Article 13.—1. Procedures
for the transmission of rights of ownership and use of land which are
established by the customs of the populations concerned shall be respected,
within the framework of national laws and regulations, insofar as they satisfy
the needs of these populations and do not hinder their economic and social
development. 2. Arrangements shall be made to prevent persons who are not
members of the populations concerned from taking advantage of these customs or
of lack of understanding of the laws on the part of the members of these
populations to secure the ownership or use of the lands belonging to such
members.” Thus, removal of the population, by way of an exceptional measure, is
not ruled out. It is only subject to the condition that lands of quality at
least equal to that of the lands previously occupied by them, suitable to
provide for their present needs and future development. We may, however, notice
that this Convention has not been ratified by many countries in the Convention
held in 1989. Those who have ratified the 1989 Convention are not bound by it.
106. Furthermore, the United Nations adopted a Declaration on the Rights of
Indigenous People in September 2007. Articles 3 to 5 thereof read as under: “3.
Indigenous peoples have the right to self-determination. By virtue of that
right they freely determine their political status and freely pursue their
economic, social and cultural development. 4. Indigenous peoples, in exercising
their right to self-determination, have the right to autonomy or
self-government in matters relating to their internal and local affairs, as
well as ways and means for financing their autonomous functions. 261 5.
Indigenous peoples have the right to maintain and strengthen their distinct
political, legal, economic, social and cultural institutions, while retaining
their right to participate fully, if they so choose, in the political,
economic, social and cultural life of the State.” 107. It is now accepted that
the Panchasheel doctrine which provided that the tribes could flourish and
develop only if the State interfered minimally and functioned chiefly as a
support system in view of passage of time is no longer valid. Even the notion
of autonomy contained in the 1989 Convention has been rejected by India.
However, India appears to have softened its stand against autonomy for tribal
people and it has voted in favour of the United Nations Declaration on the
Rights of Indigenous People which affirms various rights to autonomy that are
inherent in the tribal peoples of the world. This declaration, however, is not
binding.” (iv) Safai Karamchari Andolan v. Union of India44 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: “16. Apart from the provisions of
the Constitution, there are various international conventions and covenants to
which India is a party, which proscribe the inhuman practice of manual
scavenging. These are the Universal Declaration of Human Rights (UDHR), the
Convention on the Elimination of All Forms of Racial Discrimination (CERD) and
the Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW). The relevant provisions of UDHR, CERD and CEDAW are hereunder: Article
1 of UDHR “1. All human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act towards one another
in a spirit of brotherhood.” Article 2 of UDHR “2. Everyone is entitled to all
the rights and freedom set forth in this Declaration, without distinction of
any kind, such as race, colour, sex, 44 (2014) 11 SCC 224 262 language,
religion, political or other opinion, national or social origin, property,
birth or other status.” Article 23(3) of UDHR “23. (3) Everyone who works has
the right to just and favourable remuneration ensuring for himself and his
family an existence worthy of human dignity, and supplemented, if necessary, by
other means of social protection.” Article 5(a) of CEDAW “5. States parties
shall take all appropriate measures— (a) to modify the social and cultural
patterns of conduct of men and women, with a view to achieving the elimination
of prejudice and customary and all other practices which are based on the idea
of the inferiority or the superiority of either of the sexes or on stereotyped
roles for men and women;” Article 2 of CERD “2. (1) States parties condemn
racial discrimination and undertake to pursue by all appropriate means and
without delay a policy of eliminating racial discrimination in all its forms
and promoting understanding among all races, and, to this end— * * * (c) each
State party shall take effective measures to review governmental, national and
local policies, and to amend, rescind or nullify any laws and regulations which
have the effect of creating or perpetuating racial discrimination wherever it
exists; (d) each State party shall prohibit and bring to an end, by all
appropriate means, including legislation as required by circumstances, racial
discrimination by any persons, group or organisation;” The above provisions of
the International Covenants, which have been ratified by India, are binding to
the extent that they are not inconsistent with the provisions of the domestic
law.” 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 263
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: (1) Despite the decision of the
Rashid Ahmad case1 on the subject of ‘talaq-e-biddat’, by the Privy Council,
the issue needs a fresh examination, in view of the subsequent developments in
the matter. (2) All the parties were unanimous, that despite the practice of
‘talaq-ebiddat’ being considered sinful, it was accepted amongst Sunni Muslims belonging
to the Hanafi school, as valid in law, and has been in practice amongst them.
(3) It would not be appropriate for this Court, to record a finding, whether
the practice of ‘talaq-e-biddat’ is, or is not, affirmed by ‘hadiths’, in view
of the enormous contradictions in the ‘hadiths’, relied upon by the rival
parties. (4) ‘Talaq-e-biddat’ is integral to the religious denomination of
Sunnis belonging to the Hanafi school. The same is a part of their faith,
having been followed for more than 1400 years, and as such, has to be accepted
as being constituent of their ‘personal law’. (5) The contention of the
petitioners, that the questions/subjects covered by the Muslim Personal Law
(Shariat) Application Act, 1937, ceased 264 to be ‘personal law’, and got transformed
into ‘statutory law’, cannot be accepted, and is accordingly rejected. (6)
‘Talaq-e-biddat’, does not violate the parameters expressed in Article 25 of
the Constitution. The practice is not contrary to public order, morality and
health. The practice also does not violate Articles 14, 15 and 21 of the
Constitution, which are limited to State actions alone. (7) The practice of
‘talaq-e-biddat’ being a constituent of ‘personal law’ has a stature equal to
other fundamental rights, conferred in Part III of the Constitution. The
practice cannot therefore be set aside, on the ground of being violative of the
concept of the constitutional morality, through judicial intervention. (8)
Reforms to ‘personal law’ in India, with reference to socially unacceptable
practices in different religions, have come about only by way of legislative
intervention. Such legislative intervention is permissible under Articles 25(2)
and 44, read with entry 5 of the Concurrent List, contained in the Seventh
Schedule of the Constitution. The said procedure alone need to be followed with
reference to the practice of ‘talaq-e-biddat’, if the same is to be set aside.
(9) International conventions and declarations are of no avail in the present
controversy, because the practice of ‘talaq-e-biddat’, is a component of
‘personal law’, and has the protection of Article 25 of the Constitution.
Part-10. 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 265 ‘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 266 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 267
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 268 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
269 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 270 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 petitoners’
challenge, namely, the AIMPLB filed an affidavit before this Court affirming
the following position: “1. I am the Secretary of All India Muslim Personal
Board will issue an advisory through its Website, Publications and Social Media
Platforms and thereby advise the persons who perform ‘Nikah’ (marriage) and
request them to do the following:- (a) At the time of performing ‘Nikah’
(marriage), the person performing the ‘Nikah’ will advise the Bridegroom/Man
that in case of differences leading to Talaq the Bridegroom/Man shall not
pronounce three divorces in one sitting since it is an undesirable practice in
Shariat; (b) That at the time of performing ‘Nikah’ (Marriage), the person
performing the ‘Nikah’ will advise both the Bridegroom/Man and the Bride/Woman
to incorporate a condition in the ‘Nikahnama’ to exclude resorting to
pronouncement of three divorces by her husband in one sitting. 3. I say and
submit that, in addition, the Board is placing on record, that the Working
Committee of the Board had earlier already passed certain resolutions in the
meeting held on 15th & 16th April, 2017 in relation to Divorce (Talaq) in
the Muslim community. Thereby it was resolved to convey a code of
conduct/guidelines to be followed in the matters of divorce particularly emphasizing
to avoid pronouncement of three divorces in one sitting. A copy of the
resolution dated April 16, 2017 along with the relevant Translation of
Resolution Nos. 2, 3, 4 & 5 relating to Talaq (Divorce) is enclosed
herewith for the perusal of this Hon’ble Court and marked as Annexure A-1
(Colly) [Page Nos. 4 to 12] to the present Affidavit.” 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 271 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’ 272 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. ..………………..…..………CJI. (Jagdish
Singh Khehar) ..………………..…..…….……J. (S. Abdul Nazeer) Note: The emphases
supplied in all the quotations in the instant judgment, are ours. New Delhi;
August 22, 2017. 273 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
SUO MOTU WRIT PETITION (CIVIL) NO. 2 OF 2015 IN RE: MUSLIM WOMEN’S QUEST FOR
EQUALITY … PETITIONER (S) VERSUS JAMIAT ULMA-I-HIND AND OTHERS …RESPONDENT (S)
WITH Writ Petition (Civil) No. 118 OF 2016, Writ Petition (Civil) No. 288 OF
2016, Writ Petition (Civil) No. 327 OF 2016, Writ Petition (Civil) No. 665 OF
2016 and Writ Petition (Civil) No. 43 OF 2017. J U D G M E N T KURIAN, J.: 1.
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 REPORTABLE 274 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 Another45 has held, though not in so many words,
that triple talaq lacks legal sanctity. Therefore, in terms of Article 14146 ,
Shamim Ara is the law that is applicable in India. 2. Having said that, I shall
also make an independent endeavor to explain the legal position in Shamim Ara
and lay down the law explicitly. 3. 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. 45 (2002) 7 SCC 518 46141. Law declared by Supreme Court
to be binding on all courts.-The law declared by the Supreme Court shall be
binding on all courts within the territory of India. 47STATEMENT OF OBJECTS AND
REASONS For several years past it has been the cherished desire of the Muslims
of British India that Customary Law should in no case take the place of Muslim
Personal Law. The matter has been repeatedly agitated in the press as well as
on the platform. The Jamiat-ul-Ulema-i-Hind, the greatest Moslem religious body
has supported the demand and invited the attention of all concerned to the
urgent necessity of introducing a measure to this effect. Customary Law is a
misnomer in as much as it has not any sound basis to stand upon and is very
much liable to frequent changes and cannot be expected to attain at any time in
the future that certainty and definiteness which must be the characteristic of
all laws. The status of Muslim women under the so-called Customary Law is
simply disgraceful. All the Muslim Women Organisations have therefore condemned
the Customary Law as it adversely affects their rights. They demand that the
Muslim Personal Law (Shariat) should be made applicable to them. The
introduction of Muslim Personal Law will automatically raise them to the 275 2.
Application of Personal law to Muslims. – Notwithstanding any custom or usage
to the contrary, in all questions (save questions relating to agricultural
land) regarding 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 (other than charities and charitable
institutions and charitable and religious endowments) the rule of decision in
cases where the parties are Muslims shall be Muslim Personal Law (Shariat).
(Emphasis supplied) 4. 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 position to which they are naturally entitled.
In addition to this present measure, if enacted, would have very salutary
effect on society because it would ensure certainty and definiteness in the
mutual rights and obligations of the public. Muslim Personal Law (Shariat)
exists in the form of a veritable code and is too well known to admit of any
doubt or to entail any great labour in the shape of research, which is the
chief feature of Customary Law. (Emphasis supplied) 276 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. 5. 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. 6. 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 48 Tahir Mahmood (ed.), Asaf A.A. Fyzee Outlines of Muhammadan Law, 5th
edition 2008. 277 “…What is morally beautiful that must be done; and what is
morally ugly must not be done. That is law or Shariat and nothing else can be
law. But what is absolutely and indubitably beautiful, and what is absolutely
and indubitably ugly? These are the important legal questions; and who can
answer them? Certainly not man, say the Muslim legists. We have the Qur’an
which is the very word of God. Supplementary to it we have Hadith which are the
Traditions of the Prophet- the records of his actions and his sayings- from
which we must derive help and inspiration in arriving at legal decisions. If
there is nothing either in the Qur’an or in the Hadith to answer the particular
question which is before us, we have to follow the dictates of secular reason
in accordance with certain definite principles. These principles constitute the
basis of sacred law or Shariat as the Muslim doctors understand it. And it is
these fundamental juristic notions which we must try to study and analyse
before we approach the study of the Islamic civil law as a whole, or even that
small part of it which in India is known as Muslim law.” 7. 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 278 expressly stated
in the Quran. Islam cannot be anti-Quran. According to Justice Bader Durrez
Ahmad in Masroor Ahmed v. State (NCT of Delhi) & Another49: “14. In essence,
the Shariat is a compendium of rules guiding the life of a Muslim from birth to
death in all aspects of law, ethics and etiquette. These rules have been
crystallized through the process of ijtihad employing the sophisticated
jurisprudential techniques. The primary source is the Quran. Yet, in matters
not directly covered by the divine book, rules were developed looking to the
hadis and upon driving a consensus. The differences arose between the schools
because of reliance on different hadis, differences in consensus and
differences on qiyas and aql as the case may be.” (Emphasis supplied) 8. 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. 9. Sura LXV of the
Quran deals with talaq. It reads as follows: “Talaq, or Divorce. In the name of
God, Most Gracious, Most Merciful. 1. O Prophet! When ye Do divorce women,
Divorce them at their Prescribed periods, 49 ILR (2007) II Delhi 1329 279 And
count (accurately) Their prescribed periods: And fear God your Lord: And turn
them not out Of their houses, nor shall They (themselves) leave, Except in case
they are Guilty of some open lewdness, Those are limits Set by God: and any Who
transgresses the limits Of God, does verily Wrong his (own) soul: Thou knowest
not if Perchance God will Bring about thereafter Some new situation. 2. Thus
when they fulfill Their term appointed, Either take them back On equitable
terms Or part with them On equitable terms; And take for witness Two persons
from among you, Endued with justice, And establish the evidence (As) before
God. Such Is the admonition given To him who believes In God and the Last Day.
And for those who fear God, He (ever) prepares A way out, 3. And He provides
for him From (sources) he never Could imagine. And if Any one puts his trust In
God, sufficient is (God) For him. For God will Surely accomplish His purpose :
Verily, for all things 280 Has God appointed A due proportion. 4. Such of your
women As have passed the age Of monthly courses, for them The prescribed
period, if ye Have any doubts, is Three months, and for those Who have no
courses (It is the same): For those who carry (Life within their wombs), Their
period is until They deliver their burdens : And for those who Fear God, He
will Make their path easy. 5. That is the Command Of God, which He Has sent
down to you : And if any one fears God, He will remove his ills From him, and
will enlarge His reward. 6. Let the women live (In ‘iddat) in the same Style as
ye live, According to your means : Annoy them not, so as To restrict them. And
if they carry (life In their wombs), then Spend (your substance) on them Until
they deliver Their burden : and if They suckle your (offspring), Give them
their recompense : And take mutual counsel Together, according to 281 What is
just and reasonable. And if ye find yourselves In difficulties, let another
Woman suckle (the child) On the (father’s) behalf. 7. Let the man of means
Spend according to His means : and the man Whose resources are restricted, Let
him spend according To what God has given him. God puts no burden On any person
beyond What He has given him. After a difficulty, God Will soon grant relief.”
Verse 35 in Sura IV of the Quran speaks on arbitration for reconciliation- “35.
If ye fear a breach Between them twain, Appoint (two) arbiters, One from his
family, And the other from hers; If they wish for peace, God will cause Their
reconciliation: For God hath full knowledge, And is acquainted With all
things.” Sura II contains the following verses pertaining to divorce: 282
“226.For those who take An oath for abstention From their wives, A waiting for
four months Is ordained; If then they return, God is Oft–forgiving, Most
Merciful. 227.But if their intention Is firm for divorce, God heareth And
knoweth all things. 228. Divorced women Shall wait concerning themselves For
three monthly periods. Nor is it lawful for them To hide what God Hath created
in their wombs, If they have faith In God and the Last Day. And their husbands
Have the better right 283 To take them back In that period, if They wish for
reconciliation. And women shall have rights Similar to the rights Against them,
according To what is equitable; But men have a degree (of advantage) over them.
And God is Exalted in Power, Wise.” “229. A divorce is only Permissible twice:
after that, The parties should either hold Together on equitable terms, Or
separate with kindness. It is not lawful for you, (Men), to take back Any of
your gifts (from your wives), Except when both parties Fear that they would be
Unable to keep the limits Ordained by God. If ye (judges) do indeed 284 Fear
that they would be Unable to keep the limits Ordained by God, There is no blame
on either Of them if she give Something for her freedom. These are the limits
Ordained by God; So do not transgress them If any do transgress The limits
ordained by God, Such persons wrong (Themselves as well as others). 230. So if
a husband Divorces his wife (irrevocably), He cannot, after that, Re-marry her
until After she has married Another husband and He has divorced her. In that
case there is No blame on either of them If they re-unite, provided They feel
that they 285 Can keep the limits Ordained by God. Such other limits Ordained
by God, Which He makes plain To those who understand. 231. When ye divorce
Women, and they fulfill The term of their (‘Iddat), Either take them back On
equitable terms Or set them free On equitable terms; But do not take them back
To injure them, (or) to take Undue advantage; If anyone does that, He wrongs
his own soul. Do not treat God’s Signs As a jest, But solemnly rehearse God’s
favours on you, And the fact that He Sent down to you 286 The Book And Wisdom,
For your instruction. And fear God, And know that God Is well acquainted With
all things.”50 10.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. 11.The above view has been endorsed by
various High Courts, finally culminating in Shamim Ara by this Court which has
since 50 Verses from the Holy Quran as extracted above are taken from “The Holy
Qur’an” translated by Abdullah Yusuf Ali which was agreed to be a fair
translation by all parties. 51Similar observations were made by the High Court
of Gauhati through Baharul Islam, J. in Jiauddin Ahmed v. Anwara Begum(1981) 1
Gau LR 358 wherein he noted that “though marriage under Muslim Law is only a
civil contract yet the rights and responsibilities consequent upon it are of
such importance to the welfare of humanity, that a high degree of sanctity is
attached to it. But in spite of the sacredness of the character of the
marriagetie, Islam recognizes the necessity, in exceptional circumstances, of
keeping the way open for its dissolution”. This view has been noted and
approved of in Shamim Ara at paragraph 13. (Emphasis supplied) 287 been taken
as the law for banning triple talaq. Interestingly, prior to Shamim Ara,
Krishna Iyer, J. in Fuzlunbi v. K Khader Vali and Another52, while in a three
judge bench in this Court, made a very poignant observation on the erroneous
approach of Batchelor, J. in Sarabai v. Rabiabai53 on the famous comment “good
in law, though bad in theology”. To quote: “20. Before we bid farewell to Fuzlunbi
it is necessary to mention that Chief Justice Baharul Islam, in an elaborate
judgment replete with quotes from the Holy Quoran, has exposed the error of
early English authors and judges who dealt with talaq in Muslim Law as good
even if pronounced at whim or in tantrum, and argued against the diehard view
of Batchelor, J. that this view “is good in law, though bad in theology”.
Maybe, when the point directly arises, the question will have to be considered
by this Court but enough unto the day the evil thereof and we do not express
our opinion on this question as it does not call for a decision in the present
case.” 12.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 Bibee54 in 1878 and 52 (1980) 4 SCC 125 53 ILR 30 Bom 537 54 ILR (1878)
4 Cal 588 288 finally, after discussing two decisions of the Gauhati High Court
namely Jiauddin Ahmed v. Anwara Begum55 and Rukia Khatun v. Abdul Khalique
Laskar56 , this Court held as follows- “13. There is yet another illuminating
and weighty judicial opinion available in two decisions of the Gauhati High
Court recorded by Baharul Islam, J. (later a Judge of the Supreme Court of
India) sitting singly in Jiauddin Ahmed v. Anwara Begum (1981) 1 Gau LR 358 and
later speaking for the Division Bench in Rukia Khatun v.Abdul Khalique Laskar
(1981) 1 Gau LR 375. In Jiauddin Ahmed case a plea of previous divorce i.e. the
husband having divorced the wife on some day much previous to the date of
filing of the written statement in the Court was taken and upheld. The question
posed before the High Court was whether there has been valid talaq of the wife by
the husband under the Muslim law. The learned Judge observed that though
marriage under the Muslim law is only a civil contract yet the rights and
responsibilities consequent upon it are of such importance to the welfare of
humanity, that a high degree of sanctity is attached to it. But inspite of the
sacredness of the character of the marriage tie, Islam recognizes the
necessity, in exceptional circumstances, of keeping the way open for its
dissolution (para 6). Quoting in the judgment several Holy Quranic verses and
from commentaries thereon by well-recognized scholars of great eminence, the
learned Judge expressed disapproval of the statement that "the whimsical
and capricious divorce by the husband is good in law, though bad in
theology" and 55 (1981) 1 Gau LR 358 56 (1981) 1 Gau LR 375 289 observed
that such a statement is based on the concept that women were chattel belonging
to men, which the Holy Quran does not brook. The correct law of talaq as
ordained by the Holy Quran is 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. (para 13). In Rukia Khatun case, the
Division Bench stated that the correct law of talaq as ordained by the Holy
Quran, is: (i) that 'talaq' must be for a reasonable cause; and (ii) that it
must be preceded by an attempt of reconciliation between the husband and the
wife by two arbiters, one chosen by the wife from her family and the other by
the husband from his. If their attempts fail, 'talaq' may be effected. The
Division Bench expressly recorded its dissent from the Calcutta and Bombay
views which, in their opinion, did not lay down the correct law. 14. We are in
respectful agreement with the above said observations made by the learned
Judges of High Courts….” (Emphasis supplied) 13.There is also a fruitful
reference to two judgments of the Kerala High Court - one of Justice Krishna Iyer
in A. Yousuf Rawther v. Sowramma57 and the other of Justice V. Khalid in Mohd.
57 AIR 1971 Ker 261 290 Haneefa v. Pathummal Beevi58. 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. “..The view
that the Muslim husband enjoys an arbitrary, unilateral power to inflict
instant divorce does not accord with Islamic injunctions. …It is a popular
fallacy that a Muslim male enjoys, under the Quoranic law, unbridled authority
to liquidate the marriage. ‘The whole Quoran expressly forbids a man to seek
pretexts for divorcing his wife, so long as she remains faithful and obedient
to him, "if they (namely, women) obey you, then do not seek a way against
them”.’ (Quoran IV:34). The Islamic law gives to the man primarily the faculty
of dissolving the marriage, if the wife, by her indocility or her bad
character, renders the married life unhappy; but in the absence of serious
reasons, no man can justify a divorce, either in the eye of religion or the
law. If he abandons his wife or puts her away in simple caprice, he draws upon
himself the divine anger, for the curse of God, said the Prophet, rests on him
who repudiates his wife capriciously." ….Commentators on the Quoran have
rightly observed - and this tallies with the law now administered in some
Muslim countries like Iraq - that the husband must satisfy the court about the
reasons for divorce. However, Muslim law, as applied in India, has taken a
course contrary to the spirit of what the Prophet or the Holy Quoran laid down
and the same misconception vitiates the law dealing with the wife's right to
divorce…" 58 1972 KLT 512 291 14.Khalid, J. has been more vocal in Mohd.
Haneefa: “5..Should Muslim wives suffer this tyranny for all times? Should
their personal law remain so cruel towards these unfortunate wives? Can it not
be amended suitably to alleviate their sufferings? My judicial conscience is
disturbed at this monstrosity. The question is whether the conscience of the
leaders of public opinion of the community will also be disturbed.” 15. 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 292 not following the Quranic
principles, it cannot be said that there is no ratio decidendi on triple talaq
in Shamim Ara. 16.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. 17.The High Court of Andhra Pradesh, in Zamrud Begum v. K. Md. Haneef
and another59, 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: “13. It
is observed by the Supreme Court in the above said decision that talaq may be
oral or in writing and it must be for a reasonable cause. It must be preceded
by an attempt of reconciliation of husband and wife by two arbitrators one
chosen from the family of the wife and other by husband. If their attempts fail
then talaq may be effected by pronouncement. The said procedure has not been
followed. The Supreme Court has culled out the same from Mulla and the
principles of Mahammedan Law. XXXX 17. I am of the considered view that the
alleged talaq is not a valid talaq as it is not in accordance with the
principles laid down by the Supreme Court. If there is no valid talaq the
relationship of 59 (2003) 3 ALD 220 293 the wife with her husband still
continues and she cannot be treated as a divorced wife….” (Emphasis supplied)
18. In A. S. Parveen Akthar v. The Union of India60, 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: “45.Thus, the law with regard
to talaq, as declared by the apex Court, is that talaq must be for a reasonable
cause and must be preceded by attempt at reconciliation between the husband and
the wife by two arbiters one chosen by wife's family and the other from
husband's family and it is only if their attempts fail, talaq may be effected.
XXXX 48.Having regard to the law now declared by the apex Court in the case of
Shamim Ara, 2002 AIR SCW 4162, talaq, in whatever form, must be for a
reasonable cause, and must be preceded by attempts for reconciliation by arbiters
chosen from the families of each of the spouses, the 60 2003-1-L.W. 370 294
petitioner's apprehension that notwithstanding absence of cause and no efforts
having been made to reconcile the spouses, this form of talaq is valid, is
based on a misunderstanding of the law.” (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 61 and Ahmedabad Women Action Group (AWAG) and Ors.
v. Union of India62 . 19.The High Court of Jammu and Kashmir, in Manzoor Ahmad
Khan v.Saja & Ors.63 , 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. 61 (1981) 3 SCC 689 62 (1997) 3 SCC 573 63 2010 (4) JKJ 380 295
20.In Ummer Farooque v. Naseema64, 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: “5…The general impression
as reflected in the decision of a Division Bench of this Court in Pathayi v.
Moideen (1968 KLT 763) was that the only condition necessary for a valid
exercise of the right of divorce by a husband is that he must be a major and of
sound mind at the that time and he can effect divorce whenever he desires and
no witnesses are necessary for dissolution of the marriage and the moment when
talaq is pronounced, dissolution of marriage is effected; it can be conveyed by
the husband to the wife and it need not be even addressed to her and it takes
effect the moment it comes to her knowledge etc. But this can no longer be
accepted in view of the authoritative pronouncement of the Supreme Court in
Shamim Ara v. State of U.P. [2002 (3) KLT 537 (SC)]. 6. The only thing to be
further considered in this case is whether the divorce alleged to have been
effected by the husband by pronouncement of talaq on 23-7-1999 is proved or
not. The mere pronouncement of talaq three times even in the presence of the
wife is not sufficient to effect a divorce under Mohammadan Law. As held by the
Supreme Court in Shamim Ara's case [2002 (3) KLT 537 (SC)], there should be an
attempt of mediation by two mediators; one on the side of the husband and the
other on the side of the wife and only in case it was a failure that the
husband is entitled to pronounce talaq to divorce the wife…” 64 2005 (4) KLT
565 296 (Emphasis supplied) 21.In Masroor Ahmed, Justice Badar Durrez Ahmed,
held as follows: “32. In these circumstances (the circumstances being – (1) no
evidence of pronouncement of talaq; (2) no reasons and justification of talaq;
amd (3) no plea or proof that talaq was preceded by efforts towards
reconciliation), the Supreme Court held that the marriage was not dissolved and
that the liability of the husband to pay maintenance continued. Thus, after
Shamim Ara (supra), the position of the law relating to talaq, where it is
contested by either spouse, is that, if it has to take effect, first of all the
pronouncement of talaq must be proved (it is not sufficient to merely state in
court in a written statement or in some other pleading that talaq was given at
some earlier point of time), then reasonable cause must be shown as also the
attempt at reconciliation must be demonstrated to have taken place….” (Emphasis
supplied) 22. As recently as in 2016, Mustaque, J. of the High Court of Kerala
in Nazeer @ Oyoor Nazeer v. Shemeema65, has inter alia referred to Shamim Ara
and has disapproved triple talaq. 65 2017 (1) KLT 300 297 23. 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. 24.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. 298 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. 25.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. 299
26.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. ..……………………J. (KURIAN JOSEPH) New Delhi; August
22, 2017. 300 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL
JURISDICTION SUO MOTU WRIT (CIVIL) No. 2 of 2015 IN RE: MUSLIM WOMEN’S QUEST
FOR EQUALITY …PETITIONER VERSUS JAMIAT ULMA-I-HIND & ORS ...RESPONDENTS
WITH WRIT PETITION (CIVIL) No. 118 of 2016 SHAYARA BANO …PETITONER VERSUS UNION
OF INDIA AND ORS. MINISTRY OF WOMEN AND CHILD DEVELOPMENT SECRETARY AND ORS.
...RESPONDENTS WITH WRIT PETITION (CIVIL) No. 288 of 2016 AAFREEN REHMAN
…PETITIONER VERSUS UNION OF INDIA AND ORS. …RESPONDENTS WITH WRIT PETITION
(CIVIL) No. 327 of 2016 GULSHAN PARVEEN …PETITIONER 301 VERSUS UNION OF INDIA
REPRESENTED BY THE SECRETARY AND ORS. …RESPONDENTS WITH WRIT PETITION (CIVIL)
No. 665 of 2016 ISHRAT JAHAN …PETITIONER VERSUS UNION OF INDIA MINISTRY OF
WOMEN AND CHILD DEVELOPMENT REPRESENTED BY THE SECRETARY AND ORS. …RESPONDENTS
WITH WRIT PETITION (CIVIL) No. 43 of 2017 ATIYA SABRI …PETITIONER VERSUS UNION
OF INDIA REPRESENTED BY THE SECRETARY AND ORS. …RESPONDENTS J U D G M E N T
R.F. Nariman, J. Having perused a copy of the learned Chief Justice’s judgment,
I am in respectful disagreement with the same. 302 1. 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: “28. An important issue of gender discrimination
which though not directly involved in this appeal, has been raised by some of
the learned counsel for the parties which concerns rights of Muslim women.
Discussions on gender discrimination led to this issue also. It was pointed out
that in spite of guarantee of the Constitution, Muslim women are subjected to
discrimination. There is no safeguard against arbitrary divorce and second
marriage by her husband during currency of the first marriage, resulting in
denial of dignity and security to her. Although the issue was raised before
this Court in Ahmedabad Women Action Group (AWAG) v. Union of India [Ahmedabad
Women Action Group (AWAG) v. Union of India, (1997) 3 SCC 573], this Court did
not go into the merits of the discrimination with the observation that the
issue involved State policy to be dealt with by the legislature. [This Court
referred to the observations of Sahai, J. in Sarla Mudgal v. Union of India,
(1995) 3 SCC 635 : 1995 SCC (Cri) 569 that a climate was required to be built
for a uniform civil code. Reference was also made to observations in Madhu
Kishwar v. State of Bihar, (1996) 5 SCC 125 to the effect that the Court could
at best advise and focus attention to the problem instead of playing an
activist role.] It was observed that challenge to the Muslim Women (Protection
of Rights on Divorce) Act, 1986 was 303 pending before the Constitution Bench
and there was no reason to multiply proceedings on such an issue. 31. It was, thus,
submitted that this aspect of the matter may be gone into by separately
registering the matter as public interest litigation (PIL). We are of the view
that the suggestion needs consideration in view of the earlier decisions of
this Court. The issue has also been highlighted in recent articles appearing in
the press on this subject. [The Tribune dated 24-9-2015 “Muslim Women’s Quest
for Equality” by Vandana Shukla and Sunday Express Magazine dated 4-10-2015 “In
Her Court” by Dipti Nagpaul D’Souza.] 32. For this purpose, a PIL be separately
registered and put up before the appropriate Bench as per orders of Hon’ble the
Chief Justice of India.” (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. 2. 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 304 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
Bom 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
305 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). 3. 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 306
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.
4. 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. 5. 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: “The Prophet had established himself as the supreme overlord and
the supreme preceptor. Arabia was steeped in ignorance and barbarism,
superstition and vice. Female infanticide, drinking, lechery and other vices
were rampant. However, the Prophet did not nominate a successor. His death was
announced by Abu Bakr and immediate action was taken to hold an election. As it
happened, the 307 Chiefs of the tribe of Banu Khazraj were holding a meeting to
elect a Chief and the Companions went to the place. This meeting elected Abu
Bakr as the successor. The next day Abu Bakr ascended the pulpit and everyone
took an oath of allegiance (Bai’at). This election led to the great schism
between the Sunnis and Shias. The Koreish tribe was divided into Ommayads and
Hashimites. The Hashimites were named after Hashim the great grand-father of
the Prophet. There was bitter enmity between the Ommayads and the Hashimites.
The Hashimites favoured the succession of Ali and claimed that he ought to have
been chosen because of appointment by the Prophet and propinquity to him. The
election in fact took place when the household of the Prophet (including Ali)
was engaged in the obsequies. This offended the Hashimites. It may, however, be
said that Ali, regardless of his own claims, immediately swore allegiance to
Abu Bakr. Ali was not set up when the second and third elections of Omar and
Osman took place, but he never went against these decisions and accepted the
new Caliph each time and gave him unstinted support. Abu Bakr was sixty years
old and was Caliph only for two years (d. 634 A.D.). Even when he was Caliph,
the power behind him was Omar Ibnul Khattab. It is said that Abu Bakr named
Omar as his successor. Even if this be not true, it is obvious that the election
was a mere formality. Omar was assassinated after ten years as Caliph (644
A.D.). Osman was elected as the third Caliph. Tradition is that 308 Omar had
formed an inner panel of electors (six in number), but this is discountenanced
by some leading historians. Later this tradition was used by the Abbasids to
form an inner conclave for their elections. This special election used to be
accepted by the people at a general, but somewhat formal, election. Osman was
Caliph for 12 years and was assassinated (656 A.D.). Ali was at last elected as
the fourth Caliph. The election of the first four Caliphs, who are known as
Khulfai-i-Rashidin (rightly-guided Caliphs) was real, although it may be said
that each time the choice was such as to leave no room for opposition. Ali was
Caliph for five years. He was killed in battle in 661 A.D. Ali’s son Hasan
resigned in favour of Muavia the founder of the Ommayad dynasty. Hasan was,
however, murdered. The partisans of Ali persuaded Hussain, the second son of
Ali, to revolt against Mauvia’s son Yezid, but at Kerbala, Husain died fighting
after suffering great privations. The rift between the Sunnis and the Shias
(Shiat-i-Ali party of Ali) became very great thereafter.” 6. 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: 309 “This is the most famous of the four schools
of Hanafi law. This school was founded by Abu Hanifa (699-767 A.D.). The school
is also known as “Kufa School”. Although taught by the great Imam
Jafar-as-Sadik, the founder of the Shia School, Abu Hanifa was, also a pupil of
Abu Abdullah ibn-ulMubarak and Hamid bin-Sulaiman and this may account for his
founding a separate school. This school was favoured by the Abbasid Caliphs and
its doctrines spread far and wide. Abu Hanifa earned the appellation “The Great
Imam”. The school was fortunate in possessing, besides Abu Hanifa, his two more
celebrated pupils, Abu Yusuf (who became the Chief Kazi at Baghdad) and Imam
Muhammad AshShaybani, a prolific writer, who has left behind a number of books
on jurisprudence. The founder of the school himself left very little written
work. The home of this school was Iraq but it shares this territory with other
schools although there is a fair representation. The Ottoman Turks and the
Seljuk Turks were Hanafis. The doctrines of this school spread to Syria,
Afghanistan, Turkish Central Asia and India. Other names connected with the
Kufa School are Ibn Abi Layla and Safyan Thawri. Books on the doctrines are
alHidaay of Marghinani (translated by Hamilton), Radd-al-Mukhtar and
Durr-ulMukhtar of Ibn Abidin and al-Mukhtasar of Kuduri. The Fatawa-i-Alamgiri
collected in Aurangzeb’s time contain the doctrines of this school with other
material.” 7. Needless to add, the Hanafi school has supported the practice of
Triple Talaq amongst the Sunni Muslims in India for many centuries. 310 8.
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. 311 9. This then leads us to the forms of divorce recognized in
Islamic Law. Mulla (supra), at pages 393-395, puts it thus: “S.311. Different
modes of talak. – A talak may be effected in any of the following ways:- (1)
Talak ahsan. – This consists of a single pronouncement of divorce made during a
tuhr (period between menstruations) followed by abstinence from sexual
intercourse for the period of iddat . When the marriage has not been
consummated, a talak in the ahsan form may be pronounced even if the wife is in
her menstruation. Where the wife has passed the age of periods of menstruation
the requirement of a declaration during a tuhr is inapplicable; furthermore,
this requirement only applies to a oral divorce and not a divorce in writing.
Talak Ahsan is based on the following verses of Holy Quran: “and the divorced
woman should keep themselves in waiting for three courses.” (II:228). “And
those of your woman who despair of menstruation, if you have a doubt, their
prescribed time is three months, and of those too, who have not had their
courses.” (LXV: 4). (2) Talak hasan- This consists of three pronouncements made
during successive tuhrs, no intercourse taking place during any of the three
tuhrs. 312 The first pronouncement should be made during a tuhr, the second
during the next tuhr, and the third during the succeeding tuhr. Talak Hasan is
based on the following Quranic injunctions: “Divorce may be pronounced twice,
then keep them in good fellowship or let (them) go kindness.” (II: 229). “So if
he (the husband) divorces her (third time) she shall not be lawful to him
afterward until she marries another person.” (II: 230). (3) Talak-ul-bidaat or
talak-i-badai.- This consists of – (i) Three pronouncements made during a
single tuhr either in one sentence, e.g., “I divorce thee thrice,” - or in
separate sentences e.g., “I divorce thee, I divorce thee, I divorce thee”, or
(ii) a single pronouncement made during a tuhr clearly indicating an intention
irrevocably to dissolve the marriage, e.g., “I divorce thee irrevocably.” Talak-us-sunnat
and talak-ul-biddat The Hanafis recognized two kinds of talak, namely, (1)
talak-us-sunnat, that is, talak according to the rules laid down in the sunnat
(traditions) of the Prophet; and (2) talak-ul-biddat, that is, new or irregular
talak. Talak-ul-biddat was introduced by the Omeyyade monarchs in the second
century of the Mahomedan era. Talak-ulsunnat is of two kinds, namely, (1)
ahsan, 313 that is, most proper, and (2) hasan, that is, proper. The
talak-ul-biddat or heretical divorce is good in law, though bad in theology and
it is the most common and prevalent mode of divorce in this country, including
Oudh. In the case of talak ahsan and talak hasan, the husband has an
opportunity of reconsidering his decision, for the talak in both these cases
does not become absolute until a certain period has elapsed (S.312), and the
husband has the option to revoke it before then. But the talak-ul-biddat
becomes irrevocable immediately it is pronounced (S.312). The essential feature
of a talak-ul-biddat is its irrevocability. One of tests of irrevocability is
the repetition three times of the formula of divorce within one tuhr. But the
triple repetition is not a necessary condition of talak-ul-biddat, and the
intention to render a talak irrevocable may be expressed even by a single
declaration. Thus if a man says “I have divorced you by a talak-ul-bain
(irrevocable divorce)”, the talak is talak-ulbiddat or talak-i-badai and it
will take effect immediately it is pronounced, though it may be pronounced but
once. Here the use of the expression “bain” (irrevocable) manifests of itself
the intention to effect an irrevocable divorce.” [Emphasis Supplied] 10.
Another noted author, A.A.A. Fyzee, in his book “Outlines of Muhammadan Law”
(5th Ed.), at pages 120-122, puts it thus: “The pronouncement of talaq may be
either revocable or irrevocable. As the Prophet of Islam did not favour the
institution of talaq, the revocable forms of talaq are considered as the
‘approved’ and the irrevocable forms are treated as the ‘disapproved’ forms. A
314 revocable pronouncement of divorce gives a locus poenitentiae to the man;
but an irrevocable pronouncement leads to an undesirable result without a
chance to reconsider the question. If this principle is kept in mind the
terminology is easily understood. The forms of talaq may be classified as
follows: (a) talaq al-sunna (i.e., in conformity with the dictates of the
Prophet) – (i) ahsan (the most approved), (ii) hasan (approved). (b) talaq
al-bid’a (i.e., of innovation; therefore not approved) – (i) three declarations
(the so-called triple divorce) at one time, (ii) one irrevocable declaration
(generally in writing). The talaq al-sunna, most approved form consists of one
single pronouncement in a period of tuhr (purity, i.e., when the woman is free
from her menstrual courses), followed by abstinence from sexual intercourse
during that period of sexual purity (tuhr) as well as during the whole of the
iddat. If any such intercourse takes place during the periods mentioned, the
divorce is void and of no effect in Ithna Ashari and Fatimi laws. It is this
mode or procedure which seems to have been approved by the Prophet at the
beginning of his ministry and is consequently regarded as the regular or proper
and orthodox form of divorce. Where the parties have been away from each other
for a long time, or where the wife is old and beyond the age of menstruation,
the condition of tuhr is unnecessary. A pronouncement made in the ashan form is
revocable during iddat. This period is three months from the date of the
declaration or, if the woman is pregnant, until delivery. The husband may
revoke the divorce at any time during the iddat. Such 315 revocation may be by
express words or by conduct. Resumption of conjugal intercourse is a clear case
of revocation. For instance, H pronounces a single revocable talaq against his
wife and then says ‘I have retained thee’ or cohabits with her, the divorce is
revoked under Hanafi as well as Ithna Ashari law. After the expiration of the
iddat the divorce becomes irrevocable. A Muslim wife after divorce is entitled
to maintenance during the iddat, and so also her child in certain
circumstances. The hasan form of talaq, also an approved form but less approved
than the first (ahsan), consists of three successive pronouncements during
three consecutive periods of purity (tuhr). Each of these pronouncements should
have been made at a time when no intercourse has taken place during that
particular period of purity. The hasan form of talaq requires some explanation
and a concrete illustration should suffice. The husband (H) pronounces talaq on
his wife (W) for the first time during a period when W is free from her
menstrual courses. The husband and wife had not come together during this
period of purity. This is the first talaq. H resumes cohabitation or revokes
this first talaq in this period of purity. Thereafter in the following period
of purity, at a time when no intercourse has taken place, H pronounces the
second talaq. This talaq is again revoked by express words or by conduct and
the third period of purity is entered into. In this period, while no
intercourse having taken place, H for the third time pronounces the formula of
divorce. This third pronouncement operates in law as a final and irrevocable
dissolution of the marital tie. The marriage is dissolved; sexual intercourse
becomes unlawful; iddat becomes incumbent; remarriage between the parties
becomes 316 impossible unless W lawfully marries another husband, and that
other husband lawfully divorces her after the marriage has been actually
consummated. Thus it is clear that in these two forms there is a chance for the
parties to be reconciled by the intervention of friends or otherwise. They are,
therefore, the ‘approved’ forms and are recognized both by Sunni and Shia laws.
The Ithna Ashari and the Fatimi schools, however, do not recognize the
remaining two forms and thus preserve the ancient conventions of the times of
the Law-giver. The first, or ahsan, form is ‘most approved’ because the husband
behaves in a gentlemanly manner and does not treat the wife as a chattel. The
second is a form in which the Prophet tried to put an end to a barbarous
pre-Islamic practice. This practice was to divorce a wife and take her back
several times in order to ill-treat her. The Prophet, by the rule of the
irrevocability of the third pronouncement, indicated clearly that such a
practice could not be continued indefinitely. Thus if a husband really wished
to take the wife back he should do so; if not, the third pronouncement after
two reconciliations would operate as a final bar. These rules of law follow the
spirit of the Quranic injunction: ‘when they have reached their term take them
back in kindness or part from them in kindness’. A disapproved form of divorce
is talaq by triple declarations in which three pronouncements are made in a
single tuhr, either in one sentence e.g. ‘I divorce thee triply or thrice’ or
in three sentences ‘I divorce thee, I divorce thee, I divorce thee.’ Such a
talaq is lawful, although sinful, in Hanafi law; but in Ithna Ashari and the
Fatimi laws it is not permissible. This is called talaq al-ba’in, irrevocable
divorce. 317 Another form of the disapproved divorce is a single, irrevocable
pronouncement made either during the period of tuhr or even otherwise. This
form is also called talaq alba’in and may be given in writing. Such a ‘bill of
divorcement’ comes into operation immediately and severs the marital tie. This
form is not recognized by the Ithna Ashari or the Fatimi schools.” [Emphasis
Supplied] 11. It is at this stage that the 1937 Act needs consideration. The
Statement of Objects and Reasons of this Act are as follows: “For several years
past it has been the cherished desire of the Muslims of British India that
Customary Law should in no case take the place of Muslim Personal Law. The
matter has been repeatedly agitated in the press as well as on the platform.
The Jamiat-ul-Ulema-i-Hind, the greatest Moslem religious body has supported
the demand and invited the attention of all concerned to the urgent necessity
of introducing a measure to this effect. Customary Law is a misnomer in as much
as it has not any sound basis to stand upon and is very much liable to frequent
changes and cannot be expected to attain at any time in the future that certainty
and definiteness which must be the characteristic of all laws. The status of
Muslim women under the so-called Customary Law is simply disgraceful. All the
Muslim Women Organisations have therefore condemned the Customary Law as it
adversely affects their rights. They demand that the Muslim Personal Law
(Shariat) should be made applicable to them. The introduction of Muslim
Personal Law will automatically raise them to the 318 position to which they
are naurally entitled. In addition to this present measure, if enacted, would
have very salutary effect on society because it would ensure certainty and
definiteness in the mutual rights and obligations of the public. Muslim
Personal Law (Shariat) exists in the form of a veritable code and is too well
known to admit of any doubt or to entail any great labour in the shape of
research, which is the chief feature of Customary Law.” [Emphasis Supplied] 12.
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: “2. Application of
Personal law to Muslims. - Notwithstanding any custom or usage to the contrary,
in all questions (save questions relating to agricultural land) regarding
intestate succession, special property of females, including personal properly
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 (other than charities and charitable institutions and
charitable and religious endowments) the rule of decision in cases where the
parties are Muslims shall be the Muslim Personal Law (Shariat).” 13. A word as
to the meaning of the expression “Shariat”. A.A.A. Fyzee (supra), at pages
9-11, describes “Shariat” as follows: 319 “Coming to law proper, it is
necessary to remember that there are two different conceptions of law. Law may
be considered to be of divine origin, as is the case with the Hindu law and the
Islamic law, or it may be conceived as man-made. The latter conception is the
guiding principle of all modern legislation; it is, as Ostrorog has pointed
out, the Greek, Roman, Celtic or Germanic notion of law. We may be compelled to
act in accordance with certain principles because God desires us to do so, or
in the alternative because the King or the Assembly of wise men or the leader
of the community or social custom demand it of us, for the good of the people
in general. In the case of Hindu law, it is based first on the Vedas or Sruti
(that which is heard); secondly on the Smriti (that which is remembered by the
sages or rishis). Although the effect of custom is undoubtedly great yet
dharma, as defined by Hindu lawyers, implies a course of conduct which is
approved by God. Now, what is the Islamic notion of law? In the words of
Justice Mahmood, ‘It is to be remembered that Hindu and Muhammadan law are so
intimately connected with religion that they cannot readily be dissevered from
it’. There is in Islam a doctrine of ‘certitude’ (ilm al-yaqin) in the matter
of Good and Evil. We in our weakness cannot understand what Good and Evil are
unless we are guided in the matter by an inspired Prophet. Good and Evil – husn
(beauty) and qubh (ugliness) – are to be taken in the ethical acceptation of
the terms. What is morally beautiful that must be done; and what is morally
ugly must not be done. That is law or Shariat and nothing else can be law. But
what is absolutely and indubitably beautiful, and what is absolutely and
indubitably ugly? These are the important legal questions; and who can answer
them? Certainly not 320 man, say the Muslim legists. We have the Qur’an which
is the very word of God. Supplementary to it we have Hadith which are Traditions
of the Prophet – the records of his actions and his sayings – from which we
must derive help and inspiration in arriving at legal decisions. If there is
nothing either in the Qur’an or in the Hadith to answer the particular question
which is before us, we have to follow the dictates of secular reason in
accordance with certain definite principles. These principles constitute the
basis of sacred law or Shariat as the Muslim doctors understand it. And it is
these fundamental juristic notions which we must try to study and analyse
before we approach the study of the Islamic civil law as a whole, or even that
small part of it which in India is known as Muslim law. Modern jurists
emphasize the importance of law for understanding the character and ethos of a
people. Law, says a modern jurist, ‘streams from the soul of a people like
national poetry, it is as holy as the national religion, it grows and spreads
like language; religious, ethical, and poetical elements all contribute to its
vital force’; it is ‘the distilled essence of the civilization of a people’; it
reflects the people’s soul more clearly than any other organism. This is true
of Islam more than of any other faith. The Shari’at is the central core of
Islam; no understanding of its civilization, its social history or its
political system, is possible without a knowledge and appreciation of its legal
system. Shariat (lit., the road to the watering place, the path to be followed)
as a technical term means the Canon law of Islam, the totality of Allah’s
commandments. Each one of such commandments is called hukm (pl. ahkam). The law
of Allah and its inner meaning is not easy to grasp; and Shariat embraces all
human actions. For this reason it is not ‘law’ in the modern sense; it 321
contains an infallible guide to ethics. It is fundamentally a Doctrine of
Duties, a code of obligations. Legal considerations and individual rights have
a secondary place in it; above all the tendency towards a religious evaluation
of all the affairs of life is supreme. According to the Shariat religious
injunctions are of five kinds, al-ahkam alkhamsah. Those strictly enjoined are
farz, and those strictly forbidden are haram. Between them we have two middle
categories, namely, things which you are advised to do (mandub), and things
which you are advised to refrain from (makruh) and finally there are things
about which religion is indifferent (ja’iz). The daily prayers, five in number,
are farz; wine is haram; the addition prayers like those on the Eid are mandub;
certain kinds of fish are makruh; and there are thousands of ja’iz things such
as travelling by air. Thus the Shariat is totalitarian; all human activity is
embraced in its sovereign domain. This fivefold division must be carefully
noted; for unless this is done it is impossible to understand the distinction
between that which is only morally enjoined and that which is legally enforced.
Obviously, moral obligation is quite a different thing from legal necessity and
if in law these distinctions are not kept in mind error and confusion are the
inevitable result.” 14. 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: “Article 13 - Laws inconsistent
with or in derogation of the fundamental rights - (1) All laws in force in the
territory of India 322 immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this
part, shall, to the extent of such inconsistency, be void. (2) xxx xxx xxx (3)
In this article, unless the context otherwise requires,- (a) “law” includes any
Ordinance, order, bye-law, rule, regulation, notification, custom or usage
having in the territory of India the force of law; (b) “laws in force” includes
laws passed or made by a Legislature or other competent authority in the
territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that any such law or any part thereof may
not be then in operation either at all or in particular areas.” 15. 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. 16. 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 323 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:
“Notwithstanding anything contained in the Indian Bar Councils Act, 1926, or in
any other law regulating the conditions subject to which a person not entered
in the roll of Advocates of a High Court may, be permitted to practice in that
High Court every Advocate of the Supreme Court shall be entitled as of right to
practice in any High Court whether or not he is an Advocate of that High Court:
Provided that nothing in this section shall be deemed to entitle any person,
merely by reason of his being an Advocate of the Supreme Court, to practice in
any High Court of which he was at any time a judge, if he had given an
undertaking not to practice therein after ceasing to hold office as such
judge.” 17. 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 324 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: “23. Turning now to the
non obstante clause in section 2 of the new Act, which appears to have
furnished the whole basis for the reasoning of the Court below — and the
argument before us closely followed that reasoning — we find the learned Judges
begin by inquiring what are the provisions which that clause seeks to supersede
and then place upon the enacting clause such construction as would make the
right conferred by it co-extensive with the disability imposed by the
superseded provisions. “The meaning of the section will become clearer”, they
observe, “if we examine a little more closely what the section in fact
supersedes or repeals.....The disability which the section removes and the
right which it confers are co-extensive.” This is not, in our judgment, a
correct approach to the construction of section 2. It should first be
ascertained what the enacting part of the section provides on a fair
construction of the words used according to their natural and ordinary meaning,
and the non obstante clause is to be understood as operating to set aside as no
longer valid anything contained in relevant existing laws which is inconsistent
with the new enactment.” (at pages 21-22) This view was followed in A.V.
Fernandez v. State of Kerala, 1957 SCR 837 at 850. 325 18. 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”. 19. 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. 20. 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 30 326 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 PC 25, the Privy Council was squarely called upon to
adjudicate upon a Triple Talaq. Lord Thankerton speaking for the Privy Council
put it thus: “There is nothing in the case to suggest that the parties are not
Sunni Mahomedans governed by the ordinary Hanafi law, and, in the opinion of
their Lordships, the law of divorce applicable in such a case is correctly
stated by Sir R.K Wilson, in his Digest of Anglo-Muhammadan Law, 5th ed., at p.
136, as follows: “The divorce called talak may be either irrevocable (bain) or
revocable (raja). A talak bain, while it always operates as an immediate and
complete dissolution of the marriage bond, differs as to one of its ulterior
effects according to the form in which it is pronounced. A talak bain may be
effected by words addressed to the wife clearly indicating an intention to
dissolve the marriage, either:—(a) Once, followed by abstinence from sexual
intercourse, for the period called the iddat; or (b) Three times during
successive intervals of purity, i.e, between successive menstruations, no
intercourse taking place during any of the three intervals; or (c) Three times
at shorter intervals, or even in immediate succession; or (d) Once, by words
showing a clear intention that the divorce shall immediately became
irrevocable. The first-named of the above methods is called ahsan (best), the
327 second hasan (good), the third and fourth are said to be bidaat (sinful),
but are, nevertheless, regarded by Sunni lawyers as legally valid.” (at page
26) The Privy Council went on to state: “Their Lordships are of opinion that
the pronouncement of the triple talak by Ghiyas-ud-din constituted an
immediately effective divorce, and, while they are satisfied that the High
Court were not justified in such a conclusion on the evidence in the present
case, they are of opinion that the validity and effectiveness of the divorce
would not be affected by Ghiyas-ud-din’s mental intention that it should not be
a genuine divorce, as such a view is contrary to all authority. A talak
actually pronounced under compulsion or in jest is valid and effective:
Baillie’s Digest, 2nd ed., p. 208; Ameer Ali’s Mohammedan Law, 3rd ed., vol.
ii., p. 518; Hamilton’s Hedaya, vol. i., p. 211.” (at page 27) 21. 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. 22. 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 328 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. 23. 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: “Article 25 - Freedom of conscience and
free profession, practice and propagation of religion.- (1) Subject to public
order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to
profess, practise and propagate religion. (2) 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.
Explanation I.—The wearing and carrying of kirpans shall be deemed to be
included in the profession of the Sikh religion. Explanation II.—In sub-clause
(b) of clause (2), the reference to Hindus shall be construed as including a
reference to 329 persons professing the Sikh, Jaina or Buddhist religion, and
the reference to Hindu religious institutions shall be construed accordingly.”
24. “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: “60. Looked at from
any angle, the challenge to the constitutional validity of Section 175(1)(q)
and Section 177(1) must fail. The right to contest an election for any office
in Panchayat is neither fundamental nor a common law right. It is the creature
of a statute and is obviously subject to qualifications and disqualifications
enacted by legislation. It may be permissible for Muslims to enter into four
marriages with four women and for anyone whether a Muslim or belonging to any
other community or religion to procreate as many children as he likes but no
religion in India dictates or mandates as an obligation to enter into bigamy or
polygamy or to have 330 children more than one. What is permitted or not
prohibited by a religion does not become a religious practice or a positive
tenet of a religion. A practice does not acquire the sanction of religion
simply because it is permitted. Assuming the practice of having more wives than
one or procreating more children than one is a practice followed by any
community or group of people, the same can be regulated or prohibited by
legislation in the interest of public order, morality and health or by any law
providing for social welfare and reform which the impugned legislation clearly
does.” (at page 394) And in Commissioner of Police v. Acharya Jagdishwarananda
Avadhuta, 2004 (12) SCC 770, it was stated as under: “9. The protection
guaranteed under Articles 25 and 26 of the Constitution is not confined to
matters of doctrine or belief but extends to acts done in pursuance of religion
and, therefore, contains a guarantee for rituals, observances, ceremonies and
modes of worship which are essential or integral part of religion. What
constitutes an integral or essential part of religion has to be determined with
reference to its doctrines, practices, tenets, historical background, etc. of
the given religion. (See generally the Constitution Bench decisions in Commr.,
H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [AIR 1954 SC 282 :
1954 SCR 1005], Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [AIR
1962 SC 853 : 1962 Supp (2) SCR 496] and Seshammal v. State of T.N. [(1972) 2
SCC 11 : AIR 1972 SC 1586] regarding those aspects that are to be looked into
so 331 as to determine whether a part or practice is essential or not.) What is
meant by “an essential part or practices of a religion” is now the matter for
elucidation. Essential part of a religion means the core beliefs upon which a
religion is founded. Essential practice means those practices that are
fundamental to follow a religious belief. It is upon the cornerstone of
essential parts or practices that the superstructure of a religion is built,
without which a religion will be no religion. Test to determine whether a part
or practice is essential to a religion is to find out whether the nature of the
religion will be changed without that part or practice. If the taking away of
that part or practice could result in a fundamental change in the character of
that religion or in its belief, then such part could be treated as an essential
or integral part. There cannot be additions or subtractions to such part
because it is the very essence of that religion and alterations will change its
fundamental character. It is such permanent essential parts which are protected
by the Constitution. Nobody can say that an essential part or practice of one’s
religion has changed from a particular date or by an event. Such alterable
parts or practices are definitely not the “core” of religion whereupon the
belief is based and religion is founded upon. They could only be treated as
mere embellishments to the non-essential (sic essential) part or practices.”
(at pages 782-783) 25. 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. 332
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: “E. Degrees of obedience: Islam divides all
actions into five kinds which figure differently in the sight of God and in
respect of which His Commands are different. This plays an important part in
the lives of Muslims. (i) First degree: Fard. Whatever is commanded in the
Koran, Hadis or ijmaa must be obeyed. Wajib. Perhaps a little less compulsory
than Fard but only slightly less so. (ii) Second degree: Masnun, Mandub and
Mustahab: These are recommended actions. (iii) Third degree: Jaiz or Mubah:
These are permissible actions as to which religion is indifferent. (iv) Fourth
degree: Makruh: That which is reprobated as unworthy. 333 (v) Fifth degree:
Haram: That which is forbidden.” 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. 334 26. 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. 27. In Prem Chand Garg v. Excise Commissioner, U.P., 1963 (Supp.)
1 SCR 885, this Court held: “2. Article 32(1) provides that the right to move
the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed, and sub-art. (4) lays down that this
right shall not be suspended except as otherwise provided for by this
Constitution. There is no doubt that the right to move this Court conferred on
the citizens of this country by Article 32 is itself a guaranteed right and it
holds the same place of pride in the Constitution as do the other provisions in
respect of the citizens fundamental rights. The fundamental rights guaranteed
by Part III which have been made justiciable, form the most outstanding and
distinguishing feature of the Indian Constitution. It is true that the said
rights are not absolute and they have to be adjusted in relation to the
interests of the general public. But the scheme of Article 19 illustrates, the
difficult task of determining the propriety or the validity of adjustments made
either legislatively or by executive action between the fundamental rights and
335 the demands of socio-economic welfare has been ultimately left in charge of
the High Courts and the Supreme Court by the Constitution. It is in the light
of this position that the Constitution makers thought it advisable to treat the
citizen’s right to move this Court for the enforcement of their fundamental
rights as being a fundamental right by itself. The fundamental right to move
this Court can, therefore, be appropriately described as the corner-stone of
the democratic edifice raised by the Constitution. That is why it is natural
that this Court should, in the words of Patanjali Sastri J., regard itself “as
the protector and guarantor of fundamental rights,” and should declare that “it
cannot, consistently with the responsibility laid upon it, refuse to entertain
applications seeking protection against infringements of such rights.” (Vide
Romesh Thappar v. State of Madras [[1950] SCR 594 at 697]). In discharging the
duties assigned to it, this Court has to play the role “of a sentinel on the
qui vive” (Vide State of Madras v. V.C. Row [[1952] SCR 594 at 597]) and it
must always regard it as its solemn duty to protect the said fundamental
rights’ zealously and vigilantly (Vide Daryao v. State of U.P. [[1962] 1 SCR
574 at p. 582])” 28. 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: 336 “The dynamic of our constitutional system
is that individuals need not await legislative action before asserting a
fundamental right. The Nation’s courts are open to injured individuals who come
to them to vindicate their own direct, personal stake in our basic charter. An
individual can invoke a right to constitutional protection when he or she is
harmed, even if the broader public disagrees and even if the legislature
refuses to act. The idea of the Constitution “was to withdraw certain subjects
from the vicissitudes of political controversy, to place them beyond the reach
of majorities and officials and to establish them as legal principles to be
applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638
(1943). This is why “fundamental rights may not be submitted to a vote; they
depend on the outcome of no elections.” 29. 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 337 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. 30. 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.
31. It is at this point that it is necessary to see whether a fundamental right
has been violated by the 338 1937 Act insofar as it seeks to enforce Triple
Talaq as a rule of law in the Courts in India. 32. 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 339 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. 33. 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: “In this
context it is important to emphasize that the absence of arbitrary power is the
first essential of the rule of law upon which our whole constitutional system
is based. In a system governed by rule of law, discretion, when conferred upon
executive authorities, must be confined within clearly defined limits. The rule
of law from this point of view means that decisions should be made by the
application of known principles and rules and, in general, such decisions
should be predictable and the citizen should know where he is. If a 340 decision
is taken without any principle or without any rule it is unpredictable and such
a decision is the antithesis of a decision taken in accordance with the rule of
law. (See Dicey — “Law of the Constitution” — 10th Edn., Introduction cx). “Law
has reached its finest moments”, stated Douglas, J. in United States v.
Wunderlick [342 US 98], “when it has freed man from the unlimited discretion of
some ruler…. Where discretion, is absolute, man has always suffered”. It is in
this sense that the rule of law may be said to be the sworn enemy of caprice.
Discretion, as Lord Mansfield stated it in classic terms in the case of John
Wilkes [(1770) 4 Burr. 2528 at 2539], “means sound discretion guided by law. It
must be governed by rule, not by humour : it must not be arbitrary, vague, and
fanciful”.” (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. 34. 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: “The principle of
recruitment by open competition aims at ensuring equality of opportunity in the
matter of employment and obtaining the services of the most meritorious
candidates. Rules 1 to 8, 9(1) and the first part of Rule 9(2) seek to 341
achieve this aim. The last part of Rule 9(2) subverts and destroys the basic
objectives of the preceding rules. It vests in the Government an arbitrary
power of patronage. Though Rule 9(1) requires the appointment of successful
candidates to Class I posts in the order of merit and thereafter to Class II
posts in the order of merit, Rule 9(1) is subject to Rule 9(2), and under the
cover of Rule 9(2) the Government can even arrogate to itself the power of
assigning a Class I post to a less meritorious and a Class II post to a more
meritorious candidate. We hold that the latter part of Rule 9(2) gives the
Government an arbitrary power of ignoring the just claims of successful
candidates for recruitment to offices under the State. It is violative of
Articles 14 and 16(1) of the Constitution and must be struck down.” (pages 353
– 354) 35. 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: “59. Clause (4) suffers from
these infirmities. First, the forum might be changed but another forum has to
be created. If the constituent power became itself the forum to decide the
disputes the constituent power by repealing the law in relation to election
petitions and matters 342 connected therewith did not have any petition to
seize upon to deal with the same. Secondly, any decision is to be made in
accordance with law. Parliament has power to create law and apply the same. In
the present case, the constituent power did not have any law to apply to the
case, because the previous law did not apply and no other law was applied by
clause (4). The validation of the election in the present case is, therefore,
not by applying any law and it, therefore, offends rule of law.” (at page 44)
36. 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 343 reasonably related to the object of the
law. He went on to add: “681. It follows that clauses (4) and (5) of Article
329-A are arbitrary and are calculated to damage or destroy the rule of law.
Imperfections of language hinder a precise definition of the rule of law as of
the definition of ‘law’ itself. And the Constitutional law of 1975 has
undergone many changes since A.V. Dicey, the great expounder of the rule of
law, delivered his lectures as Vinerian Professor of English law at Oxford,
which were published in 1885 under the title, “Introduction to the Study of the
Law of the Constitution”. But so much, I suppose, can be said with reasonable
certainty that the rule of law means that the exercise of powers of Government
shall be conditioned by law and that subject to the exceptions to the doctrine
of equality, no one shall be exposed to the arbitrary will of the Government.
Dicey gave three meanings to rule of law: Absence of arbitrary power, equality
before the law or the equal subjection of all classes to the ordinary law of
the land administered by ordinary law courts and that the Constitution is not
the source but the consequence of the rights of individuals, as defined and
enforced by the courts. The second meaning grew out of Dicey’s unsound dislike
of the French Droit Administratif which he regarded “as a misfortune inflicted
upon the benighted folk across the Channel” [See S.A. de Smith: Judicial Review
of Administrative Action, (1968) p. 5]. Indeed, so great was his influence on
the thought of the day that as recently as in 1935 Lord Hewart, the Lord Chief
Justice of England, dismissed the term “administrative law” as “continental jargon”.
The third meaning is hardly apposite in the context of our written 344
Constitution for, in India, the Constitution is the source of all rights and
obligations. We may not therefore rely wholly on Dicey’s exposition of the rule
of law but ever since the second world war, the rule has come to acquire a
positive content in all democratic countries. [See Wade and Phillips:
Constitutional Law (Sixth Edn., pp. 70-73)] The International Commission of
Jurists, which has a consultative status under the United Nations, held its
Congress in Delhi in 1959 where lawyers, judges and law teachers representing
fifty-three countries affirmed that the rule of law is a dynamic concept which
should be employed to safeguard and advance the political and civil rights of the
individual in a free society. One of the committees of that Congress emphasised
that no law should subject any individual to discriminatory treatment. These
principles must vary from country to country depending upon the provisions of
its Constitution and indeed upon whether there exists a written Constitution.
As it has been said in a lighter vein, to show the supremacy of the Parliament,
the charm of the English Constitution is that “it does not exist”. Our
Constitution exists and must continue to exist. It guarantees equality before
law and the equal protection of laws to everyone. The denial of such equality,
as modified by the judicially evolved theory of classification, is the very
negation of rule of law.” (at page 258) 37. 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 345 equality before the law, as being of the essence of the rule of law.
38. 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): “85. The last two grounds of challenge may be taken
up together for consideration. Though we have formulated the third ground of
challenge as a distinct and separate ground, it is really in substance and
effect merely an aspect of the second ground based on violation of Articles 14
and 16. Article 16 embodies the fundamental guarantee that there shall be equality
of opportunity for all citizens in matters relating to employment or
appointment to any office under the State. Though enacted as a distinct and
independent fundamental right because of its great importance as a principle
ensuring equality of opportunity in public employment which is so vital to the
building up of the new classless egalitarian society envisaged in the
Constitution, Article 16 is only an instance of the application of the concept
of equality enshrined in Article 14. In other words, Article 14 is the genus
while Article 16 is a species. Article 16 gives effect to the doctrine of
equality in all matters relating to public employment. The basic principle
which, therefore, informs both Articles 14 and 16 is equality and 346
inhibition against discrimination. Now, what is the content and reach of this
great equalising principle? It is a founding faith, to use the words of Bose.
J., “a way of life”, and it must not be subjected to a narrow pedantic or
lexicographic approach. We cannot countenance any attempt to truncate its
all-embracing scope and meaning, for to do so would be to violate its activist
magnitude. Equality is a dynamic concept with many aspects and dimensions and
it cannot be “cribbed, cabined and confined” within traditional and doctrinaire
limits. From a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic while the other, to the whim and
caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it
that it is unequal both according to political logic and constitutional law and
is therefore violative of Article 14, and if it effects any matter relating to
public employment, it is also violative of Article 16. Articles 14 and 16
strike at arbitrariness in State action and ensure fairness and equality of
treatment. They require that State action must be based on valid relevant
principles applicable alike to all similarly situate and it must not be guided
by any extraneous or irrelevant considerations because that would be denial of
equality. Where the operative reason for State action, as distinguished from
motive inducing from the antechamber of the mind, is not legitimate and
relevant but is extraneous and outside the area of permissible considerations,
it would amount to mala fide exercise of power and that is hit by Articles 14
and 16. Mala fide exercise of power and arbitrariness are different lethal
radiations emanating from the same vice: in fact the latter comprehends the
former. Both are inhibited by Articles 14 and 16.” 347 [Emphasis Supplied] 39.
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): “The nature and requirement of the
procedure under Article 21 7. Now, the question immediately arises as to what
is the requirement of Article 14: what is the content and reach of the great
equalising principle enunciated in this article? There can be no doubt that it
is a founding faith of the Constitution. It is indeed the pillar on which rests
securely the foundation of our democratic republic. And, therefore, it must not
be subjected to a narrow, pedantic or lexicographic approach. No attempt should
be made to truncate its all-embracing scope and meaning, for to do so would be
to violate its activist magnitude. Equality is a dynamic concept with many
aspects and dimensions and it cannot be imprisoned within traditional and
doctrinaire limits. We must reiterate here what was pointed out by the majority
in E.P. Royappa v. State of Tamil Nadu [(1974) 4 SCC 3 : 1974 SCC (L&S) 165
: (1974) 2 SCR 348] namely, that “from a positivistic point of view, equality
is antithetic to arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic, while the other, to the
whim and caprice of 348 an absolute monarch. Where an act is arbitrary, it is
implicit in it that it is unequal both according to political logic and
constitutional law and is therefore violative of Article 14”. Article 14
strikes at arbitrariness in State action and ensures fairness and equality of
treatment. The principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or non-arbitrariness
pervades Article 14 like a brooding omnipresence and the procedure contemplated
by Article 21 must answer the test of reasonableness in order to be in
conformity with Article 14. It must be “right and just and fair” and not
arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all
and the requirement of Article 21 would not be satisfied.” [Emphasis Supplied]
40. 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: “19… It thus appears
well-settled that Article 14 strikes at arbitrariness in
executive/administrative action because any action that is arbitrary must
necessarily involve the negation of equality. One need not confine the denial
of equality to a comparative evaluation between two persons to arrive at a
conclusion of discriminatory treatment. An action per se arbitrary itself
denies equal of (sic) protection by law. The Constitution Bench pertinently
observed in Ajay Hasia 349 case [(1981) 1 SCC 722: 1981 SCC (L&S) 258: AIR 1981
SC 487: (1981) 2 SCR 79: (1981) 1 LLJ 103] and put the matter beyond
controversy when it said “wherever therefore, there is arbitrariness in State
action whether it be of the Legislature or of the executive or of an
‘authority’ under Article 12, Article 14 immediately springs into action and
strikes down such State action”. This view was further elaborated and affirmed
in D.S. Nakara v. Union of India [(1983) 1 SCC 305: 1983 SCC (L&S) 145: AIR
1983 SC 130: (1983) UPSC 263]. In Maneka Gandhi v. Union of India [(1978) 1 SCC
248: AIR 1978 SC 597: (1978) 2 SCR 621] it was observed that Article 14 strikes
at arbitrariness in State action and ensures fairness and equality of
treatment. It is thus too late in the day to contend that an executive action
shown to be arbitrary is not either judicially reviewable or within the reach
of Article 14.” (at page 328) The same view was reiterated in Babita Prasad v.
State of Bihar, (1993) Suppl. 3 SCC 268 at 285, at paragraph 31. 41. 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): “16... The true scope and ambit of Article 14 has
been the subject-matter of 350 numerous decisions and it is not necessary to
make any detailed reference to them. It is sufficient to state that the content
and reach of Article 14 must not be confused with the doctrine of classification.
Unfortunately, in the early stages of the evolution of our constitutional law,
Article 14 came to be identified with the doctrine of classification because
the view taken was that that article forbids discrimination and there would be
no discrimination where the classification making the differentia fulfils two
conditions, namely, (i) that the classification is founded on an intelligible
differentia which distinguishes persons or things that are grouped together
from others left out of the group; and (ii) that that differentia has a
rational relation to the object sought to be achieved by the impugned
legislative or executive action. It was for the first time in E.P. Royappa v.
State of Tamil Nadu [(1974) 4 SCC 3, 38: 1974 SCC (L&S) 165, 200: (1974) 2
SCR 348] that this Court laid bare a new dimension of Article 14 and pointed
out that that article has highly activist magnitude and it embodies a guarantee
against arbitrariness. This Court speaking through one of us (Bhagwati, J.)
said: [SCC p. 38: SCC (L&S) p. 200, para 85] “The basic principle which,
therefore, informs both Articles 14 and 16 is equality and inhibition against
discrimination. Now, what is the content and reach of this great equalising
principle? It is a founding faith, to use the words of Bose, J., “a way of
life”, and it must not be subjected to a narrow pedantic or lexicographic
approach. We cannot countenance any attempt to truncate its allembracing scope
and meaning, 351 for to do so would be to violate its activist magnitude.
Equality is a dynamic concept with many aspects and dimensions and it cannot be
“cribbed, cabined and confined” within traditional and doctrinaire limits. From
a positivistic point of view, equality is antithetic to arbitrariness. In fact,
equality and arbitrariness are sworn enemies; one belongs to the rule of law in
a republic while the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary it is implicit in it that it is unequal both
according to political logic and constitutional law and is therefore violative
of Article 14, and if it affects any matter relating to public employment, it
is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in
State action and ensure fairness and equality of treatment.” This vital and
dynamic aspect which was till then lying latent and submerged in the few simple
but pregnant words of Article 14 was explored and brought to light in Royappa
case [(1975) 1 SCC 485: 1975 SCC (L&S) 99: (1975) 3 SCR 616] and it was
reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India
[(1978) 1 SCC 248] where this Court again speaking through one of us (Bhagwati,
J.) observed: (SCC pp. 283-84, para 7) “Now the question immediately arises as
to what is the requirement of Article 14: What is the content and reach of the
great equalising principle enunciated in this Article? 352 There can be no
doubt that it is a founding faith of the Constitution. It is indeed the pillar
on which rests securely the foundation of our democratic republic. And,
therefore, it must not be subjected to a narrow, pedantic or lexicographic
approach. No attempt should be made to truncate its all-embracing scope and
meaning, for to do so would be to violate its activist magnitude. Equality is a
dynamic concept with many aspects and dimensions and it cannot be imprisoned
within traditional and doctrinaire limits.... Article 14 strikes at
arbitrariness in State action and ensures fairness and equality of treatment.
The principle of reasonableness, which legally as well as philosophically, is
an essential element of equality or non-arbitrariness pervades Article 14 like
a brooding omnipresence.” This was again reiterated by this Court in
International Airport Authority case [(1979) 3 SCC 489] at p. 1042 (SCC p. 511)
of the Report. It must therefore now be taken to be well settled that what
Article 14 strikes at is arbitrariness because an action that is arbitrary,
must necessarily involve negation of equality. The doctrine of classification
which is evolved by the courts is not paraphrase of Article 14 nor is it the
objective and end of that article. It is merely a judicial formula for
determining whether the legislative or executive action in question is
arbitrary and therefore constituting denial of equality. If the classification
is not reasonable and does 353 not satisfy the two conditions referred to
above, the impugned legislative or executive action would plainly be arbitrary
and the guarantee of equality under Article 14 would be breached. Wherever
therefore there is arbitrariness in State action whether it be of the
legislature or of the executive or of an ‘authority’ under Article 12, Article
14 immediately springs into action and strikes down such State action. In fact,
the concept of reasonableness and non-arbitrariness pervades the entire
constitutional scheme and is a golden thread which runs through the whole of
the fabric of the Constitution.” [Emphasis Supplied] 42. In this view of the
law, a three Judge Bench of this Court in K.R. Lakshmanan (Dr.) v. State of T.N.,
(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 354 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): “48. We see considerable force in the contention of
Mr. Parasaran that the acquisition and transfer of the undertaking of the Club
is arbitrary. The two Acts were amended by the 1949 Act and the definition of
‘gaming’ was amended. The object of the amendment was to include horse-racing
in the definition of ‘gaming’. The provisions of the 1949 Act were, however,
not enforced till the 1974 Act was enacted and enforced with effect from
31-3-1975. The 1974 Act was enacted with a view to provide for the abolition of
wagering or betting on horseraces in the State of Tamil Nadu. It is thus
obvious that the consistent policy of the State Government, as projected
through various legislations from 1949 onwards, has been to declare
horse-racing as gambling and as such prohibited under the two Acts. The
operation of the 1974 Act was stayed by this Court and as a consequence the
horse-races are continuing under the orders of this Court. The policy of the
State Government as projected in all the enactments on the subject prior to
1986 shows that the State Government considered horse-racing as gambling and as
such prohibited under the law. The 1986 Act on the other hand declares
horse-racing as a public purpose and in the interest of the general public.
There is apparent contradiction in the two stands. We do not agree with the
contention of Mr. Parasaran that the 1986 Act is a colourable piece of
legislation, but at the same time we are of the view that no public purpose is being
served by 355 acquisition and transfer of the undertaking of the Club by the
Government. We fail to understand how the State Government can acquire and take
over the functioning of the race-club when it has already enacted the 1974 Act
with the avowed object of declaring horse-racing as gambling? Having enacted a
law to abolish betting on horse-racing and stoutly defending the same before
this Court in the name of public good and public morality, it is not open to
the State Government to acquire the undertaking of horse-racing again in the
name of public good and public purpose. It is ex facie irrational to invoke
“public good and public purpose” for declaring horseracing as gambling and as
such prohibited under law, and at the same time speak of “public purpose and
public good” for acquiring the race-club and conducting the horse-racing by the
Government itself. Arbitrariness is writ large on the face of the provisions of
the 1986 Act. 49. We, therefore, hold that the provisions of 1986 Act are
discriminatory and arbitrary and as such violate and infract the right to
equality enshrined under Article 14 of the Constitution. 50. Since we have
struck down the 1986 Act on the ground that it violates Article 14 of the
Constitution, it is not necessary for us to go into the question of its
validity on the ground of Article 19 of the Constitution.” [Emphasis Supplied]
43. 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 356 Judge
Bench, in repelling an argument based on the arbitrariness facet of Article 14,
held: “43. Shri Rohinton Nariman submitted that inasmuch as a large number of
persons falling within the exempted categories are allowed to consume
intoxicating liquors in the State of Andhra Pradesh, the total prohibition of
manufacture and production of these liquors is ‘arbitrary’ and the amending Act
is liable to be struck down on this ground alone. Support for this proposition
is sought from a judgment of this Court in State of T.N. v. Ananthi Ammal
[(1995) 1 SCC 519]. Before, however, we refer to the holding in the said
decision, it would be appropriate to remind ourselves of certain basic
propositions in this behalf. In the United Kingdom, Parliament is supreme.
There are no limitations upon the power of Parliament. No court in the United
Kingdom can strike down an Act made by Parliament on any ground. As against
this, the United States of America has a Federal Constitution where the power
of the Congress and the State Legislatures to make laws is limited in two ways,
viz., the division of legislative powers between the States and the Federal
Government and the fundamental rights (Bill of Rights) incorporated in the
Constitution. In India, the position is similar to the United States of
America. The power of Parliament or for that matter, the State Legislatures is
restricted in two ways. A law made by Parliament or the legislature can be
struck down by courts on two grounds and two grounds alone, viz., (1) lack of
legislative competence and (2) violation of any of the fundamental rights
guaranteed in Part III of the Constitution or of any other constitutional
provision. There is no third ground. We do not wish to enter into a discussion
of the concepts of procedural 357 unreasonableness and substantive
unreasonableness — concepts inspired by the decisions of United States Supreme
Court. Even in U.S.A., these concepts and in particular the concept of
substantive due process have proved to be of unending controversy, the latest
thinking tending towards a severe curtailment of this ground (substantive due
process). The main criticism against the ground of substantive due process
being that it seeks to set up the courts as arbiters of the wisdom of the
legislature in enacting the particular piece of legislation. It is enough for
us to say that by whatever name it is characterised, the ground of invalidation
must fall within the four corners of the two grounds mentioned above. In other
words, say, if an enactment is challenged as violative of Article 14, it can be
struck down only if it is found that it is violative of the equality
clause/equal protection clause enshrined therein. Similarly, if an enactment is
challenged as violative of any of the fundamental rights guaranteed by clauses
(a) to (g) of Article 19(1), it can be struck down only if it is found not
saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment
can be struck down by just saying that it is arbitrary or unreasonable. Some or
other constitutional infirmity has to be found before invalidating an Act. An
enactment cannot be struck down on the ground that court thinks it unjustified.
Parliament and the legislatures, composed as they are of the representatives of
the people, are supposed to know and be aware of the needs of the people and
what is good and bad for them. The court cannot sit in judgment over their
wisdom. In this connection, it should be remembered that even in the case of
administrative action, the scope of judicial review is limited to three
grounds, viz., (i) unreasonableness, which can more appropriately be called 358
irrationality, (ii) illegality and (iii) procedural impropriety (see Council of
Civil Service Unions v. Minister for Civil Service [1985 AC 374: (1984) 3 All
ER 935: (1984) 3 WLR 1174] which decision has been accepted by this Court as
well). The applicability of doctrine of proportionality even in administrative
law sphere is yet a debatable issue. (See the opinions of Lords Lowry and
Ackner in R. v. Secy. of State for Home Deptt., ex p Brind [1991 AC 696: (1991)
1 All ER 720] AC at 766-67 and 762.) It would be rather odd if an enactment
were to be struck down by applying the said principle when its applicability
even in administrative law sphere is not fully and finally settled. It is one
thing to say that a restriction imposed upon a fundamental right can be struck
down if it is disproportionate, excessive or unreasonable and quite another
thing to say that the court can strike down enactment if it thinks it unreasonable,
unnecessary or unwarranted.” (at pages 737-739) 44. 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: (1) According
to the Bench in McDowell (supra), substantive due process is not something 359
accepted by either the American courts or our courts and, therefore, this being
a reiteration of substantive due process being read into Article 14 cannot be
applied. A Constitution Bench in Mohd. Arif v. Supreme Court of India, (2014) 9
SCC 737, has held, following the celebrated Maneka Gandhi (supra), as follows:
“27. The stage was now set for the judgment in Maneka Gandhi [Maneka Gandhi v.
Union of India, (1978) 2 SCR 621: (1978) 1 SCC 248]. Several judgments were delivered,
and the upshot of all of them was that Article 21 was to be read along with
other fundamental rights, and so read not only has the procedure established by
law to be just, fair and reasonable, but also the law itself has to be
reasonable as Articles 14 and 19 have now to be read into Article 21. [See at
SCR pp. 646-48: SCC pp. 393-95, paras 198-204 per Beg, C.J., at SCR pp. 669,
671-74 & 687: SCC pp. 279-84 & 296-97, paras 5-7 & 18 per Bhagwati,
J. and at SCR pp. 720- 23 : SCC pp. 335-39, paras 74-85 per Krishna Iyer, J.].
Krishna Iyer, J. set out the new doctrine with remarkable clarity thus: (SCR p.
723: SCC pp. 338-39, para 85) “85. To sum up, ‘procedure’ in Article 21 means
fair, not formal procedure. ‘Law’ is reasonable law, not any enacted piece. As
Article 22 specifically spells out the procedural safeguards for preventive and
punitive detention, a law providing for such detentions should conform to
Article 22. It has been rightly 360 pointed out that for other rights forming
part of personal liberty, the procedural safeguards enshrined in Article 21 are
available. Otherwise, as the procedural safeguards contained in Article 22 will
be available only in cases of preventive and punitive detention, the right to
life, more fundamental than any other forming part of personal liberty and
paramount to the happiness, dignity and worth of the individual, will not be
entitled to any procedural safeguard save such as a legislature’s mood
chooses.” 28. Close on the heels of Maneka Gandhi case [Maneka Gandhi v. Union
of India, (1978) 2 SCR 621: (1978) 1 SCC 248] came Mithu v. State of Punjab
[(1983) 2 SCC 277: 1983 SCC (Cri) 405], in which case the Court noted as
follows: (SCC pp. 283-84, para 6) “6. … In Sunil Batra v. Delhi Admn. [(1978) 4
SCC 494: 1979 SCC (Cri) 155], while dealing with the question as to whether a
person awaiting death sentence can be kept in solitary confinement, Krishna
Iyer J. said that though our Constitution did not have a “due process” clause
as in the American Constitution; the same consequence ensued after the
decisions in Bank Nationalisation case [Rustom Cavasjee Cooper (Banks
Nationalisation) v. Union of India, (1970) 1 SCC 248] and Maneka Gandhi 361
case [Maneka Gandhi v. Union of India, (1978) 2 SCR 621: (1978) 1 SCC 248] .…
In Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC
(Cri) 580] which upheld the constitutional validity of the death penalty,
Sarkaria J., speaking for the majority, said that if Article 21 is understood
in accordance with the interpretation put upon it in Maneka Gandhi [Maneka
Gandhi v. Union of India, (1978) 2 SCR 621 : (1978) 1 SCC 248], it will read to
say that: (SCC p. 730, para 136) ‘136. “No person shall be deprived of his life
or personal liberty except according to fair, just and reasonable procedure
established by valid law.” The wheel has turned full circle. Substantive due
process is now to be applied to the fundamental right to life and liberty.” (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. 362 Mathew, J., while delivering the first Tej
Bahadur Sapru Memorial Lecture entitled “Democracy and Judicial Review”, has
pointed out: “Still another point and I am done. The constitutional makers have
formally refused to incorporate the “due process clause” in our Constitution on
the basis, it seems, of the advice tendered by Justice Frankfurter to Shri B.N.
Rau thinking that it will make the Court a third Chamber and widen the area of
Judicial review. But unwittingly, I should think, they have imported the most
vital and active element of the concept by their theory of review of
‘reasonable restrictions’ which might be imposed by law on many of the
fundamental rights. Taken in its modern expanded sense, the American “due
process clause” stands as a high level guarantee of ‘reasonableness’ in
relation between man and state, an injunction against arbitrariness or
oppressiveness. I have had occasion to consider this question in Kesavananda
Bharati’s case. I said: “When a court adjudges that a legislation is bad on the
ground that it is an unreasonable restriction, it is drawing the elusive
ingredients for its conclusion from several sources…If you examine the cases
relating to the imposition of reasonable restrictions by a law, it will be
found that all of them adopt a standard which the American Supreme Court has
adopted in adjudging reasonableness of a legislation under the due process
clause.” 363 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): “228. The challenge under Article 21 must fail on our
interpretation of sub-section (2) of Section 30. Personal liberty of the person
who is incarcerated is to a great extent curtailed by punitive detention. It is
even curtailed in preventive detention. The liberty to move, mix, mingle, talk,
share company with co-prisoners, if substantially curtailed, would be violative
of Article 21 unless the curtailment has the backing of law. Sub-section (2) of
Section 30 establishes the procedure by which it can be curtailed but it must
be read subject to our interpretation. The word “law” in the expression
“procedure established by law” in Article 21 has been interpreted to mean in
Maneka Gandhi’s case (supra) that the 364 law must be right, just and fair, and
not arbitrary, fanciful or oppressive. Otherwise it would be no procedure at
all and the requirement of Article 21 would not be satisfied. If it is
arbitrary it would be violative of Article 14. Once Section 30(2) is read down
in the manner in which we have done, its obnoxious element is erased and it
cannot be said that it is arbitrary or that there is deprivation of personal
liberty without the authority of law.” [Emphasis Supplied] In a long and
illuminating concurring judgment, Krishna Iyer, J., added (at page 518): “52.
True, our Constitution has no ‘due process’ clause or the VIII Amendment; but,
in this branch of law, after R.C. Cooper v. Union of India, (1970) 1 SCC 248
and Maneka Gandhi v. Union of India, (1978) 1 SCC 248, the consequence is the
same. For what is punitively outrageous, scandalizingly unusual or cruel and
rehabilitatively counter-productive, is unarguably unreasonable and arbitrary
and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness,
falls foul of Article 21.” [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: 365 “5. But before we proceed to point out the
infirmities from which Section 303 suffers, we must indicate the nature of the
argument which has been advanced on behalf of the petitioners in order to
assail the validity of that section. The sum and substance of the argument is
that the provision contained in Section 303 is wholly unreasonable and
arbitrary and thereby, it violates Article 21 of the Constitution which affords
the guarantee that no person shall be deprived of his life or personal liberty
except in accordance with the procedure established by law. Since the procedure
by which Section 303 authorises the deprivation of life is unfair and unjust,
the Section is unconstitutional. Having examined this argument with care and
concern, we are of the opinion that it must be accepted and Section 303 of the
Penal Code struck down.” (at page 283) After quoting from Sunil Batra (supra),
the question before the Court was set out thus: “6……The question which then
arises before us is whether the sentence of death, prescribed by Section 303 of
the Penal Code for the offence of murder committed by a person who is under a
sentence of life imprisonment, is arbitrary and oppressive so as to be
violative of the fundamental right conferred by Article 21.” (at page 285)
After setting out the question thus, the Court further stated: “9…...Is a law
which provides for the sentence of death for the offence of murder, without
affording to the accused an 366 opportunity to show cause why that sentence
should not be imposed, just and fair? Secondly, is such a law just and fair if,
in the very nature of things, it does not require the court to state the
reasons why the supreme penalty of law is called for? Is it not arbitrary to
provide that whatever may be the circumstances in which the offence of murder
was committed, the sentence of death shall be imposed upon the accused?” (at
page 287) The question was then answered in the following manner: “18. It is
because the death sentence has been made mandatory by Section 303 in regard to
a particular class of persons that, as a necessary consequence, they are
deprived of the opportunity under Section 235(2) of the Criminal Procedure Code
to show cause why they should not be sentenced to death and the court is
relieved from its obligation under Section 354(3) of that Code to state the
special reasons for imposing the sentence of death. The deprivation of these
rights and safeguards which is bound to result in injustice is harsh, arbitrary
and unjust.” 19… To prescribe a mandatory sentence of death for the second of
such offences for the reason that the offender was under the sentence of life
imprisonment for the first of such offences is arbitrary beyond the bounds of
all reason. Assuming that Section 235(2) of the Criminal Procedure Code were
applicable to the case and the court was under an obligation to hear the
accused on the question of sentence, it would have to put some such question to
the accused: “You were sentenced to life imprisonment for the offence of 367
forgery. You have committed a murder while you were under that sentence of life
imprisonment. Why should you not be sentenced to death?” The question carries
its own refutation. It highlights how arbitrary and irrational it is to provide
for a mandatory sentence of death in such circumstances. 23. On a consideration
of the various circumstances which we have mentioned in this judgment, we are
of the opinion that Section 303 of the Penal Code violates the guarantee of
equality contained in Article 14 as also the right conferred by Article 21 of
the Constitution that no person shall be deprived of his life or personal
liberty except according to procedure established by law.” (at pages 293, 294
and 296) In a concurring judgment, Chinnappa Reddy, J., struck down the Section
in the following terms: “25. Judged in the light shed by Maneka Gandhi [(1978)
1 SCC 248] and Bachan Singh [(1980) 2 SCC 684], it is impossible to uphold
Section 303 as valid. Section 303 excludes judicial discretion. The scales of
justice are removed from the hands of the Judge so soon as he pronounces the
accused guilty of the offence. So final, so irrevocable and so irrestitutable
is the sentence of death that no law which provides for it without involvement
of the judicial mind can be said to be fair, just and reasonable. Such a law
must necessarily be stigmatised as arbitrary and oppressive. Section 303 is
such a law and it must go the way of all bad laws. I agree with my Lord Chief
Justice that Section 303, Indian Penal Code, must be struck down as
unconstitutional.” 368 (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):
“45. Reference was then made by Shri G. Ramaswamy to the decision in Mithu v.
State of Punjab [(1983) 2 SCC 277: 1983 SCC (Cri) 405] wherein Section 303 of
the Indian Penal Code was struck down. But that decision turned mainly on
Article 21 though Article 14 is also referred to along with Article 21. Not
only did the offending provision exclude any scope for application of judicial
discretion, it also deprived the accused of the procedural safeguards contained
in Sections 235(2) and 354(3) of the Criminal Procedure Code. The ratio of the
said decision is thus of no assistance to the petitioners herein.” 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 369 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 66 It is clear that one
judgment can have more than one ratio decidendi. This was recognized early on
by the Privy Council in an appeal from the Supreme Court of New South Wales, in
Commissioners of Taxation for the State of New South Wales v. Palmer &
Others, 1907 Appeal Cases 179 at 184. Lord Macnaghten put it thus: “… But it is
impossible to treat a proposition which the court declares to be a distinct and
sufficient ground for its decision as a mere dictum, simply because there is
also another ground stated upon which, standing alone, the case might have been
determined.” In Jacobs v. London County Council, [1950] 1 All E.R. 737 at 741,
the House of Lords, after referring to some earlier decisions held, as follows:
“..However, this may be, there is, in my opinion, no justification for
regarding as obiter dictum a reason given by a judge for his decision, because
he has given another reason also. If it were a proper test to ask whether the
decision would have been the same apart from the proposition alleged to be
obiter, then a case which ex facie decided two things would decide nothing. A
good illustration will be found in London Jewellers, Ltd., v. Attenborough
([1934] 2 K.B. 206). In that case the determination of one of the issues
depended on how far the Court of Appeal was bound by its previous decision in
Folkes v. King ([1923] 1 K.B. 282), in which the court had given two grounds
for its decision, the second of which [as stated by Greer, L.J. ([1934] 2 K.B.
222), in Attenborough’s case ([1934] 2 K.B. 206)] was that: “….where a man
obtains possession with authority to sell, or to become the owner himself, and
then sells, he cannot be treated as having obtained the goods by larceny by a
trick.” In Attenborough’s case ([1934] 2 K.B. 206) it was contended that, since
there was another reason given for the decision in Folkes’ case ([1923] 1 K.B.
282), the second reason was obiter, but Greer, L.J., said ([1934] 2 K.B. 222)
in reference to the argument of counsel: “I cannot help feeling that if we were
unhampered by authority there is much to be said for this proposition which
commended itself to Swift, J., and which commended itself to me in Folkes v.
King ([1923] 1 K.B. 282), but that view is not open to us in view of the
decision of the Court of Appeal in Folkes v. King ([1923] 1 K.B. 282). In that
case two reasons were given by all the members of the Court of Appeal for their
decision and we are not entitled to pick out the first reason as the ratio decidendi
and neglect the second, or to pick out the second reason as the ratio decidendi
and neglect the first; we must take both as forming the ground of the
judgment.” 370 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). (2) The
second reason given is that a challenge under Article 14 has to be viewed
separately from a challenge under Article 19, which is a reiteration of the
point of view of A.K. Gopalan v. State of Madras, 1950 SCR 88, that fundamental
rights must be seen in watertight compartments. We have seen how this view was
upset by an eleven Judge Bench of this Court in Rustom Cavasjee Cooper v. Union
of India, (1970) 1 SCC 248, and followed in Maneka Gandhi (supra).
Arbitrariness in legislation is very much a facet of unreasonableness in
Article 19(2) to (6), as has been laid down in several Judgments of this Court,
some of which are referred to in Om Kumar (infra) and, So, also, in Cheater v.
Cater ([1918] 1 K.B. 247) Pickford, L.J., after citing a passage from the
judgment of Mellish, L.J., in Erskine v. Adeane ((1873), 8 Ch. App. 756), said
([1918] 1 K.B. 252): “That is a distinct statement of the law and not a dictum.
It is the second ground given by the lord justice for his judgment. If a judge
states two grounds for his judgment and bases his decision upon both, neither
of those grounds is a dictum.” 371 therefore, there is no reason why
arbitrariness cannot be used in the aforesaid sense to strike down legislation
under Article 14 as well. (3) The third reason given is that the Courts cannot
sit in Judgment over Parliamentary wisdom. Our law reports are replete with
instance after instance where Parliamentary wisdom has been successfully set at
naught by this Court because such laws did not pass muster on account of their
being “unreasonable”, which is referred to in Om Kumar (infra). We must never
forget the admonition given by Khanna, J. in State of Punjab v. Khan Chand,
(1974) 1 SCC 549. He said: “12. It would be wrong to assume that there is an
element of judicial arrogance in the act of the Courts in striking down an
enactment. The Constitution has assigned to the Courts the function of
determining as to whether the laws made by the Legislature are in conformity
with the provisions of the Constitution. In adjudicating the constitutional
validity of statutes, the Courts discharge an obligation which has been imposed
upon them by the Constitution. The Courts would be shirking their
responsibility if they hesitate to declare the provisions of a statute to be
unconstitutional, even though those provisions are found to be violative of the
Articles of the Constitution. Articles 32 and 226 are an integral part of the
Constitution and provide remedies for 372 enforcement of fundamental rights and
other rights conferred by the Constitution. Hesitation or refusal on the part of
the Courts to declare the provisions of an enactment to be unconstitutional,
even though they are found to infringe the Constitution because of any notion
of judicial humility would in a large number of cases have the effect of taking
away or in any case eroding the remedy provided to the aggrieved parties by the
Constitution. Abnegation in matters affecting one’s own interest may sometimes
be commendable but abnegation in a matter where power is conferred to protect
the interest of others against measures which are violative of the Constitution
is fraught with serious consequences. It is as much the duty of the courts to
declare a provision of an enactment to be unconstitutional if it contravenes
any article of the Constitution as it is theirs to uphold its validity in case
it is found’ to suffer from no such infirmity.” This again cannot detain us.
(4) One more reason given is that the proportionality doctrine, doubtful of
application even in administrative law, should not, therefore, apply to this
facet of Article 14 in constitutional law. Proportionality as a constitutional
doctrine has been highlighted in Om Kumar v. Union of India, (2001) 2 SCC 386
at 400- 401 as follows: “30. On account of a Chapter on Fundamental Rights in
Part III of our Constitution right from 1950, Indian Courts did not suffer from
the disability similar to the one experienced by English Courts for 373
declaring as unconstitutional legislation on the principle of proportionality
or reading them in a manner consistent with the charter of rights. Ever since
1950, the principle of “proportionality” has indeed been applied vigorously to
legislative (and administrative) action in India. While dealing with the
validity of legislation infringing fundamental freedoms enumerated in Article 19(1)
of the Constitution of India — such as freedom of speech and expression,
freedom to assemble peaceably, freedom to form associations and unions, freedom
to move freely throughout the territory of India, freedom to reside and settle
in any part of India — this Court has occasion to consider whether the
restrictions imposed by legislation were disproportionate to the situation and
were not the least restrictive of the choices. The burden of proof to show that
the restriction was reasonable lay on the State. “Reasonable restrictions”
under Articles 19(2) to (6) could be imposed on these freedoms only by
legislation and courts had occasion throughout to consider the proportionality
of the restrictions. In numerous judgments of this Court, the extent to which
“reasonable restrictions” could be imposed was considered. In Chintamanrao v.
State of M.P. [AIR 1951 SC 118: 1950 SCR 759] Mahajan, J. (as he then was)
observed that “reasonable restrictions” which the State could impose on the
fundamental rights “should not be arbitrary or of an excessive nature, beyond
what is required in the interests of the public”. “Reasonable” implied
intelligent care and deliberation, that is, the choice of a course which reason
dictated. Legislation which arbitrarily or excessively invaded the right could
not be said to contain the quality of reasonableness unless it struck a proper
balance between the rights guaranteed and the control permissible under
Articles 19(2) 374 to (6). Otherwise, it must be held to be wanting in that quality.
Patanjali Sastri, C.J. in State of Madras v. V.G. Row [AIR 1952 SC 196: 1952
SCR 597: 1952 Cri LJ 966], observed that the Court must keep in mind the
“nature of the right alleged to have been infringed, the underlying purpose of
the restrictions imposed, the extent and urgency of the evil sought to be
remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time”. This principle of proportionality vis-à-vis
legislation was referred to by Jeevan Reddy, J. in State of A.P. v. McDowell
& Co. [(1996) 3 SCC 709] recently. This level of scrutiny has been a common
feature in the High Court and the Supreme Court in the last fifty years.
Decided cases run into thousands. 31. Article 21 guarantees liberty and has
also been subjected to principles of “proportionality”. Provisions of the
Criminal Procedure Code, 1974 and the Indian Penal Code came up for
consideration in Bachan Singh v. State of Punjab [(1980) 2 SCC 684 : 1980 SCC
(Cri) 580] the majority upholding the legislation. The dissenting judgment of
Bhagwati, J. (see Bachan Singh v. State of Punjab [(1982) 3 SCC 24 : 1982 SCC
(Cri) 535]) dealt elaborately with “proportionality” and held that the
punishment provided by the statute was disproportionate. 32. So far as Article
14 is concerned, the courts in India examined whether the classification was
based on intelligible differentia and whether the differentia had a reasonable
nexus with the object of the legislation. Obviously, when the courts considered
the question whether the classification was based on intelligible differentia,
the courts were examining the validity of the differences and the adequacy 375
of the differences. This is again nothing but the principle of proportionality.
There are also cases where legislation or rules have been struck down as being
arbitrary in the sense of being unreasonable [see Air India v. Nergesh Meerza
[(1981) 4 SCC 335: 1981 SCC (L&S) 599] (SCC at pp. 372-373)]. But this
latter aspect of striking down legislation only on the basis of “arbitrariness”
has been doubted in State of A.P. v. McDowell and Co. [(1996) 3 SCC 709] .” 45.
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 376 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. 46. 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) 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). 47. Similarly in Mardia Chemicals Ltd. & Ors.
v. Union of India & Ors. etc. etc., (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: “64. The
condition of pre-deposit in the present case is bad rendering the remedy
illusory on the grounds that: (i) it is 377 imposed while approaching the
adjudicating authority of the first instance, not in appeal, (ii) there is no
determination of the amount due as yet, (iii) the secured assets or their
management with transferable interest is already taken over and under control of
the secured creditor, (iv) no special reason for double security in respect of
an amount yet to be determined and settled, (v) 75% of the amount claimed by no
means would be a meagre amount, and (vi) it will leave the borrower in a
position where it would not be possible for him to raise any funds to make
deposit of 75% of the undetermined demand. Such conditions are not only onerous
and oppressive but also unreasonable and arbitrary. Therefore, in our view,
subsection (2) of Section 17 of the Act is unreasonable, arbitrary and
violative of Article 14 of the Constitution.” 48. 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. 49. 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 378 part of the vote catching
mechanism was held to not be a legally acceptable plea and rejected by holding
that: “219. A legislation passed by Parliament can be challenged only on
constitutionally recognised grounds. Ordinarily, grounds of attack of a
legislation is whether the legislature has legislative competence or whether
the legislation is ultra vires the provisions of the Constitution. If any of
the provisions of the legislation violates fundamental rights or any other
provisions of the Constitution, it could certainly be a valid ground to set
aside the legislation by invoking the power of judicial review. A legislation
could also be challenged as unreasonable if it violates the principles of
equality adumbrated in our Constitution or it unreasonably restricts the
fundamental rights under Article 19 of the Constitution. A legislation cannot
be challenged simply on the ground of unreasonableness because that by itself
does not constitute a ground. The validity of a constitutional amendment and
the validity of plenary legislation have to be decided purely as questions of
constitutional law. This Court in State of Rajasthan v. Union of India [(1977)
3 SCC 592] said: (SCC p. 660, para 149) “149. … if a question brought before
the court is purely a political question not involving determination of any
legal or constitutional right or obligation, the court would not entertain it,
since the court is concerned only with adjudication of legal rights and
liabilities.” 50. 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 379 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 300-A 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): “203. Even in McDowell case [(1996) 3
SCC 709], it was pointed out that some or other constitutional infirmity may be
sufficient to invalidate the statute. A threeJudge Bench of this Court in
McDowell & Co. case [(1996) 3 SCC 709] held as follows: (SCC pp. 737-38,
para 43) “43. … The power of Parliament or for that matter, the State
Legislatures is restricted in two ways. A law made by Parliament or the
legislature can be struck down by courts on two grounds and two grounds alone
viz. (1) lack of legislative competence and (2) violation of any of the
fundamental rights guaranteed in Part III of the Constitution or of any other
constitutional provision. There is no third ground.… No enactment can be struck
down by just saying that it is arbitrary or unreasonable. Some or other
constitutional 380 infirmity has to be found before invalidating an Act. An
enactment cannot be struck down on the ground that court thinks it unjustified.
Parliament and the legislatures, composed as they are of the representatives of
the people, are supposed to know and be aware of the needs of the people and
what is good and bad for them. The court cannot sit in judgment over their
wisdom.” 204. A two-Judge Bench of this Court in Union of India v. G.
Ganayutham [(1997) 7 SCC 463: 1997 SCC (L&S) 1806], after referring to
McDowell case [(1996) 3 SCC 709] stated as under: (G. Ganayutham case [(1997) 7
SCC 463: 1997 SCC (L&S) 1806] , SCC p. 476, para 22) “22. … That a statute
can be struck down if the restrictions imposed by it are disproportionate or
excessive having regard to the purpose of the statute and that the court can go
into the question whether there is a proper balancing of the fundamental right
and the restriction imposed, is well settled.” 205. Plea of unreasonableness,
arbitrariness, proportionality, etc. always raises an element of subjectivity
on which a court cannot strike down a statute or a statutory provision,
especially when the right to property is no more a fundamental right. Otherwise
the court will be substituting its wisdom to that of the legislature, which is
impermissible in our constitutional democracy.” [Emphasis Supplied] 381 51. 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: “103. As is evident from the above, the expressions
“arbitrariness” and “unreasonableness” have been used interchangeably and in
fact, one has been defined in terms of the other. More recently, in Sharma
Transport v. Govt. of A.P. [(2002) 2 SCC 188], this Court has observed thus:
(SCC pp. 203-04, para 25) “25. … In order to be described as arbitrary, it must
be shown that it was not reasonable and manifestly arbitrary. The expression
‘arbitrarily’ means: in an unreasonable manner, as fixed or done capriciously
or at pleasure, without adequate determining principle, not founded in the nature
of things, non-rational, not done or acting according to reason or 382
judgment, depending on the will alone.” (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):
“107. From a scrutiny of the trend of decisions it is clearly perceivable that
the action of the State, whether it relates to distribution of largesse, grant
of contracts or allotment of land, is to be tested on the touchstone of Article
14 of the Constitution. A law may not be struck down for being arbitrary
without the pointing out of a constitutional infirmity as McDowell case [(1996)
3 SCC 709] has said. Therefore, a State action has to be tested for
constitutional infirmities qua Article 14 of the Constitution. The action has
to be fair, reasonable, non-discriminatory, transparent, noncapricious,
unbiased, without favouritism or nepotism, in pursuit of promotion of healthy
competition and equitable treatment. It should conform to the norms which are
rational, informed with reasons and guided by public interest, etc. All these
principles are inherent in the fundamental conception of Article 14. This is
the mandate of Article 14 of the Constitution of India.” [Emphasis Supplied] On
a reading of this judgment, it is clear that this Court did not read McDowell
(supra) as being an authority 383 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. 52.
Another Constitution Bench decision reported as Dr. Subramanian Swamy v.
Director, Central Bureau of Investigation, (2014) 8 SCC 682, dealt with a
challenge to Section 6-A of the Delhi Special Police Establishment Act, 1946.
This Section was ultimately 384 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 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: “48. In E.P. Royappa
[E.P. Royappa v. State of T.N., (1974) 4 SCC 3: 1974 SCC (L&S) 165], it has
been held by this Court that the basic principle which informs both Articles 14
and 16 are equality and inhibition against discrimination. This Court observed
in para 85 as under: (SCC p. 38) “85. … From a positivistic point of view,
equality is antithetic to arbitrariness. In fact equality and arbitrariness are
sworn enemies; one belongs to the rule of law in a republic while 385 the
other, to the whim and caprice of an absolute monarch. Where an act is
arbitrary, it is implicit in it that it is unequal both according to political
logic and constitutional law and is therefore violative of Article 14, and if
it affects any matter relating to public employment, it is also violative of
Article 16. Articles 14 and 16 strike at arbitrariness in State action and
ensure fairness and equality of treatment.” Court's approach 49. Where there is
challenge to the constitutional validity of a law enacted by the legislature,
the Court must keep in view that there is always a presumption of
constitutionality of an enactment, and a clear transgression of constitutional
principles must be shown. The fundamental nature and importance of the
legislative process needs to be recognised by the Court and due regard and
deference must be accorded to the legislative process. Where the legislation is
sought to be challenged as being unconstitutional and violative of Article 14
of the Constitution, the Court must remind itself to the principles relating to
the applicability of Article 14 in relation to invalidation of legislation. The
two dimensions of Article 14 in its application to legislation and rendering
legislation invalid are now well recognised and these are: (i) discrimination,
based on an impermissible or invalid classification, and (ii) excessive
delegation of powers; conferment of uncanalised and unguided powers on the
executive, whether in the form of delegated legislation or by way of conferment
of authority to pass administrative orders—if 386 such conferment is without
any guidance, control or checks, it is violative of Article 14 of the
Constitution. The Court also needs to be mindful that a legislation does not
become unconstitutional merely because there is another view or because another
method may be considered to be as good or even more effective, like any issue
of social, or even economic policy. It is well settled that the courts do not
substitute their views on what the policy is.” (at pages 721-722) Since the
Court ultimately struck down Section 6-A 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): “Having considered the
impugned provision contained in Section 6-A and for the reasons indicated
above, we do not think that it is necessary to consider the other objections
challenging the impugned provision in the context of Article 14.” 53. 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 387 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. 54. 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: “Violation of fundamental rights 42. We have already seen
that one of the tests for challenging the constitutionality of subordinate
legislation is that subordinate legislation should not be manifestly arbitrary.
Also, it is settled law that subordinate legislation can be challenged on any
of the grounds available for challenge against plenary legislation. 388 (See
Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [(1985) 1 SCC
641: 1985 SCC (Tax) 121], SCC at p. 689, para 75.) 43. The test of “manifest
arbitrariness” is well explained in two judgments of this Court. In Khoday
Distilleries Ltd. v. State of Karnataka [(1996) 10 SCC 304], this Court held:
(SCC p. 314, para 13) “13. It is next submitted before us that the amended
Rules are arbitrary, unreasonable and cause undue hardship and, therefore,
violate Article 14 of the Constitution. Although the protection of Article
19(1)(g) may not be available to the appellants, the Rules must, undoubtedly,
satisfy the test of Article 14, which is a guarantee against arbitrary action.
However, one must bear in mind that what is being challenged here under Article
14 is not executive action but delegated legislation. The tests of arbitrary
action which apply to executive actions do not necessarily apply to delegated
legislation. In order that delegated legislation can be struck down, such
legislation must be manifestly arbitrary; a law which could not be reasonably
expected to emanate from an authority delegated with the law-making power. In
Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [(1985) 1 SCC 641
: 1985 SCC (Tax) 121], this Court said that a 389 piece of subordinate
legislation does not carry the same degree of immunity which is enjoyed by a
statute passed by a competent legislature. A subordinate legislation may be
questioned under Article 14 on the ground that it is unreasonable; ‘unreasonable
not in the sense of not being reasonable, but in the sense that it is
manifestly arbitrary’. Drawing a comparison between the law in England and in
India, the Court further observed that in England the Judges would say,
‘Parliament never intended the authority to make such Rules; they are
unreasonable and ultra vires’. In India, arbitrariness is not a separate ground
since it will come within the embargo of Article 14 of the Constitution. But
subordinate legislation must be so arbitrary that it could not be said to be in
conformity with the statute or that it offends Article 14 of the Constitution.”
44. Also, in Sharma Transport v. State of A.P. [(2002) 2 SCC 188], this Court
held: (SCC pp. 203-04, para 25) “25. … The tests of arbitrary action applicable
to executive action do not necessarily apply to delegated legislation. In order
to strike down a delegated legislation as arbitrary it has to be established
that there is manifest arbitrariness. In order to be described as arbitrary, it
must be shown that it was not reasonable and manifestly 390 arbitrary. The
expression “arbitrarily” means: in an unreasonable manner, as fixed or done
capriciously or at pleasure, without adequate determining principle, not
founded in the nature of things, non-rational, not done or acting according to
reason or judgment, depending on the will alone.” (at pages 736-737) 55. 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 391
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. 56. 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:
“13…The correct law of talaq as ordained by the Holy Quran is 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 (para
13). In Rukia Khatun case [(1981) 1 Gau LR 375] the Division Bench stated that
the correct law of talaq, as ordained by the 392 Holy Quran, is: (i) that
“talaq” must be for a reasonable cause; and (ii) that it must be preceded by an
attempt of reconciliation between the husband and the wife by two arbiters, one
chosen by the wife from her family and the other by the husband from his. If
their attempts fail, “talaq” may be effected. The Division Bench expressly
recorded its dissent from the Calcutta and Bombay views which, in their
opinion, did not lay down the correct law. 14. We are in respectful agreement
with the abovesaid observations made by the learned Judges of the High Courts.”
(at page 526) 57. 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 393
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. …………………………………J.
(Rohinton Fali Nariman)
…………………………………J.
(Uday Umesh Lalit) New Delhi; August 22, 2017. 394
IN THE
SUPREME COURT OF INDIA Original Civil Jurisdiction Writ Petition (C) No. 118 of
2016
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
versus Jamiat Ulma-I-Hind Writ Petition(C) No. 288 of 2016 Aafreen Rehman …
Petitioner versus Union of India and others … Respondents Writ Petition(C) No.
327 of 2016 Gulshan Parveen … Petitioner versus Union of India and others …
Respondents Writ Petition(C) No. 665 of 2016 Ishrat Jahan … Petitioner versus
Union of India and others … Respondents Writ Petition(C) No. 43 of 2017 Atiya
Sabri … Petitioner versus Union of India and others … Respondents 395
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. ..………………..…..………CJI.
(Jagdish Singh Khehar) ..………………..…..…….……J. (Kurian Joseph)
..………………..…..…….……J. (Rohinton Fali Nariman) ..………………..…..…….……J. (Uday Umesh
Lalit) ..………………..…..…….……J. (S. Abdul Nazeer) New Delhi; August 22, 2017.
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