Supreme Court of India
Shayara Bano vs Union Of India And Ors. Ministry Of Women ... on 22 August, 2017
Equivalent citations: AIR 2017 SUPREME COURT 4609, AIR 2018 SC (CIVIL) 1169, (2017) 179 ALLINDCAS 104 (SC), (2017) 179 ALLINDCAS 104, (2017) 2 MARRILJ 247, 2017 (3) CRIMES 281 LN, (2017) 3 CURCC 82, 2017 (3) KCCR SN 254 (SC), (2017) 3 KER LJ 16, 2017 (3) KLT SN 87 (SC), (2017) 4 CAL HN 60, (2017) 4 JCR 69 (SC), (2017) 5 ALL WC 4353, (2017) 5 BOM CR 481, (2017) 6 MAD LJ 378, 2017 (9) ADJ 1 NOC, (2017) 9 SCALE 178, 2017 (9) SCC 1, (2018) 1 JCR 108 (SC), 242 (2017) DLT 1 (CN)(SC), AIR 2018 SC (CIV) 1169
Author: Jagdish Singh Khehar
Bench: S. Abdul Nazeer, Uday Umesh Lalit, Rohinton Fali Nariman, Kurian Joseph, Jagdish Singh Khehar
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
Signature Not Verified
… Petitioner
Digitally signed by
SARITA PUROHIT
versus
Date: 2017.08.23
13:12:55 IST
Reason:
Union of India and others … Respondents
J U DG M E N T
Jagdish Singh Khehar, CJI.
2
Index
Sl. Divisions Contents Para-grap
No. hs
1. Part-1 The petitioner’s marital discord, and the 1- 10
petitioner’s prayers
2. Part-2 The practiced modes of ‘talaq’ amongst 11- 16
Muslims
3. Part-3 The Holy Quran – with reference to ‘talaq’ 17- 21
4. Part-4 Legislation in India, in the field of Muslim 22- 27
‘personal law’
5. Part-5 Abrogation of the practice of ‘talaq-e-biddat’ by 28- 29
legislation, the world over, in Islamic, as well
as, non-Islamic States
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 30 - 34
‘talaq-e-biddat’
7. Part-7 The petitioner’s and the interveners’ 35 – 78
contentions:
8. Part-8 The rebuttal of the petitioners’ contentions 79 - 111
9. Part-9 Consideration of the rival contentions, and our 112- 114
conclusions
I. Does the judgment of the Privy Council in the 115-120
Rashid Ahmad case, upholding ‘talaq-e-biddat’,
require a relook?
II. Has ‘talaq-e-biddat’, which is concededly 121-127
sinful, sanction of law?
III. Is the practice of ‘talaq-e-biddat’, 128-139
approved/disapproved by “hadiths”?
IV. Is the practice of ‘talaq-e-biddat’, a matter of 140-145
faith for Muslims? If yes, whether it is a
constituent of their ‘personal law’?
V. Did the Muslim Personal Law (Shariat) 146-157
Application Act, 1937 confer statutory status to
the subjects regulated by the said legislation?
VI. Does ‘talaq-e-biddat’, violate the parameters 158-165
expressed in Article 25 of the Constitution?
VII. Constitutional morality and ‘talaq-e-biddat’. 166-174
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VIII. Reforms to ‘personal law’ in India. 175-182
IX. Impact of international conventions and 183-189
declarations on ‘talaq-e-biddat’.
X. Conclusions emerging out of the above 190-190
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-e-biddat’ 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
4
unconstitutional. During the course of hearing, it was
submitted, that the ‘talaq-e-biddat’ (-triple talaq),
pronounced by her husband is not valid, as it is not a part of
‘Shariat’ (Muslim ‘personal law’). It is also the petitioner’s case,
that divorce of the instant nature, cannot be treated as “rule of
decision” under the Shariat Act. It was also submitted, that
the practice of ‘talaq-e-biddat’ is violative of the fundamental
rights guaranteed to citizens in India, under Articles 14, 15
and 21 of the Constitution. It is also the petitioner’s case, that
the practice of ‘talaq-e-biddat’ cannot be protected under the
rights granted to religious denominations (-or any sections
thereof) under Articles 25(1), 26(b) and 29 of the Constitution.
It was submitted, that the practice of ‘talaq-e-biddat’ is
denounced internationally, and further, a large number of
Muslim theocratic countries, have forbidden the practice of
‘talaq-e-biddat’, 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
5
matrimonial relationship between the parties resulted in the
births of two children, a son – Mohammed Irfan (presently
about 13 years old) studying in the 7 th standard, and a
daughter – Umaira Naaz (presently about 11 years old)
studying in the 4th standard, both at Allahabad.
3. It is the case of the respondent–husband, that the
petitioner-wife, left her matrimonial home on 9.4.2015 in the
company of her father – Iqbal Ahmad and maternal uncle –
Raees Ahmed, as well as children – Mohammed Irfan and
Umaira Naaz, to live in her parental home. The respondent
claims, that he continued to visit the petitioner, for giving her
maintenance, and for enquiring about her well being. When
the husband met the wife at her parental home in May and
June 2015, she refused to accompany him, and therefore,
refused to return to the matrimonial home. On 03.07.2015,
Rizwan Ahmad, asked the father of Shayara Bano to send her
back to her matrimonial home. He was informed by her father,
after a few days, that the petitioner was not inclined to live
with the respondent.
4. On 07.07.2015 the father of the petitioner, brought the
two children – Mohammed Irfan and Umaira Naaz to
Allahabad. The husband submits, that both the children have
thereafter been in his care and custody, at Allahabad. It is the
assertion of the husband, that the petitioner’s father had given
6
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, 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
7
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 not ready for reconciliation, and therefore,
8
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
9
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 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 in-laws 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
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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
Sd/ Hindi Rizwan Ahmed
(Rizwan Ahmed)
S/o Iqbal Ahmed
Ghaus Nagar, Karaili, Allahabad”
8. Based on the above, the case of the
respondent-husband is, that he had pronounced ‘talaq’ in
consonance with the prevalent and valid mode of dissolution of
Muslim marriages. It was submitted, that the pronouncement
of divorce by him, fulfils all the requirements of a valid divorce,
under the Hanafi sect of Sunni Muslims, and is in consonance
with ‘Shariat’ (Muslim ‘personal law’).
9. It is also the submission of the respondent-husband,
that the present writ petition filed by the petitioner-wife under
11
Article 32 of the Constitution of India, is not maintainable, as
the questions raised in the petition are not justiciable under
Article 32 of the Constitution.
10. Keeping in view the factual aspect in the present case,
as also, the complicated questions that arise for consideration
in this case (and, in the other connected cases), at the very
outset, it was decided to limit the instant consideration, to
‘talaq-e-biddat’ – triple talaq. Other questions raised in the
connected writ petitions, such as, polygamy and ‘halala’ (-and
other allied matters), would be dealt with separately. The
determination of the present controversy, may however,
coincidentally render an answer even to the connected issues.
Part-2.
The practiced modes of ‘talaq’ amongst Muslims:
11. Since the issue under consideration is the dissolution
of marriage by ‘talaq’, under the Islamic law of divorce, it is
imperative, to understand the concept of ‘talaq’. In this behalf,
it is relevant to mention, that under the Islamic law, divorce is
classified into three categories. Talaq understood simply, is a
means of divorce, at the instance of the husband. ‘Khula’, is
another mode of divorce, this divorce is at the instance of the
wife. The third category of divorce is ‘mubaraat’ – divorce by
mutual consent.
12
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 ‘talaq-e-hasan’ are both approved
by the ‘Quran’ and ‘hadith’. ‘Talaq-e-ahsan’, is considered as
the ‘most reasonable’ form of divorce, whereas, ‘talaq-e-hasan’
is also considered as ‘reasonable’. It was submitted, that
‘talaq-e-biddat’ 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-e-biddat’.
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
13
resumption of cohabitation or intimacy, during the period of
‘iddat’, then the divorce becomes final and irrevocable, after the
expiry of the ‘iddat’ period. It is considered irrevocable
because, the couple is forbidden to resume marital relationship
thereafter, unless they contract a fresh ‘nikah’ (-marriage), with
a fresh ‘mahr’. ‘Mahr’ is a mandatory payment, in the form of
money or possessions, paid or promised to be paid, by the
groom or by the groom’s father, to the bride, at the time of
marriage, which legally becomes her property. However, on the
third pronouncement of such a ‘talaq’, the couple cannot
remarry, unless the wife first marries someone else, and only
after her marriage with other person has been dissolved (either
through ‘talaq’ - divorce, or death), can the couple remarry.
Amongst Muslims, ‘talaq-e-ahsan’ is regarded as – ‘the most
proper’ form of divorce.
14. ‘Talaq-e-hasan’ is pronounced in the same manner, as
‘talaq-e-ahsan’. 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
14
of ‘talaq’, if there is resumption of cohabitation within a period
of one month, the pronouncement of divorce is treated as
having been revoked. It is significant to note, that the first and
the second pronouncements may be revoked by the husband.
If he does so, either expressly or by resuming conjugal
relations, ‘talaq’ pronounced by the husband becomes
ineffective, as if no ‘talaq’ had ever been expressed. If the third
‘talaq’ is pronounced, it becomes irrevocable. Therefore, if no
revocation is made after the first and the second declaration,
and the husband makes the third pronouncement, in the third
‘tuhr’ (period of purity), as soon as the third declaration is
made, the ‘talaq’ becomes irrevocable, and the marriage stands
dissolved, whereafter, the wife has to observe the required
‘iddat’ (the period after divorce, during which a woman cannot
remarry. Its purpose is to ensure, that the male parent of any
offspring is clearly identified). And after the third ‘iddat’, the
husband and wife cannot remarry, unless the wife first marries
someone else, and only after her marriage with another person
has been dissolved (either through divorce or death), can the
couple remarry. The distinction between ‘talaq-e-ashan’ 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
15
against ‘talaq-e-ahsan’, which is regarded as ‘the most proper’
form of divorce, Muslims regard ‘talaq-e-hasan’ only as ‘the
proper form of divorce’.
15. The third kind of ‘talaq’ is – ‘talaq-e-biddat’. This is
effected by one definitive pronouncement of ‘talaq’ such as, “I
talaq you irrevocably” or three simultaneous pronouncements,
like “talaq, talaq, talaq”, uttered at the same time,
simultaneously. In ‘talaq-e-biddat’, divorce is effective
forthwith. The instant talaq, unlike the other two categories of
‘talaq’ is irrevocable at the very moment it is pronounced.
Even amongst Muslims ‘talaq-e-biddat’, is considered irregular.
16. According to the petitioner, there is no mention of
‘talaq-e-biddat’ in the Quran. It was however acknowledged,
that the practice of ‘talaq-e-biddat’ 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-e-biddat’ 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.
16
The Holy Quran – with reference to ‘talaq’:
17. Muslims believe that the Quran was revealed by God to
the Prophet Muhammad over a period of about 23 years,
beginning from 22.12.609, when Muhammad was 40 years old.
The revelation continued upto the year 632 – the year of his
death. Shortly after Muhammad’s death, the Quran was
completed by his companions, who had either written it down,
or had memorized parts of it. These compilations had
differences of perception. Therefore, Caliph Usman - the third,
in the line of caliphs recorded a standard version of the Quran,
now known as Usman’s codex. This codex is generally treated,
as the original rendering of the Quran.
18. During the course of hearing, references to the Quran
were made from ‘The Holy Quran: Text Translation and
Commentary’ by Abdullah Yusuf Ali, (published by Kitab
Bhawan, New Delhi, 14th edition, 2016). Learned counsel
representing the rival parties commended, that the text and
translation in this book, being the most reliable, could safely
be relied upon. The text and the inferences are therefore drawn
from the above publication.
(i) The Quran is divided into ‘suras’ (chapters). Each
‘sura’ contains ‘verses’, which are arranged in sections. Since
our determination is limited to the validity of ‘talaq-e-biddat’,
within the framework of the Muslim ‘personal law’ – ‘Shariat’,
17
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
To meet Him (in the Hereafter),
And give (these) good tidlings
To those who believe.”
TThe 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
18
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,
Or making peace
Between persons;
19
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.”
20
‘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
21
conscious/purposeful oath, being scrupulously observed. The
above ‘verses’ caution husbands to understand, that an oath
in the name of God was not a valid excuse – since God looks at
intention, and not mere thoughtless words. It is in these
circumstances, that ‘verses’ 226 and 227 postulate, that the
husband and wife in a difficult relationship, are allowed a
period of four months, to determine whether an adjustment is
possible. Even though reconciliation is recommended, but if
the couple is against reconciliation, the Quran ordains, that it
is unfair to keep the wife tied to her husband indefinitely. The
Quran accordingly suggests, that in such a situation, divorce is
the only fair and equitable course. All the same it is
recognized, that divorce is the most hateful action, in the sight
of the God.
(iii) ‘Verses’ 229 to 231 contained in ‘section’ 29 of ‘sura’ II,
and ‘verses’ 232 and 233 included in ‘section’ 30 of ‘sura’ II, as
also ‘verse’ 237 contained in ‘section’ 31 in ‘sura’ II, are
relevant on the issue of divorce. The same are extracted below:
“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.
22
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)
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
23
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 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
24
out in the second part of ‘verse’ 229, that in situations where
the freedom of the wife could suffer on account of the husband
refusing to dissolve the marriage, and perhaps, also treat her
with cruelty. It is permissible for the wife, in such a situation,
to extend some material consideration to the husband.
Separation of this kind, at the instance of the wife, is called
‘khula’. ‘Verse’ 230 is in continuation of the first part of ‘verse’
229. The instant ‘verse’ recognizes the permissibility of
reunion after two divorces. When divorce is pronounced for
the third time, between the same parties, it becomes
irreversible, until the woman marries some other man and he
divorces her (or is otherwise released from the matrimonial tie,
on account of his death). The Quranic expectation in ‘verse’
230, requires the husband to restrain himself, from dissolving
the matrimonial tie, on a sudden gust of temper or anger.
‘Verse’ 231 provides, that a man who takes back his wife after
two divorces, must not put pressure on her, to prejudice her
rights in any way. Remarriage must only be on equitable
terms, whereupon, the husband and wife are expected to lead a
clean and honourable life, respecting each other’s
personalities. The Quranic message is, that the husband
should either take back the wife on equitable terms, or should
set her free with kindness.
25
(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
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,
26
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 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,
27
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
IIs 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
From their means.
Therefore the righteous women
Are devoutly obedient, and guard
In (the husband’s) absence
What God would have them
guard.
28
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).
3. 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 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
29
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
30
to make such a concession, than to endanger the future of the
wife and children.
20. The last relevant ‘verses’ – 1 and 2, are contained in
‘section’ 1 of ‘sura’ – LXV. The same are reproduced below:
“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,”
31
'‘Verse’ 1 above, it may be noticed, has reference to the Prophet
Muhammad himself. It is addressed in his capacity as teacher
and representative of the community. It endorses the view,
that of all things permitted, divorce is the most hateful in the
sight of the God. Even though, the ‘verse’ provides for divorce,
it proscribes the husband from turning out his wife/wives from
his house. It also forbids the wife/wives, to leave the house of
their husband, except when they are guilty. Those who
transgress the above limitation, are cautioned, that they are
committing wrong to their own souls. Reconciliation is
suggested, whenever it is possible. It is recommended at every
stage. The first serious difference between the spouses is first
to be submitted to a family counsel, on which both sides are to
be represented. The ‘verse’ requires the divorce to be
pronounced, only after the period of prohibitory waiting.
‘Dower’ has to be paid, and due provisions have to be made, by
the husband, for many things on equitable terms. On each
aspect, there is to be consideration. Reconciliation is
recommended till the last moment. The message contained in
‘verse’ 2 is, that everything should be done fairly, and all
interests should be safeguarded. It is ordained, that the
parties should remember, that such matters affect the most
intimate aspect of their lives, and therefore, have a bearing
even in the spiritual kingdom. It is therefore, that the ‘verses’
32
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’.
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
33
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 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
34
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 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
35
provision of ‘personal law’, marriage, dissolution of marriage,
including talaq, ila, zihar, lian, khula and mubaraat,
maintenance, dower, gifts, trusts and trust properties, and
wakfs …”. Section 3 added to the above list, “… adoption, wills
and legacies …”, subject to the declaration expressed in
Section 3.
24. It is relevant to highlight herein, that under Section 5
of the Shariat Act provided, that a Muslim woman could seek
dissolution of her marriage, on the grounds recognized under
the Muslim ‘personal law’. It would also be relevant to
highlight, that Section 5 of the Shariat Act was deleted, and
replaced by the Dissolution of Muslim Marriages Act, 1939.
25. In the above context, it would be relevant to mention,
that there was no provision in the Hanafi Code, of Muslim law
for a married Muslim woman, to seek dissolution of marriage,
as of right. Accordingly, Hanafi jurists had laid down, that in
cases in which the application of Hanafi law caused hardship,
it was permissible to apply the principles of the Maliki, Shafii
or Hanbali law. This position was duly noticed in the
introduction to the 1939 Act, as well as, in the statement of its
objects and reasons. Be that as it may, the alternatives
suggested by the Hanafi jurists were not being applied by
courts. Accordingly, in order to crystalise the grounds of
dissolution of marriage, by a Muslim woman, the 1939 Act,
36
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
37
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”.
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
38
(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
(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:
39
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 ‘talaq-e-biddat’ as a means of
divorce, through statutory enactments, the world over. The
countries which have abolished ‘talaq-e-biddat’ have been
divided into Arab States, Southeast Asian States, and
Subcontinental States. We have maintained the above
classifications, in order to establish their factual positions.
Firstly, to demonstrate that the practice was prevalent across
the globe in States having sizeable Muslim populations. And
secondly, that the practice has been done away with, by way of
legislation, in the countries referred to below.
A. Laws of Arab States
(i) Algeria: Is a theocratic State, which declares Islam to be its
official religion. Muslims of the Sunni sect constitute its
majority. On the issue in hand, it has enacted the following
legislation:
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:
40
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.
(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.
41
(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,
42
under coercion, mistake, intoxication, fear or high anger
affecting his speech and action.
xxx xxx
xxx
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
43
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 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
44
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
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 marriage, divorce by mutual consent,
and divorce by Khula or Talaq-e-Tafweez.
(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.
45
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:
CCode 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
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
46
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 non-appealable 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.”
47
((xii) United Arab Emirates: Is a theocratic State, as the Federal
Constitution declares Islam to be the official religion. The
Constitution also provides for freedom of religion, in
accordance with established customs. Muslims of the Shia
sect constitute its majority. On the issue in hand, it has the
following legislation in place:
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.
48
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.”
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
49
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;
(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
50
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.
(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.
51
(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.
(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
52
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
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.
53
[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
“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’:
54
30. Rashid Ahmad v. Anisa Khatun 1.
(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-ud-din, 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-ud-din executed a ‘talaqnama’ (decree of divorce) dated 17.09.1905,
which narrates the divorce. The ‘talaqnama’ is alleged to have been given to
Anisa Khatun – respondent no.1.
(ii) The challenge: Anisa Khatun – respondent no.1, challenged the
validity of the divorce, firstly, for the reason, that she was not present at the
1
AIR 1932 PC 25
55
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-ud-din.
(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
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
56
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
cohabit for 15 long years thereafter, wherefrom 5 offsprings were born to
them
31. Jiauddin Ahmed v. Anwara Begum 2, (Single Judge judgment,
authored by Baharul Islam, J., as he then was ).
2
(1981) 1 Gau.L.R. 358
57
(i) The facts: The respondent – Anwara Begum had petitioned for
maintenance, under Section 125 of the Code of Criminal Procedure. Her
contention was, that she had lived with her husband for about 9 months,
after her marriage. During that period, her marriage was consummated.
Anwara Begum alleged, that after the above period, her husband began to
torture her, and even used to beat her. It was therefore, that she was
compelled to leave his company, and start living with her father, who was
a day labourer. Maintenance was duly granted, by the First Class
Magistrate, Tinsukia. Her husband, the petitioner – Jiauddin Ahmed,
contested the respondent’s claim for maintenance, before the Gauhati
High Court, on the ground that he had divorced her, by pronouncing
divorce by adopting the procedure of ‘talaq-e-biddat’.
(iii) The challenge : It is in the above circumstances, that the validity of
‘talaq-e-biddat’, and the wife’s entitlement to maintenance came to be
considered by the Guahati High Court, which examined the validity of the
concept of ‘talaq-e-biddat’.
(iv) The consideration : (a) The High Court placed reliance on ‘verses’ 128
to 130, contained in ‘section’ 19, of ‘sura’ IV, and ‘verses’ 229 to 232,
contained in ‘sections’ 29 and 30 of ‘sura’ II, and thereupon, referred to
the commentary on the above verses by scholars (Abdullah Yusuf Ali and
Maulana Mohammad Ali) and the views of jurists (Ameer Ali and Fyzee),
with pointed reference to ‘talaq’, which was narrated as under:
“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
58
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 for-
bearance 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
re-union. They may be swayed by property or other considerations."
(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
59
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
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
60
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
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.”
61
(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,
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
62
was subsisting, the High Court upheld the order awarding maintenance to
the wife – Anwara Begum.
32. Must. Rukia Khatun v. Abdul Khalique Laskar 3, (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
3
(1981) 1 Gau. L.R. 375
63
Gauhati High Court. The respondent-husband – Abdul Khalique Laskar,
contested the claim for maintenance by asserting, that even though he
had married the petitioner, but he had divorced her on 12.4.1972 by way
of ‘talaq-e-biddat’, and had thereafter even executed a talaknama. The
husband also asserted, that he had paid dower to the petitioner. The
claim of the petitioner-wife for maintenance was declined on the ground,
that she had been divorced by the respondent-husband.
(ii) The challenge: It is in the above circumstances, that the validity of
the divorce pronounced by the respondent-husband, by way of
‘talaq-e-biddat’, 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).
64
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.”
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
65
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
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.”
66
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
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
67
pronounced by the respondent-husband – Abdul Khalique Laskar, did not
satisfy all the ingredients for a valid divorce, the High Court concluded that
the marriage was subsisting, and accordingly held the wife to be entitled to
maintenance.
33. Masroor Ahmed v. State (NCT of Delhi) 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
4
2008 (103) DRJ 137
68
conjugal rights (-on 23.03.2006), before the Senior Civil Judge, Delhi.
During the course of the above proceedings, the wife returned to the
matrimonial home, to the company of her husband (-on 13.04.2006),
whereupon, marital cohabitation was restored. Once again there was
discord between the couple, and Masroor Ahmed pronounced
‘talaq-e-biddat’, on 28.08.2006. The wife – Aisha Anjum alleged, that she
later came to know that her husband – Masroor Ahmed, had divorced
her by exercising his right of ‘talaq-e-biddat’, in the presence of the
brothers of Aisha Anjum, in October 2006. And that, the husband had
lied to the Court, (and to her, as well) when he had sought her
restitution, from the Court, by making out as if the marriage was still
subsisting. It was her claim, that she would not have agreed to conjugal
relations with him, had she known of the divorce. And therefore, her
consent to have conjugal relations with Masroor Ahmed, was based on
fraud committed by him, on her – Aisha Anjum. She therefore accused
Masroor Ahmed, for having committed the offence under Section 376 of
the Indian Penal Code, i.e., the offence of rape. She also claimed
maintenance from her husband, under Section 125 of the Criminal
Procedure Code. During the pendency of the above proceedings, the
parties arrived at an amicable settlement on 1.9.2007.
(ii) The challenge: The position expressed by the High Court in paragraph
12 of the judgment, crystalises the challenge. Paragraph 12, is
reproduced below:
69
“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-e-biddat’, 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 divorce5. 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) talaq6, operating in much the same way as an
ahsan talaq.”
(iv) The conclusion: Based7 on8 the9 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 sinful 10. Yet
some schools regard it as valid. Courts in India have also held it to be
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
5
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.
6
7
8
9
10
70
deprecated by prophet Muhammad11. 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 history12 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.
34.13 141516
Nazeer v. Shemeema17, (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
11
12
13
14
15
16
17
71
had terminated their matrimonial alliance with their spouses, by
pronouncing ‘talaq-e-biddat’ – triple talaq. Their matrimonial relationship
having come to an end, one or the other or both (-this position is unclear,
from the judgment) spouses approached the passport authorities, to delete
the name of their former spouse, from their respective passports. The
passport authorities declined to accept their request, as the same was
based on private actions of the parties, which were only supported by
unauthenticated ‘talaq-namas’ (deeds of divorce). The stance adopted by
the passport authorities was, that in the absence of a formal decree of
divorce, the name of the spouse could not be deleted. By passing interim
directions, the High Court ordered the passport authorities, to correct the
spouse details (as were sought), based on the admission of the
corresponding spouse, that their matrimonial alliance had been dissolved.
(ii) The challenge: Even though the authenticity and/or the legality of
‘talaq-e-biddat’, did not arise for consideration before the High Court, it
noticed “….Though the issue related to triple talaq does not directly crop up
in these writ petitions calling upon this Court to decide the validity of triple
talaq, this Court cannot ignore while granting a relief based on admission,
the fact that direction of this Court would result in greater or lesser extent
of injustice if it remains oblivious to the repercussions of the repudiation of
marriage by volition of individual…..”. The High Court therefore, embarked
on the exercise of examining the validity of ‘talaq-e-biddat’.
(iii) The consideration: The High Court took into consideration texts by
renowned scholars, as for instance, from “Sharia” by Wael B. Hallaq,
72
“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
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
73
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.
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
74
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.”
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.
75
Part-7.
The petitioner’s and the interveners’ contentions:
35. On behalf of the petitioner, besides the petitioner herself,
submissions were initiated by Mr. Amit Singh Chadha, Senior Advocate. He
invited this Court’s attention to the legislative history in the field of Muslim
‘personal law’ (-for details, refer to Part-4 – Legislation in India, in the field
of Muslim ‘personal law’). It was submitted, that all fundamental rights
contained in Part III of the Constitution were justiciable. It was therefore
pointed out, that the petitioner’s cause before this Court, was akin to such
rights as were considered justiciable. The practice of ‘talaq-e-biddat’,
according to learned counsel, permitted a male spouse an unqualified right,
to severe the matrimonial tie. It was pointed out, that the right to divorce a
wife, by way of triple talaq, could be exercised without the disclosure of any
reason, and in fact, even in the absence of reasons. It was submitted, that
a female spouse had no say in the matter, inasmuch as, ‘talaq-e-biddat’
could be pronounced in the absence of the wife, and even without her
knowledge. It was submitted, that divorce pronounced by way of triple
talaq was final and binding, between the parties. These actions, according
to learned counsel, vested an arbitrary right in the husband, and as such,
violated the equality clause enshrined in Article 14 of the Constitution. It
was submitted, that the Constitution postulates through the above article,
equality before the law and equal protection of the laws. This right,
according to learned counsel, was clearly denied to the female spouse in the
matter of pronouncement of divorce by the husband by adopting the
76
procedure of ‘talaq-e-biddat’. Further more, it was submitted, the
Constitution postulates through Article 15, a clear restraint on
discrimination, on the ground of sex. It was submitted, that ‘talaq-e-biddat’
violated the aforesaid fundamental right, which postulates equality between
men and women. Learned counsel relied on the decisions of this Court in
Kesavananda Bharati v. State of Kerala 18, and Minerva Mills Ltd. v. Union of
India19 to contend, that it was the duty of courts to intervene in case of
violation of any individual’s fundamental right, and to render justice. It was
also submitted, that the rights of the female partner in a matrimonial
alliance amongst Muslims, had resulted in severe gender discrimination,
which amounted to violating their human rights under Article 21 of the
Constitution. Learned counsel accordingly sought intervention, for grave
injustice practiced against Muslim wives.
36. Mr. Amit Singh Chadha, learned senior counsel, then placed
reliance on the Jiauddin Ahmed 2, and the Rukia Khatun 3 cases (-for
details, refer to Part-6 – Judicial pronouncements, on the subject of
‘talaq-e-biddat’). Based on the above judgments, it was submitted, that
courts of this country had not found favour with the practice of triple
talaq, in the manner prevalent in India. It was contended, that
‘talaq-e-biddat’ should not be confused with the profession, practice and
propagation of Islam. It was pointed out, that ‘talaq-e-biddat’ was not
sacrosanctal to the profession of the Muslim religion. It was accordingly
submitted, that this Court had an indefeasible right, to intervene and
18
19
77
render justice. In order to press his claim based on constitutional
morality, wherein the petitioners were claiming not only gender equality,
but also the progression of their matrimonial life with dignity, learned
senior counsel placed reliance on Manoj Narula v. Union of India 20,
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 face t 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
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
20
78
enshrined in Part III – Fundamental Rights, of the Constitution. This
position, it was submitted, was affirmed through judgments rendered by
this Court in John Vallamattom v. Union of India 21, Javed v. State of
Haryana22, and Khursheed Ahmad Khan v. State of Uttar Pradesh 23.
37. Learned senior counsel also drew our attention to the fact, that a
number of countries had, by way of express legislations, done away with the
practice of ‘talaq-e-biddat’. It was submitted, that even when talaq was
pronounced thrice simultaneously, the same has, by legislation, been
treated as a single pronouncement, in a number of countries, including
countries which have declared Islam as their official State religion. It was
accordingly contended, that had ‘talaq-e-biddat’ been an essential part of
religion, i.e., if it constituted a core belief, on which Muslim religion was
founded, it could not have been interfered with, by such legislative
intervention. It was accordingly suggested, that this Court should have no
difficulty whatsoever in remedying the cause with which the petitioners had
approached this Court, as the same was not only violative of the
fundamental rights enshrined in the Constitution, but was also in
contravention of the principle of constitutional morality emerging therefrom.
38. Last of all, it was contended, that it is nobody’s case before this
Court, that ‘talaq-e-biddat’ is a part of an edict flowing out of the Quran. It
was submitted, that triple talaq is not recognized by many schools of Islam.
21
22
23
79
According to learned counsel, all concerned acknowledge, that
‘talaq-e-biddat’ 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
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
80
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-e-biddat’ is a sinful form of divorce, but seeks to justify it on the
ground that though bad in theology, it is good in law. In India
‘talaq-e-biddat’, according to learned counsel, gained validity based on the
acceptance of the same by the British courts, prior to independence. It was
submitted, that the judgments rendered by the British courts were finally
crystallized, in the authoritative pronouncement by the Privy Council in the
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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 case 3 – by a Division Bench. By the Delhi High
Court in the Masroor Ahmed case 4 – by a Single Bench, and finally by the
Kerala High Court in the Nazeer case 5 – by a Single Bench (-for details,
refer to Part-6 – Judicial pronouncements, on the subject of
‘talaq-e-biddat’). It was submitted, that the High Courts were fully
justified in their opinions and their conclusions. It was pointed out, that
despite the aforesaid judgments, Muslim husbands continued to divorce
their wives by ‘talaq-e-biddat’, and therefore, an authoritative
pronouncement on the matter was required to be delivered, by this Court.
Based on the decisions relied upon, it was submitted, that a Muslim
husband, could not enjoy arbitrary or unilateral power to proclaim a
divorce, as the same does not accord with Islamic traditions. It was also
contended, that the proclamation of talaq must be for a demonstrated
82
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. 24, to assert, that this Court approved the judgments
referred to above. It was accordingly asserted, that this Court has already
recognized, the Quranic position as recorded in verses 128 to 130 of ‘sura’
IV and verses 229-232 of ‘sura’ II, and also, ‘verse’ 35 of ‘sura’ IV. These
verses, according to learned senior counsel, declare the true Quranic
position on the subject of divorce (-for details, refer to Part-3 – The Holy
Quran – with reference to ‘talaq’). Learned counsel heavily relied on the
decision rendered by the Delhi High Court in the Masroor Ahmed case 4,
and by the Kerala High Court in the Nazeer case 5 to bring home his
contention, that ‘talaq-e-biddat’ was wholly unjustified and could not be
recognized as a valid means of divorce in the Muslim community. It was
the vehement submission of learned counsel, that the legal position being
canvassed on behalf of the petitioners, clearly emerged from the
judgments referred to above, and should be treated as the foundation, for
adoption and declaration by this Court. It was therefore prayed, that
triple talaq as was being practiced in India, be declared unsustainable in
law.
41. It was also contended by learned senior counsel, that the settled
principles applicable in all common law jurisdictions including India was
that courts do not test the constitutionality of laws and procedures, if the
issue arising between the parties can be decided on other grounds. It was
24
83
submitted, that only when the relief being sought, cannot be granted
without going into the constitutionality of the law, only then courts need to
enter the thicket of its constitutional validity. Learned counsel invited the
Court’s attention, to the judgment of this Court in State of Bihar v. Rai
Bahadur Hurdut Roy Moti Lal Jute Mills 25, 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..
…”
In the context of ‘personal law’, it was submitted, that in Shabnam Hashmi
v. Union of India26, 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
25
26
84
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, 20 th
edition). It was the contention of learned senior counsel, that the All India
Muslim Personal Law Board (hereinafter referred to as, the AIMPLB), had
relied on ‘hadiths’, that were far removed from the time of the Prophet. It
was submitted, that they were therefore far less credible and authentic, and
also distorted and unreliable, as against the ‘hadiths’ taken into
consideration in the judgments rendered by the High Courts (-for details,
refer to Part-6 – Judicial pronouncements, on the subject of
‘talaq-e-biddat’). 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
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distortion. It was also submitted, that the ‘hadith’ relied upon by the
AIMPLB, was not found in the Al Bukhari Hadiths, and as such, it would be
inappropriate to place reliance on the same. As against the submissions
advanced on behalf of AIMPLB, it was pointed out (in rejoinder), that Sahih
Muslims believe, that during the Prophet’s time, and that of the First Caliph
Abu Baqhr and the Second Caliph Umar, pronouncements of ‘talaq’ by three
consecutive utterances were treated as one. Reference in this behalf was
made to “Sahih Muslim” compiled by Al-Hafiz Zakiuddin Abdul-Azim
Al-Mundhiri, and published by Darussalam. Learned senior counsel also
invited this Court’s attention to “The lawful and the prohibited in Islam” by
Al-Halal Wal Haram Fil Islam (edition – August 2009), which was of
Egyptian origin. It was pointed out, that Egypt was primarily a Sunni
Hanafi nation. It was submitted, that the text of the above publication,
clearly showed, that the practice of instant talaq was described sinful, and
was to be abhorred. Reference was also made to “Woman in Islamic
Shariah” by Maulana Wahiduddin Khan (published by Goodword Books,
reprinted in 2014), wherein it is opined, that triple talaq pronounced on a
singular occasion, would be treated as a single pronouncement of talaq, in
terms of the ‘hadith’ of Imam Abu Dawud in Fath al-bari 9/27. It was
submitted, that the views of the above author, were also relied upon by the
Delhi High Court in the Masroor Ahmed case 4. 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
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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 19 th century. It was submitted, that Abu
Hanifa himself ruled, that it was forbidden to give three divorces at the
same time, and whoever did so was a sinner. Based on the aforestated
submissions, it was the pointed contention of learned senior counsel, that
there was no credibility in the position adopted by the AIMPLB, in its
pleadings to demonstrate the validity of the practice of ‘talaq-e-biddat’.
43. Based on the above submissions, it was contended, that the
judgment rendered by the Privy Council in the Rashid Ahmad case 1 with
reference to the validity of ‘talaq-e-biddat’ needed to be overruled. Since
‘talaq-e-biddat’ cannot be traced to the Quran, and since the Prophet
himself deprecated it, and since ‘talaq-e-biddat’ was considered sinful by all
schools of Sunni Muslims, and as invalid by all the Shia Muslim schools, it
could not be treated to be a part of Muslim ‘personal law’. It was asserted,
that triple talaq was not in tune with the prevailing social conditions, as
Muslim women were vociferously protesting against the practice. Learned
senior counsel solicited, that this Court in order to resolve the present
dispute, declare that the pronouncement of triple talaq by a Muslim
husband, in order to divorce his wife, would be treated as a single
pronouncement of talaq, and would have to follow the procedure of
‘talaq-e-ahsan’ (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’.
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44. Ms. Indira Jaising, Senior Advocate, was the third counsel to
represent the cause of the petitioners. She entered appearance on behalf of
respondent no.7 – Centre for Study of Society and Secularism, which came
to be added as a party respondent vide an order dated 29.6.2016. It was the
contention of learned senior counsel, that the term ‘personal laws’ had not
been defined in the Constitution, although there was reference to the same
in entry 5 of the Concurrent List of the Seventh Schedule. Learned counsel
referred to Article 372 of the Constitution which mandates, that all laws in
force, in the territory of India immediately before the commencement of the
Constitution, “shall” continue in force until altered or repealed or amended
by a competent legislature (or other competent authority). It was submitted,
that on personal issues, Muslims were governed by the Muslim ‘personal
law’ – Shariat. It was contended, that even before, the commencement of the
Constitution, the Muslim Personal Law (Shariat) Application Act, 1937
enforced Muslim ‘personal law’, and as such, the Muslim ‘personal law’
should be considered as a “law in force”, within the meaning of Article 13(3)
(b). It was pointed out, that the instant position made the legal position
separate and distinct from what ordinarily falls in the realm of ‘personal
law’. It was also highlighted, that a reading of entry 5 in the Concurrent
List of the Seventh Schedule, leaves no room for any doubt, that ‘personal
law’ necessarily has to have nexus, to issues such as marriage and divorce,
infants and minors, adoptions, wills, intestacy and succession, joint family
property and partition, etc. It was contented, that ‘personal law’ could
therefore conveniently be described as family law, namely, disputes relating
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to issues concerning the family. It was pointed out, that such family law
disputes, were ordinarily adjudicated upon by the Family Courts, set up
under the Family Courts Act, 1984. The matters which arise for
consideration before the Family Courts are disputes of marriage (namely,
restitution of conjugal rights, or judicial separation, or dissolution of
marriage), and the like. Based on the above backdrop, it was submitted,
that it could be safely accepted that ‘personal law’ deals with family laws
and law of succession such as marriage, divorce, child custody, inheritance,
etc.
45. Based on the foundation recorded in the preceding paragraph, it
was submitted, that the question in the present controversy was, whether
“rule of decision” (the term used in Section 2, of the Shariat Act) could be
challenged, on the ground that the same was violative of the fundamental
rights postulated in Part III of the Constitution? It was the pointed
contention of learned counsel, that no “rule of decision” can be violative of
Part III of the Constitution. It was acknowledged (we would say – fairly),
that ‘personal law’ which pertained to disputes between the family and
private individuals (wherein the State has no role), cannot be subject to a
challenge, on the ground of being violative of the fundamental rights
enshrined in Part III of the Constitution. It was submitted, that insofar as
Muslim ‘personal law’ is concerned, it could no longer be treated as
‘personal law’, because it had been statutorily declared as “rule of decision”
by Section 2 of the Shariat Act. It was therefore asserted, that all questions
pertaining to Muslims, ‘personal law’ having been described as “rule of
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decision” could no longer be treated as private matters between parties, nor
can they be treated as matters of mere ‘personal law’. It was therefore
contended, that consequent upon the inclusion/subject of the question of
“…dissolution of marriage, including talaq, ila, zihar, lian, khula and
mubaraat,…”, amongst Muslims in the statute book, the same did not
remain a private matter between the parties. And as such, all
questions/matters, falling within the scope of Section 2 aforementioned,
were liable to be considered as matters of ‘public law’. Learned senior
counsel therefore asserted, that no one could contest the legitimacy of a
challenge to ‘public law’ on the ground of being violative of the provisions of
the Constitution. In support of the aforesaid foundational premise, learned
senior counsel placed reliance on Charu Khurana v. Union of India 27, to
contend that ‘talaq-e-biddat’ should be considered as arbitrary and
discriminatory, under Articles 14 and 15, in the same manner as the rule
prohibiting women make-up artists and hair dressers from becoming
members of registered make-up artists and hair dressers association, was
so declared. It was also pointed out, that discrimination based on sex was
opposed to gender justice, which position was clearly applicable to the
controversy in hand. Insofar as the instant aspect of the matter is
concerned, learned counsel placed reliance on the following observations
recorded in the above judgment:
“46. 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
27
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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
challenge to the constitutional validity of ‘talaq-e-biddat’ is concerned,
learned senior counsel, adopted the submissions advanced by other learned
counsel.
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47. Learned senior counsel, then placed reliance on the Universal
Declaration of Human Rights adopted by the United Nations General
Assembly on 10.12.1948, to contend that the preamble thereof recognised
the inherent dignity of the entire human family, as equal and inalienable.
It was submitted, that the charter provides for equal rights to men and
women. It was submitted, that Article 1 thereof provides, that all human
beings were born free and equal, in dignity and rights. Referring to Article
2, it was submitted, that there could be no distinction/discrimination on
the basis inter alia of sex and/or religion. It was submitted, that it was this
Court’s responsibility to widen, and not to narrow, the right of equality
contained in the aforestated Declaration. The Court’s attention was also
drawn to the International Convention on Economic, Social and Cultural
Rights (ICESCR), which provided for elimination of all forms of
discrimination against women. The instant convention was adopted by the
United Nations General Assembly on 10.04.1979. It was submitted, that
the International Convention bill of rights for women, was instituted on
3.9.1981, and had been ratified by 189 States. It was pointed out, that
India had also endorsed the same. It was submitted, that Article 1 thereof
defines “discrimination”, as discrimination against women on the basis of
sex. Referring to Article 2, it was submitted, that all State parties who
ratified the above convention, condemned discrimination against women in
all its forms, and agreed to eliminate discrimination against women by
following the principle of equality amongst men and women, in their
national Constitutions, as well as, other legislations. It was submitted, that
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Article 2 of the convention mandates, that all States would take all steps to
eliminate discrimination against women – by any person, organisation or
enterprise. It was submitted, that insofar as the present controversy is
concerned, the provisions of the above declarations and conventions can be
relied upon, to test the validity of ‘talaq-e-biddat’, by treating it as “rule of
decision” and for that matter, as law in force (on the touchstone of Articles
14, 15 and 21 of the Constitution). It was further submitted, that in any
case, the practice of ‘talaq-e-biddat’, clearly violated the norms adopted by
the declaration, and conventions.
48. It was acknowledged, by learned senior counsel, that India
recognises a plural legal system, wherein different religious communities
are permitted to be governed by different ‘personal laws’, applicable to them.
It was submitted, that there could be no dispute, that different religious
communities can have different laws, but the laws of each religious
community must meet the test of constitutional validity and/or
constitutional morality, inasmuch as, they cannot be violative of Articles 14
and 15 of the Constitution. Viewed in the above context, it was submitted,
that even though matters of faith and belief are protected by Article 25 of
the Constitution, yet law relating to marriage and divorce were matters of
faith and belief, were also liable to be tested on grounds of public order,
morality and health, as well as, on the touchstone of the other provisions of
Part III of the Constitution. Therefore, on a plain reading of Article 25,
according to learned senior counsel, the right to freedom of conscience was
subject to public order, morality, health, and the other provisions contained
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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
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
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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-e-biddat, whereby, a Muslim woman’s status was associated with
adverse civil consequences, on the unilateral determination of the male
spouse, by way of a private declaration, must be considered (-and therefore,
be held) as clearly unsustainable in law.
50. Mr. Salman Khurshid, Senior Advocate, appearing as an intervener,
submitted, that for searching a solution to a conflict, or for the resolution of
a concern under Islamic law, reference had first to be made to the Quran.
The availability of an answer to the disagreement, from the text of the
Quran, has to be treated as a final pronouncement on the issue. When
there is no clear guidance from the Quran, reference must be made to the
traditions of the Prophet Muhammad – ‘sunna’, as recorded in the ‘hadiths’.
If no guidance is available on the issue, even from the ‘hadiths’, reference
must then be made to the general consensus of opinion – ‘ijma’. If a
resolution to the dispute is found in ‘ijma’, it should be considered as a final
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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.”
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.”
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iii. [3674] 16 – (…) Ibn Tawüs narrated from his father that Abü
As-Sahbâ’ 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
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
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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’,
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
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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
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
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case of breach between husband and wife, it should be referred to the
arbitration, and failing an amicable settlement, a divorce was permissible,
subject to a period of waiting or ‘idaat’, during which a reconciliation was
also to be attempted, and if successful, the husband could take back his
wife. The main idea in the procedure for divorce, as laid down by Islam, it
was submitted, was to give the parties an opportunity for repproachment. If
three pronouncements are treated as a ‘mughallazah’ – divorce, then no
opportunity is available to the spouses, to retrieve a decision taken in haste.
The rule of ‘talaq-e-biddat’, it was pointed out, was introduced long after the
time of the Prophet. It was submitted, that it renders the measures
provided for in the Quran against hasty action ineffective, and thereby
deprives people of a chance to change their minds, to retrieve their mistakes
and retain their wives.
54. Based on the above submissions, it was contended, that though
matters of religion have periodically come before courts in India, and the
issues have been decided in the context of Articles 25 and 26 of the
Constitution. Raising concerns over issues of empowerment of all citizens
and gender justice, it was submitted, had increased the demand on courts
to respond to new challenges. The present slew of cases, it was pointed out,
was a part of that trend. It was submitted, that the Supreme Court could
not refuse to engage itself, on the ground that the issues involved have
political overtones or motives, and also because, they might pertain to a
narrow constitutional permissibility. It was contended, that to refuse an
invitation to examine broader issues such as whether ‘personal laws’ were
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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-e-biddat’ by legislation, the world over, in Islamic, as well as,
non-Islamic States). Reliance was also placed on judicial pronouncements,
rendered by different High Courts with reference to ‘talaq-e-biddat’ (-for
details, refer to Part-6 – Judicial pronouncements, on the subject of
‘talaq-e-biddat’), so as to conclude, that triple talaq pronounced at the same
time should be treated as a single pronouncement of divorce, and
thereafter, for severing matrimonial ties, the husband would have to
complete the prescribed procedure provided for
‘talaq-e-ahsan’/‘talaq-e-hasan’, and only thereafter, the parties would be
treated as divorced.
56. While advancing his aforesaid contention, there was also a note of
caution expressed by learned senior counsel. It was pointed out, that it was
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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 ‘talaq-e-biddat’, was absolutely invalid even in terms of Muslim ‘personal
law’ – ‘Shariat’. It was submitted, that it was not required of this Court to
strike down the practice of ‘talaq-e-biddat’, it was submitted, that it would
suffice if this Court merely upholds the order passed by the Delhi High
Court in the Masroor Ahmed case 4, by giving a meaningful interpretation to
‘talaq-e-biddat’, which would be in consonance with the verses of the Quran
and the relevant ‘hadiths’.
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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 7 th
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-e-biddat’. It was pointed out, that the Prophet Muhammad
considered only two forms of divorce to be valid, namely, ‘talaq-e-ahsan’ and
‘talaq-e-hasan’. Despite there being numerous schools of Muslim
jurisprudence, only two schools recognized ‘talaq-e-biddat’ as a mode of
divorce. It was submitted, that none of the Shia schools recognized triple
talaq, as a valid process of divorce between spouses. Insofar as
‘talaq-e-biddat’ is concerned, it was asserted, that the Quran does not
approve instantaneous talaq. During the process of initiation of divorce and
its finalization, it is necessarily to have a time lag and a timeline. It cannot
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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-e-biddat’, 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-e-biddat’ – 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-e-biddat’, as unacceptable in law, and should also declare it as
unconstitutional.
61. Dr. Rajan Chandra and Mr. Arif Mohd. Khan, Advocates, appeared
on behalf of the Muslim Women Personal Law Board. It was their
contention, that it has been acknowledged by all concerned, including the
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AIMPLB, that ‘talaq-e-biddat’ was derogatory to the dignity of women, and
that, it breaches the concept of gender equality. It was submitted, that the
above position could easily be remedied through judicial intervention. In
this behalf, our attention was drawn to Article 13 of the Constitution, which
mandates, that all laws in force in the territory of India (immediately before
the commencement of the Constitution), as were inconsistent with the
Fundamental Rights contained in Part III of the Constitution, were to the
extent of such inconsistency, to be treated as void. The above declaration,
it was pointed out, had to be expressed through legislation, by the
Parliament, and in case the Parliament was reluctant in bringing out such a
legislation (-presumably, for political considerations), it was the bounden
duty of this Court, to declare such existing laws which were derogatory to
the dignity of women, and which violated the concept of gender equality, as
void, on account of their being in conflict with the fundamental rights
contained in Part III of the Constitution. Both learned counsel, invited our
attention to the legislative march of events commencing from the enactment
of the Shariat Act in 1937, by the British rulers of India, who took upon
themselves, extreme cudgels to initiate the grant of appropriate rights to
women. As also, the enactment of the Dissolution of Muslim Marriages Act,
1939 (again during the British regime), whereby, Muslim women were
conferred with a right to divorce their husbands, on eight distinct grounds.
It was submitted, that the protection of Muslim women’s rights, which
needed to have continued even after independence, had remained stagnant,
resulting in insurmountable sufferings to the Muslim women, specially in
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comparison with women of other faiths. One of the grounds of such
suffering, it was pointed out, was surely ‘talaq-e-biddat’ – triple talaq, which
has been a matter of substantial furore and outcry at the hands of Muslim
women. During the course of hearing, our attention was drawn to
fundamentals of Islam from the Quran (-for details, refer to Part-3 – The
Holy Quran – with reference to ‘talaq’), and ‘hadiths’. Views of Imams on
‘fiqh’ and ‘hadith’ and other relevant texts were referred to (as were also
relied upon by learned counsel who appeared before them – and have been
duly referred to above), to contend that triple talaq had never been accepted
as a valid means of divorce, even under the Muslim ‘personal law’.
Adopting the submissions of learned counsel, who had already assisted this
Court on behalf of the petitioners, it was submitted, that this Court should
declare ‘talaq-e-biddat’, as unconstitutional and violative of Articles 14 and
15 of the Constitution.
62. The learned Attorney General for India – Mr. Mukul Rohatgi
commenced his submissions by contending, that in this case, this Court
has been called upon to determine, whether the practice of ‘talaq-e-biddat’
was compatible with contemporary constitutional morality and the
principles of gender equality and gender equity guaranteed under the
Constitution. In the context of the above debate, it was submitted, that the
pivotal issue that needed to be answered was, whether under a secular
Constitution, Muslim women could be discriminated against, merely by
virtue of their religious identity. And/or whether Muslim women, could be
relegated to a status significantly more vulnerable than their counterparts
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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;”
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It was accordingly asserted, that Muslim women could not be subjected to
arbitrary and unilateral whims of their husbands, as in the case of divorce
by triple talaq amongst Shia Muslims belonging to the Hanafi school.
64. It was submitted, that gender equality and the dignity of women,
were non-negotiable. These rights were necessary, not only to realize the
aspirations of every individual woman, who is an equal citizen of this
country, but also, for the larger well being of society and the progress of the
nation, one half of which is made up by women. It was submitted, that
women deserved to be equal participants in the development and
advancement of the world’s largest democracy, and any practice which
denudes the status of an inhabitant of India, merely by virtue of the religion
he/she happens to profess, must be considered as an impediment to that
larger goal. In this behalf, reliance was placed on C. Masilamani Mudaliar
v. Idol of Sri Swaminathaswami Thirukoil 28, 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
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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. 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,
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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 India 29,
wherein it was submitted, that this Court had emphasized on the value of
gender equality, and the need to discard patriarchal mindset. For arriving
at the above conclusion, it was submitted, that this Court had relied upon
international jurisprudence, to strike down a law which debarred women
from employment on the pretext that the object of the law was, to afford
them protection. The Court held that “it is for the court to review that the
majoritarian impulses rooted in moralistic tradition do not impinge upon
individual autonomy (of the women)”. The Court also quoted from a
judgment of the U.S. Supreme Court where discrimination was rationalized
“by an attitude of ‘romantic paternalism’ which, in practical effect, put
women, not on a pedestal, but in a cage…”. Reference was also made to
Vishaka v. State of Rajasthan30, 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 India 31, wherein this Court had the occasion
to interpret the provisions of the Hindu Minority and Guardianship Act,
29
30
31
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1956. It was submitted, that this Court in the above judgment emphasized
the necessity to take measures to bring domestic law in line with
international conventions, so as to eradicate discrimination of all forms,
against women. It was submitted, that Articles 14, 15 and 21 consituted an
inseparable part of the basic structure of the Constitution. These values –
the right to equality, non-discrimination and the right to live life with
dignity, it was emphasized, formed the bedrock of the Constitution. Gender
equality and dignity for women, it was pointed out, was an inalienable and
inseparable part of the basic structure of the Constitution. Since women
transcend all social barriers, it was submitted, that the most fundamental
facet of equality under the Constitution was gender equality, and gender
equity.
65. The learned Attorney General also pointed out, that a large number
of Islamic theocratic countries and countries with overwhelmingly large
Muslim populations, had undertaken significant reforms including the
practice of triple talaq. These societies had accepted reform, as being
consistent with the practice of Islam (-for details, refer to Part-5 –
Abrogation of the practice of ‘talaq-e-biddat’ by legislation, the world over, in
Islamic, as well as, non-Islamic States). The paradox was that, Muslim
women in India, were more vulnerable in their social status as against
women even in predominantly Islamic States, even though India is a secular
country. It was submitted, that the position of Indian Muslim women was
much worst, than Muslim women who live in theocratic societies, or
countries where Islam is the State religion. It was contended, that the
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impugned practice was repugnant to the guarantee of secularism, which it
was pointed out, was an essential feature of the Constitution. Perpetuation
of regressive or unjust practices in the name of religion, it was submitted,
was anathema to a secular Constitution, which guarantees
non-discrimination on grounds of religion. It was also submitted, that in
the context of gender equality and gender equity, the larger goal of the State
was, to strive towards the establishment of a social democracy, where each
one was equal to all others. Reference in this behalf was made to the
closing speech on the draft Constitution on 25 th November, 1949, of Dr.
Ambedkar who had stated: “What we must do is not to be attained with
mere political democracy; we must make out political democracy and a
social democracy as well. Political democracy cannot last unless there lies
on the base of it a social democracy.” A social democracy has been
described as “A way of life which recognizes liberty, equality and fraternity
as principles of life”. It was therefore submitted, that in order to achieve
social democracy, and in order to provide social and economic justice
(envisaged in the preamble), namely, goals articulated in the fundamental
rights and directive principles, and in particular, Articles 14, 15, 16, 21, 38,
39 and 46, had to be given effect to. In the instant context, the learned
Attorney General placed reliance on Valsamma Paul v. Cochin University 32,
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,
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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. 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:
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“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
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,
sub-sections 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
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communities, it was submitted, had the right to the enjoyment of all the
constitutional guarantees, and if some sections of society were held back, it
was likely to hold back the community at large, resulting in a lopsided
development, with pockets of social backwardness. According to the learned
Attorney General, this kind of lopsided development was not in the larger
interest of the integrity and development of the nation. It was submitted,
that secularism, equality and fraternity being the overarching guiding
principles of all communities, must be given effect to. This would move the
entire citizenry forward, guaranteeing to women equal rights, and at the
same time, preserving diversity and plurality.
67. It was the emphatic assertion of the learned Attorney General, that
freedom of religion was subservient to fundamental rights. It was
contended in this behalf, that the words employed in Article 25(1) of the
Constitution, which conferred the right to practice, preach and propagate
religion were “subject to the provisions of this Part”, which meant that the
above rights are subject to Articles 14 and 15, which guarantee equality and
non-discrimination. In other words, under India’s secular Constitution, the
right to freedom of religion was subject to, and in that sense, subservient to
other fundamental rights – such as the right to equality, the right to
non-discrimination, and the right to life with dignity. In this behalf
reference was made to Sri Venkataramana Devaru v. State of Mysore 33. 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
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conclude, that the other provisions of the Part would “prevail over” and
would “control the right conferred” by Article 25(1).
68. In the above context it was also submitted, that the freedom of
religion, expressed in Article 25 of the Constitution was, not confined to the
male gender. Article 25 is extracted below:
“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
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was submitted, that the latter were not protected under Article 25.
“Religion”, according to the learned Attorney General, has been explained by
this Court in A.S. Narayana Deekshitulu v. State of A.P. 34, 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
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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
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:
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“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
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
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Bombay High Court, in State of Bombay v. Narasu Appa Mali 35. It was
submitted, that ‘personal laws’ ought to be examined, in the light of the
overarching goal of gender justice, and dignity of women. The underlying
idea behind the preservation of ‘personal laws’ was, to safeguard the
plurality and diversity among the people of India. However, the sustenance
of such diverse identities, according to the learned Attorney General, cannot
be a pretext for denying women their rightful status and gender equality. It
was submitted, that ‘personal law’ was a part and parcel of “law” within the
meaning of Article 13. And therefore, any such law (‘personal law’) which
was inconsistent with fundamental rights, would have to be considered
void. It was further submitted, that the interpretation of the Bombay High
Court in the Narasu Appa Mali 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.
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(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.”
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
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territory of India the force of law”, left no room for any doubt, on the issue.
It was pointed out, that the observations in the Narasu Appa Mali case 23,
were in the nature of obiter, and could not be considered as the ratio of the
judgment. Further more, the said judgment, being a judgment of a High
Court, was not binding on this Court. Without prejudice to the above,
according to the learned Attorney General, the said practices under
challenge had been incorporated into the Muslim ‘personal law’ by the
Shariat Act. It was reasoned, that the Shariat Act, was clearly a “law in
force”, within the meaning of Article 13(3)(b). It was submitted, that the
petitioner has challenged Section 2 of the aforesaid Act, insofar as it
recognises and validates the practices of triple talaq or talaq-e-biddat (nikah
halala and polygamy). Therefore, even assuming (for the sake of argument),
that these practices do not constitute customs, the same were nonetheless
manifestly covered by Article 13.
71. It was acknowledged, that the legal position expressed in the
Narasu Appa Mali 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
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(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 case 23 and had held, “But the right to
equality, removing handicaps and discrimination against a Hindu female by
reason of operation of existing law should be in conformity with the right to
equality enshrined in the Constitution and the personal law also needs to
be in conformity with the constitutional goal.” It was also asserted, that this
Court had further held, “Personal laws are derived not from the
Constitution but from the religious scriptures. The laws thus derived must
be consistent with the Constitution lest they become void under Article 13 if
they violate fundamental rights.” It is significant to note, that this case
concerned the inheritance rights of Hindu women. In view of the aforesaid,
it was submitted, that the observations in the Narasu Appa Mali case 23, 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.
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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 Mutt36, 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
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
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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.”
Reference was then made to Ratilal v. State of Bombay 37, 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
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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 38, 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:
“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
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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,
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
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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 Jamat39, 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
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 Bombay40, 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
39
40
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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
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
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declared its guiding principles, including the pledge to raise the status of
women, irrespective of nationality, race, language or religion, to the same
level as men, in all fields of human enterprise, and to eliminate all
discrimination against women in the provisions of statutory law, in legal
maxims or rules, or in interpretation of customary law. (United Nations
Commission on the Status of Women, First Session, E/281/Rev.1, February
25, 1947). It was submitted, that the Universal Declaration of Human
Rights, 1948, the International Covenant of Economic, Social and Cultural
Rights, 1966 and the International Covenant of Social and Political Rights,
1966, emphasized on equality between men and women. The other relevant
international instruments on women which were brought to our notice,
included the Convention on the Political Rights of Women (1952),
Declaration on the Protection of Women and Children in Emergency and
Armed Conflict (1974), Inter-American Convention for the Prevention,
Punishment and Elimination of Violence against Women (1955), Universal
Declaration on Democracy (1997), and the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against
Women (1999). It was submitted by the learned Attorney General, that the
Government of India ratified the Vienna Declaration and the Convention on
the Elimination of all forms of Discrimination Against Women (CEDAW) on
19-6-1993. The preamble of CEDAW reiterates, that discrimination against
women violated the principles of equality of rights and respect for human
dignity. And that, such inequality was an obstacle to the participation on
equal terms with men in the political, social, economic and cultural life of
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their country. It was emphasized that such inequality, also hampered the
growth of the personality from society and family, and made it more difficult
for the full development of potentialities of women, in the service of their
countries and of humanity. Article 1 of the CEDAW, it was pointed out,
defines discrimination against women, while Article 2(b) enjoins the State
parties to pursue elimination of discrimination against women, by adopting
“appropriate legislative and other measures including sanctions where
appropriate, prohibiting all discriminations against women”. Clause (c) of
Article 2 enjoins the ratifying States, to ensure legal protection of the rights
of women, and Article 3 of the CEDAW enjoins the States to take all
appropriate measures to ensure full development and advancement of
women, for the purpose of guaranteeing to them, the exercise and
enjoyment of human rights and fundamental freedoms on the basis of
equality with men. It was further submitted on behalf of the Union of India,
that the equality principles were reaffirmed in the Second World Conference
on Human Rights, held at Vienna in June 1993, as also, in the Fourth
World Conference on Women, held at Beijing in 1995. It was pointed out,
that India was a party to this convention and other declarations, and was
committed to actualize them. It was asserted, that in the 1993 Conference,
gender-based violence and all categories of sexual harassment and
exploitation, were condemned.
75. Last of all, the Attorney General pointed out, the prevailing
international trend all around the world, wherein the practice of divorce
through ‘talaq-e-biddat’, has been statutorily done away with (-for details,
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refer to Part-5 – Abrogation of the practice of ‘talaq-e-biddat’ by legislation,
the world over, in Islamic, as well as, non-Islamic States). On the basis of
the submissions noticed above, it was contended, that it was extremely
significant to note, that a large number of Muslim countries, or countries
with a large Muslim populations such as, Pakistan, Bangladesh,
Afghanistan, Morocco, Tunisia, Turkey, Indonesia, Egypt, Iran and Sri
Lanka had undertaken significant reforms and had regulated divorce law.
It was pointed out, that legislation in Pakistan requires a man to obtain the
permission of an Arbitration Council. Practices in Bangladesh, it was
pointed out, were similar to those in Pakistan. Tunisia and Turkey, it was
submitted, also do not recognize extra-judicial divorce, of the nature of
‘talaq-e-biddat’. In Afghanistan, divorce where three pronouncements are
made in one sitting, is considered to be invalid. In Morocco and Indonesia,
divorce proceedings take place in a secular court, procedures of mediation
and reconciliation are encouraged, and men and women are considered
equal in matters of family and divorce. In Indonesia, divorce is a judicial
process, where those marrying under Islamic Law, can approach the
Religious Court for a divorce, while others can approach District Courts for
the same. In Iran and Sri Lanka, divorce can be granted by a Qazi and/or a
court, only after reconciliation efforts have failed. It was submitted, that
even Islamic theocratic States, have undergone reform in this area of the
law, and therefore, in a secular republic like India, there is no reason to
deny women, the rights available all across the Muslim world. The fact that
Muslim countries have undergone extensive reform, it was submitted, also
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establishes that the practice in question is not an essential religious
practice.
76. In the circumstance aforesaid, it was submitted, that the practice of
‘talaq-e-biddat’ cannot be protected under Article 25(1) of the Constitution.
Furthermore, since Article 25(1) is subject to Part III of the Constitution, as
such, it was liable to be in consonance with, and not violative of the rights
conferred through Articles 14, 15 and 21 of the Constitution. Since the
practice of ‘talaq-e-biddat’ clearly violates the fundamental rights expressed
in the above Articles, it was submitted, that it be declared as
unconstitutional.
77. It is also necessary for us to recount an interesting incident that
occurred during the course of hearing. The learned Attorney General
having assisted this Court in the manner recounted above, was emphatic
that the other procedures available to Muslim men for obtaining divorce,
such as, ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ were also liable to be declared
as unconstitutional, for the same reasons as have been expressed with
reference to ‘talaq-e-biddat’. In this behalf, the contention advanced was,
that just as ‘talaq-e-biddat’, ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ were based
on the unilateral will of the husband, neither of these forms of divorce
required the availability of a reasonable cause with the husband to divorce
his wife, and neither of these needed the knowledge and/or notice of the
wife, and in neither of these procedures the knowledge and/or consent of
the wife was required. And as such, the other two so-called approved
procedures of divorce (‘talaq-e-ahsan’ and ‘talaq-e-hasan’) available to
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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-e-biddat’. We have referred to the incident, and considered the
necessity to record it, because of the response of the learned Attorney
General to a query raised by the Bench. One of us (U.U. Lalit, J.), enquired
from the learned Attorney General, that if all the three procedures referred
to above, as were available to Muslim men to divorce their wives, were set
aside as unconstitutional, Muslim men would be rendered remediless in
matters of divorce? The learned Attorney General answered the querry in
the affirmative. But assured the Court, that the Parliament would enact a
legislation within no time, laying down grounds on which Muslim men
could divorce their wives. We have accordingly recorded the above episode,
because it has relevance to the outcome of the present matter.
78. Mr. Tushar Mehta, learned Additional Solicitor General of India,
endorsed all the submissions and arguments, advanced by the learned
Attorney General. On each aspect of the matter, the learned Additional
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Solicitor General, independently supported the legal propositions canvassed
on behalf of the Union of India.
Part-8.
The rebuttal of the petitioners’ contentions:
79. The submissions advanced on behalf of the petitioners, were first of
all sought to be repudiated by the AIMPLB – respondent no.8 (hereinafter
referred to as the AIMPLB). Mr. Kapil Sibal, Senior Advocate, and a number
of other learned counsel represented the AIMPLB. In order to lay down the
foundation to the submissions sought to be canvassed on behalf of the
respondents, it was asserted, that ceremonies performed at the time of birth
of an individual, are in consonance with the religious norms of the family to
which the child is born. And thereafter, in continuation each stage of life
during the entire progression of life, is punctuated by ceremonies. It was
pointed out, that even the act of adoption of a child, in some other family,
has religious ceremonies. In the absence of such religious rituals, adoption
is not valid. It was submitted, that religious observances manifest an
important fundamental position, in the life of every individual. Such
religious observances, according to learned counsel, include the manner in
which members of a community were required to dress. Insofar as the
Muslim women are concerned, reference was made to ‘burqa’ or ‘hijab’ worn
by women, whereby women veil themselves, from the gaze of strangers. All
these observances, are matters of faith, of those professing the religion. It
was asserted, that those who profess the Muslim religion, follow the edicts
expressed in the Quran. It was submitted, that matrimony, is like any
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other stage in an individual’s life. It has to be performed, in consonance
with the ceremonies relating thereto. So also, if a married couple decides to
part ways, by way of divorce. It was pointed out, that express religious
ceremonies are observed even on an individual’s death. It was submitted,
that all issues including custody and guardianship of children,
maintenance, dower, gifts and such like issues, were matters guided by the
faith of the people, associated to their religion. How property has to be
distributed, upon divorce and/or at the time of death, is also governed by
faith. It was submitted, that questions of inheritance and succession, were
likewise dealt with in consonance with the edicts of the individual’s religion.
All these issues, it was submitted, were matters of religious faith.
80. It was pointed out, that the personal affairs referred to in the
foregoing paragraph, fall in the realm of ‘personal law’. This assertion, was
sought to be demonstrated, by placing reliance on the definition of the term
‘personal law’ in Blacks Law Dictionary (10th edition, 2014), as follows:
“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
…”
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Based on the cumulative definition of the term ‘personal law’, it was
submitted, that the evolution of the matters of faith relating to religious
practices, must necessarily be judged in the context of practices adopted by
the concerned community, with reference to each individual aspect of
‘personal law’. It was conceded, on behalf of the AIMPLB, that ‘personal
laws’ were per se subservient to legislation, and as such, ‘personal laws’
were liable to be considered as mandatory, with reference to numerous
aspects of an individual’s life, only in the absence of legislation.
81. Even though it was acknowledged, that legislation on an issue
would override ‘personal law’ on the matter, it was pointed out, that in the
absence of legislation ‘personal laws’ in the Indian context, could not be
assailed on the basis of their being in conflict with any of the provisions
contained in Part III of the Constitution – the Fundamental Rights. It was
submitted, that in the absence of statutory law, religious practices and
faith, constituted the individual’s (belonging to a community) right to
profess the same. In order to substantiate his contention, that a challenge
to ‘personal law’ could not be raised on the anvil of Articles 14, 15 and 21 of
the Constitution, learned senior counsel, placed reliance on the Narasu
Appa Mali case23. Learned senior counsel, also placed reliance on Shri
Krishna Singh v. Mathura Ahir41, 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,
41
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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 India42, wherein, the legal position recorded in the
above judgments was confirmed. It was pointed out, that there was a clear
distinction between ‘law’ and ‘law in force’, thus far interpreted by this
Court with reference to Article 13 of the Constitution. It was asserted, that
read along with Article 372 – which mandates, that all laws in force in the
territory of India, immediately before the commencement of the
Constitution, would continue to remain in force, until altered, repealed or
amended by a competent legislature or other competent authority. It was
submitted, that to affect a change in ‘personal law’, it was imperative to
embark on legislation, as provided for through entry 5 of the Concurrent
List in the Seventh Schedule, which provides – “marriage and divorce;
infants and minors; adoption; wills, intestacy and succession; joint family
and partition; all matters in respect of which parties in judicial proceedings
were immediately before the commencement of this Constitution subject to
their personal law.” It was therefore urged, that ‘personal laws’ per se were
not subject to challenge, under any of the provisions contained in Part III of
the Constitution.
82. It was contended, that the expression ‘custom and usage’ in Article
13 of the Constitution, would not include faith of religious denominations,
embedded in their ‘personal law’. Insofar as the instant aspect of the
42
138
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
Assembly was aware of the use of the term ‘personal law’ (-which it
consciously used in entry 5 of the Concurrent List, in the Seventh Schedule)
and the term ‘customs and usages’, which the Constituent Assembly,
employed while framing Article 13 of the Constitution. It was pointed out,
that the above position was consciously highlighted by a Full Bench of the
Andhra Pradesh High Court in the Youth Welfare Federation case 43. 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
43
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challenge raised on behalf of the petitioners on the basis of the provisions
contained in Part III – Fundamental Rights, needed to be summarily
rejected
83. Having presented the aforesaid overview of the constitutional
position Mr. Kapil Sibal, learned senior counsel, endeavoured to deal with
the concept of ‘talaq’ in ‘Shariat’ – Muslim ‘personal law’. Learned senior
counsel pointed out, that religious denominations in India with reference to
Islam were divided into two categories – the Sunnis, and the Shias. It was
pointed out, that Sunnis were again sub-divided into religious
denominations/schools. The four prominent Sunni schools being – Hanafi,
Malaki, Shafei and Hanbali. It was submitted, that a fifth
school/denomination had emerged later – Ahl-e-Hadith. It was pointed out,
that in India 90% of the Muslims amongst the Sunnis, belonged to the
Hanafi school. It was submitted, that Shia and the other denominations of
the Sunnis comprised a very small population of Muslims in India.
84. Learned counsel emphasized, that the three forms of talaq –
‘talaq-e-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
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all believers of Islam. It was therefore contended, that it was absurd for the
petitioners to have submitted that the Quran alone, provided the details
with reference to which, and in the manner in which, talaq could be
administered. It was therefore asserted, that a close examination of the
challenge raised by the petitioners would reveal that talaq as a concept itself
was not under challenge at the hands of the petitioners. It was pointed out,
that truthfully the petitioners were merely assailing the course adopted by
Muslim men, in divorcing their wives through the ‘talaq-e-biddat’ procedure.
85. Learned counsel acknowledged the position adopted on behalf of the
petitioners, namely, that Islam represents (i) what is provided for in the
Quran, (ii) what was stated and practiced by the Prophet Muhammad from
time to time, and (iii) what was memorized and recorded in the ‘hadiths’
which through centuries of generations, Muslim belief represents what the
Prophet Muhamad had said and practiced. It was asserted, that the
afore-stated 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
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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,
Very-Merciful (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:
“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,
Al-Baqarah, 2:232)
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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
three. We will make his divorce effective. (Daraqutni, 5/81. Kitab
al-Talaq 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”.
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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.
(AI-Sunan 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
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)
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(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
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
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pronouncements, on the subject of ‘talaq-e-biddat’), in recording their
conclusions, were based on views attributed to Mohammed Ali. It was
submitted, that Mohammed Ali is not recognized by all Muslims, and as
such, it would be a travesty of justice if his utterances were to be relied
upon and followed, contrary to the faith of Muslims (–especially Muslims
belonging to Hanafi school). Having expressed the aforesaid overview,
learned senior counsel highlighted from individual judgments of the High
Courts (-for details, refer to Part-6 – Judicial pronouncements, on the
subject of ‘talaq-e-biddat’) and pointed out, that the reliances on various
‘hadiths’ recorded therein were not appropriate in the background projected
above.
89. Having made the above submissions, learned senior counsel
attempted to pointedly approach the subject of ‘talaq-e-biddat’ – triple talaq.
In this behalf it was reiterated, that talaq was in three forms –
‘talaq-e-ahsan’, ‘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
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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.”
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
al-sanay, 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)
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(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
Al-Salihi Al-Hanbali (of the Hanbali School) in his book entitled as
Al-Mughni (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
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
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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
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
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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:
"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.
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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
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
151
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
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.
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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.
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
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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
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
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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.”
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
155
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
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.
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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.
"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
157
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
co-ordinated 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
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.”
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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
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.
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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
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.”
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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
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
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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
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.
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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
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
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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
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
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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
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
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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
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
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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
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
167
proper to hold, that by the Shariat Act, the legislature gave statutory status
to Muslim ‘personal law’ – ‘Shariat’. It would be necessary to understand
the above enactment, as statutorily abrogating customary practices and
usages, as were in conflict with the existing Muslim ‘personal law’ –
‘Shariat’. It was submitted, that the above enactment did not decide what
was, or was not, Muslim ‘personal law’ – ‘Shariat’. It would therefore be a
misnomer to consider that the Muslim Personal Law (Shariat) Application
Act, 1937, in any way, legislated on the above subject. It was pointed out,
that Muslim ‘personal law’ – ‘Shariat’ comprised of the declarations
contained in the Quran, or through ‘hadiths’, ‘ijmas’ and ‘qiyas’ (-for details,
refer to Part-2 – The practiced modes of ‘talaq’ amongst Muslims). It was
pointed out, that the articles of faith, as have been expressed on a variety of
subjects of Muslim ‘personal law’ – ‘Shariat’, have been in place ever since
they were declared by the Prophet Mohammed. Insofar as the practice of
‘talaq-e-biddat’ is concerned, it was submitted, that it has been practised
amongst Muslims for the last 1400 years. It was submitted, that the same
is an accepted mode of divorce amongst Muslims. It was therefore urged,
that it was not for this Court to decide, whether the aforesaid practice was
just and equitable. The reason for this Court not to interfere with the same,
it was submitted was, that the same was a matter of faith, of a majority of
Muslims in this country, and this Court would be well advised to leave such
a practice of faith, to be determined in the manner as was considered fit by
those who were governed thereby. A belief, according to learned senior
counsel, which is practiced for 1400 years, is a matter of faith, and is
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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:
“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
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resolutions in the meeting held on 15 th 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.
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.
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99. Mr. Raju Ramachandran, Senior Advocate, entered appearance on
behalf of Jamiat Ulema-i-Hind, i.e., respondent no.1 in Suo Motu Writ
Petition (Civil) No.2 of 2015 and respondent no.9 in Writ Petition (Civil)
No.118 of 2016. At the beginning of his submissions, learned senior
counsel stated, that he desired to endorse each one of the submissions
advanced before this Court by Mr. Kapil Sibal, Senior Advocate. We
therefore hereby record the aforesaid contention of learned senior counsel.
100. In addition to the above, it was submitted, that the cause raised by
the petitioner (and others) before this Court was clearly frivolous. It was
submitted, that under the Muslim ‘personal law’ – ‘Shariat’, parties at the
time of executing ‘nikahnama’ (marriage deed) are free to incorporate terms
and conditions, as may be considered suitable by them. It was submitted,
that it was open to the wife, at the time of executing ‘nikahnama’, to provide
therein, that her husband would not have the right to divorce her through a
declaration in the nature of ‘talaq-e-biddat’. It was therefore submitted,
that it was clearly misconceived for the petitioner to approach this Court to
seek a declaration against the validity of ‘talaq-e-biddat’. Alternatively, it
was contended, that after the enactment of the Special Marriage Act, 1954,
all citizens of India whether male or female, irrespective of the faith they
professed, have the option to be governed by the provisions of the said Act,
instead of their own ‘personal law’. It was therefore contended, that
spouses belonging to a particular religious denomination, had the choice to
opt for a secular and non-religious law, namely, the Special Marriage Act,
1954, and such of the parties who accept the choice (even if they profess
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the Muslim religion), would automatically escape from all religious
practices, including ‘talaq-e-biddat’. It was therefore contended, that such
of the couples who married in terms of their ‘personal law’, must be deemed
to have exercised their conscious option to be regulated by the ‘personal
law’, under which they were married. Having exercised the aforesaid
option, it was submitted, that it was not open to a Muslim couple to then
plead, against the practice of ‘talaq-e-biddat’. It was submitted, that when
parties consent to marry, their consent does not extend to the choice of the
person with reference to whom the consent is extended, but it also implicitly
extends to the law by which the matrimonial alliances are to be regulated.
If the consent is to marry in consonance with the ‘personal law’, then the
rigours of ‘personal law’ would regulate the procedure for dissolution of
marriage. And likewise, if the consent is to marry under the Special
Marriage Act, 1954, the consent is to be governed by the provisions of the
aforesaid legislation. In such a situation, it was submitted, that a person,
who had consciously opted for the matrimonial alliance under ‘personal law’
cannot complain, that the ‘personal law’ was unfavourable or
discriminatory. It was submitted, that in the above view of the matter, the
very filing of the instant petition before this Court, and the support of the
petitioner’s cause by those who have been impleaded, or had appeared to
represent the petitioner’s cause, must be deemed to be wholly misconceived
in law.
101. The second submission advanced at the hands of the learned senior
counsel, was that the issues raised by the petitioner with reference to the
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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
India44, 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.”
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.”
44
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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.
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
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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-e-biddat’ would be sinful, as per the injunction of the Quran, in ‘sura’
2, Al Baqara Ayah 230. The same is reproduced hereunder:
“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
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pointd out, that High Courts have no such jurisdiction as has been
exercised by them on the subject of ‘talaq-e-biddat’. It was accordingly
asserted, that the above action constituted the creation of inroads into
‘personal law’ of Muslims, which stood protected under Article 25 of the
Constitution. In this behalf, it was also submitted, that while deciding the
issue whether a belief or a practice constituted an integral part of religion,
this Court held, that the above question needed to be answered on the basis
of the views of the followers of the faith, and none else. In order to support
his above submission, learned senior counsel, placed reliance on the Sardar
Syedna Taher Saifuddin Saheb case 28, 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
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 Board 45, 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
45
176
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 15 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.”
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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.46, 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-e-biddat’), were unsustainable in law, because the High Courts had
substituted their own views with reference to their understanding of
‘talaq-e-biddat’. It was also pointed out, that supplanting of the views of
one of the schools on the beliefs of the other four schools, of Sunni
Muslims, with reference to ‘talaq-e-biddat’, was in clear breach of the
understanding of Muslims.
106. Learned senior counsel also disputed the reliance on International
Conventions by all those who had assisted this Court on behalf of the
petitioner. In this behalf, it was pointed out, that reliance on International
46
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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
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
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(-for details, refer to Part-5 – Abrogation of the practice of ‘talaq-e-biddat’ by
legislation, the world over, in Islamic, as well as, non-Islamic States). In
this behalf, it was submitted, that ‘personal law’ of classes and sections of
the society and/or of religious denominations are sought to be protected by
the Constitution by raising them to the high position of fundamental rights.
It was accordingly asserted, that what was available to such classes and
sections of society, as also, to the religious denominations as a matter of
fundamental right under the Constitution, could not be negated, because
other countries had enacted legislations for such annulment. Further
more, it was submitted, that legislation is based on the collective will of the
residents of a particular country, and as such, the will of the residents of a
foreign country, cannot be thrust upon the will of the residents in India.
While adopting the position canvassed on behalf of learned senior counsel
who had preceded him, it was pointed out, that it was open to the
legislature in India, to likewise provide for such legislation, because entry 5
of the Concurrent List contained in the Seventh Schedule allows legislation
even with reference to matters governed by ‘personal law’. Additionally, it
was submitted, that provision in this behalf was available in Article 25(2)(b),
which provides that for espousing the cause of social welfare and reform it
was open to the legislature even to legislate on matters governed under
‘personal law’. It was therefore contended that all such submissions
advanced on behalf of the petitioners need to be ignored.
108. Mr. V. Giri, Senior Advocate, entered appearance on behalf of
Jamiat-ul-Ulama-i-Hind (represented by its General Secretary, 1 Bahadur
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Shah Zafar Marg, New Delhi) – respondent no.7 in Suo Motu Writ Petition
(Civil) No.2 of 2015 and respondent no.6 in Writ Petition (Civil) No. 118 of
2016. It would be relevant to mention, at the outset, that learned senior
counsel endorsed the submissions advanced by Mr. Kapil Sibal and Mr.
Raju Ramachandra, Senior Advocates, who had assisted this Court before
him. Learned senior counsel focused his contentions, firstly to the
challenge raised to the validity of Section 2 of the Muslim Personal Law
(Shariat) Application Act, 1937, insofar as, it relates to ‘talaq-e-biddat’ on
the ground, that the same being unconstitutional, was unenforceable.
Learned senior counsel, in order to raise his challenge, first and foremost,
drew our attention to Sections 2 and 3 of the Muslim Personal Law (Shariat)
Application Act, 1937 (-for details, refer to Part-4 – Legislation in India, in
the field of Muslim ‘personal law’). It was submitted, that Section 2
aforesaid, commenced with a non obstante clause. It was pointed out, that
the aforesaid non obstante clause was referable only to amplify the exclusion
of such customs and usages, as were contrary to Muslim ‘personal law’ –
‘Shariat’. It was submitted, that reference was pointedly made only to such
customs and usages as were not in consonance with the Muslim ‘personal
law’ – ‘Shariat’. It was asserted, that the mandate of Section 2 was aimed at
making Muslim ‘personal law’ – ‘Shariat’ as “the rule of decision”, even
when customs and usages were to the contrary. It was sought to be
explained, that the Shariat Act neither defined nor expounded, the
parameters of the same, with reference to subjects to which Sections 2 and
3 were made applicable. It was therefore submitted, that the enactment
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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-Ulema-i-Hind had
supported the demand of the applicability of the Muslim ‘personal law’ –
‘Shariat’, for adjudication of disputes amonst Muslims, and had urged, that
custom and usage to the contrary, should not have an overriding effect. It
was pointed out, that this could be done only because Muslim ‘personal law’
– ‘Shariat’ was in existence and was inapplicable to the adjudication of
disputes amongst Muslims, even prior to the above enactment in 1937.
Understood in the aforesaid manner, it was submitted, that Muslim
‘personal law’ as a body of law, was only perpetuated, by the Shariat Act. It
was submitted, that the Muslim ‘personal law’ had not been subsumed by
the statute nor had the 1937 Act codified the Muslim ‘personal law’. It was
submitted, that the 1937 legislation was only statutorily declared that the
Muslim ‘personal law’, as a set of rules, would govern the Muslims in India,
and that, it would be the Muslim ‘personal law’ that would have an
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overriding effect over any custom or usage to the contrary. It was therefore
reiterated, that the legislature which enacted the Muslim Personal Law
(Shariat) Application Act, 1937, neither modified nor amended even in a
small measure, the Muslim ‘personal law’ applicable to the Muslims in
India, nor did the legislature while enacting the above enactment,
subsumed the Muslim ‘personal law’, and therefore, the character of the
Muslim ‘personal law’ did not undergo a change on account of the
enactment of the Muslim Personal Law (Shariat) Application Act, 1937.
According to learned senior counsel, the Muslim ‘personal law’ did not
metamorphized into a statute, and as such, the rights and duties of
Muslims in India continued to be governed even after the enactment of the
Shariat Act, as before. It was pointed out, that the Shariat Act did not
substitute, nor did it provide for any different set of rights and obligations
other than those which were recognized and prevalent as Muslim ‘personal
law’ – ‘Shariat’. As such, it was contended, that it was wholly unjustified to
assume, that Muslim ‘personal law’ – ‘Shariat’ was given statutory effect,
through the Shariat Act. It was therefore submitted that a challenge to the
validity of Section 2 of the above enactment, so as to assail the validity of
‘talaq-e-biddat’ as being contrary to the fundamental rights contained in
Part III of the Constitution, was an exercise in futility. Insofar as the
instant assertion is concerned, learned senior counsel advanced two
submissions – firstly, that Section 2 of the Muslim Personal Law (Shariat)
Application Act, 1937 did not by itself bring about any law providing for
rights and obligations to be asserted and discharged by the Muslims as a
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community, for the simple reason, that it only reaffirmed the perpetuieties
of the Muslim ‘personal law’ – ‘Shariat’, and as such, the rights and
obligations of persons which were subjected to Muslim ‘personal law’ –
‘Shariat’, continued as they existed prior to the enactment of the Shariat
Act. And secondly, the Muslim ‘personal law’ – ‘Shariat’, was neither
transformed nor metamorphized by the Shariat Act, in the nature of
crystalised rules and regulations, and as such, even if Section 2 of the
Muslim Personal Law (Shariat) Application Act, 1937 was struck down, the
same would automatically revive the Muslim ‘personal law’ – ‘Shariat’, in
view of the mandate contained in Article 25 of the Constitution.
Accordingly, it was pointed out, that the parameters of challenge, as were
applicable to assail a statutory enactment, would not be applicable in the
matter of assailing the Muslim ‘personal law’ – ‘Shariat’. It was also the
contention of learned senior counsel, that under Article 25(1) of the
Constitution the right to freely profess, practice and propagate religion, was
a universal right, guaranteed to every person, to act in affirmation of his
own faith. It was submitted, that the above ambit was the core of the
secular nature of the Indian Constitution. It was accordingly pointed out,
that the confines of the rights protected under Article 25(1), could be
assailed on limited grounds of public order, morality and health, and also if,
the provisions of Part III – Fundamental Rights, of the Constitution were
breached.
109. It was submitted, that a breach of the provisions contained in Part
III – Fundamental Rights under the Constitution, could only be invoked
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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
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
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issues canvassed by other learned counsel who had appeared before them.
The submissions advanced by them, have already been recorded above. For
reasons of brevity, it is not necessary for us to record the same submission
once again, in the names of learned counsel referred to above. All that
needs to be mentioned is, that we have taken due notice of the nuances
pointed out, and their emphasis on different aspects of the controversy.
Part-9.
Consideration of the rival contentions, and our conclusions:
112. During the course of our consideration, we will endeavour to
examine a series of complicated issues. We will need to determine, the legal
sanctity of ‘talaq-e-biddat’ – triple talaq. This will enable us to ascertain,
whether the practice of talaq has a legislative sanction, because it is the
petitioner’s case, that it is so through express legislation (-the Muslim
Personal Law (Shariat) Application Act, 1937). But the stance adopted on
behalf of those contesting the petitioner’s claim is, that its stature is that of
‘personal law’, and on that account, the practice of ‘talaq-e-biddat’ has a
constitutional protection.
113. Having concluded one way or the other, we will need to determine
whether divorce by way of ‘talaq-e-biddat’ – triple talaq, falls foul of Part III –
Fundamental Rights of the Constitution (this determination would be
subject to, the acceptance of the petitioner’s contention, that the practice
has statutory sanction). However, if We conclude to the contrary, namely,
that the ‘talaq-e-biddat’ – triple talaq, has the stature of ‘personal law’, We
will have to determine the binding effect of the practice, and whether it can
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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
‘talaq-e-biddat’ – triple talaq, violates the acceptable norms of “… public
order, morality and health and to the other provisions …” of Part III of the
Constitution (–for that, is the case set up by the petitioner). Even if the
conclusions after the debate travelling the course narrated in the foregoing
paragraph does not lead to any fruitful results for the petitioner’s cause, it
is their case, that the practice of ‘talaq-e-biddat’ being socially repulsive
should be declared as being violative of constitutional morality – a concept
invoked by this Court, according to the petitioner, to interfere with on the
ground that it would serve a cause in larger public interest. The petitioners’
cause, in the instant context is supported by the abrogation of the practice
of ‘talaq-e-biddat’, the world over in countries with sizeable Muslim
populations including theocratic Islamic States. The following examination,
shall traverse the course recorded herein above.
I. Does the judgment of the Privy Council in the Rashid Ahmad case,
upholding ‘talaq-e-biddat’, require a relook?
115. It would not be necessary for this debate – about the validity of
‘talaq-e-biddat’ under the Muslim ‘personal law’ – ‘Shariat’, to be prolonged
or complicated, if the decision rendered by the Privy Council, in the Rashid
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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 case 1 is of
extreme significance, because Anisa Khatun – the erstwhile wife and her
former husband Ghyas-ud-din had continued to cohabit and live together
with her husband, for a period of fifteen years, after the pronouncement of
‘talaq-e-biddat’. During this post divorce cohabitation, five children were
born to Anisa Khatun, through Ghiyas-ud-din. And yet, the Privy Council
held, that the marital relationship between the parties had ceased
forthwith, on the pronouncement of ‘talaq-e-biddat’ – triple talaq. The Privy
Council also held, that the five children born to Anisa Khatun, could not be
considered as the legitimate children of Ghyas-ud-din, and his erstwhile
wife. The children born to Anisa Khatun after the parties stood divorced,
were therefore held as disentitled to inherit the property of Ghyas-ud-din.
The judgment in the Rashid Ahmad case 1 was rendered in 1932. The
asserted statutory status of Muslim ‘personal law’ (as has been canvassed
by the petitioners), emerged from the enactment of the Muslim Personal
Law (Shariat) Application Act, 1937. The ‘Shariat’ Act expressly provided,
that the Muslim ‘personal law’ – ‘Shariat’, would constitute “the rule of
decision”, in causes where the parties were Muslim. It is not in dispute,
that besides other subjects, consequent upon the enactment of the Shariat
Act, dissolution of marriage amongst Muslims, by way of ‘talaq’, would also
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have to be in consonance with the Muslim ‘personal law’ – ‘Shariat’. As
noticed herein above, ‘talaq-e-biddat’ is one of the forms of dissolution of
marriage by ‘talaq’, amongst Muslims. According to the petitioners case,
the issue needed a fresh look, of the conferment of statutoty status to
Muslim ‘personal law’ – ‘Shariat’. It was submitted, that after having
acquired statutory status, the questions and subjects (including
‘talaq-e-biddat’), would have to be in conformity (-and not in conflict), with
the provisions of Part III – Fundamental Rights, of the Constitution.
Needless to mention, that all these are important legal questions, requiring
examination.
116. In our considered view, the matter would most certainly also require
a fresh look, because various High Courts, having examined the practice of
divorce amongst Muslims, by way of ‘talaq-e-biddat’, have arrived at the
conclusion, that the judgment in the Rashid Ahmad case 1 was rendered on
an incorrect understanding, of the Muslim ‘personal law’ – ‘Shariat’.
117. If the Muslim Personal Law (Shariat) Application Act, 1937, had
incorporated the manner in which questions regarding intestate succession,
special property of females including personal property inherited or
obtained under contract or gift or matters such as marriage, dissolution of
marriage, including talaq, ila, jihar, lian, khula and mubaraat,
maintenance, dower, guardianship, gifts, trusts and trust properties, and
wakfs (-as in Section 2 thereof), had to be dealt with, as per Muslim
‘personal law’ – ‘Shariat’ according to the petitioners, it would be quite a
different matter. All the same, the Shariat Act did not describe how the
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above questions and subjects had to be dealt with. And therefore, for
settlement of disputes amongst Muslims, it would need to be first
determined, what the Muslim ‘personal law’, with reference to the
disputation, was. Whatever it was, would in terms of Section 2 of the 1937
Act, constitute “the rule of decision”. After the Privy Council had rendered
the judgment in the Rashid Ahmad case 1, 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. Sowramma47, wherein, the High Court examined the
above decision of the Privy Council in the Rashid Ahmad case 1, 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
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
47
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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-e-biddat’, under the Muslim ‘personal law’ – ‘Shariat’, this Court in
Fuzlunbi v. K. Khader Vali48, 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
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 case 1, needed a
relook.
48
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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 case 1). In doing so, it
relied on ‘hadiths’, ‘ijma’ and ‘qiyas’. The issue was again examined, by a
Division Bench of the Gauhati High Court, in the Mst. Rukia Khatun case 3.
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 case 5
(authored by, Justice A. Muhamed Mustaque) highlighted the woeful
condition of Muslim wives, because of the practice of ‘talaq-e-biddat’, and
recorded its views on the matter.
120. In view of the position expressed hereinabove, we are of the
considered view, that the opinion expressed by the Privy Council with
reference to ‘talaq-e-biddat’, in the Rashid Ahmad case 1, holding that
‘talaq-e-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
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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
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
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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-e-biddat’ as unacceptable in law, the Court’s attention was invited to
the fact, that the present controversy needed a similar intervention, as had
been adopted for doing away with similar patriarchal, irregular and sinful
practices amongst Hindus. In this behalf, reference was made to the
practices of ‘Sati’, ‘Devadasi’ and ‘Polygamy’.
123(i). We may only highlight, that ‘Sati’ was commonly described as –
widow burning. The practice required a widow to immolate herself, on her
husband’s pyre (or alternatively, to commit suicide shortly after her
husband’s death). ‘Sati’ just like ‘talaq-e-biddat’, had been in vogue since
time immemorial. It is believed, that the practice of ‘Sati’ relates back to the
1st century B.C.. On the Indian sub-continent, it is stated to have gained
popularity from the 10th century A.D. The submission was, that just as
‘Sati’ had been declared as unacceptable, the practice of ‘talaq-e-biddat’
should likewise be declared as unacceptable in law.
(ii) ‘Devadasi’ translated literally means, a girl dedicated to the worship
and service of a diety or temple. The surrender and service of the
‘Devadasi’, in terms of the practice, was for life. This practice had also been
in vogue since time immorial, even though originally ‘Devadasis’ had a high
status in society, because the Rulers/Kings of the time, were patrons of
temples. During British rule in India, the Rulers backing and support to
temples, waned off. It is believed, that after funds from the Rulers stopped,
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to sustain themselves ‘Devadasis’ used dancing and singing as a means of
livelihood. They also commenced to indulge in prostitution. The life of the
‘Devadasi’, thereupon came into disrepute, and resulted in a life of
destitution. The practice had another malady, tradition forbade a ‘Devadasi’
from marrying.
(iii) So far as ‘polygamy’ is concerned, we are of the view that polygamy
is well understood, and needs no elaboration.
124. We are of the view, that the practices referred to by the petitioners,
to support their claim, need a further examination, to understand how the
practices were discontinued. We shall now record details, of how these
practices, were abolished:
(i) Insofar as the practice of ‘Sati’ is concerned, its practice reached
alarming proportion between 1815-1818, it is estimated that the incidence
of ‘Sati’ doubled during this period. A campaign to abolish ‘Sati’ was
initiated by Christian missionaries (- like, William Carey), and by Hindu
Brahmins (-like, Ram Mohan Roy). The provincial Government of Bengal
banned ‘Sati’ in 1829, by way of legislation. This was then followed by
similar laws by princely States in India. After the practice was barred by
law, the Indian Sati Prevention Act, 1988 was enacted, which crimnalised
any type of aiding, abetting or glorifying the practice of ‘Sati’.
(ii) Insofar as the practice of ‘Devadasi’ is concerned, soon after the end
of British rule, independent India passed the Madras Devadasi’s (Prevention
of Dedication) Act (-also called the Tamil Nadu Devadasis (Prevention of
Dedication Act) on 09.10.1947. The enactment made prostitution illegal.
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The other legislations enacted on the same issue, included the 1934
Bombay Devadasi Protection Act, the 1957 Bombay Protection (Extension)
Act, and the Andhra Pradesh Devadasi (Prohibition of Dedication) Act of
1988. It is therefore apparent, that the instant practice was done away
with, through legislation.
(iii) The last of the sinful practices brought to our notice was ‘polygamy’.
Polygamy was permitted amongst Hindus. In 1860, the Indian Penal Code
made ‘polygamy’ a criminal offence. The Hindu Mariage Act was passed in
1955. Section 5 thereof provides, the conditions for a valid Hindu marriage.
One of the conditions postulated therein was, that neither of the parties to
the matrimonial alliance should have a living spouse, at the time of the
marriage. It is therefore apparent, that the practice of polygamy was not
only done away with amongst Hindus, but the same was also made
punishable as a criminal offence. This also happened by legislation.
125. The factual and the legal position noticed in the foregoing paragraph
clearly brings out, that the practices of ‘Sati’, ‘Devadasi’ and ‘polygamy’ were
abhorrent, and could well be described as sinful. They were clearly
undesirable and surely bad in theology. It is however important to notice,
that neither of those practices came to be challenged before any court of
law. Each of the practices to which our pointed attention was drawn, came
to be discontinued and invalidated by way of legislative enactments. The
instances cited on behalf of the petitioners cannot therefore be of much
avail, with reference to the matter in hand, wherein, the prayer is for
judicial intervention.
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126. We would now venture to attempt an answer to the simple prayer
made on behalf of the petitioners, for a summary disposal of the petitioner’s
cause, namely, for declaring the practice of ‘talaq-e-biddat’, as unacceptable
in law. In support of the instant prayer, it was submitted, that it could not
be imagined, that any religious practice, which was considered as a sin, by
the believers of that very faith, could be considered as enforceable in law. It
was asserted, that what was sinful could not be religious. It was also
contended, that merely because a sinful practice had prevailed over a long
duration of time, it could best be considered as a form of custom or usage,
and not a matter of any binding faith. (This submission, is being dealt with
in part IV, immediately hereinafter). It was submitted, that no court should
find any difficulty, in declaring a custom or usage – which is sinful, as
unacceptable in law. It was also the pointed assertion on behalf of the
petitioners, that what was sacrilegious could not ever be a part of Muslim
‘personal law’ – ‘Shariat’. The manner in which one learned counsel
expressed the proposition, during the course of hearing, was very
interesting. We may therefore record the submission exactly in the manner
it was projected. Learned counsel for evoking and arousing the Bench’s
conscience submitted, “if something is sinful or abhorrent in the eyes of
God, can any law by man validate it”. It seems to us, that the suggestion
was, that ‘talaq-e-biddat’ did not flow out of any religious foundation, and
therefore, the practice need not be considered as religious at all. One of the
non-professional individuals assisting this Court on behalf of the
petitioners’, went to the extent of stating, that the fear of the fact, that the
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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
self-effacing, and continued to be a cause of insecurity, for the entire
duration of the matrimonial life. It was pointed out, that this practice
violated the pious and noble prescripts of the Quran. It was highlighted,
that even those who had appeared on behalf of the respondents, had
acknowledged, that the practice of ‘talaq-e-biddat’ was described as
irregular and sinful, even amongst Muslims. It was accordingly asserted,
that it was accepted by one and all, that the practice was bad in theology. It
was also acknowledged, that it had no place in modern day society.
Learned counsel therefore suggested, that triple talaq should be simply
declared as unacceptable in law, and should be finally done away with.
127. A simple issue, would obviously have a simple answer. Irespective
of what has been stated by the learned counsel for the rival parties, there
can be no dispute on two issues. Firstly, that the practice of ‘talaq-e-biddat’
has been in vogue since the period of Umar, which is roughly more than
1400 years ago. Secondly, that each one of learned counsel, irrespective of
who they represented, (-the petitioners or the respondents), acknowledged
in one voice, that ‘talaq-e-biddat’ though bad in theology, was considered as
“good” in law. All learned counsel representing the petitioners were also
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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 case 4, and finally, on account of the
decision of a Single Judge of the Kerala High Court in the Nazeer case 5.
129. Even though inconsequential, and the same can never – never be
treated as a relevant consideration, it needs to be highlighted, that each one
of the Judges who authored the judgments rendered by the High Courts
referred to above, professed the Muslim religion. They were Sunni Muslims,
belonging to the Hanafi school. The understanding by them, of their
religion, cannot therefore be considered as an outsider’s view. In the four
judgments referred to above, the High Courts relied on ‘hadiths’ to support
and supplement the eventual conclusion drawn. There is certainly no room
for any doubt, that if ‘hadiths’ relied upon by the High Courts in their
respective judgments, validly affirmed the position expressed with reference
to ‘talaq-e-biddat’, there would be no occasion for us to record a view to the
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contrary. It is in the aforestated background, that we proceed to examine
the ‘hadiths’ relied upon by learned counsel appearing for the rival parties,
to support their individual claims.
130. A number of learned counsel who had appeared in support of the
petitioners’ claim, that the practice of ‘talaq-e-biddat’ was un-Islamic, and
that this Court needed to pronounce it as such, invited our attention to a
set of ‘hadiths’, to substantiate their position. The assertions made on
behalf of the petitioners were opposed, by placing reliance on a different set
of ‘hadiths’. Based thereon, we will endeavour to record a firm conclusion,
whether ‘talaq-e-biddat’, was or was not, recognized and supported by
‘hadiths’.
131. First of all, we may refer to the submissions advanced by Mr. Amit
Singh Chadha, Senior Advocate, who had painstakingly referred to the
‘hadiths’ in the four judgments of the High Courts (-for details, refer to
Part-6 – Judicial pronouncements, on the subject of ‘talaq-e-biddat’).
Insofar as the Jiauddin Ahmed case 2 is concerned, details of the entire
consideration have been narrated in paragraph 31 hereinabove. Likewise,
the consideration with reference to the Rukia Khatun case 3 has been
recorded in paragraph 32. The judgment in the Masroor Ahmed case 4 has
been dealt with in paragraph 33. And finally, the Nazeer case 5 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
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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
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
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addition to the above, learned senior counsel drew our attention, to Sunan
Bayhaqi 7/547 referred to on behalf of the AIMPLB, so as to point out, that
the same was far removed from the time of Prophet Mohammad. As against
the above, it was submitted, that the ‘hadiths’ of Bhukahri (published by
Darussalam, Saudi Arabia), also relied upon by the AIMPLB, were obvious
examples of a clear distortion. Moreover, it was submitted, that the
‘hadiths’, relied upon by the AIMPLB were not found in the Al Bukhari
Hadiths. It was therefore submitted, that reliance on the ‘hadiths’ other
than those noticed in the individual judgments referred to hereinabove,
would be unsafe (-for details, refer to paragraph 42).
133. Learned senior counsel also asserted, that as a historical fact Shia
Muslims believe, that during the Prophet’s time, and that of the First Caliph
– Abu Baqhr, and the Second Caliph – Umar, pronouncements of talaq by
three consecutive utterances were treated as one. (Reference in this behalf
was made to “Sahih Muslim” compiled by Al-Hafiz Zakiuddin Abdul-Azim
Al-Mundhiri, and published by Darussalam). Learned senior counsel also
placed reliance on “The lawful and the prohibited in Islam” by Al-Halal Wal
Haram Fil Islam (edition – August 2009). It was pointed out, that the
instant transcript was of Egyptian origin, and further emphasized, that the
same therefore needed to be accepted as genuine and applicable to the
dispute, because Egypt was primarily dominated by Sunni Muslims
belonging to the Hanafi school. In the above publication, it was submitted,
that the practice of instant triple talaq was described as sinful. Reference
was then made to “Woman in Islamic Shariah” by Maulana Wahiduddin
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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 19 th century. Relying
upon a prominent Hanafi Muslim scholar, it was affirmed, that Abu Hanifa
himself had declared, that it was forbidden to give three divorces at the
same time, and whoever did so was a sinner (-for details, refer to paragraph
42). Based on the aforestated text available in the form of ‘hadiths’, it was
submitted, that the position adopted by the AIMPLB in its pleadings, was
clearly unacceptable, and need to be rejected. And that, the coclusions
drawn by the four High Courts referred to above, need to be declared as a
valid determination on the subject of ‘talaq-e-biddat’, in exercise of this
Court’s power under Article 141 of the Constitution.
134. Mr. Kapil Sibal, appearing on behalf of the AIMPLB, contested the
submissions advanced on behalf of the petitioners. In the first instance,
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learned senior counsel placed reliance on verses from the Quran. Reference
was made to Quran, Al-Hashr 59:71; Quran, Al-Anfal 8:20; Quran, Al-Nisa
4:64; Quran, Al-Anfal 8:13; Quran, Al-Ahzab 33:36; and Quran, Al-Nisa
4:115 (-for details, refer to paragraph 86 above). Pointedly on the subject of
triple talaq, and in order to demonstrate, that the same is not in
consonance with the Quranic verses, the Court’s attention was drawn to
Quran, Al-Baqarah 2:229; Quran, Al-Baqarah 2:229 and 230; Quran,
Al-Baqarah 2:232; and Quran, Al-Talaq 65:1 (-for details, refer to paragraph
86 above). Besides the aforesaid, learned senior counsel invited this Court’s
attention to the statements attributed to the Prophet Mohammad, with
reference to talaq. On this account, the Court’s attention was drawn to
Daraqutni, Kitab Al-Talaq wa Al-Khula wa Al-Aiyla, 5/23, Hadith number:
3992; Daraqutni, 5/81; Kitab al-Talaq wa Al-Khulawa aI-Aiyala, Hadith
number: 4020; Sunan Bayhaqi, 7/547, Hadith number: 14955; AI-Sunan
AI-Kubra Iil Bayhaqi, Hadith number: 14492; and Sahi al-Bukhari Kitab
al-Talaq, Hadith number: 5259 (-for details, refer to paragraph 86 above).
Representing the AIMPLB, learned senior counsel, also highlighted ‘hadiths’
on the subject of ‘talaq’ and drew our attention to Sunan Abu Dawud, Bad
Karahiya al-Talaq, Hadith no: 2178; Musannaf ibn Abi Shaybah, Bab man
kara an yatliq aI rajal imratahuu thalatha fi maqad wahadi wa ajaza
dhalika alayhi, Hadith number: 18089; (Musannaf ibn Abi Shayba, Kitab
al-Talaq, bab fi al rajal yatlaqu imratahuu miata aw alfa, Hadith number:
18098; Musannaf Abd al-Razzaq, Kitab al-talaq, Hadith number 11340;
Musannaf ibn Abi Shayba, Kitab aI-Talaq, Hadith no: 18091; Musannaf Ibn
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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 He is a Qadiyani. Mirza Ghulam
(referred to at paras 7, 11, Ahmed (founder of the Qadiani
12 and 13 of the judgment) 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 case 3
Sl. Reference Comments
No.
(i) Authorities in this judgment are
identical to the above mentioned
judgment of Jiauddin Ahmed v.
Anwara Begum.
3. The Masroor Ahmed case4
Sl. Reference Comments
No.
(i) Mulla (Referred at the Approves the proposition that
footnote at page 153 of the triple talaq is sinful, yet effective
judgment) as an irrevocable divorce.
4. The Nazeer case5.
Sl. No.Reference Comments
(i) Basheer Ahmad Mohyidin He wrote a commentary on the
(Referred at paras 1 and 6 Quran entitled as Quran: The
of the judgment) Living Truth, however the extract
relied upon in the decision does
not discuss triple talaq.
205
paras 1 and 8 of the Quran entitled as Tafsir Ibn
judgment) 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 He was a Professor of Law, Delhi
(Referred in para 6 of the University.
judgment) 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 He regarded triple talaq as
(Referred in para 8 of the against God’s law. It is submitted
judgment) that he was a follower of the
Ahl-e-Hadith School.
(v) Mahmoud Rida Murad He authored the book entitled as
(Referred in para 8 of the Islamic Digest of Aqeedah and
judgment) 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 He is a scholar of the Hanafi
(Referred in para 11 of the School. Though the passages
judgment) 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.
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(vii) Dr. Abu Ameenah Bilal He authored the book ‘Evolution
Philips (Referred in para 19 of Fiqh’. He states that Caliph
of the judgment) 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 He was of the view that Caliph
(Referred in para 23 of the Umar introduced triple talaq in
judgment) order to discourage abuse of
divorce. He is a professor of law.
It was the submitted on behalf of the AIMPLB, that the views of persons
who are not Sunnis, and those who did not belong to the Hanafi school,
could not have been validly relied upon. It was submitted, that reliance on
Maulana Muhammad Ali was improper because he was a Qadiyani, and
that Muslims do not consider the Qadiyani sect to be a part of the Islamic
community. Likewise, it was submitted, that reference to Basheer Ahmad
Mohyidin was misplaced, as the commentary authored by him, did not deal
with the concept of ‘talaq-e-biddat’. Reference to Tafsir Ibn Kathir was
stated to be improper, as he belonged to the Ahl-e-Hadith/Salafi school,
which school does not accept triple talaq. It was submitted, that Dr. Tahir
Mahmood was a Professor of Law at the Delhi University, and his views
must be treated as personal to him, and could not be elevated to the
position of ‘hadiths’. It was pointed out, that Sheikh Yusuf al-Qaradawi,
was a follower of Ahl-e-Hadith school, and therefore, his views could not be
taken into consideration. So also, it was submitted, that Mahmoud Rida
Murad was a follower of Ahl-e-Hadith/Salafi school. Reference to Sayyid
Abdul Ala Maududi, it was pointed out, was improperly relied upon,
because the view expressed by the above scholar was that “three
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pronouncements of talaq could be treated as one, depending on the
‘intention’ of the husband”. This position, according to learned senior
counsel, does not support the position propounded on behalf of the
petitioners, because if the ‘intention’ was to make three pronouncements, it
would constitute a valid ‘talaq’. With reference to Dr. Abu Ameenah Bilal
Philips, it was submitted, that he was also a follower of the
Ahl-e-Hadith/Salafi school. Last of all, with reference to Mohammed
Hashim Kamali, it was pointed out, that he was merely a Professor of Law,
and the views expressed by him should be considered as his personal views.
It was accordingly asserted, that supplanting the views of other schools of
Sunni Muslims, with reference to the practice of ‘talaq-e-biddat’ by the
proponents of the Hanafi school, and even with the beliefs of Shia Muslims,
was a clear breach of a rightful understanding of the school, and the
practice in question.
136. Based on the submissions advanced on behalf of the AIMPLB, as
have been noticed hereinabove, it was sought to be emphasized, that such
complicated issues relating to norms applicable to a religious sect, could
only be determined by the community itself. Learned counsel cautioned,
this Court from entering into the thicket of the instant determination, as
this Court did not have the expertise to deal with the issue.
137. Having given our thoughtful consideration, and having examined
the rival ‘hadiths’ relied upon by learned counsel for the parties, we have
no other option, but to accept the contention of learned senior counsel
appearing on behalf of the AIMPLB, and to accept his counsel, not to enter
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into the thicket of determining (on the basis of the ‘hadiths’ relied upon)
whether or not ‘talaq-e-biddat’ – triple talaq, constituted a valid practice
under the Muslim ‘personal law’ – ‘Shariat’. In fact, even Mr. Salman
Khurshid appearing on behalf of the petitioners (seeking the repudiation of
the practice of the ‘talaq-e-biddat’) had pointed out, that it was not the role
of a court to interprete nuances of Muslim ‘personal law’ – ‘Shariat’. It was
pointed out, that under the Muslim ‘personal law’, the religious head – the
Imam would be called upon to decipher the teachings expressed in the
Quran and the ‘hadiths’, in order to resolve a conflict between the parties.
It was submitted, that the Imam alone, had the authority to resolve a
religious conflict, amongst Muslims. It was submitted, that the Imam
would do so, not on the basis of his own views, but by relying on the verses
from the Quran, and the ‘hadiths’, and based on other jurisprudential tools
available, and thereupon he would render the correct interpretation. Mr.
Salman Khurshid, learned Senior Advocate also cautioned this Court, that
it was not its role to determine the true intricacies of faith.
138. All the submissions noted above, at the behest of the learned
counsel representing the AIMPLB would be inconsequential, if the judgment
rendered by this Court in the Shamim Ara case 12, can be accepted as
declaring the legal position in respect of ‘talaq-e-biddat’. Having given a
thoughtful consideration to the contents of the above judgment, it needs to
be recorded, that this Court in the Shamim Ara case 12 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
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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
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,
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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
self-serving 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.
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’?
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140. In the two preceding parts of our consideration, we have not been
able to persuade ourselves to disapprove and derecognize the practice of
‘talaq-e-biddat’. It may however still be possible for us, to accept the
petitioners’ prayer, if it can be concluded, that ‘talaq-e-biddat’ was not a
constituent of ‘personal law’ of Sunni Muslims belonging to the Hanafi
school. And may be, it was merely a usage or custom. We would, now
attempt to determine an answer to the above noted poser.
141. As a historical fact, ‘talaq-e-biddat’ is known to have crept into
Muslim tradition more than 1400 years ago, at the instance of Umayyad
monarchs. It can certainly be traced to the period of Caliph Umar – a senior
companion of Prophet Muhammad. Caliph Umar succeeded Abu Bakr
(632-634) as the second Caliph on 23.8.634. If this position is correct, then
the practice of ‘talaq-e-biddat’ can most certainly be stated to have
originated some 1400 years ago. Factually, Mr. Kapil Sibal had repeatedly
emphasized the above factual aspects, and the same were not repudiated by
any of learned counsel (-and private individuals) representing the
petitioner’s cause.
142. The fact, that the practice of ‘talaq-e-biddat’ was widespread can
also not be disputed. In Part-5 of the instant judgment – Abrogation of the
practice of ‘talaq-e-biddat’ by legislation, the world over, in Islamic, as well
as, non-Islamic States, we have dealt with legislations at the hands of Arab
States – Algeria, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libiya, Mrocco,
Sudan, Syria, Tunesia, United Arab Emirates, Yemen; we have also dealt
with legislations by South-east Asian States – Indonesia, Malaysia,
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Philippines; we have additionally dealt with legislations by sub-continental
States – Pakistan and Bangladesh. All these countries have legislated with
reference to - ‘talaq-e-biddat’, in one form or the other. What can certainly
be drawn from all these legislations is, that ‘talaq-e-biddat’ was a prevalent
practice amongst Muslims, in these countries. Had it not been so,
legislation would not have been required on the subject. It is therefore
clear that the practice of ‘talaq-e-biddat’ was not limited to certain areas,
but was widespread.
143. We have also extracted in the submissions advanced by learned
counsel representing the rival parties, ‘hadiths’ relied upon by them, to
substantiate their rival contentions. The debate and discussion amongst
Islamic jurists in the relevant ‘hadiths’ reveal, that the practice of triple
talaq was certainly, in vogue amongst Muslims, whether it was considered
and treated as irregular or sinful, is quite another matter. All were agreed,
that though considered as improper and sacrilegious, it was indeed
accepted as lawful. This debate and discussion in the Muslim community –
as has been presently demonstrated by the disputants during the course of
hearing, and as has been highlighted through articles which appeared in
the media (at least during the course of hearing), presumably by
knowledgeable individuals, reveal views about its sustenance. The only
debate in these articles was about the consistence or otherwise, of the
practice of ‘talaq-e-biddat’ – with Islamic values. Not that, the practice was
not prevalent. The ongoing discussion and dialogue, clearly reveal, if
nothing else, that the practice is still widely prevalent and in vogue.
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144. The fact, that about 90% of the Sunnis in India, belong to the
Hanafi school, and that, they have been adopting ‘talaq-e-biddat’ as a valid
form of divorce, is also not a matter of dispute. The very fact, that the issue
is being forcefully canvassed, before the highest Court of the land, and at
that – before a Constitution Bench, is proof enough. The fact that the
judgment of the Privy Council in the Rashid Ahmad case 1 as far back as in
1932, upheld the severance of the matrimonial tie, based on the fact that
‘talaq’ had been uttered thrice by the husband, demonstrates not only its
reality, but its enforcement, for the determination of the civil rights of the
parties. It is therefore clear, that amongst Sunni Muslims belonging to the
Hanafi school, the practice of ‘talaq-e-biddat’, has been very much
prevalent, since time immemorial. It has been widespread amongst
Muslims in countries with Muslim popularity. Even though it is considered
as irreligious within the religious denomination in which the practice is
prevalent, yet the denomination considers it valid in law. Those following
this practice have concededly allowed their civil rights to be settled thereon.
‘Talaq-e-biddat’ is practiced in India by 90% of the Muslims (who belong to
the Hanafi school). The Muslim population in India is over 13% (-about
sixteen crores) out of which 4-5 crores are Shias, and the remaining are
Sunnis (besides, about 10 lakhs Ahmadias) – mostly belonging to the Hanafi
school. And therefore, it would not be incorrect to conclude, that an
overwhelming majority of Muslims in India, have had recourse to the
severance of their matrimonial ties, by way of ‘talaq-e-biddat’ – as a matter
of their religious belief – as a matter of their faith.
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145. We are satisfied, that the practice of ‘talaq-e-biddat’ has to be
considered integral to the religious denomination in question – Sunnis
belonging to the Hanafi school. There is not the slightest reason for us to
record otherwise. We are of the view, that the practice of ‘talaq-e-biddat’,
has had the sanction and approval of the religious denomination which
practiced it, and as such, there can be no doubt that the practice, is a part
of their ‘personal law’.
V. Did the Muslim Personal Law (Shariat) Application Act, 1937 confer
statutory status to the subjects regulated by the said legislation?
146. ‘Personal law’ has a constitutional protection. This protection is
extended to ‘personal law’ through Article 25 of the Constitution. It needs
to be kept in mind, that the stature of ‘personal law’ is that of a
fundamental right. The elevation of ‘personal law’ to this stature came
about when the Constitution came into force. This was because Article 25
was included in Part III of the Constitution. Stated differently, ‘personal
law’ of every religious denomination, is protected from invasion and breach,
except as provided by and under Article 25.
147. The contention now being dealt with, was raised with the object of
demonstrating, that after the enactment of the Muslim Personal Law
(Shariat) Application Act, 1937, the questions and subjects covered by the
Shariat Act, ceased to be ‘personal law’, and got transformed into ‘statutory
law’. It is in this context, that it was submitted, by Ms. Indira Jaising,
learned senior counsel and some others, that the tag of ‘personal law’ got
removed from the Muslim ‘personal law’ – ‘Shariat’, after the enactment of
the Shariat Act, at least for the questions/subjects with reference to which
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the legislation was enacted. Insofar as the present controversy is
concerned, suffice it to notice, that the enactment included “… dissolution
of marriage, including talaq …” amongst the questions/subjects covered by
the Shariat Act. And obviously, when the parties are Muslims, ‘talaq’
includes ‘talaq-e-biddat’. The pointed contention must be understood to
mean, that after the enactment of the Shariat Act, dissolution of marriage
amongst Muslims including ‘talaq’ (and, ‘talaq-e-biddat’) had to be
considered as regulated through a State legislation.
148. Having become a part of a State enactment, before the Constitution
of India came into force, it was the submission of learned senior counsel,
that all laws in force immediately before the commencement of the
Constitution, would continue to be in force even afterwards. For the instant
assertion, reliance was placed on Article 372 of the Constitution. We may
only state at this juncture, if the first proposition urged by the learned
senior counsel is correct (that dissolution of marriage amongst Muslims
including ‘talaq’ was regulated statutorily after the 1937 Act), then the latter
part of the submission advanced, has undoubtedly to be accepted as
accurate.
149. We have already enumerated the relevant provisions of the Shariat
Act (-for details, refer to Part-4 – Legislation in India, in the field of Muslim
‘personal law’). A perusal of Section 2 thereof (extracted in paragraph 23
above) reveals, that on the questions/subjects of intestate succession,
special property of females, including personal property inherited or
obtained under contract or gift or any other provision of ‘personal law’,
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marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and
mubaraat, maintenance, dower, guardianship, gifts, trusts and trust
properties, and wakfs, “… the rule of decision …”, where the parties are
Muslims, shall be “… the Muslim Personal Law – Shariat. The submission
of the learned counsel representing the petitioners, in support of the instant
contention was, that since the “rule of the decision” inter alia with reference
to ‘talaq’ (-‘talaq-e-biddat’), was thereafter to be regulated in terms of the
Shariat Act, what was ‘personal law’ (-prior to the above enactment), came
to be transformed into ‘statutory law’. This, according to learned counsel
for the petitioners, has a significant bearing, inasmuch as, what was
considered as ‘personal law’ prior to the Shariat Act, became an Act of the
State. Having become an Act of the State, it was submitted, that it has to
satisfy the requirements of Part III – Fundamental Rights, of the
Constitution. This, it was pointed out, is indeed the express mandate of
Article 13(1), which provides that laws in force immediately before the
commencement of the Constitution, insofar as they are inconsistent with
the provisions of Part III of the Constitution, shall to the extent of such
inconsistency, be considered as void.
150. In order to support the issue being canvassed, it was submitted,
that no “rule of decision” can be violative of Part III of the Constitution. And
“rule of decision” on questions/subjects covered by the Shariat Act, would
be deemed to be matters of State determination. Learned senior counsel
was however candid, in fairly acknowledging, that ‘personal laws’ which
pertained to disputes between the family and private individuals (where the
217
State had no role), cannot be subject to a challenge on the ground, that they
are violative of the fundamental rights contained in Part III of the
Constitution. The simple logic canvassed by learned counsel was, that all
questions pertaining to different ‘personal laws’ amongst Muslims having
been converted into “rule of decision” could no longer be treated as private
matters between the parties, nor would they be treated as matters of
‘personal law’’. In addition, the logic adopted to canvass the above position
was, that if it did not alter the earlier position, what was the purpose of
bringing in the legislation (the Shariat Act).
151. On the assumption, that ‘personal law’ stood transformed into
‘statutory law’, learned senior counsel for the petitioners assailed the
constitutional validity of ‘talaq-e-biddat’, on the touchstone of Articles 14,
15 and 21 of the Constitution.
152. Mr. Kapil Sibal, learned senior counsel appearing for the AIMPLB,
drew our attention to the debates in the Legislative Assembly, whereupon,
the Muslim Personal Law (Shariat) Application Act, 1937 was enacted (for
details, refer to paragraph 94). Having invited our attention to the above
debates and more particularly to the statements of Abdul Qaiyum
(representing North-West Frontier Province), it was contended, that the
legislation under reference, was not enacted with the object of giving a
statutory status to the Muslim ‘personal law’ – ‘Shariat’. It was asserted,
that the object was merely to negate the effect of usages and customs. It
was pointed out, that even though Muslims were to be regulated under the
Muslim ‘personal law’ – ‘Shariat’, yet customs and usages to the contrary
218
were being given an overriding effect. To the extent that customs and
usages even of local tribes (-as also of local villages), were being given an
overriding position over Muslim ‘personal law’, in the course of judicial
determination, even where the parties were Muslims. It was therefore
asserted, that it would be wrong to assume, that the aim and object of the
legislators, while enacting the Shariat Act, was to give statutory status to
Muslim ‘personal law’ – ‘Shariat’. In other words, it was the contention of
learned senior counsel, that the Shariat Act should only be understood as
having negated customary practices and usages, which were in conflict with
the existing Muslim ‘personal law’ – ‘Shariat’.
153. Mr. V. Giri, learned senior counsel, supported the above contention
by placing reliance on Section 2 of the Muslim Personal Law (Shariat)
Application Act, 1937, on behalf of the AIMPLB. It was asserted, that
Section 2 has a non obstante clause. It was pointed out, that aforestated
non obstante clause was merely relatable to customs and usages. A perusal
of Section 2, according to learned senior counsel, would leave no room for
any doubt, that the customs and usages referred to in Section 2 of the
Shariat Act, were only such customs and usages as were in conflict with the
Muslim ‘personal law’ – ‘Shariat’. It was accordingly submitted, that the
object behind Section 2 of the Shariat Act was to declare the Muslim
‘personal law’ – ‘Shariat’, as the “rule of decision”, in situations where
customs and usages were to the contrary.
154. Learned senior counsel for the respondents desired us to accept
their point of view, for yet another reason. It was submitted, that the
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Muslim Personal Law (Shariat) Application Act, 1937, did not decide what
was, and what was not, Muslim ‘personal law’ – ‘Shariat’. It was therefore
pointed out, that it would be a misnomer to consider, that the Shariat Act,
legislated in the field of Muslim ‘personal law’ – ‘Shariat’ in any manner on
Muslim ‘personal law’ – ‘Shariat’. It was submitted, that Muslim ‘personal
law’ – ‘Shariat’ remained what it was. It was pointed out, that articles of
faith as have been expressed on the questions/subjects regulated by the
Shariat Act, have not been dealt with in the Act, they remained the same as
were understood by the followers of that faith. It was accordingly
contended, that the Muslim ‘personal law’ – ‘Shariat’, was not
introduced/enacted through the Shariat Act. It was also pointed out, that
the Shariat Act did not expound or propound the parameters on different
questions or subjects, as were applicable to the Sunnis and Shias, and their
different schools. It was accordingly submitted, that it would be a
misnomer to interpret the provisions of the Shariat Act, as having given
statutory status to different questions/subjects, with respect to ‘personal
law’ of Muslims. It was therefore contended, that the Muslim ‘personal law’
– ‘Shariat’ was never metamorphosed into a statute. It was therefore
contended, that it would be wholly improper to assume that Muslim
‘personal law’ – ‘Shariat’ was given statutory effect, through the Muslim
Personal Law (Shariat) Application Act, 1937.
155. Based on the above contentions, it was submitted, that the Muslim
Personal Law (Shariat) Application Act, 1937 cannot be treated as having
conferred statutory status on the Muslim ‘personal law’ – ‘Shariat’, and as
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such, the same cannot be treated as a statutory enactment, so as to be
tested for its validity in the manner contemplated under Article 13(1) of the
Constitution.
156. We have given our thoughtful consideration to the submissions
advanced at the hands of learned counsel for the rival parties. Having
closely examined Section 2 of the Muslim Personal Law (Shariat) Application
Act, 1937, we are of the view, that the limited purpose of the aforesaid
provision was to negate the overriding effect of usages and customs over the
Muslim ‘personal law’ – ‘Shariat’. This determination of ours clearly
emerges even from the debates in the Legislative Assembly before the
enactment of Muslim Personal Law (Shariat) Application Act, 1937. In fact,
the statements of H.M. Abdullah (representing West Central Punjab) and
Abdul Qaiyum (representing North-West Frontier Province), leave no room
for any doubt, that the objective sought to be achieved by the ‘Shariat’ was
inter alia to negate the overriding effect on customs and usages over the
Muslim ‘personal law’ – ‘Shariat’. The debates reveal that customs and
usages by tribals were being given overriding effect by courts while
determining issues between Muslims. Even usages and customs of
particular villages were given overriding effect over Muslim ‘personal law’ –
‘Shariat’. We are also satisfied to accept the contention of the learned
senior counsel, that a perusal of Section 2 and the non obstante clause used
therein, has that effect. The Shariat Act, in our considered view, neither
lays down nor declares the Muslim ‘personal law’ – ‘Shariat’. Not even, on
the questions/subjects covered by the legislation. There is no room for any
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doubt, that there is substantial divergence of norms regulating Shias and
Sunnis. There was further divergence of norms, in their respective schools.
The Shariat Act did not crystalise the norms as were to be applicable to
Shias and Sunnis, or their respective schools. What was sought to be done
through the Shariat Act, in our considered view, was to preserve Muslim
‘personal law’ – ‘Shariat’, as it existed from time immemorial. We are of the
view, that the Shariat Act recognizes the Muslim ‘personal law’ as the ‘rule
of decision’ in the same manner as Article 25 recognises the supremacy and
enforceability of ‘personal law’ of all religions. We are accordingly satisfied,
that Muslim ‘personal law’ – ‘Shariat’ as body of law, was perpetuated by
the Shariat Act, and what had become ambiguous (due to inundations
through customs and usages), was clarified and crystalised. In contrast, if
such a plea had been raised with reference to the Dissolution of Muslim
Marriages Act, 1939, which legislatively postulated the grounds of divorce
for Muslim women, the submission would have been acceptable. The 1939
Act would form a part of ‘statutory law’, and not ‘personal law’. We are
therefore constrained to accept the contention advanced by learned counsel
for the respondents, that the proposition canvassed on behalf of the
petitioners, namely, that the Muslim Personal Law (Shariat) Application Act,
1937 conferred statutory status, on the questions/subjects governed by the
Shariat Act, cannot be accepted. That being the position, Muslim ‘personal
law’ – ‘Shariat’ cannot be considered as a State enactment.
157. In view of the conclusions recorded in the foregoing paragraph, it is
not possible for us to accept, the contention advanced on behalf of the
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petitioners, that the questions/subjects covered by the Muslim Personal
Law (Shariat) Application Act, 1937 ceased to be ‘personal law’ and got
transformed into ‘statutory law’. Having concluded as above, we must also
hold (-which we do), that the practices of Muslim ‘personal law’ – ‘Shariat’
cannot be required to satisfy the provisions contained in Part III –
Fundamental Rights, of the Constitution, applicable to State actions, in
terms of Article 13 of the Constitution.
VI. Does ‘talaq-e-biddat’, violate the parameters expressed in Article 25 of
the Constitution?
158. In our consideration recorded hereinabove, we have held, that the
provisions of the Muslim Personal Law (Shariat) Application Act, 1937 did
not alter the ‘personal law’ status of the Muslim ‘personal law’ – ‘Shariat’.
We shall now deal with the next step. Since ‘talaq-e-biddat’ remains a
matter of ‘personal law’, applicable to a Sunni Muslim belonging to the
Hanafi school, can it be declared as not enforceable in law, as it violates the
parameters expressed in Article 25 (which is also one of the pointed
contentions of those supporting the petitioners case)?
159. The above proposition is strenuously opposed by all the learned
counsel who appeared on behalf of the respondents, more particularly,
learned senior counsel representing the AIMPLB. During the course of the
instant opposition, our attention was invited to the judgment rendered by
the Bombay High Court in the Narasu Appa Mali case 23. 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:
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“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
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).
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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
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 case 29 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 Begum49 (by a 5-Judge Constitution
Bench), Daniel Latifi v. Union of India 50 (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
49
50
225
behalf of the Union of India, has been reproduced verbatim in paragraph 71
above.
161. The fair concession made at the hands of the learned Attorney
General, is reason enough for us to accept the proposition, and the legal
position expressed by the Bombay High Court, relevant part whereof has
been extracted above. Despite our instant determination, it is essential for
us to notice a few judgments on the issue, which would put a closure to the
matter.
(i) Reference may first of all be made to the Shri Krishna Singh case 29.
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
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)
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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:
(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.”
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(ii) Reference is also essential to Madhu Kishwar v. State of Bihar51,
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
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
custom-governed 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
51
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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
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 case 30, 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;
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(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;
(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 case 39, 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:
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“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 case 33, 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
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
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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.”
(vi) Relevant to the issue is also the judgment in the Sri Adi
Visheshwara of Kashi Vishwanath Temple, Varanasi case 34, 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
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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),
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
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provisions of Part III of the Constitution”. This is the clear position
expressed in Article 25(1).
164. We will now venture to examine the instant challenge with reference
to the practice of ‘talaq-e-biddat’. It is not possible for us to accept, that the
practice of ‘talaq-e-biddat’ can be set aside and held as unsustainable in
law for the three defined purposes expressed in Article 25(1), namely, for
reasons of it being contrary to public order, morality and health. Viewed
from any angle, it is impossible to conclude, that the practice impinges on
‘public order’, or for that matter on ‘health’. We are also satisfied, that it
has no nexus to ‘morality’, as well. Therefore, in our considered view, the
practice of ‘talaq-e-biddat’ cannot be struck down on the three
non-permissible/prohibited areas which Article 25 forbids even in respect of
‘personal law’. It is therefore not possible for us to uphold the contention
raised on behalf of the petitioners on this account.
165. The only remaining ground on which the challenge to
‘talaq-e-biddat’ 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
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mind, that Article 14 forbids the State from acting arbitrarily. Article 14
requires the State to ensure equality before the law and equal protection of
the laws, within the territory of India. Likewise, Article 15 prohibits the
State from taking discriminatory action on the grounds of religion, race,
caste, sex or place of birth, or any of them. The mandate of Article 15
requires, the State to treat everyone equally. Even Article 21 is a protection
from State action, inasmuch as, it prohibits the State from depriving anyone
of the rights enuring to them, as a matter of life and liberty (-except, by
procedure established by law). We have already rejected the contention
advanced on behalf of the petitioners, that the provisions of the Muslim
Personal Law (Shariat) Application Act, 1937, did not alter the ‘personal law’
status of ‘Shariat’. We have not accepted, that after the enactment of the
Shariat Act, the questions/subjects covered by the said legislation ceased to
be ‘personal law’, and got transformed into ‘statutory law’. Since we have
held that Muslim ‘personal law’ – ‘Shariat’ is not based on any State
Legislative action, we have therefore held, that Muslim ‘personal law’ –
‘Shariat’, cannot be tested on the touchstone of being a State action.
Muslim ‘personal law’ – ‘Shariat’, in our view, is a matter of ‘personal law’ of
Muslims, to be traced from four sources, namely, the Quran, the ‘hadith’,
the ‘ijma’ and the ‘qiyas’. None of these can be attributed to any State
action. We have also already concluded, that ‘talaq-e-biddat’ is a practice
amongst Sunni Muslims of the Hanafi school. A practice which is a
component of the ‘faith’ of those belonging to that school. ‘Personal law’,
being a matter of religious faith, and not being State action, there is no
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question of its being violative of the provisions of the Constitution of India,
more particularly, the provisions relied upon by the petitioners, to assail the
practice of ‘talaq-e-biddat’, namely, Articles 14, 15 and 21 of the
Constitution.
VII. Constitutional morality and ‘talaq-e-biddat’:
166. One of the issues canvassed on behalf of the petitioners, which was
spearheaded by the learned Attorney General for India, was on the ground,
that the constitutional validity of the practice of ‘talaq-e-biddat’ – triple
talaq, was in breach of constitutional morality. The question raised before
us was, whether under a secular Constitution, women could be
discriminated against, only on account of their religious identity? It was
asserted, that women belonging to any individual religious denomination,
cannot suffer a significantly inferior status in society, as compared to
women professing some other religion. It was pointed out, that Muslim
women, were placed in a position far more vulnerable than their
counterparts, who professed other faiths. It was submitted, that Hindu,
Christian, Zoroastrian, Buddhist, Sikh, Jain women, were not subjected to
ouster from their matrimonial relationship, without any reasonable cause,
certainly not, at the whim of the husband; certainly not, without due
consideration of the views expressed by the wife, who had the right to repel
a husband’s claim for divorce. It was asserted, that ‘talaq-e-biddat’, vests
an unqualified right with the husband, to terminate the matrimonial
alliance forthwith, without any reason or justification. It was submitted,
that the process of ‘talaq-e-biddat’ is extra-judicial, and as such, there are
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no remedial measures in place, for raising a challenge, to the devastating
consequences on the concerned wife. It was pointed out, that the
fundamental right to equality, guaranteed to every citizen under Article 14
of the Constitution, must be read to include, equality amongst women of
different religious denominations. It was submitted, that gender equality,
gender equity and gender justice, were values intrinsically intertwined in
the guarantee assured to all (-citizens, and foreigners) under Article 14. It
was asserted, that the conferment of social status based on patriarchal
values, so as to place womenfolk at the mercy of men, cannot be sustained
within the framework of the fundamental rights, provided for under Part III
of the Constitution. It was contended, that besides equality, Articles 14 and
15 prohibit gender discrimination. It was pointed out, that discrimination
on the ground of sex, was expressly prohibited under Article 15. It was
contended, that the right of a woman to human dignity, social esteem and
self-worth were vital facets, of the right to life under Article 21. It was
submitted, that gender justice was a constitutional goal, contemplated by
the framers of the Constitution. Referring to Article 51A(e) of the
Constitution, it was pointed out, that one of the declared fundamental
duties contained in Part IV of the Constitution, was to ensure that women
were not subjected to derogatory practices, which impacted their dignity. It
was pointed out, that gender equality and dignity of women, were
non-negotiable. 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.
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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 India52. 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
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
52
238
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
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
239
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
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
240
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
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
241
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
help the cause of national integration by removing the contradictions
based on ideologies.”
Last of all, our attention was drawn to the Masilamani Mudaliar case 16,
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.”
242
168. We have given our thoughtful consideration to the submissions
noticed in the foregoing paragraphs. We are of the view, that in the
determination of the matter canvassed, the true purport and substance of
Articles 25 and 44 have to be understood. We shall now endeavour to deal
with the above provisions.
169. During the course of hearing our attention has been drawn to the
Constituent Assembly debates, with reference to Article 25 (-draft Article
19). The debates reveal that the members of the Constituent Assembly
understood a clear distinction between ‘personal law’ and the ‘civil code’.
‘Personal law’ was understood as based on the practices of members of
communities. It was to be limited to the community itself, and would not
affect members of other communities. The ‘civil code’ on the other hand,
had an unlimited reach. The ‘civil code’ was understood to apply to every
citizen of the land, to whatever community he may belong. So far as
‘personal law’ is concerned, it was recognized as arising out of, practices
followed by members of particular communities, over the ages. The only
member of the Assembly, who made a presentation during the debates
(-Mohammed Ismail Sahib) stated, “This practice of following ‘personal law’
has been there amongst the people for ages. What we want under this
amendment is that that practice should not be disturbed now and I want
only the continuance of a practice that has been going on among the people
for ages past ….. Under this amendment what I want this House to accept
is that when we speak of the State doing anything with reference to the
secular aspect of religion, the question of personal law shall not be brought
243
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
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
244
we understand it, is meant that the State is not going to make any
discrimination whatsoever on the ground of religion or community against
any person professing any particular form of religious faith. This means in
essence that no particular religion in the State will receive any State
patronage whatsoever. The State is not going to establish, patronise or
endow any particular religion to the exclusion of or in preference to others
and that no citizen in the State will have any preferential treatment or will
be discriminated against simply on the ground that he professed a
particular form of religion. ….. At the same time we must be very careful to
see that this land of ours we do not deny to anybody the right not only to
profess or practise but also to propagate any particular religion.
…..Therefore I feel that the Constitution has rightly provided for this not
only as a right but also as a fundamental right. In the exercise of this
fundamental right every community inhabiting this State professing any
religion will have equal right and equal facilities to do whatever it likes in
accordance with its religion provided it does not clash with the conditions
laid down here.”
170. The debates in the Constituent Assembly with reference to Article
25, leave no room for any doubt, that the framers of the Constitution were
firm in making ‘personal law’ a part of the fundamental rights. With the
liberty to the State to provide for social reform. It is also necessary to notice
at this stage, that the judgment in the Valsamma Paul case 20, 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
245
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
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
246
Mohamed Ismail Sahib. The question he posed was “…whether by the
freedom we have obtained for this country, are we going to give up the
freedom of conscience and that freedom of religion practices and that
freedom of following ones own personal law…” But all these submissions
were rejected. All this leads to the clear understanding, that the
Constitution requires the State to provide for a uniform civil code, to remedy
and assuage, the maladies expressed in the submissions advanced by the
learned Attorney General.
172. There can be no doubt, that the ‘personal law’ has been elevated to
the stature of a fundamental right in the Constitution. And as such,
‘personal law’ is enforceable as it is. All constitutional Courts, are the
constitutional guardians of all the Fundamental Rights (– included in Part
III of the Constitution). It is therefore the constitutional duty of all Courts
to protect, preserve and enforce, all fundamental rights, and not the other
way around. It is judicially unthinkable for a Court, to accept any prayer to
declare as unconstitutional (-or unacceptable in law), for any reason or
logic, what the Constitution declares as a fundamental right. Because, in
accepting the prayer(s), this Court would be denying the rights expressly
protected under Article 25.
173. It is not possible to adopt concepts emerging from the American
Constitution, over the provisions of the Indian Constitution. It is therefore
not possible to refer to substantive due process, as the basis of the decision
of the present controversy, when there are express provisions provided for,
on the matter in hand, under the Indian Constitution. It is also not
247
possible, to read into the Constitution, what the Constituent Assembly
consciously and thoughtfully excluded (-or, to overlook provisions expressly
incorporated). One cannot make a reference to decisions of the U.S.
Supreme Court, though there would be no difficulty of their being taken
into consideration for persuasive effect, in support of a cause, in
consonance with the provisions of the Constitution of India and the laws.
In fact, this Court is bound by the judgments of the Supreme Court of
India, which in terms of Article 141 of the Constitution, are binding
declarations of law.
174. The prayer made to this Court by those representing the petitioners’
cause, on the ground that the practice of ‘talaq-e-biddat’ is violative of the
concept of constitutional morality cannot be acceded to, and is accordingly
declined.
VIII. Reforms to ‘personal law’ in India:
175. In our consideration, it is also necessary to briefly detail legislation
in India with regard to matters strictly pertaining to ‘personal law’, and
particularly to the issues of marriage and divorce, i.e., matters strictly
within the confines of ‘personal law’.
176(i). Reference in this context may first of all be made to the Divorce Act,
1869. The Statement of objects and reasons of the Bill, delineates the
purpose that was sought to be achieved through the enactment. Relevant
part thereof, is reproduced hereunder:-
“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
248
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
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
re-marriage, 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
249
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
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
250
(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
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
Sub-Committee 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
251
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:-
“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;
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(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:
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
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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.
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
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the formalities postulated in Chapter II of the enactment, parties are
permitted to solemnize their marriage, for which the marriage officer shall
issue a certificate of marriage, that would be considered as conclusive
evidence of the fact that parties are married under the provisions of the
Special Marriages Act, 1954.
(iii) Parties who have entered into a matrimonial alliance by way of
ceremonies of marriage conducted under different faiths, and have been
living together, are also permitted to register their marriage under the
Special Marriage Act, 1954, under Section 15 thereof.
(iv) Chapter IV of the enactment deals with consequences of marriage
under the Act. Chapter V provides the remedies of restitution of conjugal
rights and judicial separation. Chapter VI defines void and voidable
marriages, and provides for nullity of marriage and divorce. Section 27
included in Chapter VI incorporates the grounds for divorce, which are
extracted hereunder:-
“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,—
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(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;
(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.”
256
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
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
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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
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,
258
ila, zihar, lian, khula and mubaraat would be the Muslim ‘personal law’ –
‘Shariat’, and not, any custom or usage to the contrary. It is therefore, that
by a statutory intervention, customs and usages in conflict with Muslim
‘personal law’, were done away with, in connection with ‘personal law’
matters, in relation to Muslims. The Dissolution of Muslim Marriages Act,
1939 provided, grounds for dissolution of marriage to Muslim women,
under Section 2 of the above enactment. Details with reference to 1937 and
1939 legislations, have already been narrated, in Part IV – Legislation in
India, in the field of Muslim ‘personal law’. Reference may, therefore, be
made to Part IV above.
181 (i). The law of marriage and divorce amongst Hindus, has had a
chequered history. A marriage, according to Hindu law, is a holy
sacrament, and not a contract (as is the case of Muslims). Originally there
were eight forms of Hindu marriages, four of which were considered regular
– and the rest irregular. The choice of marriage, was limited only to one’s
own religion and caste. Polygamy was permitted amongst Hindus, but not
polyandry. Widow marriage was also not permitted. Legislation in respect
of Hindu marriages commenced in 1829 when Sati was abolished by law.
In 1856, Hindu Widows’ Remarriage Act, legalized the marriage of Hindu
widows. In 1860, the Indian Penal Code made polygamy a criminal offence.
In 1866, Native Converts Marriage Dissolution Act facilitated divorce for
Hindus, who had adopted the Christian faith. In 1872, Special Marriage
Act was enacted, but it excluded Hindus. In 1869, the Indian Divorce Act
was passed, but this too remained inapplicable to Hindus. In 1909, the
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Anand Marriage Act legalized marriages amongst Sikhs (called – Anand). In
1923, by an amendment to the Special Marriage Act, inter-religious civil
marriages between Hindus, Buddhists, Sikhs and Jains were legalized. In
1937, the Arya Marriage Validation Act legalized the inter-caste marriages,
and marriages with converts to Hinduism, among the followers of Arya
Samaj. In 1949, Hindu Marriages Validity Act legalized inter-religious
marriages.
(ii) The Hindu Marriage Act, was passed in 1955. Section 5 of the
Hindu Marriage Act, 1955, provides for the conditions of a valid Hindu
marriage. Section 7 incorporates the ceremonies required for a Hindu
marriage. Section 8 provides for the requirement of registration of Hindu
marriages. The remedies of restitution of conjugal rights and judicial
separation, are provided for in Sections 9 and 10 respectively. Provisions
related to nullity of marriages and divorce are contained in Sections 11 and
12. The grounds of divorce have been expressed in Section 13, which is
reproduced below:-
“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,-
260
(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
(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
261
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
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
pre-independence 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
262
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-e-
biddat’:
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-e-biddat’, sullied the image of the country internationally, as the
nation was seen internationally as a defaulters to those conventions and
declarations. It was pointed out, that by not consciously barring
‘talaq-e-biddat’, and by knowingly allowing the practice to be followed, India
was seen as persisting and propagating, what the international community
considers abhorrent. It was therefore submitted, that the practice of
‘talaq-e-biddat’ be declared as unacceptable in law, since it was in conflict
with international conventions and declarations.
184. We may, in the first instance, briefly point out to the submissions
advanced by Ms. Indira Jaising, learned senior counsel. She placed reliance
on the Universal Declaration of Human Rights, adopted by the United
Nations General Assembly as far back as in 1948. She drew our attention
to the preamble thereof, to emphasise, that the declaration recognized the
inherent dignity of human beings as equal and inalienable. She highlighted
263
the fact, that the declaration envisioned equal rights for men and women –
both in dignity and rights. For this, she placed reliance on Article 1 of the
Declaration. Referring to Article 2, she asserted, that there could be no
discrimination on the basis of sex. Learned senior counsel evoked the
conscience of this Court, to give effect to the declaration, to which India was
a signatory. This Court’s attention was also invited to the International
Conventions on Economic, Social and Cultural Rights (ICESCR). The
pointed aim whereof was to eliminate all forms of discrimination, including
discrimination on the basis of sex. It was highlighted, that the International
Conventions Bill for Rights for Women was ratified by 189 States. Referring
to Article 1 thereof, it was submitted, that the objective of the convention
was to eradicate discrimination against women. Having signed the
aforesaid convention, it was submitted, that it was the obligation of all the
signatory States, to take positive and effective steps for elimination of all
facets of discrimination against women. It was highlighted, that
‘talaq-e-biddat’ 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
264
adverted to the same, to support his prayer, that ‘talaq-e-biddat’ was a
practice which violated a number of conventions to which India was a
signatory. Details in this behalf, have been recorded by us in paragraph 74,
while recording the submissions advanced by the learned Attorney General.
The same be read herein, in continuation of the submissions briefly noticed
above.
186. We have considered the submissions advanced on behalf of the
petitioners, pointedly with reference to international conventions and
declarations. We have not the least doubt, that the Indian State is
committed to gender equality. This is the clear mandate of Article 14 of the
Constitution. India is also committed to eradicate discrimination on the
ground of sex. Articles 15 and 16 of the Constitution, prohibit any kind of
discrimination on the basis of sex. There is therefore no reason or necessity
while examining the issue of ‘talaq-e-biddat’, to fall back upon international
conventions and declarations. The Indian Constitution itself provides for
the same.
187. The reason for us, not to accede to the submissions advanced at the
behest of those who support the petitioners’ cause, with pointed reference to
international conventions and declarations, is based on Article 25 of the
Constitution, whereby ‘personal law’ of all religious denominations, is
sought to be preserved. The protection of ‘personal laws’ of religious
sections, is elevated to the stature of a fundamental right, inasmuch as
Article 25 of the Constitution, which affords such protection to ‘personal
law’ is a part of Part III (– Fundamental Rights), of the Constitution. It is
265
therefore apparent, that whilst the Constitution of India supports all
conventions and declarations which call for gender equality, the
Constitution preserves ‘personal law’ through which religious communities
and denominations have governed themselves, as an exception.
188. Our affirmation, that international conventions and declarations are
not binding to the extent they are in conflict with domestic laws, can be
traced from a series of judgments rendered by this Court on the subject.
Reference is being made to some of them herein below:
(i) Apparel Export Promotion Council v. A.K. Chopra 53,
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
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
53
266
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
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. Hegde54
54
267
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
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
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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 Liberties 55
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:
“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
55
269
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.
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 India56
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
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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,
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;
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(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
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 case 1 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-e-biddat’ being considered sinful, it was accepted amongst Sunni
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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
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.
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(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
‘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
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by others was harsher, they considered it as disgusting, loathsome and
obnoxious. Some even described it as being debased, abhorrent and
wretched.
192. We have arrived at the conclusion, that ‘talaq-e-biddat’, is a matter
of ‘personal law’ of Sunni Muslims, belonging to the Hanafi school. It
constitutes a matter of their faith. It has been practiced by them, for at least
1400 years. We have examined whether the practice satisfies the
constraints provided for under Article 25 of the Constitution, and have
arrived at the conclusion, that it does not breach any of them. We have also
come to the conclusion, that the practice being a component of ‘personal
law’, has the protection of Article 25 of the Constitution.
193. Religion is a matter of faith, and not of logic. It is not open to a
court to accept an egalitarian approach, over a practice which constitutes
an integral part of religion. The Constitution allows the followers of every
religion, to follow their beliefs and religious traditions. The Constitution
assures believers of all faiths, that their way of life, is guaranteed, and
would not be subjected to any challenge, even though they may seem to
others (-and even rationalists, practicing the same faith) unacceptable, in
today’s world and age. The Constitution extends this guarantee, because
faith constitutes the religious consciousness, of the followers. It is this
religious consciousness, which binds believers into separate entities. The
Constitution endevours to protect and preserve, the beliefs of each of the
separate entities, under Article 25.
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194. Despite the views expressed by those who challenged the practice of
‘talaq-e-biddat’, being able to demonstrate that the practice transcends the
barriers of constitutional morality (emerging from different provisions of the
Constitution), we have found ourselves unable to persuade ourselves, from
reaching out in support of the petitioners concerns. We cannot accept the
petitioners’ claim, because the challenge raised is in respect of an issue of
‘personal law’ which has constitutional protection.
195. In continuation of the position expressed above, we may
acknowledge, that most of the prayers made to the Court (-at least on first
blush) were persuasive enough, to solicit acceptance. Keeping in mind, that
this opportunity had presented itself, so to say, to assuage the cause of
Muslim women, it was felt, that the opportunity should not be lost. We are
however satisfied that, that would not be the rightful course to tread. We
were obliged to keep reminding ourselves, of the wisdoms of the framers of
the Constitution, who placed matters of faith in Part III of the Constitution.
Therefore, any endeavour to proceed on issues canvassed before us would,
tantamount to overlooking the clear letter of law. We cannot nullify and
declare as unacceptable in law, what the Constitution decrees us, not only
to protect, but also to enforce. The authority to safeguard and compel
compliance, is vested under a special jurisdiction in constitutional Courts
(-under Article 32, with the Supreme Court; and under Article 226, with the
High Courts). Accepting the petitioners prayers, would be in clear
transgression of the constitutional mandate contained in Article 25.
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196. Such a call of conscience, as the petitioners desire us to accept,
may well have a cascading effect. We say so, because the contention of the
learned Attorney General was, that ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ were
also liable to be declared unconstitutional, for the same reasons as have
been expressed with reference to ‘talaq-e-biddat’ (-for details, refer to
paragraph 77 above). According to the learned Attorney General, the said
forms of talaq also suffered from the same infirmities as ‘talaq-e-biddat’.
The practices of ‘polygamy’ and ‘halala’ amongst Muslims are already under
challenge before us. It is not difficult to comprehend, what kind of
challenges would be raised by rationalists, assailing practices of different
faiths on diverse grounds, based on all kinds of enlightened sensibilities.
We have to be guarded, lest we find our conscience traversing into every
nook and corner of religious practices, and ‘personal law’. Can a court,
based on a righteous endeavour, declare that a matter of faith, be replaced –
or be completely done away with. In the instant case, both prayers have
been made. Replacement has been sought by reading the three
pronouncements in ‘talaq-e-biddat’, as one. Alternatively, replacement has
been sought by reading into ‘talaq-e-biddat’, measures of arbitration and
conciliation, described in the Quran and the ‘hadiths’. The prayer is also
for setting aside the practice, by holding it to be unconstitutional. The
wisdom emerging from judgments rendered by this Court is unambiguous,
namely, that while examining issues falling in the realm of religious
practices or ‘personal law’, it is not for a court to make a choice of
something which it considers as forward looking or non-fundamentalist. It
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is not for a court to determine whether religious practices were prudent or
progressive or regressive. Religion and ‘personal law’, must be perceived, as
it is accepted, by the followers of the faith. And not, how another would like
it to be (-including self-proclaimed rationalists, of the same faith). Article
25 obliges all Constitutional Courts to protect ‘personal laws’ and not to
find fault therewith. Interference in matters of ‘personal law’ is clearly
beyond judicial examination. The judiciary must therefore, always exercise
absolute restraint, no matter how compelling and attractive the opportunity
to do societal good may seem. It is therefore, that this Court had the
occasion to observe, “….. However laudible, desirable and attractive the
result may seem … an activist Court is not fully equipped to cope with the
intricacies of the legislative subject and can at best advise and focus
attention on the State polity on the problem and shake it from its slumber,
goading it to awaken, march and reach the goal. For, in whatever measure
be the concern of this Court, it compulsively needs to apply, motion,
described in judicial parlance as self-restraint …..” 30
197. We have arrived at the conclusion, that the legal challenge raised at
the behest of the petitioners must fail, on the judicial front. Be that as it
may, the question still remains, whether this is a fit case for us to exercise
our jurisdiction under Article 142, “…for doing complete justice …”, in the
matter. The reason for us to probe the possibility of exercising our
jurisdiction under Article 142, arises only for one simple reason, that all
concerned are unequivocal, that besides being arbitrary the practice of
‘talaq-e-biddat’ is gender discriminatory.
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198. A perusal of the consideration recorded by us reveals, that the
practice of ‘talaq-e-biddat’ has been done away with, by way of legislation in
a large number of egalitarian States, with sizeable Muslim population and
even by theocratic Islamic States. Even the AIMPLB, the main contestant of
the petitioners’ prayers, whilst accepting the position canvassed on behalf of
the petitioners, assumed the position, that it was not within the realm of
judicial discretion, to set aside a matter of faith and religion. We have
accepted the position assumed by the AIMPLB. It was however
acknowledged even by the AIMPLB, that legislative will, could salvage the
situation. This assertion was based on a conjoint reading of Articles 25(2)
and Article 44 of the Constitution, read with entry 5 of the Concurrent List
contained in the Seventh Schedule of the Constitution. There can be no
doubt, and it is our definitive conclusion, that the position can only be
salvaged by way of legislation. We understand, that it is not appropriate to
tender advice to the legislature, to enact law on an issue. However, the
position as it presents in the present case, seems to be a little different.
Herein, the views expressed by the rival parties are not in contradiction.
The Union of India has appeared before us in support of the cause of the
petitioners. The stance adopted by the Union of India is sufficient for us to
assume, that the Union of India supports the petitioners’ cause.
Unfortunately, the Union seeks at our hands, what truly falls in its own.
The main party that opposed the 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
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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 15 th & 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
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
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hope and expect, that the contemplated legislation will also take into
consideration advances in Muslim ‘personal law’ – ‘Shariat’, as have been
corrected by legislation the world over, even by theocratic Islamic States.
When the British rulers in India provided succor to Muslims by legislation,
and when remedial measures have been adopted by the Muslim world, we
find no reason, for an independent India, to lag behind. Measures have
been adopted for other religious denominations (see at IX – Reforms to
‘personal law’ in India), even in India, but not for the Muslims. We would
therefore implore the legislature, to bestow its thoughtful consideration, to
this issue of paramount importance. We would also beseech different
political parties to keep their individual political gains apart, while
considering the necessary measures requiring legislation.
200. Till such time as legislation in the matter is considered, we are
satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat’
as a means for severing their matrimonial relationship. The instant
injunction, shall in the first instance, be operative for a period of six
months. If the legislative process commences before the expiry of the period
of six months, and a positive decision emerges towards redefining
‘talaq-e-biddat’ (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.
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..………………..…..………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.
282
REPORTABLE
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.
JUDGMENT
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 needs to be answered in this case 283 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 Another57 has held, though not in so many words, that triple talaq lacks legal sanctity. Therefore, in terms of Article 14158, 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. 59 Section 2 is most relevant in the face of the present controversy.
2. Application of Personal law to Muslims. – Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) 57 58 59 284 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 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 285 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 286 Muhammadan Law, 5th Edition, 2008 at page 10.60 “…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 60 287 the Quran. That means, sources other than the Holy Quran are only to supplement what is given in it and to supply what is not provided for. In other words, there cannot be any Hadith, Ijma or Qiyas against what is expressly stated in the Quran. Islam cannot be anti-Quran. According to Justice Bader Durrez Ahmad in Masroor Ahmed v. State (NCT of Delhi) & Another61:
“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 Suras- in Sura II while dealing with social life of the community, 61 288 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, 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 289 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 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.290
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 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, 291 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:
“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.” “229. A divorce is only 292 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).
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 other limits Ordained by God, Which He makes plain To those who understand.
231. When ye divorce 293 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 The Book And Wisdom, For your instruction.
And fear God, And know that God Is well acquainted With all things.”62
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 62 294 finality.63 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 been taken as the law for banning triple talaq. Interestingly, prior to Shamim Ara, Krishna Iyer, J. in Fuzlunbi v. K Khader Vali and Another64, while in a three judge bench in this Court, made a very poignant observation on the erroneous approach of Batchelor, J. in Sarabai v. Rabiabai65 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 63 64 65 295 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 Bibee66 in 1878 and finally, after discussing two decisions of the Gauhati High Court namely Jiauddin Ahmed v. Anwara Begum67 and Rukia Khatun v. Abdul Khalique Laskar68, 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 66 67 68 296 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 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 297 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. Sowramma69 and the other of Justice V. Khalid in Mohd. Haneefa v. Pathummal Beevi70. 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 69 70 298 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…"
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 299 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 not following the Quranic principles, it cannot be said that there is no ratio decidendi on triple talaq in Shamim Ara.
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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 another71, 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.
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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 71 301 the Supreme Court. If there is no valid talaq the relationship of 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 India72, 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, 72 302 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 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 73 and Ahmedabad Women Action Group (AWAG) and Ors. v. Union of India74.
19. The High Court of Jammu and Kashmir, in Manzoor Ahmad Khan v.Saja & Ors.75, 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 73 74 75 303 the marriage between the parties did not stand dissolved.
20. In Ummer Farooque v. Naseema76, 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 76 304 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…” (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) 305
22. As recently as in 2016, Mustaque, J. of the High Court of Kerala in Nazeer @ Oyoor Nazeer v. Shemeema77, has inter alia referred to Shamim Ara and has disapproved triple talaq.
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 77 306 operation of any existing law or prevent the State from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.” Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the learned Chief Justice. However, on the statement that triple talaq is an integral part of the religious practice, I respectfully disagree. Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of 307 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.
26. Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and 308 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.
309 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 VERSUS UNION OF INDIA REPRESENTED BY 310 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 JUDGMENT R.F. Nariman, J.
Having perused a copy of the learned Chief Justice’s judgment, I am in respectful disagreement with the same.
1. This matter has found its way to a Constitution Bench of this Court because of certain newspaper 311 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 pending before the Constitution Bench and there was no reason to multiply proceedings on such an issue.
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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 by the Union of India, state that Triple Talaq is an anachronism in today’s day and age and, constitutionally speaking, is anathema. 313 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 personal laws are not being attacked as such. What is the subject matter 314 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 recognize and enforce Triple Talaq as a rule 315 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 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).316
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 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 317 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:
“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-ul-Mubarak 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 318 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 Ash-Shaybani, 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 al-Hidaay of Marghinani (translated by Hamilton), Radd-al-Mukhtar and Durr-ul-Mukhtar 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.
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 319 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.
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) 320 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. 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).321
(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-ul-sunnat is of two kinds, namely, (1) ahsan, 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 322 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-ul-biddat 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” (5 th 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 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).
323The 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 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 324 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 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 325 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. 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 al-ba’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 326 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 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: 327
“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:
“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).328
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 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.329
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 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 al-khamsah. 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 330 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 pre-constitutional 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 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 331 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 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: 332
“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 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 333 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.
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”.
334
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 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 335 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 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 336 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 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.-337
(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 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 338 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 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:339
“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 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 340 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. 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.341
(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.
(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 342 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.
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 343 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 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 344 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:
“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 345 concern with. This Court, therefore, declined to entertain writ petitions that asked for very sweeping reliefs which, interestingly enough, included a declaration of voidness as to “unilateral talaq”. This Court referred in detail to the judgment of the Bombay High Court in Narasu Appa (supra) in declining to review Muslim personal law. However, when it came to the challenge of a statutory enactment, Muslim Women (Protection of Rights on Divorce) Act, 1986, this Court did not wish to multiply proceedings in that behalf, as a challenge was pending before a Constitution Bench regarding the same.
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 346 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 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 347 the classification was “intelligible” having regard to the object sought to be achieved, it would pass muster under Article 14’s anti-discrimination aspect. Again, Subba Rao, J., dissenting, in Lachhman Das v. State of Punjab, (1963) 2 SCR 353 at 395, warned that overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the Article of its glorious content. He referred to the doctrine of classification as a “subsidiary rule” evolved by courts to give practical content to the said Article.
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, 348 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 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 349 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 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) 4 350 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 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 351 referred to Article 14 and stated that Article 329-A is an outright negation of the right of equality conferred by Article 14. This was the case because the law would be discriminatory in that certain high personages would be put above the law in the absence of a differentia reasonably related to the object of the law. He went on to add:
“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 352 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 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) 353
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 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 354 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 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 355 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.” [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 356 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 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 357 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 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. 358 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 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 359 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 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) 360 “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.... 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 361 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 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 362 so far as the discrimination aspect is concerned, this Court struck down the 1986 Act on the ground that it was discriminatory in paragraphs 46 and 47. Paragraphs 48 to 50 are important, in that this Court struck down the 1986 Act for being arbitrary, separately, as follows (at pages 256-257):
“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 horse-races 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 363 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 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 horse-racing 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. 364 McDowell & Co., (1996) 3 SCC 709. Another three 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 365 ground. We do not wish to enter into a discussion of the concepts of procedural 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 366 three grounds, viz., (i) unreasonableness, which can more appropriately be called 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: 367
(1) According to the Bench in McDowell (supra), substantive due process is not something 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 368 preventive and punitive detention, a law providing for such detentions should conform to Article 22. It has been rightly 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 369 Nationalisation) v. Union of India, (1970) 1 SCC 248] and Maneka Gandhi 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 19.370
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.” 371 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 372 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:373
“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 opportunity to show cause why that 374 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 375 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.” 376 (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 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. 78 A three Judge Bench in the teeth of this ratio cannot, therefore, be 78 377 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, 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 378 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 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 379 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 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, 380 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) 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 381 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 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] .” 382
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 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 383 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 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 384 75% of the undetermined demand. Such conditions are not only onerous and oppressive but also unreasonable and arbitrary. Therefore, in our view, sub-section (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 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 385 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 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 386 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 three-Judge 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 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 387 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]
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 388 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 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 389 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, non-capricious, 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 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 390 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 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 391 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 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 392 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 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 393 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 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 394 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.
(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 395 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 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 396 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 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.” 397 (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 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 398 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 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.” 399 (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 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 400 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.
401 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 402 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.
403