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23. Counsel submitted that it is acknowledged by the scholars in the field that Talaq-ul-biddat does not conform to the Quranic injunctions and is an innovation made about two centuries later to avoid restrictions and limitations subject to which divorce was regarded as permissible in the Quran. This later innovation has, however, been at all times regarded as sinful. Though in some cases the Courts have held that this form of talaq, though sinful, is nevertheless valid in law, this form of talaq is violative of the fundamental rights of the Muslim women who are the victims of it's capricious exercise. The adverse consequence on the children was also emphasised by the counsel.

42. The Supreme Court in it's recent decision in the case of Shamim Ara vs. State of U.P., 2002 AIR SCW 4162, has examined the preconditions for a valid talaq in Muslim Personal Law. The Supreme Court referred to the observations of Justice Khalid in the case of Mohammed Haneefa vs. Pathummal Beevi, 1972 Ker LT 512, of Justice V.R.Krishna Iyer, in the case of Yousuf Rawther vs. Sowramma, AIR 1971 Ker 261 and those of Beharul Islam, J. sitting singly in Gauhati High court in the case of Jiyauddin ahmed vs. Anwara Begums, (1981) 1 Gauhati LR 35 8 and later speaking for the Division Bench in the case of Rukia Khatun vs. Abdul Khalique Laskar, (1981) 1 Gauhati LR 375.

43. Paragraph 13 of that judgment reads as under: "There is yet another illuminating and weighty judicial opinion available in two decisions of Gauhati High Court recorded by Baharul Islam, J. (later a Judge of the Supreme Court of India) sitting singly in Sri Jiauddin Ahmed vs. Mrs.Anwara Begum, (1981) 1 GLR 358 and later speaking for the Division Bench in Must. Rukia Khatun vs. Abdul Khalique Laskar, (1981) 1 GLR 375. In Jiauddin Ahmed's case, a plea of previous divorce, i.e., the husband having divorced the wife on some day much previous to the date of filing of the written statement in the Court was taken and upheld. The question posed before the High Court was whether there has been valid talaq of the wife by the husband under the Muslim Law? The learned Judge observed that though marriage under the Muslim Law is only a civil contract yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it. But in spite 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 quaranic verses and from commentaries thereon by wellrecognized 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 proceeded 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's case, the Division Bench stated that the correct law of talaq, as ordained by Holy Quaran, is : (i) that 'talaq' must be for a reasonable cause; and (ii) that it must be proceeded 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 view which, in their opinion, did not lay down the correct law." 44. At paragraph 14 of that judgment, the apex Court held, "We are in respectful agreement with the above said observations made by the learned Judges of High Courts. We must note that the observations were made 20-30 years before and our country has in recent times marched steps ahead in all walks of life including progressive interpretation of laws which cannot be lost sight of except by compromising with regressive trends. "

47. The grounds on which the petitioner has sought a declaration that Section 2 of the Muslim Personal Law (Shariat) Application Act, 19 37 in so far as it seeks to recognise and validate Talaaq-ul-Biddat or Talaaq-i-Badai form of divorce, as void and unconstitutional, are mainly that it does not provide for reconsideration and is not preceded by attempts at reconciliation.

48. Having regard to the law now declared by the apex Court in the case of Shamim Ara, 2002 AIR SCW 4162, talaq, in whatever form, must be for a reasonable cause, and must be preceded by attempts for reconciliation by arbiters chosen from the families of each of the spouses. The 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.