The practice of ‘talaq-e-biddat’ can be traced to the second century, after the advent of Islam. It is recognized only by a few Sunni schools. Most prominently, by the Hanafi sect of Sunni Muslims. The practice is still widely prevalent and in vogue. In a post earlier here, the various reasons justifying criminalization of triple talaq were discussed.
On 22 August,2017, the Hon’ble Apex Court decided Shayara Bano versus Union of India and others, along with other petitions. The judgment is covered in over 400 pages. The other petitions decided together were –
- Re: Muslim Women’s Quest For Equality versus Jamiat Ulma-I-Hind ;
- Aafreen Rehman versus Union of India and others ;
- Gulshan Parveen versus Union of India and others ;
- Ishrat Jahan versus Union of India and others ;
- Atiya Sabri versus Union of India and others.
Questions of Law raised –
- Whether ‘talaq-e-biddat’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) is unconstitutional? Whether 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?
- Whether the divorce of the instant nature be treated as “rule of decision” under the Shariat Act. Whether ‘talaq-e-biddat’ is a part of ‘Shariat’ (Muslim ‘personal law’)?
- Whether the practice of ‘talaq-e-biddat’ can be protected under the rights granted to religious denominations or any section thereof under Articles 25(1), 26(b) and 29 of the Constitution of India?
Contentions of the Parties –
The above questions were answered in negative by the petitioner –
- ‘Talaq-e-biddat’ is neither recognized by the ‘Quran’ nor by ‘hadith’, and as such, is to be considered as is neither recognized by the ‘Quran’ nor by ‘hadith’, and is to be considered as sacrosanctal to the Muslim religion.
- It violated the aforesaid fundamental right, which postulates equality between men and women.
- It 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”.
- ‘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.
- No “rule of decision” can be violative of Part III of the Constitution. 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. No one could contest the legitimacy of a challenge to ‘public law’ on the ground of being violative of the provisions of the Constitution.
- 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.
- The practice of ‘talaq-e-biddat’ is in conflict with conventions and declarations to which India is a signatory.
- The Apex Court had an indefeasible right, to intervene and render justice.
The Union of India appeared before the Hon’ble Supreme Court in support of the cause of the petitioners.
(i) Union of India –
- The fact that Muslim countries have undergone extensive reform also establishes that the practice in question is not an essential religious
- Muslim women could not be subjected to arbitrary and unilateral whims of their husbands, as in the case of divorce by triple talaq.
- The perpetuation of regressive or unjust practices in the name of religion
was anathema to a secular Constitution, which guarantees non-discrimination on grounds of religion. 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.
- 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. 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.
- 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. In the absence of statutory law, religious practices and faith, constituted the individual’s (belonging to a community) right to profess the same.
- ‘Personal laws’ per se were not subject to challenge, under any of the provisions contained in Part III of the Constitution.
- 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.
- Judicial interference in the matter of ‘personal law’ is not the proper course to be adopted for achieving the prayers raised by the petitioners. 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 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.
- The prayer made by the petitioner and those supporting the petitioner’s case before the Apex 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.
(iii) Jamiat Ulema-i-Hind–
- 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 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’.
- 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 not open to a Muslim couple to then plead, against the practice of ‘talaq-e-biddat’. 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.
(c) Amicus Curie
- 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.
- 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’. 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.
Prayer of the Petitioner
The petitioner prayed that the Apex 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. In the discharge of the above
constitutional obligation, the Apex 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.
The Court dealt upon the above questions and decided upon the contentions of the parties as follows-
- The ‘talaq-e-biddat’ – triple talaq, has the stature of ‘personal law’. (Para 113) 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. ( Para 172)
- The practice of ‘talaq-e-biddat’ has to be considered integral to the religious denomination in question – Sunnis belonging to the Hanafi school. (Para 145)
- The practice of ‘talaq-e-biddat’ has been in vogue since the period of Umar, which is roughly more than 1400 years ago. (Para 127)
- 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’.
- Muslim ‘personal law’ – ‘Shariat’ cannot be considered as a State enactment. (Para 156) 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. (Para 157)
- 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. (Para 161)
- 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’. (Para 164)
- 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. A challenge under these provisions (Articles 14,15 and 21) can be invoked only against the State. ‘Personal law’, being a matter of religious faith, and not being State action, there is no question of its being violative of the provisions of the Constitution of India. (Para 165)
- 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. (Para 189)
- 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. (Para 190)
- We therefore hereby direct the Union of India to consider
appropriate legislation, particularly with reference to ‘talaq-e-biddat’. We hope and expect, that the contemplated legislation will also take into consideration advances in Muslim ‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States. 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. (Para 199)
- 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. (Para 200)
- 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. (Para 174)
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. The petitioner argued against the practice of triple talaq on various grounds as discussed above. Some of the respondents (other than UOI) submitted that issues with regard to triple talaq were matters of legislative policy, and could not be interfered with through the judicial process. In view of the different opinions recorded, by a majority of 3:2 , the Supreme Court set aside the practice of ‘talaq-e-biddat’ – triple talaq.
The Apex Court delved into the practice of triple talaq and accepted it to be integral to the Muslim religion as a practice. It exercised its
discretion to issue appropriate directions under Article 142 of the
Constitution. It is hoped that a legislation to implement the directions of the Apex Court would soon be a reality. It must be kept in mind that such legislation must incorporate the recommendations of the Muslims, for whom the enactment would be made.
Image from here