Talaq ul Biddat - Unconstitutional

Facts:

The Petitioner/Wife had approached present Court, for assailing the divorce pronounced by her Husband in the presence of witnesses saying that I gave ‘talak, talak, talak’. The Petitioner had sought a declaration, that the talaq-e-biddat pronounced by her husband be declared as void ab initio.

Held, while allowing the petition:

J.S. Khehar, C.J.I. and S. Abdul Nazeer, J.:Dissenting view

(i) Practice of ‘talaq-e-biddat’, has had the sanction and approval of the religious denomination which practiced it, and as such, there could be no doubt that the practice, was a part of their personal law. [145]

(ii) After examined Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, the limited purpose of the aforesaid provision was to negate the overriding effect of usages and customs 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. The Shariat Act, neither lays down nor declares the Muslim ‘personal law’-‘Shariat’. Not even, on the questions/subjects covered by the legislation. There was no room for any doubt, that there was substantial divergence of norms regulating Shias and Sunnis. There was further divergence of norms, in their respective schools. The Shariat Act did not crystallise 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, was to preserve Muslim ‘personal law’-‘Shariat’, as it existed from time immemorial. 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. 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. Muslim ‘personal law’-‘Shariat’ could not be considered as a State enactment. [156]

(iii) 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 could be invoked only against the State. It was essential to keep in mind, that Article 14 forbids the State from acting arbitrarily. Article 14 requires the State to ensure equality before the law and equal protection of the laws, within the territory of Country. 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 ensuring to them, as a matter of life and liberty (-except, by procedure established by law). Muslim ‘personal law’-‘Shariat’, could not be tested on the touchstone of being a State action. Muslim ‘personal law’-‘Shariat’, 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 could be attributed to any State action. Talaq-e-biddat is a practice amongst Sunni Muslims of the Hanafi school. A practice which was 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 was no question of its being violative of the provisions of the Constitution, 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. [165]

(iv) This was a case which presents a situation where present Court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution. Direction granted to Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’. The contemplated legislation would also take into consideration advances in Muslim ‘personal law’-‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States. [199]

(v) Till such time as legislation in the matter is considered, Muslim husbands are injuncted 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 was 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. [200]

Kurian Joseph, J. and U.U. Lalit J.:Concurring view

(vi) To freely profess, practice and propagate religion of one’s choice is a Fundamental Right guaranteed under the Constitution. Under Article 25 (2) of the Constitution, the State is also granted power to make law in two contingencies notwithstanding the freedom granted under Article 25(1). Article 25 (2) states that “nothing in this Article shall affect the operation of any existing law or prevent the State from making any law-(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and Sections of Hindus. Except to the above extent, the freedom of religion under the Constitution is absolute. On the statement that triple talaq was an integral part of the religious practice, could not be agreed. Merely because a practice had continued for long, that by itself could not make it valid if it had been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the Rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran was permissible. Hence, there could not be any Constitutional protection to such a practice and thus, disagreement with the Chief Justice for the constitutional protection given to triple talaq. [224]

Rohinton Fali Nariman, J.:Concurring view

(vii) Marriage in Islam is a contract, and like other contracts, may under certain circumstances, be terminated. There was something astonishingly modern about this-no public declaration was a condition precedent to the validity of a Muslim marriage nor was any religious ceremony deemed absolutely essential, though they were usually carried out. Apparently, before the time of Prophet, 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 could justify a divorce for he then draws upon himself the curse of God. Indeed, Prophet had declared divorce to be the most disliked of lawful things in the sight of God. The reason for this was 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. [234]