This is not the first time that the validity of Triple Talaq has been challenged in the Courts of law. The present judgment considers a plethora of cases where this issue has been previously highlighted as well. However, never before, has the constitutional validity of Triple Talaq been challenged before a Constitution Bench comprising of 5 judges of the Supreme Court. What is particularly fascinating is the dissent in reasoning adopted by the majority in spite of the final conclusion being the same and the in-depth analysis by the minority judges. One may say that even though the bench has a clear majority in concluding Triple Talaq to be unconstitutional, the Bench is clearly divided over its reasoning in coming to this conclusion.[1] Another novel aspect of this case was that the minority judgment injuncted the enjoyment of Art. 25 under Art. 142 of the Constitution in the interest of justice. This suggests that although the Bench was divided on the point of law, it was quite determined to end the archaic and abominable practice which even Islam looks down upon, even though the extent of reform this judgment will bring about is in itself a question mark.[2]

 

FACTS OF THE CASE

Rizwan Ahmad (Husband) pronounced “Talaq, Talaq, Talaq” in the presence of two witnesses and delivered “Talaq nama” dated 10-10-2015 to Shayara Bano (wife). The wife challenged the same, praying for a writ to be issued by the Supreme Court declaring the divorce as “void ab initio” on the grounds that it violated her fundamental rights. As a consequence, constitutional validity of Triple Talaq was called into question before a Constitution bench of the Supreme Court comprising of 5 judges.

 

FRAMING OF ISSUES

There are 3 Judgments on the case (Minority Judgments, of CJI Khehar and J. Nazeer, written by CJI Khehar; two Majority Judgments, one written by Kurian J. and another written by Nariman J. on behalf of himself and Lalit J). The index page systematically lays down the issues in the case, but for the sake of brevity and better understanding we shall merge the issues and reduce them down to the following:

  1. Is Talaq-e-biddat Islamic in nature?
  2. Whether the Muslim Personal Law (Shariat) Act, 1937 confers statutory status to the subjects regulated by it or is it still covered under “Personal Law” which is not “law” under Article 13 of the Constitution as per previous the Supreme Court judgments?
  3. Is it protected by Article 25 of the Constitution?

 

Issue 1 – Is Triple Talaq Islamic?

Talaq-e-biddat is an irreversible form of pronouncement of Talaq or divorce either by pronouncing it thrice in one go or by a definitive pronouncement viz “I Talaq you irrevocably”.  A distinctive feature of this form of Talaq is that it is effective immediately and is irrevocable. Moreover, Triple Talaq can only be pronounced by a husband against his wife and not vice versa.[3]

Islamic law has four sources, namely, The Quran, Hadith, Ijma and Qiyas.[4] According to the learned author A.A. Fyzee, the Quran, being the word of God is the fundamental source of law; supplementary to the same is Hadith which are the traditions of the prophet; the remaining two are not relevant. The major point of controversy arises since there is no mention of Triple Talaq in the Quran and it is sought to be justified by Hadiths only. The Quran frowns on the practice of Talaq but it frowns more on irrevocable and capricious form of divorce where the husband is not bound to give a reason for the divorce and which is characterised by the absence of a reconciliation period for the couple. However, a similar line of reasoning is made to justify the validity of Triple Talaq. The respondents have argued that the Quran does not mention any form of Talaq and therefore, if the logic behind petitioner’s argument is to be followed then all forms of divorce will have to be declared unislamic which will render the married couples remediless in case of marital disputes.

 

Critical Analysis   

Kurian J’s judgment places an overwhelming reliance on the petitioner’s argument in concluding that Triple Talaq is unislamic. This is particularly interesting because it does not dwell upon the constitutionality of the Triple Talaq, but rather focuses only upon whether it is a part of Islam or not. One may argue that such a question is for the Quranic experts to deliberate upon and not a legal expert, however, Kurian J. does attempt to justify his stand by citing judgments in Shamim Ara, Masroor Ahmed and Jiauddin Khan v. Anwara Begum by Nazarul Islam J.

Without repeating the text of the above-mentioned judgments, an attempt is made to answer the question using non-judicial sources.

Maulana Usmani, in tracing the origins of Triple Talaq in his book focuses on verse 2:229-30 of the Quran which mentions the term, “Al-talaqu marratan”, i.e., divorce may be pronounced twice. He reasons that since a person cannot visit someone’s house twice unless there has been some time gap between two visits; in the same way the word “twice” cannot be interpreted to mean in quick succession.[5]

Overwhelming reliance on the Shamim Ara judgment[6] is in my opinion illogical. Despite the judgment being cited by several Courts to be the law of the land and in spite of ignoring the fact that the relevant part of judgment forms obiter and not the ratio, the reasoning used in the Shamim Ara judgment can be detached from the conclusion that Triple Talaq is unconstitutional.  The reasoning and conclusion in Shamim Ara, as also quoted in this judgment, conveys that every Talaq must be reasonable and be preceded by attempts at reconciliation.  The phrase “attempt at reconciliation” need not necessarily mean that the attempt has to be between the two pronouncements of Talaq, it can also be before pronouncement of Talaq for the first time. Moreover, if one is to read the Quranic texts into the judgment, it is the caprice of the husband which is condemned by prophet, whereas, what the present judgment enforces is following of a compulsory iddat period by the parties before effectuating the divorce. Therefore, in my opinion, the reasoning would have better served the conclusion had it placed its reliance on direct interpretation of the Quran by Muslim scholars instead of placing reliance on the above judgment and declaring it to be the law of the land.

 

Issue 2 – Whether the 1937 Act confers a statutory status on its subjects?    

Coming to the other majority Judgment where Nariman J. writes Triple Talaq to be unconstitutional on the basis of arbitrability, the few deductions we can make from his judgment are:

  1. By focusing on arbitrability of law and not gender equality under Art. 15, as a basis for declaring Triple Talaq to be unconstitutional, he tactfully swings the discussion away from the concern that Talaq, as an instrument, is available only for males and not for females and steers clear from the difficulty of also questioning the other two forms of Talaq. This allowed him to only focus on Triple Talaq as distinguished from other forms of Talaq.
  2. By holding the Muslim Personal Law (Shariat) Application Act, 1937 to be a statutory regulation of Muslim divorce, he side-steps the reconsideration of Narasu Appa Mali judgment of Bombay High Court, which had also been subsequently re-affirmed by subsequent Supreme Court judgments.

Critical Analysis

Nariman J. bases his judgment on the interpretation of S.2 of the 1937 Act[7] by reiterating the approach that must be taken to interpret a “Non-obstante” clause, laid down in Aswini Kumar Ghose v. Aurobindo Bose 1953 SCR 1  as follows;

“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.”

Applying this rule to the section, only those customs and usages which are contrary to Shariat are invalidated; whereas, other such customs and usages which are not inconsistent with Shariat and neither are part of Shariat are still valid. A bare use of this section does not provide us with enough evidence to conclude either way. This where the opinions of Nariman J. and CJI Khehar differ. While Nariman J. puts onus on the Objects of the Act which mention that Muslim Personal Law should be made applicable all over the country, CJI Khehar puts emphasis on the legislative debates to understand the intendment behind the Act. Therefore, in conclusion, it is submitted that it was the discrepancy between the drafting of the Objects of the Act that led to such a varied and contradicting conclusion by the judges.

A seemingly less popular but an enormous impact of the judgment of Nariman J. will be that, his reasoning has exposed the entire Muslim Personal Law to be challengeable under Part III of the Constitution. This may open a completely new door to litigation against the regressive and oppressive practices continuing under the shelter of Muslim Personal Law as such practices will have to satisfy Part III, now.

Issue 3- Whether Triple Talaq is protected by Article 25?

The answer to this question will be determined by the essentiality test. The essentiality test decides whether a particular practice is an integral part of a religion or not. Both the minority and the majority judgments dwell on this issue and rely on different judgments to reach their conclusions. Relying upon Sardar Syedna Taher Saifuddin Saheb case 1962 AIR 853, CJI Khehar, quotes that whether a practice is essential or not must be decided from the view of the members of that community. Nariman J., in quoting, Commissioner of Police v. Acharya Jagdishwarananda Avadhuta 2004 (12) SCC 770, states that an essential practice is the practice on which core beliefs of the religion are founded; a cornerstone upon which the superstructure of the religion is built, without which the fundamental character of the religion would change. It is a permanent and essential part of the religion and cannot be subtracted or added later.

If the essentiality test as per Nariman J. is to be followed, we find no difficulty in declaring Triple Talaq to be outside the ambit of Article 25. However, following the test laid down by CJI Khehar, we come to  question whether Triple Talaq is regarded as an essential part by the Islamic community or not. This question can be answered in the negative, since Islam consists of many communities, a lot of which do not follow Triple Talaq as a practice. However, if this test is to be repeated in the context of India, where a substantial part of Islamic community are Hanafi Muslims, one must ask in the interest of spirit of the section that whether the Hanafi community (which is majorly interested in the outcome of this case) considers Triple Talaq to be an essential part of the religion or not. In light of submissions before the Court (supra) and the discussion following, this question, too, is answered in the negative. When the respondents themselves submit that such a practice is considered to be sinful even by the Hanafi community and AMPLB has also passed directions curbing such practice, it will be absurd to say that what is sinful as per a community is also essential according to them.

Injuncting Fundamental Right under Article 25

Though, this forms a part of the minority judgment, it still is a very novel and bold decision by the Court prompting debates on boundaries of judicial activism that can be resorted to by the Courts. A plethora of cases, as studied by Dr. R. Prakash, indicate that the Courts have been inconsistent in deciding the limits of judicial activism under Article 142.[8] Mr. K.K. Venugopal, the present Attorney General, writing for The Hindu, also urges attention to curb the powers under Article 142 in the interests of justice.[9] The cases so examined by Dr. Prakash[10] highlight the conflict between Article 142 and ordinary laws where they conclude that subject to certain restrictions, the ordinary laws do not act as a prohibition on the exercise of powers under Art. 142.[11]However, the present debate questions whether the exercise of Article 142 can restrict the enjoyment of Article 25 (Constitutional law and not ordinary law). This is answered in the negative on following grounds:

  1. As per the rule of Harmonious Construction, no single provision of any legislative scheme should prevail over any other provision of the legislative scheme; that is to say all provisions are equally powerful. Therefore, Art. 142 cannot be interpreted in a manner as to restrict the enjoyment of Art. 25 of the Constitution.
  2. By no stretch of meaning can the term “Complete Justice” be expounded to also include injuncting of a fundamental right. It will be a preposterous proposition if the very right that the Court is duty bound to protect is invalidated by it temporarily in the “interests of doing complete justice”.

Vedant Churi, V-IV

 

END NOTES

[1] http://www.thehindu.com/todays-paper/tp-national/united-against-triple-talaq-divided-on-legal-points/article19542596.ece

[2] https://herald.dawn.com/news/1153461

[3] http://ecollections.law.fiu.edu/cgi/viewcontent.cgi?article=1093&context=faculty_publications

[4] Asaf A.A. Fyzee in his book Outlines of Muhammadan Law, 5th Edition

[5] http://www.irfi.org/articles/articles_151_200/triple__talaq.htm

[6] https://indiankanoon.org/doc/332673/

[7] S. 2 of the Act

Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and waqfs (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)

[8]http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&id=281

[9] http://www.thehindu.com/todays-paper/tp-opinion/article-142-and-the-need-for-judicial-restraint/article18476737.ece

[10] Supra

[11]  UCC vs. UoI 1992 AIR 248; Supreme Court Bar Assn vs. UoI (1998) 4 SCC 409

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