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 … Petitioner versus

Union of India and others … Respondents

J  U  D G  M  E  N  T

Jagdish Singh Khehar, CJI.

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Index

Sl. No.

Divisions Contents Para-grap hs

1. Part-1 The  petitioner’s  marital  discord,  and  the petitioner’s prayers

  1- 10

2. Part-2 The  practiced  modes  of  ‘talaq’  amongst Muslims

11- 16

3. Part-3 The Holy Quran – with reference to ‘talaq’  17- 21

4. Part-4 Legislation  in  India,  in  the  field  of  Muslim ‘personal law’

22- 27

5. Part-5 Abrogation of the practice of ‘talaq-e-biddat’ by legislation, the world over, in Islamic, as well as, non-Islamic States

28- 29

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 ‘talaq-e-biddat’

30 - 34

7. Part-7 The  petitioner’s  and  the  interveners’ contentions:

35 – 78

8. Part-8 The rebuttal of the petitioners’ contentions  79 - 111

9. Part-9 Consideration of the rival contentions, and our conclusions

112- 114

I. Does the judgment of the Privy Council in the Rashid Ahmad case, upholding ‘talaq-e-biddat’, require a relook?

115-120

II. Has  ‘talaq-e-biddat’,  which  is  concededly sinful, sanction of law?

121-127

III. Is  the  practice  of  ‘talaq-e-biddat’, approved/disapproved by “hadiths”?  

128-139

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’?

140-145

V. Did  the  Muslim  Personal  Law  (Shariat) Application Act, 1937 confer statutory status to the subjects regulated by the said legislation?

146-157

VI. Does  ‘talaq-e-biddat’,  violate  the  parameters expressed in Article 25 of the Constitution?

158-165

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 declarations on ‘talaq-e-biddat’.

183-189

X. Conclusions  emerging  out  of  the  above consideration

190-190

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

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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

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matrimonial  relationship between the parties resulted in the

births  of  two  children,  a  son  –  Mohammed  Irfan  (presently

about  13  years  old)  studying  in  the  7th 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

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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

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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,

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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

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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  

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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.

T  he 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.

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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

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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

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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

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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;

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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

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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.

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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

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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,

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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,”

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'‘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’

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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

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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

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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

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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,

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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

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(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.

P  art-5.

Abrogation of the practice of ‘talaq-e-biddat’ by legislation, the  world over, in Islamic, as well as, non-Islamic States:

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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:

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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.

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(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,

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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

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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

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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.

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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.”

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((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.

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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  

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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

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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.  

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(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

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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.

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[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’:

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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

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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

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(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

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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

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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

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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.”

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(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

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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).

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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.”

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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

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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:

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“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) talaq  6  , 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

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deprecated by prophet Muhammad  11  . 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.  Shemeema  17  ,  (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

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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,

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“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

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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

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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.

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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

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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 Kerala18, 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  Ahmed2,  and  the  Rukia  Khatun3 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

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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  India20,

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

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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  India21,  Javed  v.  State  of

Haryana22, and Khursheed Ahmad Khan v. State of Uttar Pradesh23.  

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

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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

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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 81

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 case3 – by a Division Bench.  By the Delhi High

Court in the Masroor Ahmed case4 – by a Single Bench, and finally by the

Kerala High Court in the Nazeer case5 – 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

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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 case4,

and  by  the  Kerala  High  Court  in  the  Nazeer  case5  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

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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 Mills25, 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

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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, 20th

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 case4.  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 19th 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 case1 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  India27,  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

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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 99

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 case4, 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 Thirukoil28,  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  India29,

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 India31, wherein this Court had the occasion

to interpret  the provisions of  the Hindu Minority and Guardianship Act,

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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 25th 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 University32,

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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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 Mysore33.  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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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 Mali35.   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 121

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 case23,

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 case23 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 case23, 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. 123

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 Bombay37, 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 Bihar38, 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

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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,

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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

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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 case43.  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

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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 145

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

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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

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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

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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 16  th   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.”

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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 175

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  case28,  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  Board45,  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

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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 Ali15 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

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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 179

(-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 187

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 case1 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 case1 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 case1 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  case1,  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  case1,  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

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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 case1,  needed a

relook.   

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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 case1).  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 case3.

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  case5

(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  case1,  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 case4, and finally, on account of the

decision of a Single Judge of the Kerala High Court in the Nazeer case5.   

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 case2 is  concerned,  details  of  the  entire

consideration have been narrated in paragraph 31 hereinabove.  Likewise,

the  consideration  with  reference  to  the  Rukia  Khatun  case3 has  been

recorded in paragraph 32.  The judgment in the Masroor Ahmed case4 has

been dealt with in paragraph 33.  And finally, the Nazeer case5 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  19th 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 (referred to  at paras 7, 11, 12 and 13 of the judgment)

He is a Qadiyani.  Mirza Ghulam Ahmed (founder  of  the Qadiani 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. No.

Reference Comments

(i) Authorities in this judgment are identical to the above mentioned judgment of  Jiauddin Ahmed v. Anwara Begum.

3. The Masroor Ahmed case4 Sl. No.

Reference Comments

(i) Mulla  (Referred  at  the footnote at page 153 of the judgment)

Approves  the  proposition  that triple talaq is sinful, yet effective as an irrevocable divorce.

4. The Nazeer case  5  . Sl. No.Reference Comments (i) Basheer  Ahmad  Mohyidin

(Referred at paras 1 and 6 of the judgment)

He  wrote  a  commentary  on  the Quran  entitled  as  Quran:  The Living Truth, however the extract relied upon in the decision does not discuss triple talaq.

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paras  1  and  8  of  the judgment)

Quran  entitled  as  Tafsir  Ibn 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 (Referred in para 6 of the judgment)

He was a Professor of Law, Delhi University. 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 (Referred  in  para  8  of  the judgment)

He  regarded  triple  talaq  as against God’s law.  It is submitted that  he  was  a  follower  of  the Ahl-e-Hadith School.

(v) Mahmoud  Rida  Murad (Referred  in  para  8  of  the judgment)

He authored the book entitled as Islamic  Digest  of  Aqeedah  and 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 (Referred in para 11 of the judgment)

He  is  a  scholar  of  the  Hanafi School.   Though  the  passages 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 Philips (Referred in para 19 of the judgment)

He authored the book ‘Evolution of  Fiqh’.   He  states  that  Caliph 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 (Referred in para 23 of the judgment)

He  was  of  the  view  that  Caliph Umar  introduced  triple  talaq  in 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  case12,  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 case12 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, 212

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 case1 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 215

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

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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

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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 case23.  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: 223

“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.  …..T  he 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 case29  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 India50 (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 case29.

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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“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 case33,  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 case34, 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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them  from  social  injustice  and  all  forms  of  exploitation.  By  42  nd 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

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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

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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

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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  case16,

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.”

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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

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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 case20, 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

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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

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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

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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

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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

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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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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,-  

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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 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

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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

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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

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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

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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

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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

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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. Hegde  54

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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

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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 India  56

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 56

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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 case1 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 274

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.

276

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   & 16  th   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 280

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

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.

J U D G M E N T  

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

REPORTABLE

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 Another  57

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

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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) &

Another  61:

  “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,

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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

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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.  

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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,

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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

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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

Another  64, while in a three judge bench in this

Court, made a very poignant observation on the

erroneous approach of Batchelor, J. in  Sarabai

v. Rabiabai  65 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

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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  Bibee  66 in  1878  and  finally,  after

discussing  two  decisions  of  the  Gauhati  High

Court  namely   Jiauddin  Ahmed v.  Anwara

Begum  67  and   Rukia  Khatun v.  Abdul

Khalique Laskar  68, 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

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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

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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.

Sowramma  69 and the other of Justice V. Khalid

in Mohd. Haneefa v. Pathummal Beevi  70. 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

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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

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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

another  71,  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.

XXXX 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

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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

India  72,  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,

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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 India  74.  

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

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the marriage between the parties did not stand

dissolved.

20. In  Ummer  Farooque v.  Naseema  76,

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

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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)

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22. As recently as in 2016, Mustaque, J. of the

High  Court  of  Kerala  in  Nazeer  @  Oyoor

Nazeer v. Shemeema  77, 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

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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

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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.   

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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

J U D G M E N T

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

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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.

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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

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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

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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).   

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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

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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

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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

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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)

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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).   

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(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

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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”  (5th 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).  

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The  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

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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

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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

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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:

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“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).

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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.  

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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

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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

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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:

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“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

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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”.

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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

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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

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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.-

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(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

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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:

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“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

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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.

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(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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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)

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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

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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

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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

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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

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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.

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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

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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)

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“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

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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

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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.

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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

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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

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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:

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(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

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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

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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.  

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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.”

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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

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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:

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“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

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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

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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.”  

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(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

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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

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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

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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,

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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

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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] .”  

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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

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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

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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