Supreme Court sets aside Triple Talaq as 'manifestly arbitrary practice' in 3-2 verdict

Supreme Court sets aside Triple Talaq as 'manifestly arbitrary practice' in 3-2 verdict

NetIndian News Network

New Delhi, August 22, 2017

In a significant 3-2 judgement, a five-judge Bench of the Supreme Court today set aside the practice of "talaq-e-biddat" or triple talaq, holding that it was a "manifestly arbitrary" practice.
"In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside," an order signed by the five judges, including Chief Justice of India J. S. Khehar, said.
The other judges on the bench were Justices Kurian Joseph, Rohinton Nariman and Uday Umesh Lalit, who held the majority view, while Justice S. Abdul Nazeer and Justice Khehar held the minority view.
In their judgement, Justices Nariman and Lalit said that it was clear that "triple talaq" was "manifestly arbitrary" in the sense that the marital tie could be broken "capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it."
"This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression 'laws in force' in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq," they said.
Mr. Justice Kurian Joseph said in a separate judgement that he found it extremely difficult to agree with the Chief Justice that the practice of triple talaq had to be considered integral to the religious denomination in question and that the same is part of their personal law.
"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 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'," he said.
"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 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.
"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. Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and 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," he wrote in his judgement.
Justices Khehar and Abdul Nazeer said, in their minority judgement, that they were satisfied that this was a case which presented a situation where the 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 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, 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.
"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-ebiddat’ (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," they said.
Justices Khehar and Abdul Nazeer said it would be pertinent to mention that the Constitutional protection to tenets of "personal law" could not be interfered with, as long as they do not infringe "public order, morality and health", and/or “the provisions of Part III of the Constitution”. They said this was the clear position expressed in Article 25 (1).
They said it was not possible for them to accept that the practice of ‘talaq-e-biddat’ could 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," they said.
"The only remaining ground on which the challenge to ‘talaq-ebiddat’ 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 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 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," they said.
"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 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 nonnegotiable. 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. 
"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," the two judges said in their judgement.
"The unbroken practice during the preindependence 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 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," they said.
The judges listed the following conclusions arising from the various submissions made before the court:
(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-biddat’ being considered sinful, it was accepted amongst Sunni 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.
(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. 
The two judges noted that the whole nation seemed to be "up in arms" and there was "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 by others was harsher, they considered it as disgusting, loathsome and obnoxious. Some even described it as being debased, abhorrent and wretched," they said.
"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.
"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 endeavours to protect and preserve, the beliefs of each of the separate entities, under Article 25.
"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.
"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.
"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’...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 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.
"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.
"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 judges said.
Justices Khehar and Abdul Nazeer also noted that the All India Muslim Personal Law Board (AIMPLB) had filed an affidavit affirming that it would issue an advisory through its website to 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’.