Triple Talaq has been struck down by the Supreme Court. Excellent decision as it is unislamic and not part of Muslim Personal Law. Following is the judgment.
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
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 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 has held, though not in so many words, that triple talaq lacks legal sanctity. Therefore, in terms of Article 141, 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. Section 2 is most relevant in the face of the present controversy.
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 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
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.
(Emphasis supplied)
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 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 Muhammadan Law, 5th Edition, 2008 at page 10.
“…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 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:
“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, 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
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.
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,
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
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
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.”
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 finality. 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, 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 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 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 in 1878 and finally, after discussing two decisions of the Gauhati High Court namely Jiauddin Ahmed v. Anwara Begum and Rukia Khatun v. Abdul Khalique Laskar, 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 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 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 and the other of Justice V. Khalid in Mohd. Haneefa v. Pathummal Beevi. 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 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 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.
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, 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 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, 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, 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 and Ahmedabad Women Action Group (AWAG) and Ors. v. Union of India.
19. The High Court of Jammu and Kashmir, in Manzoor Ahmad Khan v.Saja & Ors., 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 the marriage between the parties did not stand dissolved.
20. In Ummer Farooque v. Naseema, 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 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)
22. As recently as in 2016, Mustaque, J. of the High Court of Kerala in Nazeer @ Oyoor Nazeer v. Shemeema, 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 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 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 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.
