Legal and General Knowledge

15/10/2022

14/10/2022

General knowledge | Current Affairs | For all exams | September 2022 |

1) Star Indian wicketkeeper-batter Rishabh Pant was appointed as the brand ambassador of Uttarakhand by Chief Minister Pushkar Singh Dhami.
▪️Uttarakhand CM :- Pushkar Singh Dhami
Governor :- Gurmit Singh
➠Asan Conservation Reserve
➠Country's first moss garden
➠Country's first Pollinator Park
➠Integrated Model Agriculture Village Scheme
➠Rajaji Tiger Reserve 🐅
➠Jim Corbett National Park
➠Kedarnath wildlife sanctuary
➠Valley of Flowers National
Park
➠Nanda Devi National Park
➠Mussoorie wildlife sanctuary
➠Govind Pashu Vihar wildlife sanctuary

2) Prime Minister Narendra Modi dedicated the 2nd generation (2G), Ethanol Plant, in Panipat, Haryana.
➨The 2G biofuel plant has been set up to strengthen the efforts to boost the production and usage of biofuels in the country.

3) World Elephant Day is celebrated on 12 August every year to raise awareness about the plight of elephants all over the world.
➨This day was observed for the first time on 12 August, 2012.

4) Union Home and Cooperation Minister Amit Shah launched the onboarding of cooperatives on the Government e-Marketplace (GeM) portal.

5) State Bank of India has become the country's first bank to come up with a policy to fund makers of the man-made stone.
▪️ State Bank of India :-
Founded - 1 July 1955
Headquarters - Mumbai,
Maharashtra
Chairman - Dinesh Kumar Khara

6) The Zoological Survey of India (ZSI) has published a field guide dealing with 1,331 avian species found in the country.
▪️Zoological Survey of India (ZSI) :-
Parent organisation - Ministry of Environment, Forest and Climate Change
Headquarters - Kolkata
Founded - 1 July 1916
Director - Dr. Dhriti Banerjee

7) Nitish Kumar took oath as the Bihar chief minister for the eighth time after he announced a new "grand alliance" with RJD's Tejashwi Yadav and other opposition parties.
➨Tejashwi was also administered the oath of office as deputy CM in a ceremony at Raj Bhawan.

8) Ahmedabad University professor Ramadhar Singh has been marked on the "Heritage Wall of Fame" of the Society for Personality and Social Psychology (SPSP) in the US.

9) Hindi Diwas is celebrated every year on September 14 to promote the Hindi language in every region of the country.
➨ It is to be noted that this day is also celebrated as Dr. Rajendera Singh Birth Anniversary who made tireless efforts to make Hindi Language as the national language.

10) National captain Sunil Chhetri was named the AIFF Men's Footballer of the Year for the seventh time while Manisha Kalyan was picked for her maiden honour in the women's category for the 2021-22 season.
▪️All India Football Federation:-
Founded: 23 June 1937
FIFA affiliation: 1948
AFC affiliation: 1954
Headquarters: Dwarka, Delhi

11) Telangana Chief Minister K Chandrashekhar Rao launched the Nethanna Bima scheme and extended greetins to the weavers on the occasion of National Handloom Day.
▪️Telangana :-
➨CM - Kalvakuntla Chandrashekhar Rao
Governor - Tamilisai Soundararajan
➨KBR National Park
➨Amrabad Tiger Reserve
➨Kawal Tiger Reserve
➨ Pakhal Lake And Wildlife Sanctuary
➨Pocharam Dam And Wildlife Sanctuary
➨Mahavir Harina Vanasthali National Park

12) Lee Jung-jae has won the Best Actor award (Drama Series) for Squid Game and Zendaya has won the Best Actress award (Drama Series) for Euphoria in EMMY AWARDS 2022.
➨ Zendaya is the youngest actress to win two Emmys and the first Black woman to win the Emmy for lead actress in a drama series twice.
➨ Other Awards :-
➨Best Actor (Comedy) :- Jason Sudeikis for Ted Lasso
➨Best Actress (Comedy) :- Jean Smart for Hacks
➨Best Drama Series :- Succession
➨Best Comedy Series :- Ted Lasso

legal Newas | Manupatra | Hijab Ban Case |

Supreme Court bench comprising Justices Hemant Gupta and Sudhanshu Dhulia has pronounced a split verdict on a batch of appeals filed against judgment of Karnataka High Court which held that hijab was not an essential practice of Islam and allowed the ban in educational institutions in the State.

13/10/2022

Exam Related General knowledge | Current Affairs | 📖📚

1) PM Narendra Modi has inaugurated the International Dairy Federation's World Dairy Summit (IDF WDS) 2022.
➨ The event has been inaugurated at the India Expo Center and Mart in Greater Noida.

2) The Meghalaya government launched a multi-purpose online portal -- Meghalaya Residents Safety and Security Act (MRSSA), to ensure the safety and security of the residents and to better the process of delivery of numerous government services.
▪️Meghalaya :-
➨Governor - Satya Pal Malik
➨CM - Conrad Kongkal Sangma
➨Umiam Lake
➨Nartiang Durga Temple
➨Khasi, Garo and Jaintia hills
➨Nokrek National Park
➨Balpakram National Park
➨Baghmara Reserve Forest
➨Siju Bird Sanctuary

3) Pacific Area Travel Writers Association, an affiliate of the UN World Tourism Organisation, has conferred West Bengal with the International Travel Award 2023, for best destination for culture.
➨The Pacific Area Travel Writers Association (PATWA) is a professional organisation of travel writers that was founded in 1998.

4) Karnataka Health Minister K Sudhakar announced monetary aid for Scheduled Caste and Scheduled Tribe (SC/ST) patients of the state suffering from diseases categorised as "rare diseases" and "high-cost diseases".
▪️Karnataka:-
CM :- Basavaraj Bommai
Governor :- Thawarchand Gehlot
Nagarhole National Park
Bandipur National Park
Kudremukh National Park
Language - Kannada
Formation - 1 November 1956
Port :- New Mangalore Port
Anshi National Park
Bannerghata National Park

5) Scientists at New Delhi's Inter-University Accelerator Centre (IUAC) have successfully developed India's first superconducting magnet system used in MRI machines for whole-body clinical scanner.

6) Ministry of Ports, Shipping and Waterways plans to build a National Maritime Heritage Complex (NMHC) at the site of the Indus Valley civilisation in Lothal, Gujarat.
➨This centre will showcase India’s rich and diverse maritime heritage

7) Telugu actor Tanikella Bharani has been chosen for the award of the annual Sahitya Puraskar of Lok Nayak Foundation this year.

8) Prema Racing driver Jehan Daruvala registered a sensational victory as registered after winning the Feature Race in Monza, Italy with a brilliant drive.
➨The Prema driver had finished third in the sprint race.

9) John Peers and Storm Sanders have produced a memorable triumph at the US Open, becoming the first Australian pair to win the mixed doubles title in 21 years in their first grand slam together.
➨The Australian duo defeated Kirsten Flipkens and Edouard Roger-Vasselin 4-6, 6-4, 10-7 to clinch the US Open mixed doubles crown.

10) Former Chief Justice of India Kamal Narain Singh passed away.
➨He remained CJI for the shortest period of 18 days. He was appointed as the Chief Justice of India on 25 November 1991 and retired on 12 December 1991.

11) NITI Aayog approved 32 beneficiaries under the production-linked incentive (PLI) scheme for large-scale electronics manufacturing.
▪️NITI Aayog :- National Institution for Transforming India
➨Formed - 1 January 2015
➨Preceding - Planning Commission
➨Headquarters -New Delhi
➨Chairperson:- Narendra Modi,
➨Vice Chairperson - Suman Bery

12) Prime Minister Narendra Modi inaugurated the International Dairy Federation's World Dairy Summit (IDF WDS) 2022 at the India Expo Center and Mart in Greater Noida.

13) Noted archaeologist Braj Basi Lal, who led an excavation at the Ramjanmabhoomi site in the mid-1970s and was honoured with the Padma Vibhushan last year, passed away. He was 101.

14) The Assam government has decided to create a new school education department by merging two existing ones.
➨The elementary and secondary education departments are being merged to form the new one.
▪️Assam
CM - Dr. Himanta Biswa Sarma
Governor - Prof Jagdish Mukhi
➨Dibru Saikhowa National Park
➨Kaziranga National Park
➨Nameri National Park
➨Manas National Park

12/10/2022

TRIPLE TALAQ JUDGEMENT COPY

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.

Index

Sl.

No.

Divisions Contents Paragraphs

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

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

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 190-190

consideration

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-ebiddat’

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 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-ebiddat’,

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 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 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 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, 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 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 inlaws

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 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

Only

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 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.

The 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.

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 ‘talaqe-

hasan’ are both approved by the ‘Quran’ and ‘hadith’. ‘Talaq-e-ahsan’, is

considered as the ‘most reasonable’ form of divorce, whereas, ‘talaq-ehasan’

is also considered as ‘reasonable’. It was submitted, that ‘talaq-ebiddat’

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-ebiddat’.

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 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-eahsan’.

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 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-eashan’

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 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-ebiddat’

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-ebiddat’

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.

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’, 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.”

The 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 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;

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.”

‘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 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.

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

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 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.

(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,

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,

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

Is 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.

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).

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.”

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 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 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,”

‘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’ 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 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 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 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, 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 the Courts; hence clause 5 (now see

section 4) is proposed to be incorporated in this Bill.

Thus, by this Bill the whole Law relating to dissolution of marriages is

brought at one place and consolidated in the hope that it would supply a

very long felt want of the Muslim Community in India”.

26. The Dissolution of Muslim Marriages Act, 1939 provided, the

grounds on which a Muslim woman, could seek dissolution of marriage.

Section 2 of the enactment is reproduced below:

“2. Grounds for decree for dissolution of marriage.—A woman married

under Muslim law shall be entitled to obtain a decree for the dissolution

of her marriage on any one or more of the following grounds, namely:—

(i) that the whereabouts of the husband have not been known for a

period of four years;

(ii) that the husband has neglected or has failed to provide for her

maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of

seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his

marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and

continues to be so;

(vi) that the husband has been insane for a period of two years or is

suffering from leprosy or virulent venereal disease;

(vii) that she, having been given in marriage by her father or other

guardian before she attained the age of fifteen years, repudiated the

marriage before attaining the age of eighteen years:

Provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say,—

(a) habitually assaults her or makes her life miserable by cruelty of

conduct even if such conduct does not amount to physical ill-treatment,

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights

over it, or

(e) obstructs her in the observance of her religious profession or practice,

(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.

Part-5.

Abrogation of the practice of ‘talaq-e-biddat’ by legislation, the world over, in

Islamic, as well as, non-Islamic States:

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 ‘talaqe-

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:

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.

(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, 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 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 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

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.

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:

Code 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 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 nonappealable

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.”

(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.

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 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

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.

(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

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.

[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’:

30. Rashid Ahmad v. Anisa Khatun1.

(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-uddin,

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-uddin

executed a ‘talaqnama’ (decree of divorce) dated 17.09.1905, which

AIR 1932 PC 25

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

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-uddin.

(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

married another, who had died or divorced her, and that Ghiyas-ud-din

had married her again, and that it was for the appellants to displace that

presumption. In support of this contention, they founded on certain dicta

in the judgment of this Board in Habibur Rahman Chowdhury v. Altaf Ali

Chowdhury L.R. 48 I.A. 114. Their Lordships find it difficult to regard

this contention as a serious one, for these dicta directly negative it. The

passage relied on, which related to indirect proof of Mahomedan

marriage by acknowledgment of a son as a legitimate son is as follows: “It

must not be impossible upon the face of it, i.e., it must not be made

when the ages are such that it is impossible in nature for the

acknowledgor to be the father of the acknowledgee, or when the mother

spoken to in an acknowledgment, being the wife of another, or within

prohibited degrees of the acknowledgor, it would be apparent that the

issue would be the issue of adultery or incest. The acknowledgment may

be repudiated by the acknowledgee. But if none of these objections occur,

then the acknowledgment has more than evidential value. It raises a

presumption of marriage – a presumption which may be taken advantage

of either by a wife-claimant or a son-claimant. Being, however, a

presumption of fact, and not juris et de jure, it is, like every other

presumption of fact capable of being set aside by contrary proof.

18. The legal bar to re-marriage created by the divorce in the present

case would equally prevent the raising of the presumption. If the

respondents had proved the removal of that bar by proving the marriage

of Anisa Fatima to another after the divorce and the death of the latter or

his divorce of her prior to the birth of the children and their

acknowledgment as legitimate, the respondents might then have had the

benefit of the presumption, but not otherwise.

19. Their Lordships are, therefore, of opinion that the appeal should be

allowed, that the decree of the High Court should be reversed, and that

the decree of the Subordinate Judge should be restored, the appellants

to have the costs of his appeal and their costs in the High Court. Their

Lordships will humbly advise His Majesty accordingly.”

(iv) The conclusion: The Privy Council, upheld as valid, ‘talaq-e-biddat’ –

triple talaq, pronounced by the husband, in the absence and without the

knowledge of the wife, even though the husband and wife continued to

cohabit for 15 long years thereafter, wherefrom 5 offsprings were born to

them

31. Jiauddin Ahmed v. Anwara Begum2, (Single Judge judgment,

authored by Baharul Islam, J., as he then was).

(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

(1981) 1 Gau.L.R. 358

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

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 forbearance

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 reunion.

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

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

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.”

(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

was subsisting, the High Court upheld the order awarding maintenance to

the wife – Anwara Begum.

32. Must. Rukia Khatun v. Abdul Khalique Laskar3, (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

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

(1981) 1 Gau. L.R. 375

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-ebiddat’,

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).

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

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.”

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

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 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

2008 (103) DRJ 137

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:

“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-ebiddat’,

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 divorce1. 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) talaq2, operating in much the same way as an

ahsan talaq.”

1 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.

2 Classical Hanafi law, especially as it is practiced in India, seems to take the opinion that triple talaq is

sinful yet effective as an irrevocable divorce. See, e.g., Mulla p. 261-62; The Hedaya, p. 72-73, 83. On

(iv) The conclusion: Based3 on4 the5 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 sinful6. Yet

some schools regard it as valid. Courts in India have also held it to be

the other hand, Ameer Ali suggests that a triple talaq can be revoked within the iddat period. p. 436.

Maulana 'Umar Ahmad ‘Usmani, in The Quran, Women and Modern Society, by Asghar Ali Engineer,

New Dawn: New Delhi (2005), states that Muhammad ibn Muqatil, a Hanafi jurist, gave evidence

indicating that Imam Abu Hanifa developed a second opinion that a triple talaq constitutes one talaq and

that it can therefore be revoked within the iddat period. Maulana ‘Umar Ahmad ‘Usmani quotes from

Fath al-Bari by Hafiz Ibn Jahar al-Asqalani, who states that many eminent jurists have held the opinion

that three talaqs pronounced in one sitting constitute only one talaq. Maulana Wahiduddin Khan, in

Concerning Divorce, Goodword Books: New Delhi (2003), p. 29, says that in the case of a man who was

'emotionally overwrought' when pronouncing talaq three times, “His three utterances of the word talaq

may be taken as an expression of the intensity of his emotions and thus the equivalent of only one such

utterance”. He further gives the example of a Hadith recorded by Imam Abu Dawud in which Rukana ibn

Abu Yazid said talaq to his wife three times in one sitting, and then regretted his action. When he told the

Prophet Muhammad (peace be upon him) how he had divorced his wife, the Prophet (pbuh) observed,

“All three count as only one. If you want, you may revoke it.” p. 28-29 (original Hadith found in Musnad

Ahmad ibn Hanbal). There is also a Hadith reported by Abdullah ibn Abbas that in the Prophet's (pbuh)

lifetime, during the caliphate of Abu Bakr, and during the first two years of Umar ibn al-Khattab's

caliphate, triple talaq was counted as one talaq only, but that Umar then made triple talaq binding upon

his people so that they learned the consequences of their hasty actions. Sahih Muslim 3491. Maulana

Wahiduddin Khan observes this rule was of a “temporary nature” and was specific to the people of the

time, and that the 'ijma of the Companions on Umar's decision was also temporary, as 'ijma cannot

override the system of divorce prescribed in the Quran. p. 30, 32. He notes that the Shariah is eternal, but

that a Muslim ruler can make exceptions in special circumstances and can ensure that women affected by

such a ruling are fully compensated. p. 30-31. He concludes that scholars today cannot justify enforcing

triple talaq by citing Umar's ruling because they do not have the powers of a Caliph as Umar had. p. 32.

It seems that modern Indian Hanafi scholars have taken this opinion as well: the Compendium of Islamic

Laws, 2001, Part II, Section 24, states the following: “If a person pronouncing talaq says that he intended

only a single talaq and repeated the words of talaq only to put emphasis and these words were not meant

to pronounce more than one talaq, his statement on oath will be accepted”. Translated by Mahmood.

(Also see: The Muslim Law of India, 3rd ed., Tahir Mahmood, Lexis Nexis Butterworths: New Delhi

(2002),p.107, where the learned author noted: “In India there has been no legislation in this regard, but

the muftis of the time now agree that if a man pronounces the so-called 'triple talaq' but later swears that

he did not mean it, his declaration may be given the effect of a single talaq revocable during iddat and, if

not so revoked, leaving room for a fresh nikah thereafter with the wife's consent”). Such a view is,

perhaps, based upon an application of the following legal maxim of Islamic law - Al-umuru bimaqasidiha:

Acts are judged by the intention behind them.

Sheikh Sayyed Sabiq in Fiqh As-Sunnah states on the subject of triple talak that although the majority

opinion is that triple talak will count as three divorces, other scholars such as Ibn Taymiyyah and Ibn al-

Qayyim, as well as Companions like 'Ata', Tawuus, Ibn Dinar, 'Ali ibn Abi Talib, Ibn Mas'ud, 'Abdur-

Rahman ibn 'Awf, Az-Zubayr, were of the opinion that it counts as only one pronouncement of divorce.

He then says, “This latter view is believed to be the most correct.” Some go as far as to argue that there

is ijma 'that triple talak counts as three talaks. However, according to the requirements for ijma '(in the

Hanafi madhab), 'no opinion to the contrary should have been expressed on the question by any of the

Companions, or by other Mujtahids before the formation of the Ijma',” and “none of the Mujtahids taking

part in the decision should have afterwards changed his opinion.” Abdur Rahim, p. 145. Here, the first

condition is certainly not met, and the second is arguably not met. Finally, many Muslim countries,

including Algeria, Egypt, Jordan, Morocco, Sudan, Syria, and Yemen, have implemented laws that

uphold the notion that a triple talak counts as only one talak. Personal Law in Islamic Countries, Tahir

Mahmood, Academy of Law and Religion: New Delhi (1987).

6 See supra, fn 25 & 26, for the opinion of the Hanafi madhab that triple talaq is sinful.

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

deprecated by prophet Muhammad7. 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 history8 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.

7 Once the Prophet (pbuh) was informed about a man who had pronounced three divorces at one time. He got up in

anger, saying, “Is sport being made of the Book of Allah while I am (yet) among you?” Reported by an-Nasai'i.

8 The exact Hadith is as follows: “Abdullah ibn Abbas reported that the pronouncement of three divorces during the

lifetime of Allah's Messenger (pbuh) and that of Abu Bakr and two years of the caliphate of Umar was treated as

one. But Umar ibn al-Khattab said, “Verily the people have begun to hasten in the matter in which they are required

to observe respite. So if we had imposed this upon them, [it would have deterred them from doing so!] and he

imposed it upon them.” Sahih Muslim 3491.

34.1 234 Nazeer v. Shemeema5, (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

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

2017 (1) KLT 300

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,

“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

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

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.

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

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 Kerala6, and Minerva Mills Ltd. v. Union of

India7 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 ‘talaqe-

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’

(1973) 4 SCC 225

(1980) 3 SCC 625

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 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 India8, 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 facet 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

(2014) 9 SCC 1

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

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 India9, Javed v. State of

Haryana10, and Khursheed Ahmad Khan v. State of Uttar Pradesh11.

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.

(2003) 6 SCC 611

(2003) 8 SCC 369

(2015) 8 SCC 439

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.

According to learned counsel, all concerned acknowledge, that ‘talaq-ebiddat’

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

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-ebiddat’

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 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 ‘talaqe-

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 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.12, 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-ebiddat’

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.

(2002) 7 SCC 518

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

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 Mills13, 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..…”

AIR 1960 SC 378

In the context of ‘personal law’, it was submitted, that in Shabnam Hashmi

v. Union of India14, 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

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,

(2014) 4 SCC 1

refer to Part-6 – Judicial pronouncements, on the subject of ‘talaq-ebiddat’).

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

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

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-eahsan’

(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’.

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 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

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 India15, 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

(2015) 1 SCC 192

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

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.

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

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

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

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-ebiddat,

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

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.”

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

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

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

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

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-ebiddat’

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

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 ‘talaqe-

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-e94

biddat’, which would be in consonance with the verses of the Quran and the

relevant ‘hadiths’.

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 7th

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-ebiddat’.

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 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-ebiddat’,

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-ebiddat’

– 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-ebiddat’,

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

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

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

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;”

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 Thirukoil16, 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

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….

(1996) 8 SCC 525

100

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,

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 India17,

wherein it was submitted, that this Court had emphasized on the value of

(2008) 3 SCC 1

101

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 Rajasthan18, 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 India19, wherein this Court had the occasion

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

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

(1997) 6 SCC 241

(1999) 2 SCC 228

102

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

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 non103

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 University20,

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,

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

(1996) 3 SCC 545

104

sectional, caste, religious or regional barriers, establishment of secular

socialist order becomes difficult. In State of Karnataka v. Appu Balu

Ingale & Ors., AIR (1993) SC 1126 this Court has held in paragraph 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

seemless web of life. 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 interpretive 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.…”

The learned Attorney General then submitted, that in paragraph 20 of the

Valsamma Paul case20, it was noted, that various Hindu practices which

were not in tune with the times, had been done away with, in the interest of

promoting equality and fraternity. In paragraph 21 of the above judgment,

this Court had emphasized the need to divorce religion from ‘personal law’.

And in paragraph 22, a mention was made about the need to foster a

national identity, which would not deny pluralism of Indian culture, but

would rather preserve it. Relevant extracts of the aforesaid judgment relied

upon during the course of hearing, are reproduced herein below:

“21. The Constitution through its Preamble, Fundamental Rights and

Directive Principles created 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

law, from what may be called social relations, or from the rights of

105

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 356-8).

22. In the onward march of establishing an egalitarian secular social

order based on equality and dignity of person, Article 15(1) prohibits

discrimination on grounds of religion or caste identities so as to foster

national identity which does not deny pluralism of Indian culture but

rather to preserve it. Indian culture is a product or blend of several

strains or elements derived from various sources, in spite of

inconsequential variety of forms and types. There is unity of spirit

informing Indian culture throughout the ages. It is this underlying unity

which is one of the most remarkable everlasting and enduring feature of

Indian culture that fosters unity in diversity among different populace.

This generates and fosters cordial spirit and toleration that make

possible the unity and continuity of Indian traditions. Therefore, it would

be the endeavour of everyone to develop several identities which

constantly interact and overlap, and prove a meeting point for all

members of different religious communities, castes, sections, subsections

and regions to promote rational approach to life and society and

would establish a national composite and cosmopolitan culture and way

of life.”

66. It was also asserted, that patriarchal values and traditional notions

about the role of women in society, were an impediment to the goal for

achieving social democracy. In this behalf it was contended, that gender

inequity impacts not only women, but had a ripple effect on the rest of the

community, preventing it from shaking out of backwardness and partaking

to the full, liberties guaranteed under the Constitution. Citizens from all

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

106

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 nondiscrimination,

and the right to life with dignity. In this behalf reference

was made to Sri Venkataramana Devaru v. State of Mysore21. 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 conclude,

that the other provisions of the Part would “prevail over” and would “control

the right conferred” by Article 25(1).

1958 SCR 895

107

68. In the above context it was also submitted, that the freedom of

religion, expressed in Article 25 of the Constitution was, not confined to the

male gender. Article 25 is extracted below:

“25. Freedom of conscience and free profession, practice and propagation

of religion. – (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 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.”

It was highlighted, that it was also necessary to note, that Article 25(1)

provides that “all” persons were “equally” entitled to the freedom of

conscience, and the right to profess, practice and propagate religion. This,

according to the learned Attorney General, should be understood to mean,

that the rights conferred by this article were equally available to women,

and were not confined to men alone. Therefore, it was contended, that any

patriarchal or one sided interpretation of religion (or a practice of religion),

ought not to be countenanced.

69. It was emphasised by the learned Attorney General, that it was

necessary to draw a line between religion per se, and religious practices. It

was submitted, that the latter were not protected under Article 25.

108

“Religion”, according to the learned Attorney General, has been explained by

this Court in A.S. Narayana Deekshitulu v. State of A.P.22, 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

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

(1996) 9 SCC 548

109

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:

“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

110

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

Bombay High Court, in State of Bombay v. Narasu Appa Mali23. 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

AIR 1952 Bom. 84

111

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.

(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.”

112

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

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

113

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 (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

114

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.

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 Mutt24, 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

AIR 1954 SC 282

115

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

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.”

116

Reference was then made to Ratilal v. State of Bombay25, 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

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 Bihar26, 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:

AIR 1954 SC 388

AIR 1958 SC 731

117

“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

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,

118

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

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 Jamat27, 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

(2005) 8 SCC 534

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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 Bombay28, 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

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

AIR 1962 SC 853

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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

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

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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

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

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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,

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

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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

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.

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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

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-ebiddat’.

We have referred to the incident, and considered the necessity to

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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

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

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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

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.

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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

…”

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

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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 Ahir29, 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,

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 India30, 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

(1981) 3 SCC 689

(1997) 3 SCC 573

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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 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

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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 case31. 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

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,

(1996) ALT 1138(-Writ Petition No.9717 of 1983, decided on 9.10.1996)

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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 – ‘talaqe-

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 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’

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which through centuries of generations, Muslim belief represents what the

Prophet Muhamad had said and practiced. It was asserted, that the aforestated

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

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:

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“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)

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

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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”.

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. (AISunan

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

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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)

(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

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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

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.

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In this behalf it was reiterated, that talaq was in three forms – ‘talaq-eahsan’,

‘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

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.”

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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 alsanay,

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)

(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

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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

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

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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

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:

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"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.

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

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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

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

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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.

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.

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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 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

145

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

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.”

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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 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

147

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.

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.

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"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

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 coordinated

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

149

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.”

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

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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.

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

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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.”

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

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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

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

153

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.

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

154

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

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

155

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

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

156

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

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

157

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

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

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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

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

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‘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

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:

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“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

resolutions in the meeting held on 15th and 16th 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.

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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.

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

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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

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

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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

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

India32, 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.”

(1994) Suppl. (1) SCC 713

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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.”

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.

165

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

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-ebiddat’

would be sinful, as per the injunction of the Quran, in ‘sura’ 2, Al

Baqara Ayah 230. The same is reproduced hereunder:

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“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

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

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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 Board33, 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

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

(2002) 8 SCC 106

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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.”

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.34, 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-ebiddat’),

were unsustainable in law, because the High Courts had

substituted their own views with reference to their understanding of ‘talaqe-

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

(1997) 4 SCC 606

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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

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

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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

(-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),

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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

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

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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 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-Ulemai-

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,

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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 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

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‘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

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,

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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

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

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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

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.

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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

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 ‘talaqe-

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

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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

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

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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 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

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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

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. Sowramma35, 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

AIR 1971 Ker 261

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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

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-ebiddat’,

under the Muslim ‘personal law’ – ‘Shariat’, this Court in Fuzlunbi

v. K. Khader Vali36, 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

(1980) 4 SCC 125

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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.

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.

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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 ‘talaqe-

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 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

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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

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-ebiddat’

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.

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(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,

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

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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.

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

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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.

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

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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

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 selfeffacing,

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.

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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

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

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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

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

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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 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

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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

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

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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

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

194

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,

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’

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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

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 case3

Sl.

No.

Reference Comments

(i) Authorities in this judgment are

identical to the above mentioned

judgment of Jiauddin Ahmed v.

Anwara Begum.

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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 case5.

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.

(ii) Ibn Kathir (Referred in

paras 1 and 8 of the

judgment)

He wrote a commentary on the

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.

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(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.

(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,

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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

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.

199

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

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.

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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

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

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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,

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 selfserving

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.

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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’?

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

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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,

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

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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.

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

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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.

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

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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

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

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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’,

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

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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

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.

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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

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

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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

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

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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

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

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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

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

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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

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

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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:

“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

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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).

23. …..The 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

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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 Begum37 (by a 5-Judge Constitution

Bench), Daniel Latifi v. Union of India38 (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

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

(1985) 2 SCC 556

(2001) 7 SCC 740

217

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)

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:

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(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.”

(ii) Reference is also essential to Madhu Kishwar v. State of Bihar39,

wherein this Court observed a under:

“It is worthwhile to account some legislation on the subject. The Hindu

Succession Act governs and prescribes rules of succession applicable to

a large majority of Indians being Hindus, Sikhs, Buddhists, Jains etc.

whereunder since 1956, if not earlier, the female heir is put on a par with

a male heir. Next in the line of numbers is the Shariat law, applicable to

Muslims, whereunder the female heir has an unequal share in the

inheritance, by and large half of what a male gets. Then comes the Indian

Succession Act which applies to Christians and by and large to people

not covered under the aforesaid two laws, conferring in a certain manner

heirship on females as also males. Certain chapters thereof are not made

applicable to certain communities. Sub-section (2) of Section 2 of the

Hindu Succession Act significantly provides that nothing contained in

the Act shall apply to the members of any Scheduled Tribe within the

meaning of clause (25) of Article 366 of the Constitution, unless

otherwise directed by the Central Government by means of a notification

in the Official Gazette. Section 3(2) further provides that in the Act,

unless the context otherwise requires, words importing the masculine

gender shall not be taken to include females. General rule of legislative

practice is that unless there is anything repugnant in the subject or

context, words importing the masculine gender used in statutes are to be

(1996) 5 SCC 125

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taken to include females. Attention be drawn to Section 13 of the General

Clauses Act. But in matters of succession the general rule of plurality

would have to be applied with circumspection. The afore provision thus

appears to have been inserted ex abundanti cautela. Even under Section

3 of the Indian Succession Act, the State Government is empowered to

exempt any race, sect or tripe from the operation of the Act and the

tribes of Mundas, Oraons, Santhals etc. in the State of Bihar, who are

included in our concern, have been so exempted. Thus neither the Hindu

Succession Act, nor even the Shariat law is applicable to the customgoverned

tribals. And custom, as is well recognized, varies from people to

people and region to region.”

In the face of these divisions and visible barricades put up by the

sensitive tribal people valuing their own customs, traditions and usages,

judicially enforcing on them the principles of personal laws applicable to

others, on an elitist approach or on equality principle, by judicial

activism, is a difficult and mind-boggling effort. Brother K. Ramaswamy,

J. seems to have taken the view that Indian legislatures (and

Governments too) would not prompt themselves to activate in this

direction because of political reasons and in this situation, an activist

court. apolitical as it avowedly is, could get into action and legislate

broadly on the lines as suggested by the petitioners in their written

submissions. However laudable, desirable and attractive the result may

seem, it has happily been viewed by our learned brother that an activist

court is not fully equipped to cope with the details and 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 the court, it compulsively needs to apply, motion, described in

judicial parlance as self-restraint. We agree therefore with brother K.

Ramaswamy, J. as summed up by him in the paragraph ending on p.36

(para 46) of his judgment that under the circumstances it is not desirable

to declare the customs of tribal inhabitants as offending Articles 14, 45

and 21 of the Constitution and each case must be examined when full

facts are placed before the court.

With regard to the statutory provisions of the Act, he has proposed to the

reading down of Sections 7 and 8 in order to preserve their

constitutionality. This approach is available from p.36 (paras 47, 48)

onwards of his judgment. The words "male descendant wherever

occurring , would include "female descendants". It is also proposed that

even though the provisions of the Hindu Succession Act, 1925 in terms

would not apply to the Schedule Tribes, their general principles

composing of justice, equity and fair play would apply to them. On this

basis it has been proposed to take the view that the Scheduled Tribe

women would succeed to the estate of paternal parent, brother or

husband as heirs by intestate succession and inherit the property in

equal shares with the male heir with absolute rights as per the principles

of the Hindu Succession Act as also the Indian Succession Act. However,

much we may like the law to be so we regret our inability to subscribe to

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the means in achieving such objective. If this be the route of return on

the court's entering the thicket, it would follow a beeline for similar

claims in diverse situations, not stopping at tribal definitions, and a

deafening uproar to bring other systems of law in line with the line with

the systems of law in line with the Hindu Succession Act and the Indian

Succession Act as models. Rules of succession are, indeed susceptible of

providing differential treatment, not necessarily equal. Non-uniformities

would not in all events violate Article 14. Judge-made amendments to

provisions, should normally be avoided. We are thus constrained to take

this view. even though it may appear to be conservative for adopting a

cautious approach, and the one proposed by our learned brother is,

regretfully not acceptable to us.”

(iii) In the Ahmedabad Women Action Group case30, this Court recorded

the questions arising for consideration in pargraphs 1 to 3, which are

reproduced below:

“All these Writ Petitions are filed as Public Interest Litigation. In W.P. (C)

No. 494 of 1996, the reliefs prayed for are as follows:

(a) to declare Muslim Personal Law which allows polygamy as void as

offending Articles 14 and 15 of the Constitution;

(b) to declare 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, as void, offending Articles 13, 14 and 15 of the

Constitution;

(c) to declare that the mere fact that a Muslim husband takes more than

one wife is an act of cruelty within the meaning of Clause VIII (f)

of Section 2 of Dissolution of Muslim Marriages Act, 1939;

(d) to declare that Muslim Women (Protection of Rights on Divorce) Act,

1986 is void as infringing Articles 14 and 15;

(e) to further declare that the provisions of Sunni and Shia laws of

inheritance which discriminate against females in their share as

compared to the share of males of the same status, void as

discriminating against females only on the ground of sex.

2. In writ Petition (C) No. 496 of 1996, the reliefs prayed for are the

following:-

(a) to declare Sections 2(2), 5(ii) and (iii), 6 and Explanation to Section

30 of Hindu Succession Act, 1956, as void offending Articles 14 and 15

read with Article 13 of the Constitution of India;

(b) to declare Section (2) of Hindu Marriage Act, 1955, as void offending

Articles 14 and 15 of the Constitution of India;

(c) to declare Sections 3 (2), 6 and 9 of the Hindu Minority

and Guardianship Act read with Section 6 of Guardians and Wards Act

void;

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(d) to declare the unfettered and absolute discretion allowed to a Hindu

spouse to make testamentary disposition without providing for an

ascertained share of his or her spouse and dependant, void.

3. In writ Petition (C) No. 721 of 1996, the reliefs prayed for are the

following :

(a) to declare Sections 10 and 34 of Indian Divorce Act void and also to

declare Sections 43 to 46 of the Indian Succession Act void.”

The position expressed in respect of the above questions, after noticing the

legal position propounded by this Court in the Madhu Kishwar case39, was

recorded in paragraph 4 as under:

“4. 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.”

(iv) Reference may also be made to the Sardar Syedna Taher Saifuddin

Saheb case28, wherein, this Court held as under:

“The content of Articles 25 and 26 of the Constitution came up for