Islamic principles and laws raise many questions for critical evaluation like other systems of laws and one such controversial issue is that of divorce in Muslim law. The judgment of ‘Allahabad High Court on the practice of Triple Talaq’ had left a question to be answered by all Muslims “can personal laws remain so harsh to Muslim women?” The question was an urgent one to be answered as this was not the first time that the legality of Triple Talaq was questioned in the Courts of Justice but never before has the statutory validity of the practice been examined before a Constitution Bench of Supreme Court.
In Re: Muslim Women’s Quest for Equality v. Jammat Ulema-I-Hind and others and Shayara Bano v. Union of India, the Hon’ble Supreme Court comprising a bench of five judges with Chief Justice Jagdish Singh Khehar, Justice Kurian Joseph, Justice RF Nariman, Justice Uday Umesh Lalit and Justice S. Abdul Nazeer addressed the issue of Triple Talaq with amicus curiae Salman Khurshid. The order of the Court mentioned in the last page of the 395-pages judgment is “In view of the different opinions recorded, by a majority of 3:2, the practice of ‘Talaq-e-Biddat’-Triple Talaq is set aside on August 22, 2017.” The ruling was made after five women moved the Supreme Court arguing that Triple Talaq violated the rights of Muslim wives by allowing Muslim men to divorce their wives in minutes simply by pronouncing the word “Talaq” three times.
The judiciary for a long time was reluctant to address questions on personal laws and religious matters or rather step into the shoes of theologians as they were not fully equipped authorities to decide such matters or interpret religious scriptures. The Shah Bano Judgment included the ex-wife within the meaning of wife but never had the issue of gender equality addressed in Shah Bano and Danial Latifi cases. The Supreme Court of India on October 16, 2015, took the initiative to address whether the practices of marriage and divorce under Muslim personal law decrease the status of Muslim women.
The Supreme Court then registered a suo motu public interest litigation petition to see whether Triple Talaq, polygamy and Nikah Halala infringed the status of Muslim women in society. The initiative of the Court to address the issue was appreciated by Muslim women and various groups but the judgment is limited only to addressing the issue of Triple Talaq and not polygamy and Nikah Halala. In this judgment Triple Talaq is the only subject matter of challenge; other forms of Talaq are not. The judgment pertains only to Sunnis as Shias do not recognize Triple Talaq.
Background of the Case
A writ petition was filed in:
- Shayara Bano v. Union of India and others [Writ Petition (C) No. 118 of 2016]
- In Re: Muslim Women’s Quest For Equality v. Jamiat Ulema-I-Hind [Suo Motu Writ (C) No. 2 of 2015]
- Aafreen Rehman v. Union of India and others [Writ Petition (C) No. 288 of 2016]
- Gulshan Parveen v. Union of India and others [Writ Petition (C) No. 327 of 2016]
- Ishrat Jahan v. Union of India and others [Writ Petition (C) No. 665 of 2016]
- Atiya Sabri v. Union of India and others [Writ Petition (C) No. 43 of 2017]
ATIYA SABRI, from Saharanpur, Uttar Pradesh was divorced when her husband sent a letter to her brother’s office in which he had simply written “Talaq, Talaq, Talaq” Mrs. Sabri did not accept this divorce as her husband unilaterally ended their two and a half year marriage without giving their marriage any chance of reconciliation as mentioned in the Holy Quran. She appealed to the Supreme Court in February to declare the practice unconstitutional. She alleged that she was divorced because she gave birth to two daughters. She alleged that her in-laws used to torture her and tried to poison her and then the letter ending their marriage arrived but she raised her voice to fight and give justice to her daughters and win their rights.
Shayara Bano was divorced by her husband Rizwan Ahmad when he pronounced ‘Talaq’ three times in the presence of two eye witnesses and issued a ‘Talaqnama’ to her. Shayara Bano challenged it in the Court as Triple Talaq infringed her fundamental rights and requested the Supreme Court to hold the practice ‘void-ab-initio’. At this point the Supreme Court considered the statutory validity of the practice before it. Shayara Bano from Kashipur, Uttarakhand stated that instant Triple Talaq changes the life of a woman and is detrimental for the future of children too. She was recovering from illness at her parent’s home when a letter arrived ending their fifteen years marriage. She says that she has lost faith in the institution of marriage.
Aafreen Rehman, an MBA from Jaipur, Gulshan Parveen from Rampur and Ishrat Jahan from Kolkata were also left devastated after their husbands ended their marriage by the evil practice of Triple Talaq.
The public would not have come to protest against the evil practice had not these five women challenged the conservative elements existing in the society giving patriarchy a strong foothold.
On the first day of the hearing i.e. on May 11, 2017, Attorney General Mukul Rohatgi argued that the case was an intra-community dispute between Muslim men and women and women had broken out against the centuries-old evil practices. The act of unilateral divorce was described as ‘civil deaths’ and it was argued that personal laws should be tested on the touchstone of fundamental rights. It was also contended that Triple Talaq was not an essential part of Islam and can be done away with.
On the second day i.e. May 12, 2017, Triple Talaq was held as a sinful practice by Salman Khurshid who said that in his opinion ‘no religious laws would validate a sin’. Senior Counsel Ram Jethmalani held the practice against gender justice.
On the third day i.e. May 15, 2017, Attorney General Rohatgi argued that the practice was discriminatory as it puts Muslim women in a disadvantageous position within the community, vis-à-vis women of other communities and also at the international level. The court was asked to see if personal laws were in consonance with the Constitution under Article 13. CJI. Khehar and Justice Kurian held that religious doctrines cannot be tested by the courts and they would only decide if Triple Talaq is discriminatory to Muslim women or not.
On the fourth day i.e. May 16, 2017, the AIMPLB arguments by Kapil Sibal were put forward. He argued that personal laws were religious laws concerning faith and the Constitution protects it under Part III of the Constitution. Advocate General Rohatgi responded that the rights given under Article 25 were not absolute and even the core components of religion can be tested on the touchstone of the Constitution and in case of any conflict, Constitution will prevail over personal laws. He gave examples of evil practices like Sati, Devdasi system and untouchability among the Hindus which have been abolished and the same could be done to the practice of Triple Talaq.
On the fifth day of the hearing i.e. on May 17, 2017, the Supreme Court examined whether Muslim wives had an option to agree or disagree to Triple Talaq? Advocate General Rohatgi declared that an essential practice of religion means a ‘fundamental practice’ or the ‘foundation stone of the religion’ without which the whole structure would get destroyed and Triple Talaq was not an essential practice to Islam. The court can thus test it on the touchstone of Part III of the Constitution. Senior Counsel Sibal, however, contended that Triple Talaq was a dying law and the Muslim community will be giving up the practice soon. The question of the validity of Triple Talaq was considered as it was followed by four out of five Sunni schools and reference was made to Delhi High Court Judgment in Masroor Ahmed v. State where the court held that though Talaq-ul-Biddat is sinful, it has been validated by some schools of Islamic jurisprudence.
On the sixth day i.e. on May 18, 2017, the AIMPLB which was defending Triple Talaq pleaded the court not to address the validity of religious customs and beliefs and told that it was ready to issue an advisory to all Qadis that during Nikah the bride can be asked to give her view on Triple Talaq and incorporate it in the Nikahnama. Justice Kurien Joseph has also in the judgment said that this power should be given to Muslim brides during the Nikah ceremony.
The Supreme Court after hearing the matter for six days reserved its historical judgment which was delivered on August 22, 2017.
A Critical Analysis Of The Judgment On Triple Talaq
The practice of Triple Talaq among Muslims was set aside by the Hon’ble Supreme Court of India by a majority decision of 3:2 in August 2017 as it was stated that the practice was unconstitutional and not an integral part of the foundations of Islamic laws.
Chief Justice Khehar asked three questions to the contending parties:
- Whether Triple Talaq was fundamental to Islam?
- Whether it was sacrosanct to Islam?
- Whether the practice (Triple Talaq) was an enforceable fundamental right?
The landmark judgment of the Supreme Court was given by five-bench judges from different major faiths namely Hinduism (Justice Lalit), Christianity (Justice Kurian Joseph), Islam (Justice Nazeer), Sikhism (Chief Justice Khehar) and Zoroastrianism (Justice Nariman). CJI. Khehar and Justice Nazeer gave a dissenting judgment. The majority opinion held that Triple Talaq was not an integral part of Islam, violated the religious principles as prescribed in the Holy Quran and violated constitutional morality. Three of the five judges declared the practice as unconstitutional and outlawed the controversial practice. The judges observed that since many Islamic countries have ‘abolished the practice’ then why it should not be abolished in India? The other two judges holding minority wanted to put an injunction to the practice for six months till the Government came up with new legislation on the matter.’ The AIMPLB is not satisfied with the judicial verdict on Triple Talaq arguing that religious matters cannot be decided by courts.
The minority judgments delivered by CJI. Khehar and Justice Nazeer observed that the situation demands that the Court exercises its discretion under Article 142 of the Indian Constitution to direct the Union of India to come up with appropriate legislation, particularly with reference to Talaq-ul-Biddat. The judges also requested that political gains be kept aside while examining the necessary measures requiring legislation. The judges put a temporary injunction for six months to the practice of Talaq-ul-Biddat and held that if the legislation process starts before the expiry of six months, either holding three Talaq is given at one and same time to be counted as one, or if it is decided that the practice of Talaq-ul-Biddat would be done away with altogether, the injunction would continue till the legislation gets finally enacted; failing which the injunction would cease to operate.
The Muslim law Board, however, argued that Court cannot invalidate the practice as the same has been protected under Article 25, 26 and 35 of the Constitution. A crucial question before the Supreme Court was whether Triple Talaq was or was not an integral part of Islam. The respondents failed to understand the limited scope of Article 25 and 26. It is important to understand that religion has two aspects: religious aspects and secular aspects. The religious aspect include the method of worship, place of worship, the appearance of religious idols, a celebration of religious festivals, etc.; the secular aspects of religion include matters like the appointment of head of a religious institution, acquisition of religious land, marriage, divorce, adoption, succession, etc.
Looking at the secular aspect of Islam, Triple Talaq becomes a secular issue of divorce and cannot fall under Article 25 and 26 of the Constitution. It is also important to look at the religious practices which are protected under Article 25 and 26. Only the essential religious practices which have been mandated by the religion have been protected under Article 25 and 26 and not those which have been merely permitted by the religion. Even if a religious practice qualifies to be an essential religious practice then also it would not get protection under Articles 25 and 26 if it goes against public order, morality or health. The practice of Triple Talaq goes against the public morals and mental health of Muslim wives and is a sin in religion and society.
The scope of Article 25 is further limited because the right is subject to other fundamental rights guaranteed under part III. Triple Talaq cannot get the protection under Article 25 and 26 if it violates the fundamental rights of Muslim women. The second argument was that Triple Talaq is protected under Article 29 of the Constitution but the practice is not an integral part of the religion. The judgment also holds the practice ‘un-Islamic and ‘un-Constitutional’.
Justice Kurian Joseph disagreed with the Chief Justice that the practice of Triple Talaq has to be considered integral to religious practice and held that ‘what is bad in religion was once good in law’ but after the Shariat Act, 1937 being declared as personal law, the question arises whether legal sanctity be given to what is bad in the Holy Quran. He held that Triple Talaq has no legal sanctity and is no more res integra. He, in his twenty-five page judgment, concludes that a practice which violates the religious doctrines was bad in theology and thus bad in law and needs to be invalidated. He upheld the judgment given in Shamim Ara v. State of UP in terms of Article 141. He further said that Article 25 is subjected to public order, health, morality and other provisions of Part III of the Constitution. He further stated that the existence of a practice in the society for a very long period cannot validate it, if it has been expressly declared to be impermissible. The purpose of Shariat Act, 1937 was to end all the anti-Shariat practices and so no practice which is against the Holy Quran can be permitted. However, his judgment is critical as his interpretation is too literal; though his vote counts in invalidating the practice by a narrow majority. Justice Joseph analyses the issue more from a religious angle.
CJI. Khehar citing a judgment stated that the ideology of a community decides whether a practice is integral or not to them. Deducting the answer from the statement of CJI the answer is a clear ‘no’ as Islam has different sects and schools which follow their own principles, ideologies and have divergent views on the applicability of Triple Talaq. Justice Nariman on the other hand citing a judgment ruled out that a practice integral to Islam is one on which the core values of Islam are based, a foundation stone and pillar on which faith is built and the alteration of which will change the fundamental character of Islam. He further stated that accommodating the interests of different sovereigns is in the hands of Legislature which has to be done without curbing the religious freedom guaranteed by the Constitution and within the constitutional parameters. He upheld the decision given in Shamim Ara case and observed that ‘what is bad in religion is bad in law too’.
Justice Nariman and Justice Lalit held that since Tripe Talaq is instant Talaq, it leaves no chance of reconciliation which is essential according to Islamic scriptures to save the marital tie. Thus, a Muslim husband can act arbitrarily and divorce at his whim. The judges referring to the Privy Council’s decision that Triple Talaq was valid even if given without any reasonable cause held that this decision is no longer followed after Shamim Ara’s judgment. The Bench held that Triple Talaq infringed Article 14 and in their opinion since Shariat Act, 1937 recognizes and enforces Triple Talaq, it is within the meaning of expression “laws in force” under Article 13(1) of the Indian Constitution and can be struck down as being void to the extent that it recognizes and enforces Triple Talaq. “What constitutes an essential part of the religion is primarily to be derived with reference to the doctrines of that religion” has been clearly stated by the Supreme Court.
Justice Nariman, in respectful disagreement with the judgment passed by CJI Khehar stated a very essential point referring to the case of Prakash v. Phulvati that the most important issue which is not directly involved in this appeal is that of “gender discrimination”. Muslim women are denied equality, security, and dignity and subjected to discrimination though safeguarded against arbitrary divorce. The issue of gender discrimination and insecurities of married women is not new but has been raised many times before. Triple Talaq by a Muslim husband dissolving a marital bond is bad in Constitutional law. He further stated in his judgment that Triple Talaq is an “anachronism” in today’s world and constitutionally speaking it is an “anathema”, a hateful thing and a curse to the society. Justice Nariman says “arbitrariness is anathema to the Equality” and condemned this arbitrary power in the hands of Muslim men as it infringes the fundamental rights of women guaranteed under Article 14 of the Constitution.
The AIMPLB has opposed this, counting on the judgment passed by Bombay High Court  arguing that personal laws are beyond fundamental rights and hence cannot be struck down by the Court. According to them, Supreme Court should fold its hand and send the aggrieved parties to the Legislature because if Triple Talaq is to be removed as a measure of social reform and for social welfare under Article 25(2), the Legislature should alone do so. To this it was argued that the subject matter of attack in this matter is not Muslim Personal Law but only a statute namely Muslim Personal Law (Shariat) Application Act, 1937. Triple Talaq has been specifically sanctioned by the statute through Section 2 of the Shariat Act, 1937 and what is prayed for is a declaration that Section 2 of the Shariat Act, 1937 is constitutionally invalid. According to Muslim Personal Law Board, Triple Talaq operates of its own force and cannot be included in Article 13(1) as “laws in force” as held in the case of Narasu Appa.
Justice Nariman has in his judgment  cited from Mulla’s Principles of Mohammedan Law (16th Edition) (1968) Justice Hidayatullah, explaining how Arabia was drowned in ignorance and barbarism, superstitious beliefs and vices. Female infanticide, drinking, lechery and other evils existed in the society and the Prophet (Peace be upon him) was the one to bring social reforms; however, after his death various schools came up with different views on the pronouncement of Triple Talaq. Hidayatullah J. in his introduction to Mulla has stated the degrees of obedience where Triple Talaq does not fall within first degree or second degree but third degree and more probably within fourth degrees of obedience.
In Sarabai v Rabiabai, Bachelor J. has stated that ‘Triple Talaq is good in law though bad in theology’. In Rashid Khan v. Anisa Khatun it was held that the Shariat Act, 1937 comes within the purview of Article 13(1) of the Indian Constitution. Triple Talaq, though sanctioned by the Shariat law is applicable to the Sunni Muslims in India, violates the fundamental rights of Muslim women guaranteed to them under Article 14, 15 and 21 of the Indian Constitution. However, the Indian courts have many a times excused themselves from giving judgment on matters pertaining to personal laws as they are not covered under Article 13 of the Constitution. The questions on personal laws were never decided by British courts as they followed a policy of non-interference with the religious scriptures and beliefs of Indian people.
The unwillingness of Courts in the past and even in present to adjudicate questions of religious doctrines and laws is very rationale as the Holy Quran is the original source and the greatest authority. The divine books cannot be interpreted with the tools used generally by the courts to interpret statutes. The intentions of the statute makers and framers of Constitution have been many times analysed while interpreting a law but can the intention of the Creator analysed by human beings? It is not humanly possible to interpret divine books but the Hadith is very helpful in interpreting the same. The very fact that God does not want to create hardships in the life of people can solve many issues. India is a Secular country and as such there should be no interfere with the personal laws of people which are integral part of their religion, faith and belief. Religious laws cannot be measured on the basis of reforms and social welfare in the society but practices which are not integral to religion and are also a threat to social security should be abolished.
The judiciary has for long been reluctant to touch the disputed matters on family law excusing itself of lack of jurisdiction but the contributions of judges like Justice Krishna Iyer and Baharul Islam are notable and would always be cherished as they have contributed a lot in the history of Islamic law by deciding cases in the true legal spirit while balancing it with the social needs of the time. Justice Iyer has lamented the distortion of Islamic principles. He had never followed the perspectives given by British judges blindly, neither did he rely much on secondary sources nor did he limit his knowledge to the decisions of other judges and religious clerics, instead, he tried to derive the true principles of Islamic laws from the original sources and that reflects in his judgments when he establishes his viewpoints quoting the verses from Holy Quran, Hadith and leading books of Islamic jurisprudence.
The balanced approach adopted by Justice Iyer differentiates him from other judges. Justice Baharul Islam has also done remarkable heedfulness in understanding the Islamic law. Mahmood J. had long ago observed that ‘Hindu law and Muslim law are so intimately woven that they cannot be separated and as long as religion lasts, the laws founded on them last.’Islamic laws are not judge made laws but jurist made laws and so the true position and interpretation of Islamic laws can be done through juristic verdicts and not through judicial precedents. However, this does not mean that there is no scope of development of law. The learned judges should consult juristic opinions while deciding cases on Muslim law. The courts need to adapt and accommodate the Shariah law principles which are in conformity with the true Quranic principles so that justice can be given to the aggrieved party and to the divine laws by their correct interpretation.
After the judgment, a Bill named as ‘The Muslim Women (Protection of Rights on Marriage) Bill, 2017’ was introduced in the Lok Sabha by Ministry of Law and Justice regarding the protection of rights of Muslim married women which criminalizes the pronouncement of Triple Talaq by a Muslim husband to his wife. This Bill was drafted because despite Triple Talaq being outlawed by Indian Supreme Court, it was still prevalent and therefore the State legislation had to come in role to give effect to the orders of the Apex Court. The Bill proposes to protect the rights of the Muslim women and prohibits their husbands to give Triple Talaq. Section 4 of the Bill criminalizes the utterance of Talaq by Muslim husband making it illegal with punishment of detention for a period which may extend upto three years and fine. The utterance of the word Talaq however criminalises the practice, though Talaq will not be effective. The quantum of fine is also left as a subject matter of the Jurisdiction of the Magistrate of First Class, furthermore marriage is a civil matter but the Bill criminalises the act. The Bill draws hardships by killing the opportunity of reconciliation between the spouses provoking the breakdown of marriage.
The repetition of the word ‘Talaq’ had no doubt became a playful thing in the hands of Muslim men allowing them to establish their supremacy over women and heading the society towards extreme patriarchy. The religious belief of many Muslims deviates from the actual religious doctrine resulting in practices which are against the basic ideals of humanity like giving e-Talaq and Triple Talaq. One of the most established reasons for giving divorce is when a wife cannot give a male heir to her in-laws as happened in Atiya Sabri’s case.
The break out of Muslim women challenging the age old evil practice of instant Triple Talaq reflects their aspirations and their denial of accepting the unjust methods to disrespect the pure institution of marriage, their willingness to open up and challenge gender based discrimination. The fight for gender equality by progressive groups is mobilizing women from all religious background to promote the idea of equality envisaged in Article 14 of the Indian Constitution rather than changing or attacking the personal laws. The deprivation of Muslim women in all fields- economic, social and political shows the social hierarchies and their marginalization. However, the practice of Triple Talaq was inconsistent and detestable in the eyes of the Creator and the Prophet (Peace Be upon Him), was constitutionally invalid and the judgment has opened the doors to road ahead where Muslim divorce is no more whimsical and no more impulsive but has to be given with valid reasons.
The use of modern technology for such unscrupulous practice is shameful. The court would not have adjudicated the matter if AIMPLB would have been swift and active in dealing with the issue long back. The Muslim countries which have abolished Triple Talaq to safeguard the interests of women in society have done so with the help of jurists and religious scholars following the original sources. The judiciary has already outlawed it; now the policy makers can take steps but in consultation with religious scholars and jurists who can give their opinions on the subject matter to save Muslim women from tyrannical rules of men. Muslims can further opt for Talaq-us-Sunnat as there is no dispute regarding that among jurists and scholars; the institution of divorce through Talaq-us-Sunnat is quite clear and recognised by the Indian judiciary.
The judgment of the Supreme Court indicates that social reforms should come from society itself. Tracing the issue from Shah Bano to Shayara Bano, the focus has always been on gender friendly reforms to be brought in personal laws but before bringing any legal reform if a social atmosphere is created to accept these reforms, then laws will seem more effective. The accommodation of the interests of different communities is very important to develop the nation in secular angle. The State v. Religious communities can be minimised to a great extent by mutually respecting the laws of each other and in no way an evil practice which is not an integral part of the religion be sheltered. The judiciary and the people should replace the word “Triple Talaq” by the word “Instant Talaq” as the judiciary has outlawed instant Talaq and not the Triple Talaq (the true principles of Talaq as given in Holy Quran).
The position of personal law is not yet settled as the Supreme Court has by outlawing a practice which was apparently at odd with the rights guaranteed under Part III has missed the golden opportunity to clear the status of personal laws with respect to Constitution. The judgment is no doubt praiseworthy as much as it is criticized because the Apex Court has taken significant steps to restore the rights guaranteed under Part III of the Indian Constitution to the aggrieved parties. The judgment on Triple Talaq sends a strong message of gender equality and will have positive impact on the condition of Muslim women. Besides, it has reinstated the faith of people in Indian Judiciary. The decisions of the court in Amini EJ v. Union of India, Shah Bano and Danial Latificases are path breaking judgments and the latest judgment of Allahabad High Court along with the judgment of Supreme Court on August, 22, 2017 is a win for democracy.
This Article Is Written By Firdous Ebrahim.