Case Analysis: Supreme Court Declares Triple Talaq Unconstitutional by Manu Sharma

INTRODUCTION

 “Can something found to be sinful by god be validated by men through law?” And if god considers it a sin it can’t be legal, can it be? These were among the weighty questions posed by the Apex Court while declaring the Muslim divorce through triple talaq unconstitutional on August 22, 2017. By way of triple talaq Muslim men could divorce their wives instantly and without state intervention by simply pronouncing talaq, talaq, talaq. The case had been brought before the court by the petitioner Atiya Sabri and other women who had been divorced by the way of triple talaq. Different Muslim women’s right activist and organization have played an active role in calling for reforms of Muslim personal law, thereby forming part of broader Islamic feminist movements. On the outcome, the bench was split into 3:2.Though the three judges in the majority held triple talaq invalid, but different reasoning has been propounded to arrive at their conclusion. Justices U.U Lalit and R. Nariman held that the Muslim Personal Law (Shariat) Application Act, 1937, in so far as it refers to triple talaq is voilative of Article14 of the Indian constitution- the right to equality, while Justice Kurian Joseph argued that triple talaq was not a valid practice in Islam and was therefore illegal. The minority view, held by Chief Justice J.S Khehar and Justice Abdul Nazeer, was that though triple talaq was undesired, the courts have no authority to strike it down as only the parliament is constitutionally entitled to regulate such matters. The judgement is a landmark one in the Indian women’s movements agitating for equal rights under religion based personal laws. However, at the same time, unfortunately the aspect of gender equality did not play such a considerable role in the argumentation as it could have, and the judgment does not provide any clear road map for dealing with other discriminatory issues in the personal law system in the future.

BACKGROUND OF THE CASE

‘Of all the permitted things Divorce is the most abominable with the God’- it is said in hadith (Prophet’s saying). In Islam, marriage is a contractual relationship between a man and a woman. It gets completed when both the parties pronounce “Qubool Hai, Qubool Hai, Qubool Hai”, then why it gets dissolved when only the husband pronounces “talaq, talaq, talaq”. India is a democratic nation where all the subjects are guaranteed the protection of equal rights, while holding the flag aloft of being a secular state. However underneath all the rosy claims, lies the cruel reality of discriminatory and tyrannical personal laws which tear apart the very foundation of equality in our constitution. The case at hand brought together five writ petition filed by Muslim women who had been divorced by way of triple talaq. The petitioner Atiya Sabri is one of the five women who petitioned the Supreme Court challenging the practice of instant triple talaq. Married in 2012, she was also divorced by her husband when he wrote talaq, talaq, talaq on a piece of paper. Muslims women’s groups like Bhartiya Muslim Mahila Andolan (BMMA) and Bebak Collective supported the petitioners while organization like All India Muslim Personal Law Board (AIMPLB) acted as a key player in defending the practice of triple talaq. The court directed the filing of a PIL case, entitled In Re: Muslim Women’s Quest For Equality v. Jamiat Ulma-I-Hind, SMW(C) No. 2/2015.The deliberative decision to form a bench consisting of judges belonging to different religious communities was constituted to avoid the mistake the made in Shah Bano[1]and possibly to signal the Muslim community that their concerns were being taken seriously and the case would be looked at in the most objective manner.

The main contention of the petitioner and others were mainly based on the argument that triple talaq violated fundamental rights, namely Articles 14, 15 and 21. Reference was made to Masilamani Mudaliar[2] as well as other cases[3] in which the Apex Court has tested the personal laws on the touchstone of fundamental rights, it was opined that Muslim personal law should be considered as ‘law in force’ within the meaning of Article 13(1). It was argued that, triple talaq was arbitrary and discriminatory and thus it is the court’s primary duty to intervene in cases of violation of one’s fundamental rights and to render justice as upheld in landmark Kesavananda Bharti[4]and Minerva Mills[5]case. This was even more so in cases where parliament is reluctant in carrying out its duty –presumably due to political considerations. It was further held that the constitution’s provisions on religious freedom did not in any manner impair the jurisdiction of the court. Article 25 postulated that religious freedom was subject to other provisions in part III.  And hence triple talaq was in fact not even protected by article 25 as it would not form an ‘essential practice’ in Islam.

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Additionally, the argumentation also relied upon the international conventions and treaties to which India is a party, such as ‘Universal Declaration of Human Rights (UDHR)’, ‘International Covenant on Economic, Social and Cultural Rights (ICESCR)’ and ‘The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the respective references to gender equality therein. Beyond that, it was held that triple talaq was not in tune with the prevailing conditions of the society. It was also contended that it should be abolished in the same way as the state had done away with the practices once prevalent in the Hindu religion, such as Sati, Devdasi and polygamy. The fact that a number of countries, including the theocratic state and countries with large Muslim majorities, had prohibited triple talaq showed not only the capability of state to interfere in personal law, but the paradox that Muslim women in secular country like India enjoy lesser rights than those of Islamic states.

The rebuttal of the petitioner’s contention drew upon Narasu Appa Mali[6] and Ahmed Women Action Group[7] and held that courts cannot go into the question of constitutionality of personal laws.  Other countries too have banned triple talaq through legislative acts only. Further it was opined that the practice of triple talaq has been practised for about 1400 years and thus a part and parcel of the personal law, hence protected under Article 25. Respondent also argued the as Muslim marriage is a social contract, the individual muslim couples were free to declare triple talaq invalid in their marriage contract or opt to be governed under the secular Special Marriage Act, 1954 and hence could decide for themselves whether or not triple talaq would be valid in their case. Generally, it was held that social reforms with reference to personal laws should emerge from the concerned community itself without any interference of courts. The Indian state had followed the policy of non- interference in the affairs of personal laws. As a part of this policy, India had also expressed clear reservations in regard to the mentioned international conventions, which was why the provisions of International law were not applicable in this case.

ANALYSIS

MUSLIM PERSONAL LAW IN INDIA

 Personal laws per se are an ancient phenomenon and its present form has been shaped considerably during the colonial rule .When in 1949, we enacted Article 44 of the constitution directing that the “State shall endeavour to secure for the citizens a uniform civil Code throughout the territory of India”, we already had uniform Codes of Laws covering almost every aspect of legal relationship excepting only those in which we were governed by the various personal laws. As Ambedkar observed during the debates in the Constituent Assembly[8] on the draft Article 35 (subsequently enacted as Article 44), the only province which was not covered by any uniform code was Marriage and Succession. Though referred expressedly as constituting the zone uncovered by any uniform code, it is obvious that discussions meant not only Marriage and Succession simpliciter,but all those matter in respect of which we were (and still are)governed by our personal law.

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Talking particularly about Muslim personal laws it would be relevant to record, the key legislation in the case at hand is the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to, as Shariat Act) which was enacted to negate the adverse effects of customary laws on the rights of muslim women. Section 2 of this Act declares the rule of decision in cases where are parties are Muslim shall be the Muslim Personal Law (Shariat), negating “customs and usages”. The Act specifically refers to provisions of Personal Law, marriage, dissolution of marriage including talaq.

More than a century ago, the Privy Council observes in Moonshee Buzloor Ruheem v.Shumsoonnissa Begum[9] that “the matrimonial law of the Mahomedans, like that of every ancient community, favours the stronger sex” where the husband can dissolve the tie at his will”. According to Islamic concept matrimonial alliance is a sort of social contract, and it can be dissolved when it ceases to serve its purpose. Hence different modes of divorce are provided both at husband’s and wife’s initiative in Muslim personal law. While the Quran itself only refers to divorce to a limited extent, it is Islamic legal scholars who has categorised the modes of divorce more clearly. When dissolution of marriage tie proceeds from the husband it is called talaq and three different modes of this form of divorce are usually distinguished: Talaq-e-ahsan, Talaq-e-hasan, and the one discussed here, Talaq-e-biddat/badai or triple talaq. Other than in the former two forms of talaq (in which a defined time period lies between the first pronouncement of talaq and the point at which the divorce becomes effective), triple talaq refers to three pronouncements of the word talaq in one sitting: it is effective forthwith and irrevocable. It is considered to be most sinful, innovated form of divorce as it is against the letter and spirit of Quran and was disallowed by the Prophet himself .As rightly pointed by the apex court in Zohara Khatoon[10], under the Muslim Law, the commonest form of divorce is the unilateral declaration of pronouncement of divorce of the wife by the husband. Also a divorce given unilaterally with immediate effectiveness by the husband is especially peculiar to Muslim law and that in no other law has the husband got a unilateral right to divorce his wife by simple declaration. Notably, triple talaq is not acknowledged by all Muslims. Shia Muslims and some schools among the Sunni Muslims do not recognise it, while the Hanafi sect of Sunni Muslims prominently does.  With modern technology, there have been instances where wives have been divorced through triple talaq being pronounced over mobile phones, Whatsapp, Facebook, Skype etc. which grossly infringe the rights of Muslim women and posed a serious question on the claims of gender equality leading to widespread controversies around the validity of personal laws.

CONSTITUTIONALITY OF PERSONAL LAWS

With regard to the constitutionality of religion-based personal laws in general and triple talaq in particular, a number of constitutional provisions play a role. Firstly, the preamble of Indian Constitution defines India as a secular state and as the Apex Court has held that the character of Indian republic being secular, it is part of the ‘basic structure’ of the constitution.[11] Other than, for instance the American understanding of secularism is a strict divide between the church and state, while the Indian notion is generally understood as one of equal protection of all the religions and sects. Notably the existence of different personal laws for different religious communities does not conflict per se with the principles of secularism. Nor is the call for a uniform civil code in Article 44 in conflict with the existence of personal laws. On the one hand, the provision leaves open whether such a UCC would actually replace or simply complement the personal laws. On the other hand, contrary to fundamental rights in Part III of the constitution, directive principles in Part IV such as Article 44 is not enforceable by the court. The directive principles neither create any rights in favour of individuals, nor can a law be declared unconstitutional on sole ground that it contravenes directive principles.

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However, here things became a little more interesting – All laws in force in the territory of India immediately before commencement of constitution which are inconsistent with the provisions of Part III i.e. (fundamental rights) shall be void to the extent of such inconsistency[12]. The fundamental rights includes right to equality[13], prohibition of discrimination on grounds of religion, race, caste, sex or palace of birth[14] as well as right to life which is interpretated in a broad sense as including personal liberty and the right to live with human dignity[15].Interestingly, in 1952 in case of State of Bombay v. Narasu Appa Mali[16], the Bombay High Court decided upon the question of “whether the personal laws  applicable to Hindus and Muslims are ‘laws in force’ within the meaning of Article 13(1)  of the constitution. The court held that the (uncodified) personal laws were not laws in force within the meaning of Article 13(1). Consequently the court stated that (uncodified) personal laws were not void even when they came into conflict with the provisions of equality. A two judge bench of the Supreme Court in Krishna Singh v. Mathura Ahir[17] ruled that “Part III of the constitution does not touch upon the personal laws of the parties. Contrastingly it has been held by the apex court in a series of decision viz., Sant Ram v. Labh Singh[18] , Builders Supply Corporation v Union of India[19] that the expression “law in force” includes not only enactments of the Indian legislatures but the entire gamut of common law of land which was being administered by the courts. The Federal court also, in United Provinces v. Atique Begum[20] while construing the analogous expression ‘law in force’ in section 292 of the Government of India Act, 1935, observed that the expression “applies not only to statutory enactments then in force, but to all laws, including even personal laws, customary laws and case laws”. It appears that the learned judges in Narasu Appa Mali[21] signally failed to notice the decision of Federal Court which was obviously binding on them. While the Indian Supreme Court has never directly overruled this judgment, it did in an obiter dictum in the Masilamani Mudaliar[22]case in 1996 articulated an opposing viewpoint by stating: the personal laws conferring inferior status on women is anathema to equality. As they are derived from the religious scriptures they must be consistent with the constitution lest they become void under Article 13 if they violated the fundamental rights.

On the other hand, the constitution also guaranteed the right to freedom of religion[23], which includes freedom of conscience and free profession, practice and propaganda of religion but is to subject to public order, morality and health and to the other provisions of this part[24]. Article 25(2) further states that “nothing in this article shall effect the operation of any existing law or prevent the state from making any law. According to Indian jurisprudence, only “essential religious practice” is protected under Article 25[25].Whether or not triple talaq constitutes such an essential religious practice was a central question in the case at hand.

Lately, Supreme Court has been rather reluctant in positioning itself vis-à-vis the personal laws. In particular against the backdrop of the court’s power of judicial review and its reputation as an independent and activist court, it was noticeable that with regard to personal laws, the apex court practiced a “hands off approach”. Often it refrained from taking a decision by referring the subject to be dealt under the domain of legislative subject. In some of the cases where the court did take a position –most prominently in the landmark Shah Bano case[26], it has been criticized for drawing on anti-Muslim stereotypes, rather than engaging with the issue of gender equality. As well as the fact that in the specific case, five Hindu judges made an attempt to interpret Muslim personal law, the language the judgement used was heavily crtiticised and perceived as an attack on the Muslim community.

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This critique however, should not undermine the fact that some positive development in the jurisdiction on personal laws has been seen too. Specifically, with regard to triple talaq, judiciary though slowly but steadily fostered the rights of Muslim women. There has been shift in the understanding of the courts from considering “the whimsical and capricious divorce by the husband good n law, though bad in theology” towards testing the divorce practice against a strict set of standards. The Gauhati High Court[27] held that talaq was only valid if there was an appropriate cause for the divorce and if it was preceded by unsuccessful attempts at reconciliation between the husband and wife, involving two arbitrators –one from the wife’s family and other form husband’s family. The jugdement was upheld by the Apex Court in Shamim Ara[28]. In Masoor Ahmed v. State (NCT of Delhi)[29] judges regarded triple talaq as one revocable talaq ,meaning that after its pronouncement the husband  has time to rethink his decision and an opportunity to revoke the same during the period of iddat (roughly 3 months). Thus, one might argue that in a way the issue had already been settled before the Shayara Bano case came up and made it to the headlines of the International agencies and media.

THE JUDGEMENT

The constitutionality of triple talaq was tested by the court in different step. The first issue to look upon was whether triple talaq had been codified into statutory law by the Shariat Act, 1937. If this were the case, it would be subject to constitutional scrutiny ,if not then the question would be whether triple talaq part of uncodified personal law and whether as such can be tested on parameters against the constitution. This was decided by different judges who gave different reasoning for the same. Justice Nariman and Lalit held that all forms of talaq recognised and enforced by Muslim personal law are enacted in 1937 Act and hence this would necessarily include triple talaq (para 18). As a pre constitutional law the Shariat Act, 1937 would fall within the expression “laws in force” and would be hit by the provisions of Article 13(1).Justice Joseph, Khehar and Nazeer disagreed with this. Now the question that followed and again found different answer was – whether triple talaq, was instead part of uncodified Muslim personal law. Justice Joseph answered this in negative, pointing out that according to his understanding The Quran permits talaq only every attempt of reconciliation has failed .However, since in case of triple talaq it’s not possible, the practice must be held to be against the basic tenets of the Holy Quran and consequently, it violates Shariat (para 10). He stated that merely because a practice has continued for so long does not make it itself valid if it has been expressly declared to be impermissible (para 24). On the other hand Justice Khehar and Nazeer regarded triple talaq as part of uncodified Muslim personal law and consequently had to answer about the constitutionality, to which the two answered in the negative tone. This was because, in their opinion, the personal laws of any religious community were protected from invasion and breach, except as provided by and under Article 25(para 146). This interpretation in particular has been criticised, as it regards a law rather than an individual being protected under Article 25. The justices did not see a reason to engage with the relationship between Article 25 vis-a –vis Articles 14,15and 21 as “other provisions of this part”, which the freedom of religion is “subject to”(Article 25(1)), as they held that these rights were only applicable to state action against individuals (para 165). They concluded that Article 25 of the constitution obliges all courts to protect the ‘personal laws’ and interference in such matters is clearly beyond judicial scrutiny. The judges directed the union of India to consider appropriate legislation, particularly with reference to ‘talaq- e –biddat’ (para199).

Returning to Justices Nariman and Lalit ,who previously regarded triple talaq as codified into statutory law by Shariat Act,1937 and thus subject to judicial scrutiny in similar vein to Justice Joseph denied the saving of triple talaq by virtue of article 25. The judges held that there was no need that “the ball must be bounced back to the legislature” (para25) and that the court could decide upon this. Apex court’s previous judgment in Ahmedabad Women Action Group Case[30] was in this context dismissed as having ‘no ratio’ and being contradictory in itself (para 30).

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Having said this, the judges engaged with the core issue of the case: the question of whether the Shariat Act, 1937, insofar as it seeks to enforce triple talaq, was a violation of equality provision mentioned in Article 14. With extensive reference to the Supreme’s Court jurisprudence, the judges argued that “legislation can be struck down on the ground of arbitrariness and therefore, voilative of article 14 of the constitution” (para54). This test of manifest arbitrariness was then applied to the case at hand, the judges concluded that:

This form of Talaq is manifestly arbitrary in the sense that the martial tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore be held to be voilative of the fundamental right contained in Article 14 of the constitution of India. The 1937 act, insofar as it seeks to recognise and enforce triple talaq is within the meaning of the expression ‘laws in force’ in article 13(1) and must be struck down as being void to extent that it recognises and enforces triple talaq.

Overall, though via a different argumentation, Justices Nariman and Lalit thereby came to the same conclusion as Justice Joseph and by a majority of 3:2 the practice of triple talaq was set aside.

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CONCLUSION

In comparison to the court’s earlier strategy of avoiding to engage in-depth with the personal laws, this judgment was indeed rather bold and might rightfully be called a ‘landmark decision’ which marks a signpost moment of the women’s movement in India. The multi faith composition of the bench, which aimed at providing a neutral and differentiated view on the matter, was also a laudable approach. While in the case Article 14 and 15 played a varying role in the different argumentation, the judgement did not engage with the intersectionality of gender and religious identity. I feel that the judgement was concerned largely with the preservation of marriage rather than women’s right. Thus while the decision was a step in the right direction, it did not go as far as it could go, had gender equality been taken seriously. Despite long elaborations on whether triple talaq was protected under Article 25 or not, the court did not position itself clearly on the relationship between the provisions of gender equality (Article 14&15) and religious freedom (Article 25).Striking down only one specific form of talaq will not do as in other forms –talaq-e-ahsan and talaq-e-hasan, muslim men retain their right to divorce their wives by pronouncing talaq over a period of a few months. Also these forms of talaq do not fulfill the standards of gender equality either, as Muslim husbands are granted a unilateral right to divorce their wives, which Muslim women do not enjoy in the same manner.

Thus, the decision is limited insofar as it constrains itself to a small aspect of law and does not actually set a precedent in terms of generally applicable standards for further engagement with discriminatory personal law provision.

[1] Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SCR (3) 844.

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[2] C. Masilamani Mudaliar and Others v. The Idol of Sri Swaminathaswami Thirukoli and Others, (1996) 8 SCC 525.

[3] Danial Latifi v. Union of India (2001) 7 SCC 740., see  also Khatoon Nisa v. State of U.P (Writ Petition No. 57, 1993)

[4] Kesavananda Bharti v. State of Kerela (1973) 4SCC 225.

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[5] Minerva Mills v. Union of India (1980) 3 SCC 225.

[6]The State of Bombay v. Narasu Appa Mali, [AIR 1952 Bom 844]

[7] (1997) 3 SCC 573.

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[8] C.A.D.,vol.VII, pp.550-551

[9] (1867) 11 MIA 551 (610)

[10] (1861) 8 MIA 397 (395)

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[11] S.R. Bommai v. Union of India (1994) 2 SCC 1

[12]INDIA CONST. art. 13, cl.1.

[13] INDIA CONST. art.14.

[14] INDIA CONST. art 15, cl 1.

[15] Maneka Gandhi v.Union of India, 1978 SCR (2) 621.

[16] supra note.6.

[17] AIR 1980 SC 707

[18] AIR 1965 SC 314.

[19] AIR 1965 SC 1061 (1068).

[20] AIR 1941 FC 16 (31).

[21] supra note.6.

[22] supra note.2.

[23] INDIA CONST. art.25.

[24] INDIA CONST. art.25, cl.1.

[25] The Commissioner of Police & Ors v. Acharya Jagdishwarananda, (2004) 12 SCC 770.

[26] supra note.1.

[27] Jianuddin Ahmed v. Anwara Begum (1981) 1 Gau.L.R 358.

[28] Shamim Ara v. State of U.P & Anr. (2002) 7 SCC 518.

[29] 2008 (103) DRJ 137, para 27.

[30]  supra note.7.

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