2017 Supreme(SC) 771

SUPREME COURT OF INDIA
JAGDISH SINGH KHEHAR, CJI., KURIAN JOSEPH, ROHINTON FALI NARIMAN, UDAY UMESH LALIT, S. ABDUL NAZEER, JJ.
Shayara Bano – Petitioner
Versus
Union of India and others – Respondents
Writ Petition (C) No. 118 of 2016
With
In Re: Muslim Women’s Quest For Equality – Petitioner
Versus
Jamiat Ulma-I-Hind
Suo Motu Writ (C) No. 2 of 2015
Aafreen Rehman – Petitioner
Versus
Union of India and others – Respondents
Writ Petition(C) No. 288 of 2016
Gulshan Parveen – Petitioner
Versus
Union of India and others – Respondents
Writ Petition(C) No. 327 of 2016
Ishrat Jahan – Petitioner
Versus
Union of India and others – Respondents
Writ Petition(C) No. 665 of 2016
Atiya Sabri – Petitioner
Versus
Union of India and others – Respondents
Writ Petition(C) No. 43 of 2017
Decided On : 22-08-2017

IMPORTANT POINT
Practice of Triple Talaq is unconstitutional and arbitrary.

Headnote:Per Kurian Joseph, J. (Majority View)

       (A) Muslim Personal Law (Shariat) Application Act, 1937 – Section 2 – Constitution of India – Articles 14 and 25 – Triple Talaq – Constitutionality and legal sanctity – Triple talaq lacks legal sanctity – Constitutional democracy of India cannot conceive of a legislation which is arbitrary – Sources other than Holy Quran are only to supplement what is given in it and to supply what is not provided for – There cannot be any Hadith, Ijma or Qiyas against what is expressly stated in Quran – Islam cannot be anti-Quran – Holy Quran has attributed sanctity and permanence to matrimony – However, in extremely unavoidable situations, talaq is permissible – But an attempt for reconciliation and if it succeeds, then revocation are Quranic essential steps before talaq attains finality – In triple talaq, this door is closed, hence, triple talaq is against basic tenets of Holy Quran and consequently, it violates Shariat – 1937 Act simply makes Shariat applicable as rule of decision in matters enumerated in section 2 – While talaq is governed by Shariat, specific grounds and procedure for talaq have not been codified in 1937 Act. (Paras 1, 4, 5, 7 and 10)

       (B) Constitution of India – Articles 14 and 25 – Muslim Personal Law (Shariat) Application Act, 1937 – Section 2 – Triple Talaq – Constitutionality and legal sanctity – To freely profess, practice and propagate religion of one’s choice is a Fundamental Right guaranteed under Indian Constitution – That is subject only to (1) public order, (2) health, (3) morality and (4) other provisions of Part III dealing with Fundamental Rights – Except to this extent, freedom of religion under Constitution of India is absolute – Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible – Whole purpose of 1937 Act was to declare Shariat as rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq – In any case, after introduction of 1937 Act, no practice against tenets of Quran is permissible – There cannot be any Constitutional protection to such a practice – When issues of such nature come to forefront, discourse often takes form of pitting religion against other constitutional rights – Reconciliation between the same is possible but process of harmonizing different interests is within powers of legislature – This power has to be exercised within constitutional parameters without curbing religious freedom guaranteed under Constitution of India – However, it is not for Courts to direct for any legislation – What is held to be bad in Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well. (Paras 24, 25 and 26)

       Per R.F. Nariman, J and Uday Umesh Lalit, JJ.(Majority View)

       (A) Muslim Personal Law (Shariat) Application Act, 1937 – Section 2 – Constitution of India – Articles 14 and 25 – Triple Talaq – Constitutionality and legal sanctity – Marriage in Islam is a contract and like other contracts, may under certain circumstances, be terminated – No public declaration is a condition precedent to validity of a Muslim marriage nor is any religious ceremony deemed absolutely essential, though they are usually carried out – In absence of good reason, no man can justify a divorce for he then draws upon himself curse of God – Prophet Mohamed had declared divorce to be the most disliked of lawful things in sight of God – Divorce breaks marital tie which is fundamental to family life in Islam – Not only does it disrupt marital tie between man and woman, but it has severe psychological and other repercussions on children from such marriage. (Para 8)

       (B) Muslim Personal Law (Shariat) Application Act, 1937 – Section 2 – Constitution of India – Articles 14 and 25 – Triple Talaq – Constitutionality and legal sanctity – All forms of Talaq recognized and enforced by Muslim personal law are recognized and enforced by 1937 Act1This would necessarily include Triple Talaq when it comes to Muslim personal law applicable to Sunnis in India – Section 2 does recognize and enforce Triple Talaq – Since 1937 Act is a law made by legislature before Constitution came into force, it would fall squarely within expression “laws in force” in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with provisions of Part III of Constitution, to the extent of such inconsistency – Only what is an essential religious practice is protected under Article 25 – Triple Talaq is only a form of Talaq which is permissible in law but at the same time stated to be sinful by very Hanafi school which tolerates it – Triple Talaq forms no part of Article 25(1) – Article 25(2)(b) would only apply if a particular religious practice is first covered under Article 25(1) of Constitution. (Paras 18, 19, 24 and 25)

       (C) Mohammmedan law – Divorce – Triple Talaq – Constitutionality and legal sanctity – This form of Talaq is manifestly arbitrary in the sense that marital 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 be held to be violative of fundamental right contained under Article 14 of Constitution of India – 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. (Para 57)

       (D) Constitution of India – Article 14 – Proportionality Doctrine – Subordinate legislation can be challenged on any of grounds available for challenge against plenary legislation – There is no rational distinction between two types of legislation when it comes to this ground of challenge under Article 14 – Test of manifest arbitrariness would apply to invalidate legislation as well as subordinate legislation under Article 14 – Manifest arbitrariness must be something done by legislature capriciously, irrationally and/or without adequate determining principle – When something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary – Arbitrariness in sense of manifest arbitrariness would apply to negate legislation as well under Article 14. (Para 55)

       Per R Jagdish Singh Khehar, CJI and S. Abdul Nazeer, J. (Minority View)

       (A) Muslim Personal Law (Shariat) Application Act, 1937 – Section 2 – Constitution of India – Articles 14 and 25 – Triple Talaq – Constitutionality and legal sanctity – Religion is a matter of faith, and not of logic – It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion – Constitution allows followers of every religion to follow their beliefs and religious traditions – Constitution assures believers of all faiths, that their way of life, is guaranteed and would not be subjected to any challenge even though they may seem to others and even rationalists, practicing same faith, unacceptable, in today’s world and age – Constitution extends this guarantee because faith constitutes religious consciousness of followers – It is this religious consciousness which binds believers into separate entities – Constitution endeavours to protect and preserve beliefs of each of separate entities under Article 25. (Para 193)

       (B) Mohammmedan Law – Divorce – Triple Talaq – Constitutionality and legal sanctity – While examining issues falling in realm of religious practices or ‘personal law’, it is not for a court to make a choice of something which it considers as forward looking or non-fundamentalist – It is not for a court to determine whether religious practices were prudent or progressive or regressive – Religion and ‘personal law’, must be perceived, as it is accepted, by followers of faith and not how another would like it to be – Article 25 obliges all Constitutional Courts to protect personal laws and not to find fault therewith – Interference in matters of personal law is clearly beyond judicial examination – Judiciary must always exercise absolute restraint, no matter how compelling and attractive opportunity to do societal good may seem – Legal challenge raised at behest of petitioners must fail on judicial front. (Paras 196 and 197)

       (C) Constitution of India – Articles 14 and 25 read with Article 142 – Triple Talaq – Constitutionality and legal sanctity – All concerned are unequivocal that besides being arbitrary practice of ‘talaq-e-biddat’ is gender discriminatory – Practice of ‘talaq-e-biddat’ has been done away with by way of legislation in a large number of egalitarian States with sizeable Muslim population and even by theocratic Islamic States – Position can only be salvaged by way of legislation – Union of India supports petitioners’ cause – AIMPLB has sworn an affidavit to prescribe guidelines to be followed in matters of divorce emphasizing that ‘talaq-e-biddat’ be avoided – It would not be incorrect to assume that even AIMPLB is on board to assuage petitioner’s cause – This is a case which presents a situation where this Court should exercise its discretion to issue appropriate directions under Article 142 of Constitution – Union of India directed to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’ – When British rulers in India provided succor to Muslims by legislation and when remedial measures have been adopted by Muslim world, there is no reason for an independent India to lag behind – Till such time as legislation in the matter is considered, Muslim husbands injuncted from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship – Instant injunction, shall in first instance, be operative for a period of six months – If legislative process commences before expiry of period of six months, and a positive decision emerges towards redefining ‘talaq-e-biddat’ (three pronouncements of ‘talaq’, at one and the same time) – as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, injunction would continue, till legislation is finally enacted – Failing which, injunction shall cease to operate. (Paras 197, 198, 199 and 200)

       Facts of case:

       What is bad in theology was once good in law but after Shariat has been declared as personal law, whether what is Quranically wrong can be legally right is the issue to be considered in this case. Question that needs to be answered in this case is only whether triple talaq has any legal sanctity.

       Findings of Court:

       I find it extremely difficult to agree with Chief Justice that practice of triple talaq has to be considered integral to religious denomination in question and that same is part of their personal law. Thread of reasonableness runs through entire fundamental rights Chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to rule of law, would violate Article 14.

       Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between husband and wife by two arbiters from their families which is essential to save marital tie, cannot ever take place. This form of Talaq is manifestly arbitrary in the sense that marital 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 violative of fundamental right contained under Article 14 of Constitution of India.

       Result : Practice of ‘talaq-e-biddat’ – triple talaq set aside by a majority of 3:2.