Category Archives: Legal Article

SC Rightly Annuls Unconstitutional And Arbitrary Instant Divorce

Let me begin at the very beginning by pointing out that in a landmark judgment, the Supreme Court on August 22 rightly annulled the 1,400 year old reprehensible practice of instant triple talaq (talaq-e-biddat) among Muslims terming it unconstitutional and sending out a strong message that religious practices which are arbitrary and discriminatory have no place in a constitutional democracy. A historic 3:2 majority judgment by a multi-faith Constitution Bench set aside instant talaq as a “manifestly arbitrary” practice not protected by Article 25 (freedom of religion) of the Constitution. The triumvirate of Justices Kurian Joseph, UU Lalit and Rohinton F Nariman overwhelmed the minority verdict pronounced by Chief Justice of India JS Khehar and endorsed by Justice S Abdul Nazeer who is the juniormost Judge on the Bench.

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                                     Be it noted, in talaq-e-biddat, divorce becomes immediately effective. Unlike the other two categories, it is irrevocable from the moment it is pronounced. In talaq-e-ahsan, the husband pronounces talaq once followed by abstinence or ‘iddat’ of 90 days or 3 menstrual cycles. If couple resumes intimacy in ‘iddat’ period, talaq is revoked, else it is final.

                                          To put things in perspective, in talaq-e-hasan, husband pronounces talaq 3 times over 3 months with ‘iddat’ of one month each. If intimacy is resumed in ‘iddat’, talaq is considered revoked. If it is not, the divorce becomes binding after third talaq. Supreme Court has declared illegal only “talaq-e-biddat” and Muslim men can still divorce their wives by “talaq-e-ahsan” and “talaq-e-hasan”.

                                   All credit to Shayara Bano – the 35-year-old Muslim woman from a remote hamlet – Hempur Daya in Kashipur in Uttarakhand. She was arbitrarily divorced in a letter by her husband in 2015 that contained the letter “talaq” thrice” and her husband also refused to give her two kids! She strongly stood up against fundamentalists, clerics and the glare of media and reiterated her firm determination to root out this regressive malpractice by filing PIL in Supreme Court on February 23, 2016. Now she stands totally vindicated as Supreme Court rightly upheld her contention!

                                                 But having said this, I must also mention here that along with Shayara Bano, the other key parties who were instrumental in drawing the attention of Supreme Court towards triple talaq were Ishrat Jahan, Aafreen Rehman, Atiya Sabri, Gulshan Parween and Bharatiya Muslim Mahila Andolan. Ishrat Jahan is a resident of West Bengal who was divorced by her husband Murtaza through a phone call from Dubai in April 2015. Murtaza married another woman and took away their four children with him leaving her totally helpless!

                                       Aafreen Rehman who got married in 2014 was first harassed for dowry and even beaten regularly. Later in September 2015 they asked her to leave their house. In her parents house she received a letter via speed post announcing triple talaq in January 2016.

                               Gulshan Parween of Rampur in UP filed a petition in Supreme Court asking for abolishing triple talaq in 2015. She alleged her husband sent her a talaqnama on a Rs 10 stamp paper when she was at her parents house. She alleged she was subjected to domestic violence by him for 2 years for dowry!

                                         Supreme Court made the Bharatiya Muslim Mahila Andolan (BMMA) a party in the case after taking cognizance of a survey which said 92% of Muslim women want abolition of triple talaq. Led by Zakiya Soman, the Mumbai-based autonomous body has been fighting for citizenship rights of Muslims since it was formed in January 2007. Naseem Akhtar who is BMMA’s Jaipur convener said: “It’s a balanced decision. Now we expect government to make a law against triple talaq the soonest.”

                                  Atiya Sabri of Uttar Pradesh is the last petitioner in this case. Her husband Wajid Ali and she were married since 2012 but in November 2015 her husband sent to her brother’s office a note of triple talaq. She alleged that as she had two daughters, aged three and four, her in-laws were not happy and they had tried to poison her. She approached the Supreme Court in January 2017 challenging the divorce and said that triple talaq violates fundamental rights of women.

                                                As we all know, the Supreme Court on August 22 declared triple talaq as void, illegal and unconstitutional. It is important to understand the entire sequence of events in which this landmark case proceeded. To make this task easier, here’s the chronology of events in this landmark case –

October 16, 2015: Supreme Court Bench asks Chief Justice of India to set up an appropriate Bench to examine if Muslim women face gender discrimination in divorce cases while dealing with a case of Hindu succession.

February 5, 2016: Supreme Court asks the then Attorney General Mukul Rohatgi to assist it on the pleas challenging constitutional validity of ‘triple talaq’, ‘nikah halala’ and ‘polygamy’.

March 28, 2016: Supreme Court asks Centre to file report of a high-level panel on ‘Women and the law: An assessment of family laws with focus on laws relating to marriage, divorce, custody, inheritance and succession’.

June 29, 2016: Supreme Court says ‘triple talaq’ among Muslims will be tested on “touchstone of constitutional framework”.

October 7, 2016: For the first time in India’s constitutional history, Centre opposes in Supreme Court these practices and favours a relook on grounds like gender equality and secularism.

February 14, 2017: Supreme Court allows various interlocutory pleas to be tagged along with the main matter.

February 16, 2017: Supreme Court says a five-Judge Constitution Bench set up to hear and decide the challenge to ‘triple talaq’, ‘nikah halala’ and ‘polygamy’.

March 27, 2017: AIMPLB tells Supreme Court that pleas were not maintainable as the issues fall outside the judiciary’s realm.

March 30, 2017: Supreme Court says these issues are “very important” and involve “sentiments” and says a Constitution Bench would start hearing it from May 11.

May 11, 2017: Supreme Court says it would examine whether the practice of triple talaq among Muslims is fundamental to their religion.

May 12, 2017: Supreme Court says the practice of triple talaq was the “worst” and “not desirable” form of dissolution of marriages among Muslims.

May 15, 2017: Centre tells Supreme Court that it will bring new law to regulate marriage and divorce among the Muslim community if triple talaq struck down. Supreme Court says it would examine whether triple talaq was an essential part of religion under Article 25 of Constitution.

May 16, 2017: AIMPLB tells Supreme Court that matters of faith cannot be tested on grounds of constitutional morality and also emphasized that triple talaq is a matter of faith for last 1400 years.

May 17, 2017: Supreme Court asks AIMPLB whether a woman can be given an option of saying ‘no’ to triple talaq at the time of execution of ‘nikahnama’. Centre tells Supreme Court that triple talaq is neither integral to Islam nor a “majority versus minority” issue but rather an “intra-community tussle” between Muslim men and deprived women.

May 18, 2017: Supreme Court reserves judgment on triple talaq.

May 22, 2017: AIMPLB files affidavit in Supreme Court saying it would issue an advisory to ‘Qazis’ to tell bridegrooms that they will not resort to triple talaq to annul their marriage.

August 22, 2017: Supreme Court by majority judgment of 3:2 rules that divorce through triple talaq is void, illegal and unconstitutional and against basic tenets of Quran.

                                              No doubt, this landmark judgment seeks to overturn the conventional belief that it is the community itself, not Parliament or courts, which should reform religious or personal laws. In a split verdict, three of the five all-male Judges on the case said the practice of saying “talaq” or divorce three times in one go sometimes even over email and Whatsapp violated women’s right to equality and was not integral to Islam. The dissenting note came from CJI JS Khehar and Justice S Abdul Nazeer who argued instant talaq should be suspended and the government asked to bring a law to regulate the practice within six months.

                                                    The CJI JS Khehar writing for himself and Justice Nazeer said the practice was part of Muslim personal law and, therefore protected by the Constitution from judicial review. He said that triple talaq cannot be declared unconstitutional and the “gender discriminatory practice can be done away by way of legislation. CJI Khehar said: “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… ‘personal law’ of every religious denomination is protected from invasion and breach, except as provided by and under Article 25.”

                                                   Both Khehar and Nazeer concluded that The Muslim Personal Law (Shariat) Application Act, 1937 was not a law in force within the meaning of Article 13(3)(b) of the Constitution but was made to “preserve Muslim personal law – Shariat, as it existed from time immemorial.” The order sought to explain how the customary practice was “integral” to the Sunni sect, saying it had “been in vogue since the period of Caliph Umar (a senior companion of Prophet Mohanned) which is roughly more than 1400 years ago”.

                                              Justice Kurian Joseph in his separate judgment along with the majority stated that the practice of triple talaq does not have the protection of Article 25 of the Constitution guaranteeing freedom of religion. He very rightly said “Merely because a practice has continued for long, that itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice and thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq. I expressly endorse and reiterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

                                             Truth be told, malpractices like Sati, human sacrifice, polygamy etc prevailed in Hinduism since many thousand of years till they were finally outlawed! Lord Krishna it is said had married 16,108 women but did that stop Jawaharlal Nehru from forbidding Hindus to marry more than once? Even the father of Lord Rama had many wives! Shivaji who is the greatest Maratha hero too had many wives and his chief queen was Sai Bai Nimbalkar!

                                           Truly speaking, all Hindus must be grateful to Nehruji for the great courage he showed in outlawing polygamy among Hindus! He exempted Muslims because they were then still heeling from the fresh wounds of partition. But now 70 years later Muslims too must be covered and malpractices like Halala whereby if a Muslim man divorces her wife and if he wants to marry her again after realizing his mistake he cannot do so until she marries another man and then obtain divorce from him!

                                            In other words, Nikah halala is the practice that requires divorced Muslim women to marry another men and consummate the marriage with him and then seek divorce from him in order to make her eligible to remarry her previous husband who gave her talaq! This is certainly most reprehensible! It makes a complete mockery of the dignity of Muslim women and does not affect Muslim men in any manner even though it is Muslim men who arbitrarily divorces her!

                                           Let me be direct in asking: Does this malpractice not make a complete mockery of women? Why then should it not be outlawed? This is exactly what Shayara Bano has very rightly prayed in her petition wherein she also wants an end to polygamy and halala!

                                           Even the majority opinion in this landmark case took two different approaches to reach the conclusion that talaq-e-biddat is unconstitutional. While Justice Nariman and Justice Lalit tested the constitutional validity of triple talaq on the touchstone of Article 14 (equality and non-discrimination), Justice Kurian put triple talaq to the theological test! Justice Kurian said: “On the pure question of law that a legislation, be it plenary or subordinate, can be challenged on the ground of arbitrariness. I agree with the illuminating exposition of law by Justice Nariman. I am also of the strong view that the constitutional democracy of India cannot conceive of a legislation which is arbitrary.”

                                       Justice Kurian also underlined that the court cannot direct lawmakers to pass a legislation. The common judgment of Justice Nariman and Justice Lalit stated after quoting religious texts and scholarly interpretations that, “Triple talaq was an irregular and heretical form of talaq”. They also made it clear that, “Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the 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 the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act in so far as it seeks to 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 the extent that it recognizes and enforces Triple Talaq.”

                                          Justice RF Nariman and Justice UU Lalit also concluded that, “As we have concluded that the 1937 Act is a law made by the legislature before the Constitution came into force, it would fall squarely within the expression “laws in force” in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency. It is thus clear that it is this view of the law which the 1937 Act both recognizes and enforces so as to come within the purview of Article 13(1) of the Constitution. Applying the aforesaid tests, it is clear that Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it. According to Javed (supra), therefore, this would not form part of any essential religious practice.”

                                        They also rightly pointed out that, “The thread of reasonableness runs through the entire fundamental rights Chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14.”  It also cannot be lost upon us that Muslim theologists have themselves dubbed it as sinful, inviting the wrath of God! Many have even called for social boycott of those who indulge in triple talaq.

                                                 But Shahi Imam Bukhari of Jama Masjid, New Delhi rightly asked just recently in a newschannel  that how many have been socially boycotted till now? Therefore, it was imperative that this evil practice of triple talaq be ended once and for all! That is exactly what the Supreme Court has done in this landmark case! It rightly said that the practice violated women’s right to equality and was not integral to Islam.

                                          All political parties and leaders have welcomed the Supreme Court order. Kapil Sibal who is the lawyer for the All India Muslim Personal Law Board (AIMPLB) which argued against judicial intervention in triple talaq said that, “We hail the judgment, it protects personal laws and at the same time deprecates the practice of triple talaq.” Randeep Surjewala who is Congress’s chief spokesperson said: “This verdict is an affirmation of the rights of women and gives relief to them against being subjected to discrimination by a practice that had been perverted over the years.”

                                       Congress party leader and senior lawyer P Chidambaram while hailing the landmark judgment said that, “The judgment was a resounding affirmation of gender justice and equality of spouses. Triple talaq was a distortion of original Quranic legal principles. Good it has been declared unconstitutional.” Former Chief Election Commissioner SY Qureshi said: “AIMPLB lost an opportunity to introduce this reform itself.” Pinky Anand who is Additional Solicitor General says “It is a very progressive judgment. Triple talaq is something which is being looked down upon as derogatory within the entire community.”

                                  Union Law Minister Ravi Shankar Prasad while welcoming the landmark judgment said “The issue is not of faith, religion or worship; it is solely about gender justice, dignity and equality. It is a great dawn for women in the country. More than 22 countries have either abolished triple talaq or regulated it or laid down stringent pre-conditions.” He also said that the government strongly backs the judgment and will “consider the issue in a structured manner”.

                                       A top government source told the media that the government will not bring any legislation to ban triple talaq as the five-Judge Supreme Court Bench by a majority verdict had held instant divorce as unconstitutional and illegal. Anyone continuing with the practice of instant talaq by uttering the word thrice can be subjected to domestic violence laws and can be sent to jail if a woman approaches the police for harassment on these grounds. From now onwards Muslim men cannot arbitrarily pronounce triple talaq and will always have to keep this landmark ruling in mind which palpably completely bans instant triple talaq!

                                       Speaking for myself, no religion and no tradition can ever justify social malpractices like child marriages, Sati, triple talaq, human sacrifices, nikah halala, polygamy etc. Just because a malpractice has thrived for more than 1400 or 1500 years in any particular religion or tribal group or any other group or community is no ground to make it final! In a democratic country like ours all such malpractices must be shown the outdoor!  In 22 countries triple talaq has been completely banned and this includes Pakistan, Syria, Qatar, Iran, Iraq, Turkey, Sudan, Malaysia, Jordan, Egypt, Bangladesh, Indonesia which has maximum Muslims among others! Needless to say, Supreme Court in this landmark case very rightly annuls unconstitutional and arbitrary instant divorce by pronouncing triple talaq in one go!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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