In the early years of British rule in India, there was a policy of non-interference in religion and laws of Muslims. A manifestation of such non-interference is The Hastings Plan of 1772 and Art. xxiii of Regulation II of 1772 that established a hierarchy of civil and criminal courts that applied laws of Quran to Muslims ‘in all suits regarding inheritance, marriage, caste and other religious usages or institutions’. The Hastings Plan of 1772 provided for Maulvis (Muslim Priests) to help and advise the courts on matters of Muslim Personal Laws. Muslims continued to follow their un-codified personal laws in matters such as succession of property, marriage and divorce. [See ShaheenSardar Ali’s Report]
However, towards the end of the colonial era, in 1930s, the ulemademanded for the passing of a law that made Muslim Personal Laws/ Sharia applicable to all Muslims.M.B. Hooker writing on legal pluralism and British colonial laws notes that the prime reason for this demand was to replace the application of customary practices (that were not compliant with Muslim Personal Law/ Sharia and which were often given priority to by colonial courts) with the application of Muslim Personal Law/ Sharia by means of legislative recognition by the State/ Government. Thus, the British enacted The Muslim Personal Law (Shariat) Application Act 1937 to achieve such purpose.
By virtue of Section 2 of this legislation,all Muslims in India (except those in Jammu Kashmir) are governed by Muslim Personal Laws/ Sharia in the matters 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 (other than charities and charitable institutions and charitable and religious endowments)”.
To the extent that The Muslim Personal Law (Shariat) Application Act 1937 recognizes and legitimizes instantaneous triple talaq//talaq-e-bidat, challenged by Muslim women including Shayara Bano and Ishrat Jahan who were divorced by their husbands by means of instantaneous triple talaq is an irrevocable form of divorce that is effectuated instantaneously on the utterance of the word “talaq” simultaneously three times by a Muslim husband.These women argued that the practice of talaq-e-bidat violates the fundamental rights of Muslim women to equality and dignity as it results into loss of financial and emotional stability, and of household – on the sole instance of the husband without any attempt for reconciliation. The Union supported such stand.
Women’s groups such as Bebaak Collective and Bhartiya Muslim Mahila Andolan also intervened in the case and presented differing opinions. While Bebaak Collective argued that all personal laws are capable of being challenged on the ground that they violate fundamental rights regardless of whether they are based on religion or custom, are codified or un-codified and thus a constitutional challenge to triple talaq shall be accepted by the court, Bhartiya Muslim Mahila Andolan argued that the word “talaq” in Section 2 of The Muslim Personal Law (Shariat) Application Act 1937 should be read down so as to not include instantaneous triple talaq and the Supreme Court shall adopt the Delhi High Court judgment where it was ruled that triple talaq will be considered as a revocable form of divorce.
The All India Muslim Personal Law Board argued that Muslim Personal Laws cannot be challenged by the reason of fundamental rights and cautioned the Supreme Court not to interfere in the personal affairs of the Muslim community. They argued that the practice of triple talaq was protected under their fundamental right to religious freedom under Article 25 of the Indian Constitution.
In response, Bebaak Collectiveargued that the right to practice religion under Article 25 is subject to other fundamental rights, and public order, morality and health.Senior Advocate, Indira Jaising, writing on this later notes the irony that :
“For too long it has been of assumed that family law (personal law) is “religious law” and is hence protected by Article 25. The irony is that the modernity of the Muslim law of marriage lies in its secular dimensions – namely that marriage is a contract freely entered into between two consenting adults. It is ironic that the All India Muslim Personal Law Board now suggests that marriage laws are protected by Article 25.”
On 22 August 2017, the Supreme Court of India through a diverse bench of five judges: one Sikh by faith, one Parsi, one Hindu, one Christian and one Muslim, delivered the much awaited judgment in the Triple Talaq case. By a majority of 3:2, the Supreme Court of India held the practice of triple talaq to be invalid.
There was a common judgment delivered by Chief Justice of India JagdishKehar and Justice Abdul Nazeer. Justice Kurian Joseph delivered a separate judgment, and Justice Rohinton Nariman and Justice U.U. Lalit delivered a common judgment. These judgment delivered by the Supreme Court of India reflects three diverse approaches and I see these three approaches as one of Unjustified Non-interference, one ofUnsuitable Intervention, andone of Justified Intervention.
The judgment that adopts the approach of non-interferenceis an unjustified approach as it is formalistic and dilutes the guarantees of the fundamental rights to equality, life and dignity of women enshrined in the Indian Constitution. There is no attempt at harmonization of the right to equality of Muslim women one hand and the right to religious freedom on the other.
The minority judgment by Chief Justice of India Jagdish Khehar and Justice Abdul Nazeer, attemptsto justify the practice of instantaneous triple talaq under the fundamental right to religious freedom by taking a non-interference approach.
It reads as follows:
“we are of the view, that the limited purpose of the aforesaidprovision (Section 2 of The Muslim Personal Law (Shariat) Application Act 1937) was to negate the overriding effect of usages and customs over theMuslim ‘personal law’ – ‘Shariat’…Talaq-e-biddat’ is integral to the religious denomination of Sunnisbelonging to the Hanafi school. The same is a part of their faith, havingbeen followed for more than 1400 years, and as such, has to be accepted asbeing constituent of their ‘personal law’…‘Talaq-e-biddat’, does not violate the parameters expressed in Article 25 of the Constitution.The practice is not contrary to public order,morality and health. The practice also does not violate Articles 14, 15 and 21 of the Constitution, which are limited to State actions alone…Since we haveheld that Muslim ‘personal law’ – ‘Shariat’ is not based on any State Legislative action, we have therefore held, that Muslim ‘personal law’ –‘Shariat’, cannot be tested on the touchstone of being a State action…We cannot accept the petitioners’ claim, because the challenge raised is in respect of an issue of ‘personal law’ which has constitutional protection…Accepting the petitioners prayers, would be in clear transgression of the constitutional mandate contained in Article 25 (fundamental right to religion)…Article 25 obliges all Constitutional Courts to protect ‘personal laws’ and not to find fault therewith. Interference in matters of ‘personal law’ is clearlybeyond judicial examination. The judiciary must therefore, always exercise absolute restraint, no matter how compelling and attractive the opportunityto do societal good may seem…”
This judgmentgrantsinstantaneous triple talaq constitutional protection using Article 25 of the Indian constitution that guarantees the right to religious freedom to all citizens of India. Indeed, the Indian Constitution was inscribed with fundamental rights to protect people of diverse faiths (Articles 25 and 26) but at the same time it was inscribed with the fundamental right to equality for all especially women, life and dignity (Articles 14, 15, 21).
Article 25 reads as: “(1) Subject to public order, morality and health and to the other provisions of this Part (means other fundamental rights), all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”
The language of Article 25 indicates an explicit prioritization of the fundamental rights of equality, life, dignity over the fundamental right to religious freedom.On the contrary, this judgment’s outcome has led to the right of religious freedom being prioritized over the right to equality. The explanation given in this judgment as to how the practice of triple talaq does not violate the fundamental rights of Muslim women to equality, life and dignity is that – only State actions can be questioned as being violative of fundamental rights and not individual actions such as triple talaq by Muslim men. The judgment also states that Section 2 of The Muslim Personal Law (Shariat) Application Act 1937 does not regulate the practice of triple talaq and was enacted to merely negate the application of customary practices over Muslim Personal Laws.
This is a very formalistic approach and fails to understand that by virtue of the the Muslim Personal Law (Shariat) Application Act 1937 that declares Muslim Personal Laws to be applicable to Muslims in India on matters of divorce, triple talaq has been given legitimacy by the State in form of legislative action. The judges should have adopted a more substantive rights based approach and held the State accountable for giving such recognition to this practice instead of taking a non-interference approach and diluting the guarantees of equality, life and dignity of Muslim women inscribed in the Indian Constitution.
It is a reality that the impact of triple talaq is that Muslim women especially those who are financially dependent on their husbands are pushed out of their homes and left destitute.This judgment indicates that the judges have simply followed the footsteps of earlier conservative Supreme Court judges and the non-interference approach of colonial courts under The Hastings Plan. It is pertinent to note that the Supreme Court, in a case [Ahmedabad Women Action Group and Ors. v. Union of India, (1997) 3 SCC 573] as far back as 1997, refused to entertain writ petitions to declare Muslim Personal Laws which enable a Muslim male to give unilateral talaq to his wife without her consent and without resort to judicial process of courts, as void, offending fundamental rights of equality and equal protection of law guaranteed under the Indian Constitution.
The Supreme Court of India ruledas follows in that case:
“…involve(s) 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.”
Even when the Supreme Court of India attempted to interpret Muslim Personal Laws in the landmark Shah Bano case [Mohmd. Ahmed v. Shah Bano Begum, 1985 SCR (3) 844], such act was seen as an intrusion by some members of the Muslim community and the legislature was pressurized to enact laws overriding the interpretation of the Supreme Court of India.
The judgment by Chief Justice of India Jagdish SinghKehar and Justice Abdul Nazeer has attempted to justify its non-interference approach by passing the buck to the Muslim community and the Parliament. It reads as follows:
“The whole nation seems to be up in arms. There is seemingly anoverwhelming majority of Muslim-women, demanding that the practice of‘talaq-e-biddat’ which is sinful in theology, be declared as impermissible inlaw…the AIMPLB hasundertaken to issue an advisory through its website, to advise those who enter into a matrimonial alliance, to agree in the ‘nikah-nama’, that their marriage would not be dissolvable by ‘talaq-e-biddat’. The AIMPLB has sworn anaffidavit to prescribe guidelines, to be followed in matters of divorce,emphasizing that ‘talaq-e-biddat’ be avoided…We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’…Till such time as legislation in the matter is considered, we aresatisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat’as a means for severing their matrimonial relationship. The instantinjunction, shall in the first instance, be operative for a period of sixmonths.”
The judges did recognize that the practice of triple talaq was problematic and had a negative impact on women, but instead of providing permanent legal relief to Muslim women, passed the buck to the Parliament and the All India Muslim Personal Board – a Muslim male dominated autonomous non-governmental body.
The judgment of Justice Kurian Joseph that adopts the approach of intervention is an unsuitable approach. He ventured into the religious texts of Muslims includingThe Quran to come to the conclusion that triple talaq is not an essential practice of Islam and thus not protected under Article 25 of the Indian Constitution that guarantees the right to religious freedom.He did not test the practice of triple talaq on the touchstone of fundamental rights to equality, dignity and life.
The judgment delivered by Justice Kurian Josephreads as follows:
“…whether triple talaq has any legal sanctity. That is no more res integra. This Court in Shamim Ara v. State of UP and Another has held, though not in so many words, that triple talaq lacks legal sanctity.,,I shall also make an independent endeavor toexplain the legal position in Shamim Ara and lay down the lawexplicitly… I wholly agree with the learned ChiefJustice that the 1937 Act is not a legislation regulating talaq.Consequently, I respectfully disagree with the stand taken by Nariman, J. that the 1937 Act is a legislation regulating triple talaq
and hence, the same can be tested on the anvil of Article 14…The Holy Quran has attributed sanctity andpermanence to matrimony. However, in extremely unavoidablesituations, talaq is permissible. But an attempt for reconciliationand if it succeeds, then revocation are the Quranic essential stepsbefore talaq attains finality. In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat…I find it extremely difficult to agree with the learned Chief Justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that thesame is part of their personal law…What is held to be bad in the Holy Quran cannot be good inShariat and, in that sense, what is bad in theology is bad in law as well.”
Judges are not experts on Muslim Personal Laws. Unlike the colonial times, where British policies such as The Hasting Plan of 1772 provided for Maulvis (Muslim Priests) to assist and advise the courts on matters of Muslim Personal Laws, judges today have no such assistance and are merely relying on commentaries of experts and legal counsels which may lead to a lot being lost in translation.
The essential practice test was used in this judgment to assess whether triple talaq was an essential religious practice. Itis a court developed legal test that states only those aspects of religion are protected under the fundamental right to religious freedom Article 25 of the Indian Constitution)that are integral and essential to the practice of a religion [Commr. Of Police v. Acharya JagadishwarnandaAvadhuta (2004) 12 SCC 770]. It further states what is essential to the practice of religion is to be determined by the community. But in a situation like that of triple talaq where there is no unanimous view point by the community, this test should not have been applied by the Supreme Court of India to rule that triple talaq is not an essential practice of the Muslim community in India.
The judgment delivered by Justice Rohington Nariman and Justice U.U. Lalit adopts the approach of intervention by testing the practice of triple talaq on the anvil of fundamental rights to hold the practice to be invalid. It is the most justified approaches of the three. The judges’ interpretation of the law, made the fundamental rights of Muslim women to be not subjected to what the judges considered to be an arbitrary application of law may have interesting implications in future.
Unlike the judgment of Chief Justice Jagdish Singh Kehar, this judgment adopted a more substantive approach by holding that the recognition given to instantaneous triple talaq by The Muslim Personal Law (Shariat) Application Act 1937 is unconstitutional. It did not get entangled into the technicalities of whether the State is the prime actor when it comes to the practice of triple talaq and instead held Section 2 of The Muslim Personal Law (Shariat) Application Act 1937 void to the extent it recognizes triple talaq.
This judgment on the point of triple talaq not being constitutionally protected under Article 25 that guarantees the right to religious freedom reads as follows:
“…it is clear thatTriple Talaq is only a form of Talaq which ispermissible in law, but at the same time, stated to besinful by the very Hanafi school which tolerates it… therefore, this would not form part of any essential religious practice…it is equally clear that the fundamental natureof the Islamic religion, as seen through an Indian SunniMuslim’s eyes, will not change without this practice…Triple Talaq forms no part of Article 25(1)…”
In a situation like that of triple talaq where there is no unanimous view point of the community, this test should not have been applied by the Supreme Court of India. Instead, the court should have held that assuming such practice is part of religion, it is void as it violates the fundamental rights to equality, dignity and life of Muslim women.
This judgment on the point of triple talaq being constitutional and in violation of the right to equality of Muslim women reads as follows:
“Article 14 has been referred to in the context of theconstitutional invalidity of statutory law to show thatsuch statutory law will be struck down if it is found to be“arbitrary”…What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14…Article 14 itself whenever legislation is “manifestlyarbitrary”; i.e. when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favoritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment.Positively speaking, it should conform to norms whichare rational, informed with reason and guided by publicinterest, etc…it is clear that Triple Talaq is a formof Talaq which is itself considered to be somethinginnovative, namely, that it is not in the Sunna, being anirregular or heretical form of Talaq…this form of Talaq is manifestly arbitrary in the sense that the marital tie can be brokencapriciously and whimsically by a Muslim man withoutany attempt at reconciliation so as to save it…In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize 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 the extent that it recognizes and enforces Triple Talaq.”
The test of arbitrariness applied in this judgment has provided legal relief to Muslim women. Such test has been well explained and applied in a manner justifying how the practice of unilateral triple talaq at the instance of the Muslim husband without any attempts of reconciliation isarbitrary and violative of the rights to equality, life and dignity of Muslim women.
Outcome of The Three Approaches
The judges in the Triple Talaq case, have common opinions on some issues of law and different on some others. On the issue of whether triple talaq is capable of a challenge for violation of fundamental rights, two out of five judges – Chief Justice Jagdish Singh Khehar and Justice Abdul Nazeer give it constitutional protection, holding the practice to be in the domain of personal law, reasoning that The Muslim Personal Law (Shariat) Application Act 1937 does not regulate triple talaq; the practice owes its genesis to personal law, and is not regulated by 1937 Act and hence is immune from review.Justice Joseph, the swing vote, on the basis of a reading of Shamim Ara affirms that the practice is unislamic.
On the question—if it is protected by the Constitution, in a complex set of reasonings, disagrees with the Chief Justice that the practice is protected by personal law, disagrees with the J. Nariman that it can be invalidated due to Art. 14, because he does not agree that triple talaq is regulated by the 1937 Act.Two out of five judges – Justice Rohington Nariman and Justice U.U. Lalit, opines that triple talaq can be challenged on the anvil of fundamental rights as the State recognizes triple talaq in legislative form of The Muslim Personal Law (Shariat) Application Act 1937.
On the issue of whether the practice of triple talaq is constitutionally protected, three out of five judges –Justice Rohinton Nariman and Justice U.U. Lalit with a tacit endorsement by J. Joseph (para 24), forming a majority, opined that triple talaq is not constitutionally protected under the fundamental right to religious freedom guaranteed as it is considered sinful by the Muslim community itself and thus is an invalid practice. Two out of five judges – Chief Justice Jagdish Singh Kehar, Justice Abdul Nazeer, forming a minority, opined that triple talaq is constitutionally protected under the right to religious freedom as it is being practised for over 1400 years and forms an essential part of the religion of Hanafi Muslims in India.
The three approaches of the Supreme Court of India led to the issuance of the following order:
“In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside.”
Meher Dev a women’s rights lawyer in New Delhi. Recently, she worked on the Triple Talaq case with Senior Advocate Ms. Indira Jaising and represented Bebaak Collective an NGO advocating for Muslim women’s rights and Centre for Study of Society & Secularism.
Image sourced from The Quint