Muslim Law

Introduction

• The Supreme Court laid down the landmark judgment and held that triple talaq or talaq-e-biddat is unconstitutional and manifestly arbitrary. The majority held that the practice of triple talaq is not protected by the exception under Article 25 of the Constitution.

Facts

• The ‘nikah’ (marriage) between the petitioner (Shayara Bano) and the petitioner’s husband (Rizwan Ahmad) was solemnized on 11^th April 2001, as per Shariat.
• They have two children, a son and a daughter.
• On 10^th October 2015 Rizwan Ahmad divorced his wife through the practice of talaq-e-biddat or triple talaq or instant talaq (in the presence of two witnesses he said that I gave ‘talak, talak, talak’).
• Petitioner filed a writ petition at the Supreme Court (SC) in February 2016 challenging the constitutional validity of talaq-e-biddat (triple talaq).
• The contention of the petitioner was that this type of divorce (talaq) is violative of fundamental rights and further argued that these practices were not protected under Articles 25(1), 26(b) and 29 of the Constitution.

Issues Involved

• Whether triple talaq violative of fundamental rights guaranteed under Articles 14, 15 and 21 of the Constitution?
• Whether this practice of triple talaq protected under Articles 25(1), 26(b) and 29 of the Constitution?
• Whether Triple Talaq is an essential religious practice?
• Whether the practice of triple talaq is invalid in terms of Muslim Personal (Shariat) Application Act, 1937?

Observations

• On 22^nd August 2017, the SC pronounced final judgement. It was a 5-judge bench consisting of Chief Justice Jagadish Singh Khehar, Justice Abdul Nazeer, Justice Rohinton Nariman, Justice U.U. Lalit and Justice Kurian Joseph.
• The SC declared that the practice of triple talaq was unconstitutional with 3:2 majority. Justice Rohinton Nariaman, Justice U.U.Lalit and Justice Kurian Joseph gave the majority judgement.
• As per majority it was held that the Triple Talaq is not protected by the exception laid down in Article 25 of Constitution and the court found the said practice not an essential element of Islamic religion.
• They stated that this practice was arbitrary and was against the basic practices of Shariat and basic tenets of Quran and thus it cannot be protected under the fundamental right.
• Justice Kurian Joseph in his concurring opinion stated that “what is bad in Quran cannot be good in Shariat, and what is bad in theology is bad in law as well”.
• SC 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 to save it. This form of talaq must, therefore be held to be violative of the fundamental right contained in Article 14 of the constitution of India. The Muslim Personal (Shariat) Application Act, 1937, insofar as it seeks to recognize and enforce triple talaq is within the meaning of the expression ‘laws in force’ in article 13(1) of Constitution and must be struck down as being void to extent that it recognizes and enforces triple talaq.”
• SC further directed the Government to consider the decision taken by the court in the Judgment and promulgate legislation to regulate the practice of divorce in Muslims.
• 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 and it is the job of Parliament to frame a law to govern the practice.

Conclusion

• The judgment was concerned mainly with the rights of women and preservation of marriage.
• Divorce of the instant nature cannot be treated as “rule of decision” under any law.
• This judgment of SC was a right step in order to save the gender equality and religious identity.

Notes

Article 25 of the Constitution of India, 1950: Freedom of conscience and free profession, practice and propagation of religion-

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice,

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.