The Fundamental Rights in India, apart from guaranteeing certain basic civil rights and freedoms to all, also fulfill the important function of giving a few safeguards to minorities, outlawing discrimination, and protecting religious freedom and cultural rights[1]. Equality before Law, Prohibition of Discrimination on grounds of religion, race, caste, sex or place of birth, Protection of life and personal liberty, freedom of conscience and free profession, practice and propagation of religion, freedom to manage religious affairs, and Protection of interest of minorities, all of them serve paramount Fundamental Rights. However, there has been a debate on whether Triple Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by Muslim men, without any attempt at reconciliation so as to save it on the basis of such Fundamental Rights. This case also had the same question being raised, whether Triple Talaq is a valid form of Talaq. Triple Talaq is the practice under which a Muslim man can divorce his wife by simply uttering "Talaq" three times. This mode of divorce is not universal among Muslims across the world, as many other Islamic schools of thought prefer the divorce process to be deferred, in many cases over a period of three months. The government has cited the example of many predominantly Muslim countries, including Pakistan, that have banned Triple Talaq.
BACKGROUND
In Islamic Law, divorce is classified into three categories. Talaq understood simply, is a means of a divorce, at the instance of the husband. ‘Khula’ is another mode of divorce; this divorce is at the instance of the wife. The third category of divorce is ‘mubarat’ – divorce by mutual consent.
Talaq at the instance of the husband is also three kinds –
1. Talaq-e-ahasan – It is considered as the ‘most reasonable’ form of divorce. In Talaq-e-ahsan, a single pronouncement of ‘Talaq’ by the husband, followed by a period of abstinence. The period of abstinence is described as ‘iddat’. The duration of iddat is ninety days or three menstrual cycles (in case, if the wife is menstruating). Alternatively, the period of iddat is of three lunar months (in case, the wife is not menstruating). If the couple resumes cohabitation or intimacy, within the period of ‘iddat’, the pronouncement of divorce is treated as having been resolved. Therefore Talaq-e-ahsan is revocable. Conversely, if there is no resumption of cohabitation or intimacy, during the period of ‘iddat’, then the divorce becomes final and irrevocable, after the capacity of idat period.
2. Talaq-e-hasan - It is pronounced in the same manner as that of Talaq-e-ahsan. Herein, in place of a single pronouncement, there are three successive pronouncements. After the first pronouncements of divorce, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. The same procedure is mandated to be followed, after the expiry of the first month (during which marital ties have not been resumed), Talaq is pronounced again. After the second pronouncement of ‘Talaq’, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. It is significant to note, that the first and the second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, ‘talaq’ pronounced by husband becomes ineffective, as if no ‘talaq’ has ever been expressed. If the third ‘talaq is pronounced, it becomes irrevocable. Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, in the third ‘thur’ (period of purity), as soon as the third declaration is made, the ‘talaq’ becomes irrevocable, and the marriage stands dissolved, whereafter, the wife has to observe the required ‘iddat’. And after the third ‘iddat’, the husband and wife cannot remarry, unless the wife first marries someone else, and only after her marriage with another has been dissolved, can the couple remarry.
3. Talaq-e-biddat - This is effected by one definitive pronouncement of ‘talaq’ such as, “I talaq you irrevocably” or three simultaneous pronouncements, like “talaq, talaq, talaq”, uttered at the same time, simultaneously. In ‘talaq-e-biddat’, divorce is effective forthwith. The instant talaq, unlike the other two categories of ‘talaq’ is irrevocable at the very moment it is pronounced, even amongst Muslims ‘talaq-e-biddat’, is considered irregular. There is no mention of ‘talaq-e-biddat’ in the Quran. It was however acknowledged, that the practice of ‘talaq-e-biddat’ can be traced to the second century, after the advent of Islam. It was submitted, that ‘talaq-e-biddat’ is recognized only by a few Sunni schools. Most prominently, by the Hanfi sect of Sunni Muslims, it was however emphasized, that even those schools that recognized ‘talaq-e-biddat’ described it, as a “sinful form of divorce”. It is acknowledged, that this form of divorce has been described as “bad in theology but good in law”.
FACTS
In Shyara Bano V. Union of India and Ors, 2017 SC, the petitioner- Shayra Bano, had approached the Hon’ble Supreme Court under Writ Petition (C) No. 118 of 2016 for assailing the divorce pronounced by her husband- Rizwan Ahmed on 10.10.2015. The petitioner has sought a declaration, that the ‘talaq-e-biddat’ pronounced by her husband is void ab initio. The wife left her matrimonial home. The father informed the respondent that the petitioner was not inclined to live with the respondent. The father of the petitioner brought the two children and claimed the respondent-husband, that he made another attempt to bring back the petitioner-wife from her parental home, but Shayra Bano refused to accompany him.
Rizwan Ahmad was opposed in the endeavor, both by the petitioner’s father and her maternal uncle. Rizwan Ahmad approached the Court of the Principal Judge, Family Court at Allahabad, Uttar Pradesh, by preferring Matrimonial Case No.1144 of 2015 with a prayer for restitution of conjugal rights. The petitioner-Shayra Bano, preferred Transfer Petition (C) No. 1796 of 2015, under Section 25 of the Code of Civil Procedure, 1908, read with Order XXXVI-B of the Supreme Court Rules, 1966, for the transfer of Matrimonial Case No.1144 of 2015, filed by the respondent-husband (seeking restitution of conjugal rights) pending at Allahabad, Uttar Pradesh, to the Principal Judge, Family Court, Kashipur, Uttarakhand. In the above transfer petition, the wife inter alia asserted as under: unemployed and his father, government employee tortured and physically abused her, whereas husband started demanding for additional dowry and made unreasonable demands for a car and cash. Often beaten and kept hungry in a closed room for days administered her with medicines that caused her memory to fade. Due to the medicines, she remained unconscious for long hours. Respondent attempted to kill. The medicines on inspection by a doctor on a later date were revealed to cause loss of mental balance after regular consumption.
The Respondent brought the Petitioner to Moradabad in a critical near-death condition with the intention of abandoning her if his dowry demands were not fulfilled. Thereafter the Respondent called guardians of the Petitioner to Moradabad to take their daughter. The parents requested him to come to Kashipur, to meet and settle the issue. He refused to go to Kashipur and said that they should come and take their daughter or fulfill his demands for more dowries. He demanded Rs.5, 00,000/- (Rupees Five Lakh Only). Due to the unreasonable demands and the torturous behaviour of the Respondent husband, the Petitioner’s parents came to Moradabad to take her and she was forced to stay with her parents.
Respondent filed for restitution despite the fact that he himself had asked the Petitioner, wife’s father to either fulfill his dowry demands or to take the Petitioner back to her maternal home and in pursuance of the same had drugged the Petitioner and had left her in Moradabad. He withdrew the suit for restitution of conjugal rights and issued ‘talaq-nama’ (deed of divorce) saying that “there is no dowry and the wife started interfering in the personal affairs and made chaos at home and did things against the Shariat. On 07.07.2015 petitioner’s father brought both the children to Allahabad Railway Station and left them there informing the respondent. In this regard when the respondent enquired from the petitioner, she refused to return in clear words and said to the extent that “you raise the children and forget me or separate from me to bring another mother for the children” Finally respondent-husband had pronounced ‘Triple Talaq’.
ISSUES RAISED
1. Whether Talaq-e-biddat is Islamic in Nature?
2. Whether the Muslim Personal Law (Shariat) Act, 1937 confers statutory status to the subjects regulated by it or is it still covered under “Personal Law” which is not ‘law’ under Article 13 of the Constitution as per the previous Supreme Court Judgements?
3. Whether Triple Talaq is protected by Article 25 of the Constitution?
ANALYSIS & COMMENT
1. Whether Talaq-e-biddat is Islamic in Nature?
Talaq-e-biddat, irregular talaq which was introduced by the Omeyyade monarchs in the second century of the Mahomedan era. The Talaq-e-biddat or heretical divorce is good in law, though bad in theology and it is the most common and prevalent mode of divorce in this country, including Oudh. The Talaq-e-biddat becomes irrevocable immediately after it is pronounced. The essential feature of a Talaq-e-biddat is its irrevocability. One of tests of irrevocability is the repetition three times of the formula of divorce within one tuhr (purity). But the triple repetition is not a necessary condition of Talaq-e-biddat, and the intention to render a talaq irrevocable may be expressed even by a single declaration. Thus if a man says “I have divorced you by a talak-ul-bain (irrevocable divorce)”, the talaq is Talaq-e-biddat or talak-i-badai and it will take effect immediately after it is pronounced, though it may be pronounced just once. Here the use of the expression “bain” (irrevocable) manifests of itself the intention to effect an irrevocable divorce.”
The conclusion emerging out of the judgement pronounced by CJI Jagdish Singh Khehar and Judge Abdul Nazeer in this matter said that “It would not be appropriate for this Court, to record a finding, whether the practice of ‘talaq-e-biddat’ is, or is not, affirmed by ‘hadiths’, in View of the enormous contradictions in the hadiths”.
However, in my analysis I have found that there are four sources for Islamic Law- (i) Quran (ii) Hadith (iii) Ijma (iv) Qiyas. This has been beautifully explained by the renowned author; Asaf A. A. Fyzee in his book [2], the learned author has rightly said that the Holy Quran is the “first source of law”. According to the learned author, pre-eminence is to be given to the Quran. That means that sources of Quran are only to supplement what is given in it and to supply what is not provided for. In other words, there cannot be any Hadith, Ijma or Qiyas against what is expressly stated in the Quran. Therefore it is now very much evident that Talaq-e-biddat is not mentioned in Quran as the Quran expressly talks about the two types of divorce forms which are Talaq-e-ahsan and Talaq-e-hasan.
The judgement by Kurian. J expressly mentions that these instructive verses of Quran do not require any interpretative exercise. They are clear and unambiguous as far as talaq is concerned. The 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 the Quranic essential steps before talaq attains finality.[3] In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.
Therefore, I submit that Talaq-e-biddat is not Islamic in nature as the same has not been mentioned in Quran and the objective behind the two types of divorce mentioned in Quran is idea of reconciliation. Talaq-e-biddat surpass the very idea of reconciliation and therefore it cannot be considered Islamic in nature.
2. Whether the Muslim Personal Law (Shariat) Act, 1937 confers statutory status to the subjects regulated by it or is it still covered under “Personal Law” which is not ‘law’ under Article 13 of the Constitution as per the previous Supreme Court Judgements?
The judgment passed by R.F. Nariman states triple talaq to be unconstitutional by the reason of arbitrability. The following inferences can be made from his judgments. If we focus on the arbitrability of law and not gender equality under Article 15 as a ground for declaring triple talaq to be unconstitutional. Nariman J. bases his judgment on the interpretation of S.2 of the 1937 Act by reiterating the approach that must be taken to interpret a “Non-obstante” clause, laid down in Aswini Kumar Ghose v. Aurobindo Bose 1953 SCR 1 as follows-“It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non-obstante clause is to be understood as operating to set aside as no longer valid anything contained irrelevant existing laws which is inconsistent with the new enactment”.
Applying this rule to the section, only those customs and usages which are contrary to Shariat are invalidated; whereas, other such customs and usages which are not inconsistent with Shariat and neither are part of Shariat are still valid. Bare use of this section does not provide us with enough evidence to conclude either way. This is where the opinions of Nariman J. and CJI Khehar differ. While Nariman J. puts onus on the Objects of the Act which mention that Muslim Personal Law should be made applicable all over the country, CJI Khehar puts emphasis on the legislative debates to understand the intendment behind the Act. Therefore, in conclusion, it is submitted that it was the discrepancy between the drafting of the Objects of the Act that led to such a varied and contradicting conclusion by the judges. A seemingly less popular but enormous impact of the judgment of Nariman J. will be that his reasoning has exposed the entire Muslim Personal Law to be challengeable under Part III of the Constitution. This may open a completely new door to litigation against the regressive and oppressive practices continuing under the shelter of Muslim Personal Law as such practices will have to satisfy Part III, now.
3. Whether Triple Talaq is protected by Article 25 of the Constitution?
Article 25 which says freedom of conscience and free profession, practice and propagation of religion Subject to public order, morality and health and to the other provisions of this Part, so it is mentioned here subject to public order, morality and health how it is infringing the rights of women as Single Judge judgment, authored by Baharul Islam[4] the judgment, leaves no room for any doubt, that the ‘talaq-e-biddat’ given by the husband without reasonable cause, and without being preceded by attempts of reconciliation, and without the involvement of arbitrators with due representation on behalf of the husband and wife, would not lead to a valid divorce.However, there is a conflict in the opinion of CJI with that of other judges. He stands on the vivid point that the challenge to the practice of talaq-e-biddat with reference to the constitutional mandate contained in Article 25 is concerned; he delved into the submission canvassed, during the cause of hearing. He said that, it would be pertinent to mention, that the constitutional protection to tenets of ‘personal law’ cannot be interfered with, as long as the same do not infringe “public order, morality and health”, and /or “the provision of part III of the constitution”. This is the clear position expressed in Article 25(1). He also added that, a practice which is a component of the ‘faith’ of those belonging to that school, ‘personal law’, being a matter of religious faith, and not being state action, there is no question of its being violating the provisions of the Constitution of India. Therefore he clearly denied the fact that triple talaq infringes Article 25. In my analysis, I respectfully disagree with the view of CJI due to the following reasons. Firstly, Under Article 25(2) of the constitution of India, the state is also granted the power to make law in two contingencies notwithstanding the freedom granted under Article 25(1). Therefore the facts stated by CJI with regard to the point that the personal law cannot be interfered get nullified. Secondly, Article 25(2) states that “nothing in this Article shall affect the operation of any existing law or prevent the state from making any law. Thirdly, it was said by CJI that Triple Talaq is an integral part of the religious practice, I disagree with the same because mere practice for a long period 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. Fourthly, the mere reference to the faith in practice can not be taken into consideration as there is no mention of talaq-e-biddat in Quran, therefore the faith on the very practice gets abolished. Therefore, in any case, after the introduction of 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 would conclude by observing and analysing the case I opined that how foreign laws are changing according to the changing needs, especially Islamic secular and theocratic states willingly and without conceding, changed the way of customs and abhorred the past customs and put light on the natural laws by concerning their people especially Muslim women and these changing laws (repealed the practice) related to instant talaq all around the world has put pressure on India that why Indian should remain backward and above all, the laws which are violative of our fundamental rights. Why we should stick with that, what are the necessity to follow such practices which can put someone into prejudice, just for the benefit of a few. The major sector of Muslim women are suffering and the contentions of the petitioner attorneys, was very powerful which shows the wisdom and enthusiasm to fight against all odds and by repealing old age practice. Countries thpse wipe out such practices are theocratic Arab countries, Algeria, Iraq, Kuwait, Libya Morocco Tunisia, UAE, Yemen and Egypt, Jordan, Lebanon and Syria also Laws of Southeast Asian States which too had repealed such practices. In Indonesia, where father and mother provide alimony to their children's at the moment when they get separated. It is good when one country abhorres such practice but it is great when other Islamic countries too abhorred such practices especially Talaq- e- Biddat it seems quite grotesque to the rational people why India should lag behind when others are doing efforts in order to make their country progress and prosper.
[1] M.P Jain, Indian Constitutional Law, 1087 (LexisNexis, Eighth Edition/ 2018)[2] Outlines of Muhammadan Law, 10 (5 ed.,2008)
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