Studying Shayara Bano's case....

Triple Talaq : Bad in Law

          In recent verdict of Shayara Bano v. Union of India and Ors¹ Hon’ble Supreme Court has scrutinized the constitutional validity of  Talaq-e-biddat (Triple Talaq) wherein by majority of 3:2 the practice of Talaq-e-biddat has been set aside. The issue before the Hon’ble Supreme Court was whether practice of Triple Talaq as practiced amongst Hanafi sect of Sunni Muslims in India is ultra vires the Fundamental Rights enshrined in Indian Constitution. The main contention of the petitioner was that such practice of Triple Talaq violates Articles 14, 15(1) and 21. Whereas respondents contended judicial intervention should be limited in the matters pertaining to personal laws. Also Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 was in challenge. This article is an attempt to flash light on the said judgment with certain other relevant material.

          Among Muslims in India mainly three modes of Talaq / Divorce are found viz. Talaq-e-ahasan, Talaq-e-hasan & Talaq-e-biddat. Former two modes are generally considered as reasonable but talaq-e-biddat has always been issue of conflict. As we know although Schedule VII² prescribes field to legislate concurrently upon subjects involving marriage and divorce of course subject to personal law; no codified law is seen in the aspect of triple talaq or other forms of talaq. What remains is the judicial determinations about the said subject.

          It is necessary to mention the famous comment of Batchelor J. in Sarabai v.  Rabiabai³ that triple talaq is good in law though bad in theology. This was the case where the practice of triple talaq could have been veiled. Sarabai’s case was criticized by  Gauhati High Court in Jiauddin Ahmed v. Anwara Begum⁴, wherein Baharul Islam J. mentioned that the observation of  Batchelor, J. that "the whimsical and capricious divorce by the husband is good in law,though bad in theology". These observations have been based on the concept that women were chattal belonging to men, which the Holy Quran does not brook. In Jiauddin Ahmed’s case two prerequisite conditions were laid down for talaq-e-biddat viz. i) talaq must be for a reasonable cause; and ii) talaq must be preceded by attempts at reconciliation between the husband and the wife by two arbiters-one from the wife's family the other from the husband's. If the attempts fail, talaq may be effected.

          Shayara Bano’s case is perfect example of saying that law is not static and it keeps changing with the changing needs of society. It was contended in this case that triple talaq can be removed as means of social welfare and reform under Art 25(2) by the legislature. Minority judgment delivered by Khehar CJ. and Nazeer throws light on detailed submissions made by the parties and also relevant useful material including comparative study of triple talaq. Their lordships felt that judiciary should not interfere in this matter which also impressed me as naturally it was former part out of 3 judgments. It is doubtful whether Article 142 could have been invoked in the present case which is also mentioned by Kurian J. that whether the exercise of a Fundamental Right can be injuncted by invoking Article 142. In his judgment Kurian J. opined that issue has already been settled in Shamim Ara’s case⁵ and it is already a law declared as per Article 141 of the Constitution. Nariman J. writing for himself and Lalit J. touches various aspects and ultimately found practice of talaq-e-biddat is manifestly arbitrary and violative of the fundamental rights contained in Art 14. Further they examined whether the practice of triple talaq is essential religious practice as the same is protected under Article 25.⁶ It was tested on the touchstone of degrees of obedience wherein they found practice of triple talaq  falling under either in third or fourth category which can be said to be a permissible action as to which religion is indifferent and therefore they opined practice of triple talaq forms no part of Article 25(1). Nariman J. has also elaborately discussed Doctrine of arbitrariness and hold McDowell’s⁷ judgment as per incuriam which had held enactments cannot be struck down by saying it arbitrary and unreasonable. After careful scrutiny with all relevant cases it also has been declared that all judgments following McDowell case are no longer good law. Justice Nariman had represented the petitioner in McDowell case.

          In my opinion issue of triple talaq  has posed certain important questions which need to be solved considering present socio-economic scenario of the country. After long period of time from enactment of Constitution such dictums are ensuring equality amongst different strata of the society. Still I feel it necessary to test nature and applicability of personal laws prevailing in our country with emerging social needs and problems. I feel revisiting the case of Narasu Appa Mali⁸ would be helpful to establish correct position of personal laws vis-à-vis Article 13. Also herculean task to codify Muslim law keeping personal law intact (as required by Entry 5 List III Schedule VII) is necessary. Some governing provisions would be helpful  if codified within four walls of Constitution. Hon’ble Supreme Court again has been proved as sentinel of Fundamental Rights.    

1. Shayara Bano v. Union of India and Ors.        ;

2. Constitution of India - Schedule VII, List III, Entry 5;

3. Sarabai v. Rabiabai - ILR 30 Bom 537;

4. Jiauddin Ahmed v. Anwara Begum (1981) 1 Gau. L.R. 358;

5. Shamim Ara v. State of UP and Anr. (2002) 7 SCC 18;

6. Commissioner of Police v. Acharya Jagdishwarananda Avadhuta

    2004(12)SCC 770;

7. State of Andhra Pradesh v. McDowell & Co.;

8. State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84