#Columns: Reflections after Triple Talaq

Bar & Bench December 2 2017
Triple Talaq

Pallav Shishodia

In Shayara Bano, now reported in 2017 (9) SCC 1, a Constitution Bench of the Supreme Court pronounced that “the practice of Talaq-e-biddat Triple Talaq is set aside” by  a majority of 3:2. This split verdict is interesting in many ways, and even more interesting is the split ratio within the majority. As analyzed hereafter, the debate among the judges in the Constitution Bench raise several interesting questions.

Justice Kurian Joseph addressed the question “whether what is Quranically wrong can be legally right” after Shariat has been declared as the personal law for Muslims. According to him,

“What is held to be bad in the Quran cannot be good in Shariat and in that sense, what is bad in theology is bad in law as well.

Justice Joseph also agrees with the minority opinion written by then Chief Justice Khehar that “freedom of religion under Constitution of India is absolute”, but disagrees that “Triple Talaq is an integral part of religious practice” of Islam. This is because the Muslim Personal Law (Shariat) Application Act of 1937 discontinued anti-Shariat practices including about Talaq, “against the tenets of the Quran”. Additionally, he expressed “serious doubts as to whether, even under Article 142, the exercise of a fundamental right can be injuncted.

Justice Rohinton Nariman, leading the majority with Justice UU Lalit, holds that the “the 1937 Act can be said to recognise and enforce Triple Talaq as a rule of law”. They then proceed on the premise that,

"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 lll of the Constitution."

The broader question as to whether personal laws are outside the scope of Article 13 so as to take them beyond the touchstone of other fundamental rights, is left for the future. However, since all sanctions of personal law have to be enforced through some statutory law, it is difficult to foresee a different conclusion if any part of a personal law is found to violating, say, Article 14.

In fine, Justice Nariman addresses the question “whether a fundamental right has been violated by the 1937 Act insofar as it seeks to enforce Triple Talaq as a rule of law in the courts in India”.

It is held 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, insofar as it seeks to recognise 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 recognises and enforces Triple Talaq”.

They also hold that Triple Talaq forms no part of Article 25(1). Though Justice Joseph does not agree with the major part of this reasoning, he does concur with the conclusion.

The dissenting duo of Chief Justice Khehar and Justice Nazeer considered complicated questions limited to Talaq-e-biddat Triple Talaq. After travelling through the worldwide law and practice on this aspect of Muslim law, the conclusion arrived at is that “Talaq-e-Biddat” is a matter of “Personal Law” of Sunni Muslims belonging to the Hanafi School.

"It constitutes a matter of their faith. It has been practised by them for at least 1400 years. We have examined whether the practice satisfies the constraints provided for under Article 25 of the Constitution and have arrived at the conclusion that it does not breach any of them. We have also come to the conclusion that the practice being a component of “Personal Law” has the protection of Article 25 of the Constitution.”  

This minority opinion further holds that,

“Religion is a matter of faith and not of logic. It is not open to a court to accept an egalitarian approach over a practice which constitutes an integral part of religion. The Constitution allows the followers of every religion to follow their beliefs and religious traditions. The Constitution assures believers of all faiths that their way of life is guaranteed and would not be subjected to any challenge even though they may seem to others (and even rationalists practising the same faith) unacceptable, in today’s world and age.”

Nevertheless, in view of the consensus among the parties before the Court, the power under Article 142 is sought to be exercised to pass injunction against Muslim husbands from pronouncing “Talaq-e-biddat” as a means for severing their matrimonial relationship.

So, the practice of Triple Talaq is now set aside and presumably not available for future divorces. The status of personal laws vis-a-vis other fundamental rights remain cryptic. Should personal laws conform to, say, Article 14 and be declared illegal if arbitrary, discriminatory and irrational? And what are the standards to judge reasonableness in matters of social-personal relations where the state has not much of a role to play? Do they enjoy protection of Article 25 as part of fundamental right to practice and profess religion of choice? These questions are important if one has to consider religious tenets on other social issues like polygamy, marriage among sapindas, inequities of succession etc.

The other important question is how to bring about Uniform Civil Code on the reasoning that personal laws are protected by Article 25? If there is to be some Uniform Civil Code, which personal law shall be the  benchmark on several aspects of personal laws?

For example, marriage in Hindu law is permanent sacrament for life and beyond. Divorce, otherwise not permissible, came as reform on limited grounds in 1956. In Muslim law, marriage is a matter of contract with easy divorce allowed even without triple talaq on no stated ground. As both are correct as per the respective theology, which community must follow whom and for what social purpose?

In the changed socio-economic reality, modern Hindus clamor for easier divorce on ground of irretrievable breakdown in marriage. The new generation of Muslims may prefer tougher sanction against divorces. A lot of communities among Hindus allow marriages among cousins and a lot many are vehemently opposed to it. The value judgment either way is Constitutionally protected. There are so many such debateable aspects of personal laws among religions regarding succession, waqf, adoption, jury trial etc.

This conflict of views on Constitutional values need to be resolved in any exercise for Uniform Civil Code, whatever its value and desirability. There is a view that the idea of Uniform Civil Code was to make Hindu law homogeneous and progressive on issues like marriage, divorce, succession rights of females etc. This is not to say others need no reform. But more must come from within to keep distinct identity and religious diversity intact while marching in tune with changing times. For the ambition of social reforms by courts, there are limits beyond which there are only pitfalls.

Pallav Shishodia is Senior Advocate at the Supreme Court of India. 

The views expressed in this article do not necessarily reflect the opinions of Bar & Bench. Bar & Bench does not take responsibility of the same.