Judges: J.S. Khehar, C.J.I., Kurian Joseph, Rohinton Fali Nariman, U.U. Lalit and S. Abdul Nazeer, JJ.

Facts:

The Petitioner-Shayara Bano, has approached present Court, for assailing the divorce pronounced by her husband - Rizwan Ahmad wherein he pronounced divorce ('talaq-e-biddat') in the presence of two witnesses. The Petitioner has sought a declaration, that the 'talaq-e-biddat' pronounced by her husband be declared as void ab initio. She has also contended that such a divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony, purportedly Under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (Shariat Act), be declared unconstitutional.

Issues:

(i) Whether the practice of 'talaq-e-biddat' is constitutionally valid?

Contentions:

Petitioner

(i) 'Talaq-e-biddat' (-triple talaq), pronounced by her husband is not valid, as it is not a part of 'Shariat' (Muslim 'personal law').

(ii) Divorce of the instant nature, cannot be treated as "rule of decision" under the Shariat Act.

(iii) Practice of 'talaq-e-biddat' is violative of the fundamental rights guaranteed to citizens in India, under Articles 14, 15 and 21 of the Constitution.

(iv) Practice of 'talaq-e-biddat' cannot be protected under the rights granted to religious denominations (-or any Sections thereof) under Articles 25(1), 26(b) and 29 of the Constitution.

(v) The practice of 'talaq-e-biddat' is denounced internationally, and further, a large number of Muslim theocratic countries, have forbidden the practice of 'talaq-e-biddat', and as such, the same cannot be considered sacrosanctal to the tenets of the Muslim religion.

Respondent

(i) The evolution of the matters of faith relating to religious practices, must necessarily be judged in the context of practices adopted by the concerned community, with reference to each individual aspect of 'personal law'.

(ii) 'Personal laws' were per se subservient to legislation, and as such, 'personal laws' were liable to be considered as mandatory, with reference to numerous aspects of an individual's life, only in the absence of legislation.

(ii) Validity of 'talaq-e-biddat' - triple talaq were matters of legislative policy, and could not (though learned Counsel truly meant - ought not) be interfered with through the judicial process

(iv) A breach of the provisions contained in Part III - Fundamental Rights under the Constitution, could only be invoked with reference to a State action, as only State action has to conform to Articles 14, 15 and 21. Therefore, a facial subjugation of the right Under Article 25(1) to the other provisions of the Constitution would be inapplicable in the case of 'personal law', that has no source to any statute, or State action.

Analysis:

J.S. Khehar, C.J.I. (Minority)

(i) Despite the decision of the Rashid Ahmad case MANU/PR/0074/1931 : AIR 1932 PC 25 on the subject of 'talaq-e-biddat', by the Privy Council, the issue needs a fresh examination, in view of the subsequent developments in the matter.

(ii) All the parties were unanimous, that despite the practice of 'talaq-e-biddat' being considered sinful, it was accepted amongst Sunni Muslims belonging to the Hanafi school, as valid in law, and has been in practice amongst them.

(iii) 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', relied upon by the rival parties.

(iv) 'Talaq-e-biddat' is integral to the religious denomination of Sunnis belonging to the Hanafi school. The same is a part of their faith, having been followed for more than 1400 years, and as such, has to be accepted as being constituent of their 'personal law'.

(v) The contention of the Petitioners, that the questions/subjects covered by the Muslim Personal Law (Shariat) Application Act, 1937, ceased to be 'personal law', and got transformed into 'statutory law', cannot be accepted, and is accordingly rejected.

(vi) '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.

(vii) The practice of 'talaq-e-biddat' being a constituent of 'personal law' has a stature equal to other fundamental rights, conferred in Part III of the Constitution. The practice cannot therefore be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention.

(viii) Reforms to 'personal law' in India, with reference to socially unacceptable practices in different religions, have come about only by way of legislative intervention. Such legislative intervention is permissible Under Articles 25(2) and 44, read with entry 5 of the Concurrent List, contained in the Seventh Schedule of the Constitution. The said procedure alone need to be followed with reference to the practice of 'talaq-e-biddat', if the same is to be set aside.

(ix) International conventions and declarations are of no avail in the present controversy, because the practice of 'talaq-e-biddat', is a component of 'personal law', and has the protection of Article 25 of the Constitution.

Kurian Joseph, J. (Dissenting but Majority)

(i) 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 the same is part of their personal law.

(ii) To freely profess, practice and propagate religion of one's choice is a Fundamental Right guaranteed under the Indian Constitution. That is subject only to the following-(1) public order, (2) health, (3) morality and (4) other provisions of Part III dealing with Fundamental Rights. Under Article 25 (2) of the Constitution of India, the State is also granted power to make law in two contingencies notwithstanding the freedom granted Under Article 25(1). 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-(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." Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the learned Chief Justice.

(iii) However, on the statement that triple talaq is an integral part of the religious practice, I respectfully disagree. Merely because a practice has continued for long, that by itself 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. Therefore, in any case, after the introduction of the 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 also have serious doubts as to whether, even Under Article 142, the exercise of a Fundamental Right can be injuncted.

(iv) When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights. I believe that a reconciliation between the same is possible, but the process of harmonizing different interests is within the powers of the legislature. of course, this power has to be exercised within the constitutional parameters without curbing the religious freedom guaranteed under the Constitution of India. However, it is not for the Courts to direct for any legislation.

(v) Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and re-iterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.

Rohinton Fali Nariman, J. (Dissenting but Majority)

(i) Having perused a copy of the learned Chief Justice's judgment, I am in respectful disagreement with the same.

(ii) Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, it is clear 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 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. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.

Conclusion:

(i) In view of the different opinions recorded, by a majority of 3:2 the practice of 'talaq-e-biddat'-triple talaq is set aside.