Tuesday August 22,2017 will be recorded in the history with the golden letters when the greatest interpreter of the holy law of the land finally set aside the corrupt and discriminatory practise of divorce (Talaq) under Muslim law thereby declaring it void and illegal by 3:2 majority.
There are various forms of divorce (Talaq) under Muslim law which includes Talaq-e-Ahsan’, ‘Talaq-e-hasan’ and ‘Talaq-e-biddat’ available at the instance of the husband, ‘Khula’ available at the instance of wife and ‘Mubarat’, which is divorce by mutual consent.
The petitioner- Shayara Bano in this instant case was an aggrieved woman who was pronounced talaq -talaq-talaq by her husband- Rizwan Ahmad in the presence of witness. Thereafter, the custody of children was taken by the respondent-husband and has also filed a suit for restitution of conjugal rights in Allahabad Family court. It was the contention of the petitioner that a divorce which so abruptly, unilaterally and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 and also violative of article 14,15 and 21 should be declared unconstitutional. The petitioner also raised a point that ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ are the reasonable forms of divorce where there is possibility of getting it revoked in Muslim law. But this triple talaq or talaq-e-biddat does not find any mention in Quran and only few Sunni schools allow it and also describing it as ‘most sinful form of divorce’.
Supreme court in its decision mentions about the various verses of Quran and the most relevant which keeps the dignity of a woman to the top is ‘verse’ 223 which exalts the husband, to be wise and considerate towards her, and treat her in such manner as will neither injure nor exhaust her and also found relevant to record that the ‘personal law’ dealing with the affairs of Muslim are regulated by custom or usage. While dealing with the sections 2, 3 and 5( got deleted and replaced by Dissolution of Muslim Marriages Act, 1939) of the Shariat act, supreme court was of the opinion that a close examination of section 2, mandated the Muslim personal law board (Shariat) to be “… personal property inherited or obtained under contract or gift or any other provision of ‘personal law’, marriage, dissolution of marriage, including Talaq, Ila, Zihar, Lian, Khula and Mubaraat, maintenance, dower, gifts, trusts and trust properties, and Wakfs …”. Section 3 added to the above list, “… adoption, wills and legacies …”, subject to the declaration expressed in Section 3. The hon’ble court also discussed the various legislations of the countries like Egypt, Algeria and Iraq where this practise has been done away. Also, it was submitted by the learned counsel, Salman Khurshid (Amicus Curiae) that issues such as triple talaq which involve political overtones or motives could not be refused by the Supreme Court to address. And, Ms. Nitya Ramakrishna, Advocate, appeared on behalf of respondent no.11 (in Writ Petition (C) No.118 of 2016) – Dr.Noor jehan Safia Niaz, contended that the practise of triple talaq should not be struck down completely rather the court should uphold the decision of the Delhi High court in Masroor Ahmed v. N.C.T Delhi giving meaningful interpretation to talaq-e-biddat which would be in consonance with the verses of Quran and relevant ‘hadiths’. Whereas, Dr. Rajan Chandra and Mr. Arif Mohd. Khan, Advocates, appeared on behalf of the Muslim Women Personal Law Board argued that ‘talaq-e-biddat’ was derogatory to the dignity of women, and that, it breaches the concept of gender equality and any law in force under article 13 which violates the part III of the constitution should be struck down, moreover, it is the bounden duty of the court to declare such law invalid at the time when parliament is reluctant to bring out a legislation.
The chief justice Kehar and Justice Abdul Nazeer (Minority) were of the opinion that under article 142 of the constitution, this court should exercise its jurisdiction and take appropriate step and therefore directed the Union of India to come up with the appropriate legislation related to this issue of triple talaq. Even the British provided succour to Muslims by way of legislation then the present India should not lag behind in adopting the measures beneficial for this section of society. They were satisfied with the injunction being provided to Muslim men until the legislative process commences before the period of six months and failing which, the injunction shall cease to operate.
While Justice Kurian Joseph (Majority) was of the opinion that a practise which is so sinful in Quran is considered lawful in Shariat (personal law) and there is no more res integra. Justice relied upon the Shamim Ara v. State of U.P. judgment where it was held that this practise of triple talaq lacks legal sanctity and under article 141, Shamim Ara is the law applicable in India. The practise of triple talaq cannot be considered to be an integral part of the religious practise as provided under freedom to practise, profess and propagate religion under article 25(1) of the constitution. Merely because a practise has continued for long does not make it valid. The purpose of Shariat act is to discontinue anti-shariat practises which are also the practise not permissible in the holy Quran, so, this practise should also be struck down and when such cases come, the power to harmonize the different interests should be exercised in such a way so as within the constitutional parameters and without curbing the religious freedom provided by the constitution.
Justice Rohinton F. Nariman and Justice U.U.Lalit (Majority) held that triple talaq being irrevocable leaves no space for reconciliation and this form 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. The practise of talaq –e-biddat is violative of 393 fundamental right under article 14 of the constitution and therefore this shariat ac, 1937 should be struck down to the extent it recognises this triple talaq as law in force under article 13(1). The opinion was penned by Justice Nariman and as soon as he announced that Justice Lalit is also of the same opinion, CJI went into huddle with Justice Nariman and CJI’s opinion is reduced to minority. But keeping all this aside, CJI signed the verdict and set aside the practise of triple talaq.
The ‘talaq-e-biddat’ is being practised since time immemorial and just because it has been supported with custom, it does not become valid. In the end, I would whole-heartedly and with utmost regard would go by the Justice Kurain’s opinion that what is bad in theology, sinful in the holy Quran cannot be good in Shariat as well as in law of the land.