2017 (9) TMI 1302 - SC - Indian Laws

Practiced modes of talaq amongst Muslims - talaq-e-biddat triple talaq - polygamy and halala - relevancy of Dissolution of Muslim Marriages Act, 1939 - Held that - 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. In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat. 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, and in full agreement with the learned Chief Justice. However, on the statement that triple talaq is an integral part of the religious practice, it is respectfully disagreed. 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. As also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right can be injuncted. When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights. As 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. 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. In view of the different opinions recorded, by a majority of 3 2 the practice of talaq-e-biddat triple talaq is set aside.

Issues Involved:
1. Whether the practice of 'talaq-e-biddat' (triple talaq) has legal sanctity and is enforceable under Muslim 'personal law' - 'Shariat'.
2. Whether 'talaq-e-biddat' violates the fundamental rights enshrined in Part III of the Constitution, particularly Articles 14, 15, and 21.
3. Whether 'talaq-e-biddat' is protected under Article 25 of the Constitution as a matter of faith and 'personal law'.
4. Whether the Muslim Personal Law (Shariat) Application Act, 1937 confers statutory status to 'talaq-e-biddat'.
5. Whether 'talaq-e-biddat' is violative of the principles of constitutional morality.
6. The impact of international conventions and declarations on the practice of 'talaq-e-biddat'.

Issue-wise Detailed Analysis:

1. Legal Sanctity and Enforceability of 'Talaq-e-Biddat':
The judgment acknowledges that 'talaq-e-biddat' has been practiced for over 1400 years among Sunni Muslims of the Hanafi school. Despite being considered sinful, it is recognized as valid in law. The Privy Council in Rashid Ahmad's case upheld 'talaq-e-biddat' as legally effective. The Supreme Court found the need to re-examine this in light of subsequent developments and conflicting High Court judgments.

2. Violation of Fundamental Rights:
The petitioners argued that 'talaq-e-biddat' violates Articles 14, 15, and 21 by being arbitrary and discriminatory. However, the Court held that these Articles apply to State actions and not to 'personal law'. Since 'talaq-e-biddat' is part of Muslim 'personal law', it does not fall under the purview of State action and thus cannot be tested against these Articles.

3. Protection under Article 25:
The Court concluded that 'talaq-e-biddat' is integral to the religious denomination of Sunni Muslims belonging to the Hanafi school and constitutes a part of their 'personal law'. Article 25 protects 'personal law' as a fundamental right, subject to public order, morality, health, and other provisions of Part III of the Constitution. The Court found that 'talaq-e-biddat' does not violate these constraints.

4. Statutory Status of 'Talaq-e-Biddat':
The Court examined whether the Muslim Personal Law (Shariat) Application Act, 1937 transformed 'personal law' into 'statutory law'. It concluded that the Act did not codify 'talaq-e-biddat' but merely reaffirmed the application of Muslim 'personal law' over customs and usages. Therefore, 'talaq-e-biddat' remains 'personal law' and is not subject to the constitutional scrutiny applicable to statutory law.

5. Violation of Constitutional Morality:
The petitioners argued that 'talaq-e-biddat' is against constitutional morality, which includes gender equality and non-discrimination. The Court, however, held that 'personal law' is protected under Article 25 and cannot be invalidated based on constitutional morality. The Court emphasized that religious practices, even if seen as regressive, are protected as matters of faith.

6. Impact of International Conventions:
The petitioners contended that 'talaq-e-biddat' violates international conventions on gender equality to which India is a signatory. The Court acknowledged the importance of these conventions but held that 'personal law' has constitutional protection under Article 25, which takes precedence over international conventions.

Conclusion:
The Supreme Court, by a majority of 3:2, set aside the practice of 'talaq-e-biddat' (triple talaq). The majority held that 'talaq-e-biddat' is manifestly arbitrary and violates Article 14 of the Constitution. The Court directed the Union of India to consider appropriate legislation on the matter and issued an injunction against the practice of 'talaq-e-biddat' for six months, pending legislative action.

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