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TMI Blog2017 (9) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 enumer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the practice of talaq-e-biddat by legislation, the world over, in Islamic, as well as, non-Islamic States 28- 29 A. Laws of Arab States (i) (xiii) B. Laws of Southeast Asian States (i) (iii) C. Laws of Sub-continental States (i) (ii) 6. Part-6 Judicial pronouncements, on the subject of talaq-e-biddat 30 - 34 7. Part-7 The petitioner s and the interveners contentions: 35 78 8. Part-8 The rebuttal of the petitioners contentions 79 111 9. Part-9 Consideration of the rival contentions, and our conclusions 112- 114 I. Does the judgment of the Privy Council in the Rashid Ahmad case, upholding talaq-e-biddat , require a relook ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is also her contention, 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 (hereinafter referred to as, the Shariat Act), be declared unconstitutional. During the course of hearing, it was submitted, that the talaq-e-biddat (-triple talaq), pronounced by her husband is not valid, as it is not a part of Shariat (Muslim personal law ). It is also the petitioner s case, that divorce of the instant nature, cannot be treated as rule of decision under the Shariat Act. It was also submitted, that the 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. It is also the petitioner s case, that the 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. It was submitted, that the practice of talaq-e-biddat is denounced internationally, and further, a large number of Muslim theocratic countries, have forbidden the practice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above predicament, Rizwan Ahmad approached the Court of the Principal Judge, Family Court at Allahabad, Uttar Pradesh, by preferring Matrimonial Case No.1144 of 2015 with a prayer for restitution of conjugal rights. The petitioner-Shayara Bano, preferred Transfer Petition (C) No. 1796 of 2015, under Section 25 of the Code of Civil Procedure, 1908, read with Order XXXVI-B of the Supreme Court Rules, 1966, for the transfer of Matrimonial Case No.1144 of 2015, filed by the respondent-husband (seeking restitution of conjugal rights) pending at Allahabad, Uttar Pradesh, to the Principal Judge, Family Court, Kashipur, Uttarakhand. In the above transfer petition, the wife inter alia asserted as under: 2.3 The Petitioner who hails from Kashipur, Uttarakhand is unemployed and her father is a government employee. The only source of income is the Petitioner s father who has a low income and despite this the Petitioner during the time of marriage had made arrangements beyond their capacity. But soon after the marriage the Respondent husband started demanding for additional dowry and made unreasonable demands for a car and cash. 2.4 The Petitioner who rightfully denied the demands of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Kumari Humaira Naz @ Muskan aged about 11 years were born who are receiving education living under my guardianship. With a great sorrow it is being written that you, just after 6 months of marriage, with your unreasonable and against Sharia acts started to pressurize me to live separately from my parents. I, in order to keep you happy and as per your wish started to live at a rented house at Mohalla Ghausnagar and while working as a clerk under a builder tried my level best to spend peaceful marital life with you and children. However, you, in an unreasonable manner and against Shriah continued to create problem and quarrel in house on regular basis. When you were asked the reason in a very affectionate manner about two years ago, you had put a condition that now when your other relatives are not with you in such situation come with me to my parents house and live further life there. I being a person from a self-respecting family refused to live as son in law living at in-laws house . Then you, under the influence of your parents, continued to fake various mental and physical pains and continued to behave life a mental patient. When tried to know the reason then you after muc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g fed up with your unreasonable conduct and against Sharaih acts I found it better to separate from you, therefore, I on 8.10.2015 applied for dismissal of the suit for bringing you back and now I, in my full senses and in the presence of marginal witnesses, release you from my marriage in the light of Shariah through tripel talaq by uttering I give talaq , I give talaq , I give talaq . From today the relation of husband and wife forever ends between you and me. After today you are unlawful for me and I have become unlawful for you. You are free to spend your life the way you want. Note: So far is the question of your dower (Mehr) and expenses of waiting period (iddat) that I am paying through demand draft no.096976 dated 06.10.2015 drawn at Allahabad Bank, Karaili, Allahabad Branch, which comprises a sum of ₹ 10,151 towards payment of dower and ₹ 5,500/- towards the expenses of waiting period which I am sending along with this written deed of divorce, you kindly take paid to accept the same. Dated 10.10.2015 Witnesses:- 1. Mohd. Yaseen, s/o Abdul Majid, R/o J.K. Colony, Ghaus Nagar, Karaili, Allahabad; 2. Ayaz Ahmed S/o Imtiyaz Hussain R/o G.T.B. Naga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -e-biddat is neither recognized by the Quran nor by hadith , and as such, is to be considered as sacrosanctal to Muslim religion. The controversy which has arisen for consideration before this Court, is with referenc to talaq-e-biddat . 13. It is necessary for the determination of the present controversy, to understand the parameters, and the nature of the different kinds of talaq . Talaq-e-ahsan is a single pronouncement of talaq by the husband, followed by a period of abstinence. The period of abstinence is described as iddat . The duration of the iddat is ninety days or three menstrual cycles (in case, where the wife is menstruating). Alternatively, the period of iddat is of three lunar months (in case, the wife is not menstruating). If the couple resumes cohabitation or intimacy, within the period of iddat , the pronouncement of divorce is treated as having been revoked. Therefore, talaq-e-ahsan is revocable. Conversely, if there is no resumption of cohabitation or intimacy, during the period of iddat , then the divorce becomes final and irrevocable, after the expiry of the iddat period. It is considered irrevocable because, the couple is forbidden to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinction between talaq-e-ashan and talaq-e-hasan is, that in the former there is a single pronouncement of talaq followed by abstinence during the period of iddat , whereas, in the latter there are three pronouncements of talaq , interspersed with abstinence. As against talaq-e-ahsan , which is regarded as the most proper form of divorce, Muslims regard talaq-e-hasan only as the proper form of divorce . 15. The third kind of talaq is talaq-e-biddat . This is effected by one definitive pronouncement of talaq such as, I talaq you irrevocably or three simultaneous pronouncements, like talaq, talaq, talaq , uttered at the same time, simultaneously. In talaq-e-biddat , divorce is effective forthwith. The instant talaq, unlike the other two categories of talaq is irrevocable at the very moment it is pronounced. Even amongst Muslims talaq-e-biddat , is considered irregular. 16. According to the petitioner, there is no mention of talaq-e-biddat in the Quran. It was however acknowledged, that the practice of talaq-e-biddat can be traced to the second century, after the advent of Islam. It was submitted, that talaq-e-biddat is recognized only by a few ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for you by God. For God loves those Who turn to Him constantly And he loves those Who keep themselves pure and clean. 223. Your wives are As a tilth unto you; So approach your tilth When or how ye will; But do some good act For your souls beforehand; And fear God, And know that ye are To meet Him (in the Hereafter), And give (these) good tidings To those who believe. The above verses have been extracted by us for the reason, that the Quran mandates respectability at the hands of men towards women. Verse 222 has been interpreted to mean, that matters of physical cleanliness and purity should be looked at, not only from a man s point of view, but also from the woman s point of view. The verse mandates, that if there is danger of hurt to the woman, she should have every consideration. The Quran records, that the action, of men towards women are often worse. It mandates, that the same should be better with reference to the woman s health, both mental and spiritual. Verse 223 postulates, that sex is as solemn, as any other aspect of life. It is compared to a husband-man s tilth, to illustratively depict, that in the same manner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ople together. The text relied upon suggests, that verses 225 to 227 should be read together with verse 224. Verse 224 is general and leads up to the next three verses . These verses are in the context of existing customs, which were very unfair to married women. Illustratively, it was sought to be explained, that in a fit of anger or caprice, sometimes a husband would take an oath in the name of God, not to approach his wife. This act of the husband, it was sought to be explained, deprives the wife of her conjugal rights, and yet, keeps her tied to the husband indefinitely, inasmuch as, she has no right to remarry. Even if this act of the husband, was protested by the wife, the explanation provided is, that the husband was bound by the oath in the name of God. Through the above verses, the Quran disapproves thoughtless oaths, and at the same time, insists on a proper solemn and conscious/purposeful oath, being scrupulously observed. The above verses caution husbands to understand, that an oath in the name of God was not a valid excuse since God looks at intention, and not mere thoughtless words. It is in these circumstances, that verses 226 and 227 postulate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok And Wisdom, For your instruction. And fear God, And know that God Is well acquainted With all things A perusal of the aforesaid verses reveals, that divorce for the reason of mutual incompatibility is allowed. There is however a recorded word of caution that the parties could act in haste and then repent, and thereafter again reunite, and yet again, separate. To prevent erratic and fitful repeated separations and reunions, a limit of two divorces is prescribed. In other words, reconciliation after two divorces is allowed. After the second divorce, the parties must definitely make up their mind, either to dissolve their ties permanently, or to live together honourably, in mutual love and forbearance to hold together on equitable terms. However, if separation is inevitable even on reunion after the second divorce, easy reunion is not permitted. The husband and wife are forbidden from casting aspersions on one another. They are mandated to recognize, what is right and honourable, on a collective consideration of all circumstances. After the divorce, a husband cannot seek the return of gifts or properties, he may have given to his wife. Such retention by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d unfairly On account of his child, An heir shall be chargeable In the same way. If they both decide On weaning, By mutual consent, And after due consultation, There is no blame on them. If ye decide On a foster-mother For your offspring, There is no blame on you, Provided ye pay (the mother) What ye offered, On equitable terms. But fear God and know That God sees well What ye do. A perusal of the above verses reveals, that the termination of the contract of marriage, is treated as a serious matter for family and social life. And as such, every lawful advice, which can bring back those who had lived together earlier, provided there is mutual love and they can live with each other on honourable terms, is commended. After following the above parameters, the Quran ordains, that it is not right for outsiders to prevent the reunion of the husband and wife. Verse 233 is in the midst of the regulations on divorce. It applies primarily to cases of divorce, where some definite rule is necessary, as the father and mother would not, on account of divorce, probably be on good terms, and the interest of children must be safeguarded. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettlement Between themselves; And such settlement is best; Even though men's souls Are swayed by greed. But if ye do good And practice self-restraint God is well-acquainted With all that ye do. Section 19, Sura IV The Quran declares men as protectors, and casts a duty on them to maintain their women. In order to be entitled to the husband s support, the Quran ordains the women to be righteous, and to be devoutly obedient to the husband, even in his absence. Verse 34, extends to the husband the right to admonish his wife who is either disloyal, or ill-conducts herself. Such admonition can be by refusing to share her bed, and as a last resort, even to beat her lightly. Thereafter, if the woman does not return to obedience, the husband is advised not to use means of annoyance against her. Verse 35, sets out the course of settlement of family disputes. It postulates the appointment of two arbitrators one representing the family of the husband, and the other the family of the wife. The arbitrators are mandated to explore the possibility of reconciliation. In case reconciliation is not possible, dissolution is advised, without publicity or mud-thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of their husband, except when they are guilty. Those who transgress the above limitation, are cautioned, that they are committing wrong to their own souls. Reconciliation is suggested, whenever it is possible. It is recommended at every stage. The first serious difference between the spouses is first to be submitted to a family counsel, on which both sides are to be represented. The verse requires the divorce to be pronounced, only after the period of prohibitory waiting. Dower has to be paid, and due provisions have to be made, by the husband, for many things on equitable terms. On each aspect, there is to be consideration. Reconciliation is recommended till the last moment. The message contained in verse 2 is, that everything should be done fairly, and all interests should be safeguarded. It is ordained, that the parties should remember, that such matters affect the most intimate aspect of their lives, and therefore, have a bearing even in the spiritual kingdom. It is therefore, that the verses extracted above, impress on the parties, to fear God, and ensure that their determination is just and true. 21. The understanding of the verses of the Quran, is imperative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... measure, if enacted, would have very salutary effect on society because it would ensure certainty and definiteness in the mutual rights and obligations of the public. Muslim Personal Law (Shariat) exists in the form of a veritable code and is too well known to admit of any doubt or to entail any great labour in the shape of research, which is the chief feature of Customary Law. 23. Sections 2, 3 and 5 of the Shariat Act are relevant and are extracted hereunder: 2 Application of personal law to Muslims.- Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including 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, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). 3. Power to make a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, that Section 5 of the Shariat Act was deleted, and replaced by the Dissolution of Muslim Marriages Act, 1939. 25. In the above context, it would be relevant to mention, that there was no provision in the Hanafi Code, of Muslim law for a married Muslim woman, to seek dissolution of marriage, as of right. Accordingly, Hanafi jurists had laid down, that in cases in which the application of Hanafi law caused hardship, it was permissible to apply the principles of the Maliki, Shafii or Hanbali law. This position was duly noticed in the introduction to the 1939 Act, as well as, in the statement of its objects and reasons. Be that as it may, the alternatives suggested by the Hanafi jurists were not being applied by courts. Accordingly, in order to crystalise the grounds of dissolution of marriage, by a Muslim woman, the 1939 Act, was enacted. The statement of objects and reasons of the above enactment is relevant, and is accordingly extracted hereunder: There is no proviso in the Hanafi Code of Muslim Law enabling a married Muslim woman to obtain a decree from the Court dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of marriage. Section 2 of the enactment is reproduced below: 2. Grounds for decree for dissolution of marriage.-A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:- (i) that the whereabouts of the husband have not been known for a period of four years; (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years; (iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards; (iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years; (v) that the husband was impotent at the time of the marriage and continues to be so; (vi) that the husband has been insane for a period of two years or is suffering from leprosy or virulent venereal disease; (vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated; (viii) that the hus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of talaq-e-biddat as a means of divorce, through statutory enactments, the world over. The countries which have abolished talaq-e-biddat have been divided into Arab States, Southeast Asian States, and Subcontinental States. We have maintained the above classifications, in order to establish their factual positions. Firstly, to demonstrate that the practice was prevalent across the globe in States having sizeable Muslim populations. And secondly, that the practice has been done away with, by way of legislation, in the countries referred to below. A. Laws of Arab States (i) Algeria: Is a theocratic State, which declares Islam to be its official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation: Code of Family Law 1984 Law No.84-11 of 1984 as amended in 2005 Article 49. Divorce cannot be established except by a judgment of the court, preceded by an attempt at reconciliation for a period not exceeding three months. (ii) Egypt : Is a secular State. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation: Law of Personal St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o has lost senses due to anger or provocation, etc., and cannot understand what he is saying. xxx xxx xxx Article 90. A divorce coupled with a number, expressly or impliedly, as also a divorce repeated in the same sitting, will not take effect except as a single divorce. xxx xxx xxx Article 94. Every divorce shall be revocable except the final third, one before consummation and one with consideration. xxx xxx xxx Article 98. Where an irrevocable Talaq was pronounced once or twice, renewal of marriage with the consent of parties is not prohibited. (v) Kuwait : Is a theocratic State, which declares Islam to be the official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place: Code of Personal Status 1984 Law 51 of 1984 Article 102. Talaq may be effected by major and sane men acting by their free will and understanding the implications of their action. Therefore Talaq shall not take effect if the husband is mentally handicapped, imbecile, under coercion, mistake, intoxication, fear or high anger affecting his speech and action. xxx xxx xxx Article 109. If a Talaq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the matter or reconcile them. xxx xxx xxx Article 47. A divorce must be pronounced in a court and in the presence of the other party or his or her representative. The court shall before giving effect to a divorce exhaust all possibilities of reconciliation. ((viii) Morocco : Is a theocratic State, which declares Islam to be its official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation: Code of Personal Status 2004 Law 70.03 of 2004 Article 79. Whoever divorces his wife by Talaq must petition the court for permission to register it with the Public Notaries of the area where the matrimonial home is situate, or where the wife resides, or where the marriage took place. Article 80. The petition will mention the identity of spouses, their professions, addresses, number of children, if any, with their age, health condition and educational status. It must be supported by a copy of the marriage agreement and a document stating the husband s social status and financial obligations. Article 81. The court shall summon the spouses and attempt reconciliation. If the husband deliberately abst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place when the man is drunk, out of his senses, or under duress. A person is out of his senses when due to anger, etc. he does not appreciate what he says. Article 90. A conditional divorce shall have no effect if not actually intended and used only as an inducement to do or abstain from doing something or as an oath or persuasion. xxx xxx xxx Article 92. If a divorce is coupled with a number, expressly or impliedly, not more than one divorce shall take place. xxx xxx xxx Article 94. Every divorce shall be revocable except a third-time divorce, one before consummation, a divorce with a consideration, and a divorce stated in this Code to be irrevocable. xxx xxx xxx Article 117. Where a person divorces his wife the court may, if satisfied that he has arbitrarily done so without any reasonable cause and that as a result of the divorce the wife shall suffer damage and become destitute, give a decision, with due regard to the husband s financial condition and the amount of wife s suffering, that he should pay her compensation not exceeding three years maintenance, in addition to maintenance payable during the period of Iddat. It may be directed to be paid eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the decree relating to custody, maintenance, compensation, residence and right to visit children shall be executed immediately. ((xii) United Arab Emirates : Is a theocratic State, as the Federal Constitution declares Islam to be the official religion. The Constitution also provides for freedom of religion, in accordance with established customs. Muslims of the Shia sect constitute its majority. On the issue in hand, it has the following legislation in place: Law of Personal Status 2005 Federal Law No.28 of 2005 Article 140(1). If a husband divorces his wife after consummation of a valid marriage by his unilateral action and without any move for divorce from her side, she will be entitled to compensation besides maintenance for Iddat. The amount of compensation will be decided with due regard to the means of the husband and the hardship suffered by the wife, but it shall not exceed the amount of one year s maintenance payable in law to a woman of her status. (2) The Kazi may decree the compensation, to be paid as a lump sum or in instalments, according to the husband s ability to pay. (xiii) Yemen: Is a theocratic State, which declares Islam to be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mother. The court may also direct the former husband to pay alimony to the divorced wife. (b) Marriage Regulations 1975 Regulation 9 of 1975 Article 14. A man married under Islamic law wanting to divorce his wife shall by a letter notify his intention to the District Court seeking proceedings for that purpose. Article 15. On receiving a letter the court shall, within thirty days, summon the parties and gather from them all relevant facts. Article 16. If the court is satisfied of the existence of any of the grounds mentioned in Article 19 below and is convinced that no reconciliation between the parties is possible it will allow a divorce. Article 17. Immediately after allowing a divorce as laid down in Article 16 above the court shall issue a certificate of divorce and send it to the Registrar for registration of the divorce. xxx xxx xxx Article 19. A divorce may be allowed on the petition of either party if the other party: (a) has committed adultery or become addict to alcohol, drugs, gambling or another serious vice; (b) has deserted the aggrieved party for two years or more without any legal ground and against the said party s will; (c) has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar for registration. (5) Where the other party does not consent to the divorce or it appears to the court that there is reasonable possibility of a reconciliation between the parties, the court shall as soon as possible appoint a Conciliatory Committee consisting of a religious officer as Chairman and two other persons, one to act for the husband and the other for the wife, and refer the case to the Committee. (6) In appointing the two persons under sub-section (5) the court shall, where possible, give preference to close relatives of the parties having knowledge of the circumstances of the case. (7) The court may give directions to the Conciliatory Committee as to the conduct of the conciliation and it shall conduct it in accordance with such directions. (8) If the Committee is unable to agree or if the court is not satisfied with its conduct of the conciliation, the court may remove the Committee and appoint another Committee in its place. (9) The Committee shall endeavour to effect reconciliation within a period of six months from the date of its being constituted or such further period as may be allowed by the court. (10) The Committee shall require the attend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Talaq pronounced by the husband or an order made by the court shall not be effective until the expiry of the Iddat. (17) If the wife is pregnant at the time the Talaq is pronounced or the order is made, the Talaq or the order shall not be effective until the pregnancy ends. (iii) Philippines : Is a secular State. Christians constitute its majority. On the issue in hand, it has the following legislation in place: Code of Muslim Personal Law 1977 Decree No.1083 of 1977 Article 46. (1) A divorce by Talaq may be effected by the husband in a single repudiation of his wife during her Tuhr [non-menstrual period] within which he has totally abstained from carnal relations with her. (2) Any number of repudiations made during one Tuhr [non-menstrual period] shall constitute only one repudiation and shall become irrevocable after the expiration of the prescribed Iddat. (3) A husband who repudiates his wife, either for the first or second time, shall have the right to take her back within the Iddat period by resumption of cohabitation without need of a new contract of marriage. Should he fail to do so, the repudiation shall become irrevocable. xxx xxx xxx Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman. (4) Within thirty days of the receipt of notice under sub-section (1) the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration council shall take all steps necessary to bring about such reconciliation. (5) If the wife be pregnant at the time Talaq is pronounced, Talaq shall not be effective until the period mentioned in sub-section (3) or of pregnancy, whichever is later, ends. (6) Nothing shall debar a wife whose marriage has been terminated by Talaq effective under this section from re-marrying the same husband without any intervening marriage with a third person, unless such termination is for the third time so effective. (ii) Sri Lanka : Is a secular State. Buddhists constitute its majority. On the issue in hand, it has the following legislation in place: Muslim Marriage and Divorce Act 1951 Act 6 of 1951 as amended by Act 40 of 2006 Section 17 (4) Save as otherwise hereinafter expressly provided, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fifteen years, i.e., till the death of Ghiyas-ud-din. In the interregnum, five children were born to Ghiyas-ud-din and Anisa Khatun. According to Anisa Khatun, Ghiyas-ud-din continued to treat Anisa Khatun respondent no.1, as his wife, and the children born to her, as his legitimate children. It was also the case of respondent no.1, that the payment of ₹ 1,000, was a payment of prompt dower, and as such, not payment in continuation of the talaq-e-biddat , pronounced by Ghiyas-ud-din. (iii) The consideration: While considering the validity of the talaq-e-biddat pronounced on 13.09.1905, and the legitimacy of the children born to Anisa Khatun, the Privy Council held as under: 15. Their Lordships are of opinion that the pronouncement of the triple talak by Ghiyas-ud-din constituted an immediately effective divorce, and, while they are satisfied that the High Court were not justified in such a conclusion on the evidence in the present case, they are of opinion that the validity and effectiveness of the divorce would not be affected by Ghiyas-ud-din s mental intention that it should not be a genuine divorce, as such a view is contrary to all authority. A talak actually ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by contrary proof. 18. The legal bar to re-marriage created by the divorce in the present case would equally prevent the raising of the presumption. If the respondents had proved the removal of that bar by proving the marriage of Anisa Fatima to another after the divorce and the death of the latter or his divorce of her prior to the birth of the children and their acknowledgment as legitimate, the respondents might then have had the benefit of the presumption, but not otherwise. 19. Their Lordships are, therefore, of opinion that the appeal should be allowed, that the decree of the High Court should be reversed, and that the decree of the Subordinate Judge should be restored, the appellants to have the costs of his appeal and their costs in the High Court. Their Lordships will humbly advise His Majesty accordingly. (iv) The conclusion: The Privy Council, upheld as valid, talaq-e-biddat triple talaq, pronounced by the husband, in the absence and without the knowledge of the wife, even though the husband and wife continued to cohabit for 15 long years thereafter, wherefrom 5 offsprings were born to them 31. Jiauddin Ahmed v. Anwara Begum (1981) 1 Gau.L.R. 358, (Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utual incompatibility is allowed, there is danger that the parties might act hastily, then repent, and again wish to separate. To prevent such capricious action repeatedly, a limit is prescribed. Two divorces (with a reconciliation between) are allowed. After that the parties must unitedly make up their minds, either to dissolve their union permanently, or to live honourable lives together in mutual love and forbearance to 'hold together on equitable terms, 'neither party worrying the other nor grumbling nor evading the duties and responsibilities of marriage''. Yusuf Ali proceeds: All the prohibitions and limits prescribed here are in the interests of good and honourable lives for both sides, and in the interests of a clean and honourable social life, without public or private scandals... * * * * Two divorces followed by re-union are permissible; the third time the divorce becomes irrevocable, until the woman marries some other man and he divorces her. This is to set an almost impossible condition. The lesson is: if a man loves a woman he should not allow a sudden gust of temper or anger to induce him to take hasty action... If the man takes back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciliation must have been exhausted before resort is had to this extreme measure. The impression that a Muslim husband may put away his wife at his mere caprice, is a grave distortion of the Islamic institution of divorce. Fyzee denounces talaq as absurd and unjust . Abdur Rahim says: I may remark that the interpretation of the law of divorce by the jurists, specially of the Hanafi School, is one flagrant instance where because of literal adherence to mere words and a certain tendency towards subtleties they have reached a result in direct antagonism to the admitted policy of the law on the subject. 12. Mohammad Ali has observed:- Divorce is thus discouraged: 'If you hate them (i.e. your wives) it may be that you dislike a thing while Allah has placed abundant good in it. Remedies are also suggested to avoid divorce so long as possible: And if you fear a breach between the two (i.e. the husband and the wife), then appoint a judge from his people and a judge from her people; if they both desire agreement, Allah will effect harmony between them. It was due to such teachings of the Holy Quran that the Holy Prophet declared divorce to be the most hateful of all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only a remedy when marriage fails to fulfill its object.'' With regard to the husband's right of pronouncing divorce the learned author has found; Though the Holy Quran speaks of the divorce being pronounced by the husband, yet a limitation is placed upon the exercise of this right. He then refers to the procedure laid down in Sura IV Verse 35 quoted above, and says : It will be seen that in all disputes between the husband and the wife, which it is feared will lead to a breach, two judges are to be appointed from the respective people of the two parties. These judges are required first to try to reconcile the parties to each other, failing which divorce is to be effected. Therefore, though it is the husband who pronounces the divorce, he is as much bound by the decision of the judges, as is the wife. This shows that the husband cannot repudiate the marriage at will. The case must first be referred to two judges and their decision is binding......The Holy Prophet is reported to have interfered and disallowed a divorce pronounced by a husband, restoring the marital relations (Bu. 68: 2). It was no doubt matter of procedure, but it shows that the authority con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the petitioner Jiauddin Ahmed, had mainly alleged that he had pronounced talaq, but had not established the factum of divorce by adducing any cogent evidence. Having concluded, that the marriage between the parties was subsisting, the High Court upheld the order awarding maintenance to the wife Anwara Begum. 32. Must. Rukia Khatun v. Abdul Khalique Laskar (1981) 1 Gau. L.R. 375 , (Division Bench judgment, authored by Baharul Islam, CJ., as he then was) . (i) The facts : Rukia Khatun was married to Abdul Khalique Laskar. The couple lived together for about 3 months, after their marriage. During that period, the marriage was consummated. Rukia Khatun alleged, that after the above period, her husband abandoned and neglected her. She was allegedly not provided with any maintenance, and as such, had been living in penury, for a period of about 3 months, before she moved an application for grant of maintenance. The petitioner s application for maintenance filed under Section 125 of the Code of Criminal Procedure, was rejected by the Sub-Divisional Judicial Magistrate, Hailakandi. She challenged the order rejecting her claim of maintenance, before the Gauhati High Court. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long been regarded as a leading case on the law of divorce, Justice Costello held: Upon that point (divorce), there are a number of authorities and I have carefully considered this point as dealt with in the very early authorities to see whether I am in agreement with the mere recent decisions of the Courts. I regret that I have to come to the conclusion that at the law stands at present, any Mohamedan may divorce his wife at his mere whim and caprice. Following Macnaghten, J. who held: there is no occasion for any particular cause for divorce, and mere whim is sufficient,'' and Batchelor, J, in case of Sarabai v. Babiabai (ILR 30 Bombay 537) Costello, J. held:- It is good in law, though bad in theology. Ameer Ali, in his Treatise on Mahomedan Law has observed: The Prophet pronounced talaq to be a most destable thing before the Almighty God of all permitted things. If 'talaq' is given without any reason it is stupidity and ingratitude to God. The learned Author in the same book has also observed The author of the Multeka (Ibrohim Halebi) is more concise. He says- The law gives to the man primarily the power of dissolving the marriage, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... talaq' to his wife he must chose an arbiter from his side and the wife an arbiter from her side, and the arbiters must attempt at reconciliation, with a time gap so that the passions of the parties may call down and reconciliation may be possible. If ultimately conciliation is not possible, the husband will be entitled to give 'talaq'. The 'talaq' must be for good cause and must not be at the mere desire, sweet will, whim and caprice of the husband. It must not be secret. Maulana Mohammad Ali, an eminent Muslim jurist, in his Religion of Islam, after referring to, and considering, the relevant verses on the subject has observed: From what has been said above, it is clear that not only must there be a good cause for divorce, but that all means to effect reconciliation must have been exhausted before resort is had to this extreme measure. The impression that a Muslim husband may put away his wife at his mere caprice, is a grave distortion of the Islamic institution of divorce. The learned Jurist also has observed: Divorce must always follow when one of the parties finds it impossible to continue the marriage agreement and is compelled to break it off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alaq under Muslim law. Firstly, talaq has to be based on good cause, and must not be at the mere desire, sweet will, whim and caprice of the husband. Secondly, it must not be secret. Thirdly, between the pronouncement and finality, there must be a time gap, so that the passions of the parties may calm down, and reconciliation may be possible. Fourthly, there has to be a process of arbitration (as a means of reconciliation), wherein the arbitrators are representatives of both the husband and the wife. If the above ingredients do not exist, talaq divorce would be invalid. For the reason, that the talaq-e-biddat triple talaq pronounced by the respondent-husband Abdul Khalique Laskar, did not satisfy all the ingredients for a valid divorce, the High Court concluded that the marriage was subsisting, and accordingly held the wife to be entitled to maintenance. 33. Masroor Ahmed v. State (NCT of Delhi ) 2008 (103) DRJ 137, (Single Bench judgment, authored by Badar Durrez Ahmed, J., as he then was). (i) The facts: Aisha Anjum was married to the petitioner Masroor Ahmed, on 02.04.2004. The marriage was duly consummated and a daughter was born to the couple (-on 22.10.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riple talaq. 24. There is no difficulty with ahsan talaq or hasan talaq. Both have legal recognition under all fiqh schools, sunni or shia. The difficulty lies with triple talaq which is classed as bidaat (an innovation). Generally speaking, the shia schools do not recognise triple talaq as bringing about a valid divorce [With regard to triple talaq, Fyzee comments: Such a talaq is lawful, although sinful, in Hanafi law; but in Ithna 'Ashari and the Fatimid laws it is not permissible. p.154. Ameer Ali notes: The Shiahs and the Malikis do not recognise the validity of the talak-ul-bid'at, whilst the Hanafi and the Shaf'eis agree in holding that a divorce is effective, if pronounced in the bid'at form, though in its commission the man incurs a sin. p. 435. These statements may not be accurate as to the views of Malikis and Shaf'eis, but it is universally recognized that the above-mentioned Shi'a schools do not find triple talaq to be a valid form of divorce.] . There is, however, difference of opinion even within the sunni schools as to whether the triple talaq should be treated as three talaqs, irrevocably bringing to an end the marital relationship or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment, the High Court disposed of a number of writ petitions, including three writ petitions, wherein husbands had terminated their matrimonial alliance with their spouses, by pronouncing talaq-e-biddat triple talaq. Their matrimonial relationship having come to an end, one or the other or both (-this position is unclear, from the judgment) spouses approached the passport authorities, to delete the name of their former spouse, from their respective passports. The passport authorities declined to accept their request, as the same was based on private actions of the parties, which were only supported by unauthenticated talaq-namas (deeds of divorce). The stance adopted by the passport authorities was, that in the absence of a formal decree of divorce, the name of the spouse could not be deleted. By passing interim directions, the High Court ordered the passport authorities, to correct the spouse details (as were sought), based on the admission of the corresponding spouse, that their matrimonial alliance had been dissolved. (ii) The challenge: Even though the authenticity and/or the legality of talaq-e-biddat , did not arise for consideration before the High Court, it noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e will lay a strong foundation for the society, without which there would be neither civilisation nor progress. My endeavour in this judgment would have been over with the laying of correct principles related to triple talaq in Qur'anic perspective to declare the law and to decide the matter. However, I find the dilemma in this context is not a singular problem arisen demanding a resolution of the dispute between the litigants by way of adjudication. But rather it require a State intervention by way of legislation to regulate triple talaq in India. Therefore, settlement of law relating to talaq is necessary and further discussion is to be treated as an allude for the State to consider for possible reforms of divorce Law of Muslim in this Country. The empirical research placed herein justifies such course of action to remind the State for action. It is to be noted, had the Muslim in India been governed by the true Islamic law, Penal law would have acted as deliverance to sufferings of Muslim women in India to deter arbitrary talaq in violation of Qur'anic injunction. xxx xxx xxx 15. This takes me to the question why the State is so hesitant to reforms. It appears fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if court grant any relief based on admission of the parties as to the repudiation of marriage by triple talaaq, that would amount to recognition of a triple talaq effected not in accordance with law, as this court has no mechanism to find out the manner in which talaq is effected. The Court cannot become a party to a proceedings to recognise an ineffective divorce in the guise of directions being given to passport authorities to accept the divorce. The legal effect of such divorce has to be probed by a fact finding authority in accordance with the true Islamic law. Stamp of approval being given by the court by ordering passport authority to accept divorce effected not in accordance with the law, will create an impression that court transgressed its limits while directing a public authority to honour an act which was done not in accordance with law. Though in these Writ Petitions, considering the urgency of the matters, this court granted interim order directing the passport authorities to act upon the request of the petitioners. Considering the large number of similar reliefs sought before this court in various Writ Petitions, this court is of the view that the issue can be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed out, that the petitioner s cause before this Court, was akin to such rights as were considered justiciable. The practice of talaq-e-biddat , according to learned counsel, permitted a male spouse an unqualified right, to severe the matrimonial tie. It was pointed out, that the right to divorce a wife, by way of triple talaq, could be exercised without the disclosure of any reason, and in fact, even in the absence of reasons. It was submitted, that a female spouse had no say in the matter, inasmuch as, talaq-e-biddat could be pronounced in the absence of the wife, and even without her knowledge. It was submitted, that divorce pronounced by way of triple talaq was final and binding, between the parties. These actions, according to learned counsel, vested an arbitrary right in the husband, and as such, violated the equality clause enshrined in Article 14 of the Constitution. It was submitted, that the Constitution postulates through the above article, equality before the law and equal protection of the laws. This right, according to learned counsel, was clearly denied to the female spouse in the matter of pronouncement of divorce by the husband by adopting the procedure of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic. [Constituent Assembly Debates, 1948, Vol. VII, 38.] The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality. The democratic values survive and become successful where the people at large and the persons in charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints. Commitment to the Constitution is a face t of constitutional morality In continuation with the instant submission, it was also the contention of learned senior counsel, that Articles 25, 26 and 29 of the Constitution, did not in any manner, impair the jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, enforcer, and guardian of citizens rights under Articles 14, 15 and 21 of the Constitution. It was submitted, that in discharge of the above constitutional obligation, this Court ought to strike down, the practice of talaq-e-biddat , as violative of the fundamental rights and constitutional morality contemplated by the provisions of the Constitution. It was commended, that the instant practice of talaq-e-biddat should be done away with, in the same manner as the practice of Sati , Devadasi and Polygamy , which were components of Hindu religion, and faith. Learned counsel concluded his submissions by quoting from the Constitutional Law of India, by H.M. Seervai (fourth edition, Volume 2, published by N.M. Tripathi Private Ltd., Bombay), wherein in clause 12.60, at page 1281, the author has expressed the following view: 12.60 I am aware that the enforcement of laws which are violated is the duty of Govt., and in a number of recent cases that duty has not been discharged. Again, in the last instance, blatant violation of religious freedom by the arbitrary action of religious heads has to be dealt with firmly by our highest Court. This duty has resolutely discharged by o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idity of talaq-e-biddat , exercised by Muslim men to divorce their wives. And all the High Courts (which had the occasion to deal with the issue) unanimously arrived at the conclusion, that the same could not muster support either from the Quran or the hadith . In this behalf, the Court s attention was drawn to the various judgments of High Courts including the High Court of Gauhati in the Jiauddin Ahmed case2 by a Single Bench, and by the same High Court in the Rukia Khatun case3 by a Division Bench. By the Delhi High Court in the Masroor Ahmed case4 by a Single Bench, and finally by the Kerala High Court in the Nazeer case5 by a Single Bench (-for details, refer to Part-6 Judicial pronouncements, on the subject of talaq-e-biddat ). It was submitted, that the High Courts were fully justified in their opinions and their conclusions. It was pointed out, that despite the aforesaid judgments, Muslim husbands continued to divorce their wives by talaq-e-biddat , and therefore, an authoritative pronouncement on the matter was required to be delivered, by this Court. Based on the decisions relied upon, it was submitted, that a Muslim husband, could not enjoy arbitrary or uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in holding that the proviso to Section 14A violates either Article 20(1) or Article 31(2) of the Constitution. He has addressed us at length in support of his case that neither of the two articles is violated by the impuged proviso. On the other hand, the learned Solicitor-General has sought to support the findings of the High Court on the said two constitutional points; and he has pressed before us as a preliminary point his argument that on a fair and reasonable construction, the proviso cannot be applied to the case of the first respondent. We would, therefore, first deal with this preliminary point. In cases where the vires of statutory provisions are challenged on constitutional grounds, it is essential that the material facts should first be clarified and ascertained with a view to determine whether the impugned statutory provisions are attracted; if they are, the constitutional challenge to their validity must be examined and decided. If, however, the facts admitted or proved do not attract the impugned provisions there is no occasion to decide the issue about the vires of the said provisions. Any decision on the said question would in such a case be purely academic. Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th relied upon by the AIMPLB, was not found in the Al Bukhari Hadiths, and as such, it would be inappropriate to place reliance on the same. As against the submissions advanced on behalf of AIMPLB, it was pointed out (in rejoinder), that Sahih Muslims believe, that during the Prophet s time, and that of the First Caliph Abu Baqhr and the Second Caliph Umar, pronouncements of talaq by three consecutive utterances were treated as one. Reference in this behalf was made to Sahih Muslim compiled by Al-Hafiz Zakiuddin Abdul-Azim Al-Mundhiri, and published by Darussalam. Learned senior counsel also invited this Court s attention to The lawful and the prohibited in Islam by Al-Halal Wal Haram Fil Islam (edition August 2009), which was of Egyptian origin. It was pointed out, that Egypt was primarily a Sunni Hanafi nation. It was submitted, that the text of the above publication, clearly showed, that the practice of instant talaq was described sinful, and was to be abhorred. Reference was also made to Woman in Islamic Shariah by Maulana Wahiduddin Khan (published by Goodword Books, reprinted in 2014), wherein it is opined, that triple talaq pronounced on a singular occasion, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be added as a party respondent vide an order dated 29.6.2016. It was the contention of learned senior counsel, that the term personal laws had not been defined in the Constitution, although there was reference to the same in entry 5 of the Concurrent List of the Seventh Schedule. Learned counsel referred to Article 372 of the Constitution which mandates, that all laws in force, in the territory of India immediately before the commencement of the Constitution, shall continue in force until altered or repealed or amended by a competent legislature (or other competent authority). It was submitted, that on personal issues, Muslims were governed by the Muslim personal law Shariat. It was contended, that even before, the commencement of the Constitution, the Muslim Personal Law (Shariat) Application Act, 1937 enforced Muslim personal law , and as such, the Muslim personal law should be considered as a law in force , within the meaning of Article 13(3) (b). It was pointed out, that the instant position made the legal position separate and distinct from what ordinarily falls in the realm of personal law . It was also highlighted, that a reading of entry 5 in the Concurren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the statute book, the same did not remain a private matter between the parties. And as such, all questions/matters, falling within the scope of Section 2 aforementioned, were liable to be considered as matters of public law . Learned senior counsel therefore asserted, that no one could contest the legitimacy of a challenge to public law on the ground of being violative of the provisions of the Constitution. In support of the aforesaid foundational premise, learned senior counsel placed reliance on Charu Khurana v. Union of India27, to contend that talaq-e-biddat should be considered as arbitrary and discriminatory, under Articles 14 and 15, in the same manner as the rule prohibiting women make-up artists and hair dressers from becoming members of registered make-up artists and hair dressers association, was so declared. It was also pointed out, that discrimination based on sex was opposed to gender justice, which position was clearly applicable to the controversy in hand. Insofar as the instant aspect of the matter is concerned, learned counsel placed reliance on the following observations recorded in the above judgment: 46. These bye-laws have been certified by the Regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognised the inherent dignity of the entire human family, as equal and inalienable. It was submitted, that the charter provides for equal rights to men and women. It was submitted, that Article 1 thereof provides, that all human beings were born free and equal, in dignity and rights. Referring to Article 2, it was submitted, that there could be no distinction/discrimination on the basis inter alia of sex and/or religion. It was submitted, that it was this Court s responsibility to widen, and not to narrow, the right of equality contained in the aforestated Declaration. The Court s attention was also drawn to the International Convention on Economic, Social and Cultural Rights (ICESCR), which provided for elimination of all forms of discrimination against women. The instant convention was adopted by the United Nations General Assembly on 10.04.1979. It was submitted, that the International Convention bill of rights for women, was instituted on 3.9.1981, and had been ratified by 189 States. It was pointed out, that India had also endorsed the same. It was submitted, that Article 1 thereof defines discrimination , as discrimination against women on the basis of sex. Referring to Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to any restrictions, including any restriction under Article 25 or 26 of the Constitution. It was contended, that the cardinal principle of interpretation of the Constitution was, that all provisions of the Constitution must be harmoniously construed, so that there remained no conflict between them. It was therefore submitted, that Articles 14 and 15 on the one hand, and Articles 25 and 26 on the other, must be harmoniously construed with each other, to prevent discrimination against women, in a manner as would give effect to equality, irrespective of gender. It was contended, that it was totally irrelevant whether personal law was founded on custom or religion, or was codified or uncodified, if it is law and rule of decision , it can be challenged under Part III of the Constitution. 49. Learned senior counsel, also expressed a personal view on the matter, namely, that divorce altered the status of married women, which can leave her destitute. It was asserted, that for all other communities in India, divorce could only be obtained from a judicial forum. And, a judgment and decree of divorce, was a decision in rem, which alters the legal status of the concerned person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the concept of talaq-e-biddat (also described as irregular talaq), was based on the limit of three talaqs available to a man, namely, that a man can divorce the same wife (woman) three times in his life time. The first two are revocable within the period of iddat , whereas, the third talaq was irrevocable. Learned senior counsel, then invited the Court s attention to verses from the Quran (-for details, refer to Part-3 The Holy Quran, with reference to talaq ). However, during the course of his submissions, learned senior counsel emphasized the fact, that mere repetition of divorce thrice in one sitting, would not result in a final severance of the matrimonial relationship between spouses. In order to support his above contention, reliance was placed on the following traditions, from Sunna Muslim: i. [3652] 1 (1471) It was narrated from Ibn Umar that he divorced his wife while she was menstruating, at the time of the Messenger of Allah Umar bin Al-Khatt b asked the Messenger of Allah about that and the Messenger of Allah said to him: Tell him to take her back, then wait until she has become pure, then menstruated again, then become pure again. Then if he wishes he m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Have you not intended but one (divorce)? Rokana said: By Allah, I did not intend but one divorce. The Messenger of Allah then returned her back to him. Afterwards he divorced her for second time at the time of Hadrat Omar and third time at the time of Hadrat Osman. viii. The Quranic philosophy of divorce is further buttressed by the Hadith of the Prophet wherein he warned, of all things which have been permitted, divorce is the most hated by Allah . The Prophet told his people: Al-Talaqu indallah-I abghad al-mubahat , meaning Divorce is most detestable in the sight of God; abstain from it. ix. [2005] 43 (867) It was narrated that J bir bin Abdull h said: When the Messenger of Allah delivered a Khutbah, his eyes would turn red, his voice would become loud, and his anger would increase, until it was as if he was warning of an attacking army, saying: The enemy will attack in the morning or in the evening. He said: The Hour and I have been sent like these two, and he held his index finger and middle finger up together. And he would say: The best of speech is the Book of Allah, the best of guidance is the guidance of Muhammad, and the worst of matters are those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the checks imposed by the Prophet on the facility of repudiation interfered with the indulgence of their caprice, endeavoured to find an escape from the strictness of the law, and found in the pliability of the jurists a loophole to effect their purpose. (b) When the Arabs conquered Syria, Egypt, Perisa, etc. they found women there much better in appearance as compared to Arabian women and hence they wanted to marry them. But the Egyptian and Syrian women insisted that in order to marry them, they should divorce their existing wives instantaneously, by pronouncing three divorces in one sitting. (c) The condition was readily acceptable to the Arabs, because they knew that in Islam divorce was permissible only twice in two separate period of tuhr and its repetition in one sitting was considered un-Islamic, void and not effective. In this way, they could not only marry these women, but also retain their existing wives. This fact was reported to the second Caliph Hazrat Umar. (d) The Caliph Umar then, in order to prevent misuse of the religion by the unscrupulous husbands decreed, that even repetition of the word talaq, talaq, talaq at one sitting, would dissolve the marr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues involved have political overtones or motives, and also because, they might pertain to a narrow constitutional permissibility. It was contended, that to refuse an invitation to examine broader issues such as whether personal laws were part of laws in force under Article 13, and therefore, subject to judicial review, or whether a uniform civil code should be enforced, would not be appropriate. It was submitted, if the immediate concern about triple talaq could be addressed, by endorsing a more acceptable alternate interpretation, based on a pluralistic reading of the sources of Islam, i.e., by taking a holistic view of the Quran and the hadith as indicated by various schools of thought (not just the Hanafi school), it would be sufficient for the purpose of ensuring justice to the petitioners, and others similarly positioned as them. 55. In support of his above submissions, learned senior counsel placed reliance on legislative changes with reference to talaq-e-biddat all over the world (-for details, refer to Part-5 Abrogation of the practice of talaq-e-biddat by legislation, the world over, in Islamic, as well as, non-Islamic States). Reliance was also placed on ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecognized rights of women, which were not available to women of other communities. It was pointed out, that the right of divorce was conferred on Muslim women, far before this right was conferred on women belonging to other communities. It was asserted, that even in the 7th century, Islam granted women the right of divorce and remarriage. The aforesaid legal right, according to learned counsel, was recognized by the British, when it promulgated the Shariat Act in 1937. It was submitted, that through the above legislation all customs and usages contrary to the Muslim personal law Shariat , were unequivocally annulled. It was therefore contended, that while evaluating the validity of talaq-e-biddat , this Court should be conscious of the fact, that the Muslim personal law Shariat , was a forward looking code of conduct, regulating various features in the lives of those who professed the Muslim religion. 59. It was also submitted, that the Quran did not recognize talaq-e-biddat . It was pointed out, that the Prophet Muhammad considered only two forms of divorce to be valid, namely, talaq-e-ahsan and talaq-e-hasan . Despite there being numerous schools of Muslim juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laws in force in the territory of India (immediately before the commencement of the Constitution), as were inconsistent with the Fundamental Rights contained in Part III of the Constitution, were to the extent of such inconsistency, to be treated as void. The above declaration, it was pointed out, had to be expressed through legislation, by the Parliament, and in case the Parliament was reluctant in bringing out such a legislation (-presumably, for political considerations), it was the bounden duty of this Court, to declare such existing laws which were derogatory to the dignity of women, and which violated the concept of gender equality, as void, on account of their being in conflict with the fundamental rights contained in Part III of the Constitution. Both learned counsel, invited our attention to the legislative march of events commencing from the enactment of the Shariat Act in 1937, by the British rulers of India, who took upon themselves, extreme cudgels to initiate the grant of appropriate rights to women. As also, the enactment of the Dissolution of Muslim Marriages Act, 1939 (again during the British regime), whereby, Muslim women were conferred with a right to divorce th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manifested within its fold, equality of status. Gender equality, gender equity and gender justice, it was submitted, were values intrinsically entwined in the guarantee of equality, under Article 14. The conferment of a social status based on patriarchal values, or a social status based on the mercy of the men-folk, it was contended, were absolutely incompatible with the letter and spirit of Articles 14 and 15 of the Constitution. The rights of a Muslim woman to human dignity, social esteem and self-worth, it was submitted, were vital facets of a woman s right to life with dignity, under Article 21 of the Constitution. It was submitted, that gender justice was a constitutional goal of overwhelming importance and magnitude, without accomplishing the same, half of the country s citizenry, would not be able to enjoy to the fullest - their rights, status and opportunities. Reference was also made to clause (e) of Article 51-A of the Constitution, which is extracted below: (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll human rights and fundamental freedoms are indivisible and interdependent. All Nation States are concerned at the existence of serious obstacles to development and complete fulfilment of human beings, denial of civil, political, economic, social and cultural rights. In order to promote development, equal attention should be given to the implementation, promotion and protection of civil, political, economic, social and political rights. 17. Article 1(1) assures right to development an inalienable human right, by virtue of which every person and all people are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development in which all human rights and fundamental freedoms can be fully realised. Article 6(1) obligates the State to observance of all human rights and fundamental freedoms for all without any discrimination as to race, sex, language or religion. Sub-article (2) enjoins that equal attention and urgent consideration should be given to implement, promotion and protection of civil, political, economic, social and political rights. Sub-article (3) thereof enjoins that: State should take steps to eliminate obstacle to develo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt underlined the right of women to a life with dignity. Additionally, our attention was drawn to the Charu Khurana case15, wherein it was concluded, that the sustenance of gender justice is the cultivated achievement of intrinsic human rights and that there cannot be any discrimination solely on the ground of gender. The learned Attorney General also cited, Githa Hariharan v. Reserve Bank of India31, wherein this Court had the occasion to interpret the provisions of the Hindu Minority and Guardianship Act, 1956. It was submitted, that this Court in the above judgment emphasized the necessity to take measures to bring domestic law in line with international conventions, so as to eradicate discrimination of all forms, against women. It was submitted, that Articles 14, 15 and 21 consituted an inseparable part of the basic structure of the Constitution. These values the right to equality, non-discrimination and the right to live life with dignity, it was emphasized, formed the bedrock of the Constitution. Gender equality and dignity for women, it was pointed out, was an inalienable and inseparable part of the basic structure of the Constitution. Since women transcend all social ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral placed reliance on Valsamma Paul v. Cochin University32, and drew the Court s attention to the following: 16.The Constitution seeks to establish secular socialist democratic republic in which every citizen has equality of status and of opportunity, to promote among the people dignity of the individual, unity and integrity of the nation transcending them from caste, sectional, religious barriers fostering fraternity among them in an integrated Bharat. The emphasis, therefore, is on a citizen to improve excellence and equal status and dignity of person. With the advancement of human rights and constitutional philosophy of social and economic democracy in a democratic polity to all the citizens on equal footing, secularism has been held to be one of the basic features of the Constitution (Vide: S.R. Bommai v. Union of India, (1994) 3 SCC 1 and egalitarian social order is its foundation. Unless free mobility of the people is allowed transcending sectional, caste, religious or regional barriers, establishment of secular socialist order becomes difficult. In State of Karnataka v. Appu Balu Ingale Ors., AIR (1993) SC 1126 this Court has held in paragraph 34 that judiciary acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw, from what may be called social relations, or from the rights of parties as regards inheritance or succession. What have these things got to do with religion, I fail to understand? We are in a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If, however, in the past, religious practices have been so construed as to cover the whole field of life, we have reached a point when we must put our foot down and say that these matters are not religion, they are purely matters for secular legislation. Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation (Vide: Constituent Assembly Debates, Vol. VII 356-8). 22. In the onward march of establishing an egalitarian secular social order based on equality and dignity of person, Article 15(1) prohibits discrimination on grounds of religion or caste identities so as to foster national identity which does not deny pluralism of Indian culture but rather to preserve it. Indian culture is a product or blen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to Articles 14 and 15, which guarantee equality and non-discrimination. In other words, under India s secular Constitution, the right to freedom of religion was subject to, and in that sense, subservient to other fundamental rights such as the right to equality, the right to non-discrimination, and the right to life with dignity. In this behalf reference was made to Sri Venkataramana Devaru v. State of Mysore33. In this judgment, it was submitted, that this Court considered the meaning of the phrase subject to the provisions of this Part in Article 25(1) to conclude, that the other provisions of the Part would prevail over and would control the right conferred by Article 25(1). 68. In the above context it was also submitted, that the freedom of religion, expressed in Article 25 of the Constitution was, not confined to the male gender. Article 25 is extracted below: 25. Freedom of conscience and free profession, practice and propagation of religion. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a man to his own conscience and whatever moral or ethical principles regulate the lives of men believing in that theistic, conscience or religious belief that alone can constitute religion as understood in the Constitution which fosters feeling of brotherhood, amity, fraternity and equality of all persons which find their foothold in secular aspect of the Constitution. Secular activities and aspects do not constitute religion which brings under its own cloak every human activity. There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which is not considered a religious activity. Every mundane or human activity was not intended to be protected by the Constitution under the guise of religion. The approach to construe the protection of religion or matters of religion or religious practices guaranteed by Articles 25 and 26 must be viewed with pragmatism since by the very nature of things, it would be extremely difficult, if not impossible, to define the expression religion or matters of religion or religious belief or practice. 87. In pluralistic society like India, as stated earlier, there are numerous religious groups who practise diverse form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prevention of Hindu Bigamous Marriages Act (25 of 1946) was challenged on the ground of violation of Articles 14, 15 and 25 of the Constitution. A Division Bench, consisting of Chief Justice Chagla and Justice Gajendragadkar (as His Lordship then was), held: A sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole. 50. Their Lordships quoted from American decisions that the laws are made for the governance of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices. Their Lordships found it difficult to accept the proposition that polygamy is an integral part of Hindu religion though Hindu religion recognizes the necessity of a son for religious efficacy and spiritual salvation. However, proceeding on an assumption that polygamy is a recognized institution according to Hindu religious practice, Their Lords ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... among the people of India. However, the sustenance of such diverse identities, according to the learned Attorney General, cannot be a pretext for denying women their rightful status and gender equality. It was submitted, that personal law was a part and parcel of law within the meaning of Article 13. And therefore, any such law ( personal law ) which was inconsistent with fundamental rights, would have to be considered void. It was further submitted, that the interpretation of the Bombay High Court in the Narasu Appa Mali case23, to the effect that Article 13 of the Constitution, would not cover personal laws warranted reconsideration. Firstly, it was contended, that a reading of the plain language adopted in Article 13 would clearly establish that personal law , as well as customs and usages, were covered within the scope of law . Article 13 reads as under: 13. Laws inconsistent with or in derogation of the fundamental rights.- (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, was not binding on this Court. Without prejudice to the above, according to the learned Attorney General, the said practices under challenge had been incorporated into the Muslim personal law by the Shariat Act. It was reasoned, that the Shariat Act, was clearly a law in force , within the meaning of Article 13(3)(b). It was submitted, that the petitioner has challenged Section 2 of the aforesaid Act, insofar as it recognises and validates the practices of triple talaq or talaq-e-biddat (nikah halala and polygamy). Therefore, even assuming (for the sake of argument), that these practices do not constitute customs, the same were nonetheless manifestly covered by Article 13. 71. It was acknowledged, that the legal position expressed in the Narasu Appa Mali case23 had been affirmed by this Court, on various occasions. Rather than recording the learned Attorney General s submissions in our words, we would extract the position acknowledged in the written submissions filed on behalf of the Union of India, in this matter, below: (e) Pertinently, despite this ruling that was later followed in Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689 and Maharshi Avdhesh v. Union of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b). What Article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality but regulation of activities which are economic, commer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar manner, it cannot be said that these are secular activities partaking of commercial or economic character simply because they involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate. Of course, the scale of expenses to be incurred in connection with these religious observances may be and is a matter of administration of property belonging to religious institutions; and if the expenses on these heads are likely to deplete the endowed properties or affect the stability of the institution, proper control can certainly be exercised by State agencies as the law provides. We may refer in this connection to the observation of Davar, J. in the case o f Jamshed j i v . Soonaba i [33 Bom 122] and although they were made in a case where the question was whether the bequest of property by a Parsi testator for the purpose of perpetual celebration of ceremonies like Muktad baj, Vyezashni, etc., which are sanctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed before us to substantiate the claim that the sacrifice of a cow is enjoined or sanctioned by Islam? The materials before us are extremely meagre and it is surprising that on a matter of this description the allegations in the petition should be so vague. In the Bihar Petition No. 58 of 1956 are set out the following bald allegations: That the petitioners further respectfully submit that the said impugned guaranteed under Article 25 of the Constitution in-as-much as on the occasion of their Bakr Id Day, it is the religious practice of the petitioners' community to sacrifice a cow on the said occasion. The poor members of the community usually sacrifice one cow for every 7 members whereas it would require one sheep or one goat for each member which would entail considerably more expense. As a result of the total ban imposed by the impugned section the petitioners would not even be allowed to make the said sacrifice which is a practice and custom in their religion, enjoined upon them by the Holy Quran, and practised by all Muslims from time immemorial and recognised as such in India. The allegations in the other petitions are similar. These are met by an equally ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the cutting of the hands of the offenders. Three of the members of the Gosamvardhan Enquiry Committee set up by the Uttar Pradesh Government in 1953 were Muslims and concurred in the unanimous recommendation for total ban on slaughter of cows. We have, however, no material on the record before us which will enable us to say, in the face of the foregoing facts, that the sacrifice of a cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea. In the premises, it is not possible for us to uphold this claim of the petitioners. Learned Attorney General also cited, State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat39, and placed reliance on the following observations: 22. In State of W.B. v. Ashutosh Lahiri [(1995) 1 SCC 189] this Court has noted that sacrifice of any animal by Muslims for the religious purpose on BakrI'd does not include slaughtering of cows as the only way of carrying out that sacrifice. Slaughtering of cows on BakrI'd is neither essential to nor necessarily required as part of the religious ceremony. An optional religious practice is not covered by Article 25(1). On the contrary, it is common knowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llence one of social reform. 73. It was pointed out, that in the counter-affidavit dated August 2016, filed on behalf of the Muslim Personal Law Board, i.e., respondent no.3 to this petition, the practices of triple talaq (as well as, nikah halala and polygamy) have been referred to as undesirable . It was accordingly submitted, that no undesirable practice can be conferred the status of an essential practice , much less one that forms the substratum of the concerned religion. 74. It was asserted on behalf of the Union of India, that the Indian State was obligated to adhere to the principles enshrined in international covenants, to which it is a party. India being a founding member of the United Nations, is bound by its Charter, which embodies the first ever international agreement to proclaiming gender equality, as a human right in its preamble, and reaffirming faith in fundamental human rights, through the dignity of the human person, by guaranteeing equal rights to men and women. It was submitted, that significantly, the United Nations Commission on the Status of Women, first met in February, 1947, with 15 member States all represented by women, including India (r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) of Article 2 enjoins the ratifying States, to ensure legal protection of the rights of women, and Article 3 of the CEDAW enjoins the States to take all appropriate measures to ensure full development and advancement of women, for the purpose of guaranteeing to them, the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men. It was further submitted on behalf of the Union of India, that the equality principles were reaffirmed in the Second World Conference on Human Rights, held at Vienna in June 1993, as also, in the Fourth World Conference on Women, held at Beijing in 1995. It was pointed out, that India was a party to this convention and other declarations, and was committed to actualize them. It was asserted, that in the 1993 Conference, gender-based violence and all categories of sexual harassment and exploitation, were condemned. 75. Last of all, the Attorney General pointed out, the prevailing international trend all around the world, wherein the practice of divorce through talaq-e-biddat , has been statutorily done away with (-for details, refer to Part-5 Abrogation of the practice of talaq-e-biddat by legislation, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the course of hearing. The learned Attorney General having assisted this Court in the manner recounted above, was emphatic that the other procedures available to Muslim men for obtaining divorce, such as, talaq-e-ahsan and talaq-e-hasan were also liable to be declared as unconstitutional, for the same reasons as have been expressed with reference to talaq-e-biddat . In this behalf, the contention advanced was, that just as talaq-e-biddat , talaq-e-ahsan and talaq-e-hasan were based on the unilateral will of the husband, neither of these forms of divorce required the availability of a reasonable cause with the husband to divorce his wife, and neither of these needed the knowledge and/or notice of the wife, and in neither of these procedures the knowledge and/or consent of the wife was required. And as such, the other two so-called approved procedures of divorce ( talaq-e-ahsan and talaq-e-hasan ) available to Muslim men, it was submitted, were equally arbitrary and unreasonable, as the practice of talaq-e-biddat . It was pointed out, that submissions during the course of hearing were confined by the Union of India, to the validity of talaq-e-biddat merely because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is not valid. It was submitted, that religious observances manifest an important fundamental position, in the life of every individual. Such religious observances, according to learned counsel, include the manner in which members of a community were required to dress. Insofar as the Muslim women are concerned, reference was made to burqa or hijab worn by women, whereby women veil themselves, from the gaze of strangers. All these observances, are matters of faith, of those professing the religion. It was asserted, that those who profess the Muslim religion, follow the edicts expressed in the Quran. It was submitted, that matrimony, is like any other stage in an individual s life. It has to be performed, in consonance with the ceremonies relating thereto. So also, if a married couple decides to part ways, by way of divorce. It was pointed out, that express religious ceremonies are observed even on an individual s death. It was submitted, that all issues including custody and guardianship of children, maintenance, dower, gifts and such like issues, were matters guided by the faith of the people, associated to their religion. How property has to be distributed, upon divorce and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practices and faith, constituted the individual s (belonging to a community) right to profess the same. In order to substantiate his contention, that a challenge to personal law could not be raised on the anvil of Articles 14, 15 and 21 of the Constitution, learned senior counsel, placed reliance on the Narasu Appa Mali case23. Learned senior counsel, also placed reliance on Shri Krishna Singh v. Mathura Ahir41, wherein this Court arrived at the conclusion, that the rights of sudras (the lowest amongst the four Hindu castes members of the workers caste), as were expressed by the Smriti (-refers to a body of Hindu texts, traditionally recorded in writing) writers, were invalid because they were in conflict with the fundamental rights guaranteed under Part III of the Constitution. It was submitted, that both the above judgments were considered by this Court in Ahmedabad Women Action Group v. Union of India42, wherein, the legal position recorded in the above judgments was confirmed. It was pointed out, that there was a clear distinction between law and law in force , thus far interpreted by this Court with reference to Article 13 of the Constitution. It was asserted, that re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Concurrent List, in the Seventh Schedule) and the term customs and usages , which the Constituent Assembly, employed while framing Article 13 of the Constitution. It was pointed out, that the above position was consciously highlighted by a Full Bench of the Andhra Pradesh High Court in the Youth Welfare Federation case43. It was submitted, that if the term personal law was excluded from the definition law in force deployed in Article 13, then matters of faith having a direct relationship to some religious denomination (matters of personal law ), do not have to satisfy the rights enumerated in Articles 14, 15 and 21 of the Constitution. In the above view of the matter, it was contended, that the challenge raised on behalf of the petitioners on the basis of the provisions contained in Part III Fundamental Rights, needed to be summarily rejected 83. Having presented the aforesaid overview of the constitutional position Mr. Kapil Sibal, learned senior counsel, endeavoured to deal with the concept of talaq in Shariat Muslim personal law . Learned senior counsel pointed out, that religious denominations in India with reference to Islam were divided into two categorie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practices, according to learned counsel, falls within the sphere of Muslim personal law Shariat . 86. Learned senior counsel then attempted to highlight various verses from the Quran, to substantiate his contention. The same are set out hereunder: i. Whatever Allah has passed on to His Messenger from the people of the towns is for Allah and for the Messenger, and for the kinsmen and the orphans and the needy and the wayfarer, so that it may not circulate only between the rich among you. And whatever the Messenger gives you, take it, and whatever he forbids you from, abstain (from it). And fear Allah. Indeed Allah is severe in punishment. (Quran, Al-Hashr 59:71) ii. O you who believe, obey Allah and His Messenger, and do not turn away from Him whn you listen (to him). (Quran, Al-Anfal 8:20) iii. We did not send any Messenger but to be obeyed by the leave of Allah. Had they, after having wronged themselves, come to you and sought forgiveness from Allah, and had the Messenger prayed for their forgiveness, they would certainly have found Allah Most-Relenting, Very-Merciful (Quran, Al-Nisa 4:64) iv. That is because they were hostile to Allah and His Messenger; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o out, unless they come up with a clearly shameless act. These are the limits prescribed by Allah. And whoever exceeds the limits prescribed by Allah wrongs his own self. You do not know (what will happen in future); it may be that Allah brings about a new situation thereafter. (Quran, Al-Talaq, 65:1) In order to demonstrate the complete picture, learned senior counsel invited the Court s attention to the statements attributed to the Prophet Mohamad with reference to talaq which, according to learned counsel, would have a bearing on the determination of the controversy in hand. The same are extracted as under: i. Salmah bid Abi Salmah narrated to his father that when Hafs bin Mughaira resorted to Triple Talaq, the Prophet (Pbuh) held it as valid. All the three pronouncements were made with a single word so the Prophet (Pubh) separated her from him irrevocably. And it didn t reach to us that the Prophet (Pubh) rebuked him for that (Daraqutni, Kitab Al-Talaq wa Al-Khula wa Al-Aiyla,5/23, Hadith number:3992) ii. Amas recpimts pm Muadh s authority: I heard the Prophet (Pbuh) sying : O Muadh, whoever resorts to bidaa divorce, be it one, two or three. We will make his divorce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel invited the Court s attention to hadiths , in relation to talaq. The same are extracted below: (i) Of all the things permitted by Allah, divorce is the most undesirable act. (Sunan Abu Dawud, Bad Karahiya al-Talaq, Hadith no: 2178). (ii) If a person who had pronounced Triple Talaq in one go was brought to Caliph Umar he would put him to pain by beating and thereafter separate the couple. (Musannaf ibn Abi Shaybah, Bab man kara an yatliq aI rajal imratahuu thalatha fi maqad wahadi wa ajaza dhalika alayhi. Hadith number: 18089. (iii) Alqama narrated from Abdullah that he was asked about a person who pronounced hundred divorces to his wife. He said three made her prohibited (to him) and ninety seven is transgression (Musannaf ibn Abi Shayba, Kitab al-Talaq, bab fi al rajal yatlaqu imratahuu miata aw alfa. Hadith number: 18098) (iv) A man met another playful man in Medinah. He saidk, Did you divorce your wife? He said, Yes . He said, How many thousand? (How many? He replied: thousand). So he was presented before Umar. He said so you have divorced your wife? He said I was playing. So he mounted upon him with the whip and said out of these three will suffice you. Ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retations relied upon by different High Courts (-for reference, see Part-6 Judicial pronouncements, on the subject of talaq-e-biddat ), in recording their conclusions, were based on views attributed to Mohammed Ali. It was submitted, that Mohammed Ali is not recognized by all Muslims, and as such, it would be a travesty of justice if his utterances were to be relied upon and followed, contrary to the faith of Muslims ( especially Muslims belonging to Hanafi school). Having expressed the aforesaid overview, learned senior counsel highlighted from individual judgments of the High Courts (-for details, refer to Part-6 Judicial pronouncements, on the subject of talaq-e-biddat ) and pointed out, that the reliances on various hadiths recorded therein were not appropriate in the background projected above. 89. Having made the above submissions, learned senior counsel attempted to pointedly approach the subject of talaq-e-biddat triple talaq. In this behalf it was reiterated, that talaq was in three forms talaq-e-ahsan , talaq-e-hasan and talaq-e-biddat . It was pointed out, that none of these forms of talaq are referred to either in the Quran, or the hadith . It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he effectiveness of pronouncing divorce thrice upon one s pregnant wife either in one go or in three different sessions, Imam Malik replied in the affirmative. (AI-Mudawwana, 2/68) (iii) The validity of triple talaq is also endorsed by all Ahl Al Sunnah jurists. Allama Ibn Quda ma adds that: This view is attributed to Abdul/ah ibn Abbas. The same stance is shared by most of the successors and later scholars. (AI-Mughni Ii Ibn Qudama, 10/334) (iv) The Book, Sunnah, and the consensus view of classical authorities is that Triple Talaq is effective, even if pronounced in one go. The act in itself is, however, a sin. (Ahkam al-Quran Iil Jassas, 2/85) (v) Imam Shafe I (of Shafe I School) has stated as follows in his book entitled as Al-Umm (fifth volume): If he says you are divorced absolutely, with the intention of triple divorce then it will be considered triple divorce and if he intends one it will be considered one divorce and if he says you are divorced with the intention of three it will be considered three. (page 359) (vi) Mauffaqud Din Abi Muhammed Abdillah Ben Ahmed Ben Muhammed Ben Qudamah Al-Muqaddasi Al-Jammaili Al-Dimashqi Al-Salihi Al-Hanbali (of the Hanba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said reform. 94. In order to fully express the ambit and scope of personal law , and to demonstrate the contours of the freedom of conscience and free profession, practice and propagation of religion propounded in Article 25, learned senior counsel placed reliance on the Constituent Assembly debates. Interestingly reference was, first of all, made to Article 44 of the Constitution, which is extracted below: 44. Uniform civil code for the citizens.- The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. It is necessary to notice, that during the Constituent Assembly debates, the present Article 44 was numbered as draft Article 35. During the course of the Constituent Assembly debates, amendments to draft Article 35 were proposed by Mohamed Ismail Sahib, Naziruddin Ahmad, Mahboob Ali Beg, Sahib Bahadur and Pocker Sahib Bahadur. Relevant extract of their amendments and their explanations thereto are reproduced below: Mr. Mohamad Ismail Sahib (Madras: Muslim): Sir, I move that the following proviso be added to article 35: Provided that any group, section or community of people shall not be obliged to give up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their own personal law there will be no discontent or dissatisfaction. Every section of the people, being free to follow its own personal law will not really come in conflict with others. Mr. Naziruddin Ahmad: Sir, I beg to move: That to article 35, the following proviso be added, namely: - Provided that the personal law of any community which has been guaranteed by the statue shall not be changed except with the previous approval of the community ascertained in such manner as the Union Legislature may determine by law. In moving this, I do not wish to confine my remarks to the inconvenience felt by the Muslim community alone. I would put it on a much broader ground. In fact, eachcommunity, each religious community has certain religious laws, certain civil laws inseparably connected withreligious beliefs and practices. I believe that in framing a uniform draft code these religious laws or semi-religious laws should be kept out of its way. There are several reasons which underlie this amendment. One of them is that perhaps it clashes with article 19 of the Draft Constitution. In article 19 it is provided that `subject to public order, morality and health and to the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded to make the laws uniform although they clash with the personal laws of particular community. But take the case of marriage practice and the laws of inheritance. They have never interfered with them. It will be difficult at this stage of our society to ask the people to give up their ideas of marriage, which are associated with religious institutions in many communities. The laws of inheritance are also supposed to be the result of religious injunctions. I submit that the interference with these matters should be gradual and must progress with the advance of time. I have no doubt that a stage would come when the civil law would be uniform. But then that time has not yet come. We believe that the power that has been given to the State to make the Civil Code uniform is in advance of the time. As it is, any State would be justified under article 35 to interfere with the settled laws of the different communities at once. For instance, there remarriage practices in various communities. If we want to introduce a law that every marriage shall be registered and if not it will not be valid, we can do so under article 35. But would you invalidate a marriage which is valid under the exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the expression Civil Code , I wish to submit that they are overlooking the very important fact of the personal law being so much dear and near to certain religious communities. As far as the Mussalmans are concerned, their laws of succession, inheritance, marriage and divorce are completely dependent upon their religion. Shri M. Ananthasayanam Ayyangar: It is a matter of contract. Mahboob Ali Baig Sahib Bahadur: I know that Mr.Ananthasayanam Ayyangar has always very queer ideas about the laws of other communities. It is interpreted as contract, while the marriage amongst the Hindus is a Samskara and that among Europeans it is a matter of status. I know that very well, but this contract is enjoined on the Mussalmans by the Quran and if it is not followed, marriage is not a legal marriage at all. For 1350 years this law has been practised by Muslims and recognised by all authorities in all states. If today Mr. Ananthasayanam Ayyangar is going to say that some other method of proving the marriage is going to be introduced, we refuse to abide by it because it is not according to our religion. It is not according to the code that is laid down for us for all times in this matter. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Acts in the various provinces in this country have secured for each community the right to follow their personal laws as regards marriage, inheritance, divorce, etc. But if it is intended that the aspiration of the State should be to override all these provisions and to have uniformity of law to be imposed upon the whole people on these matters which are dealt with by the Civil Courts Acts in the various provinces, well, I would only say, Sir, that it is a tyrannous provision which ought not to be tolerated; and let it not be taken that I am only voicing forth the feelings of the Mussalmans. In saying this, I am voicing forth the feelings of ever so many sections in this country who feel that it would be really tyrannous to interfere with the religious practices, and with the religious laws, by which they are governed now. xxx xxx xxx If such a body as this interferes with the religious rights and practices, it will be tyrannous. These organisations have used a much stronger language than I amusing, Sir. Therefore, I would request the Assembly not to consider what I have said entirely as coming from the point of view of the Muslim community. I know there are great difference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the majority community is of this view, I say, it has to be condemned and it ought not to be allowed, because, in a democracy, as I take it, it is the duty of the majority to secure the sacred rights of every minority. It is a misnomer to call it a democracy if the majority rides rough-shod over the rights of the minorities. It is not democracy at all; it is tyranny. Therefore, I would submit to you and all the Members of this House to take very serious notice of this article; it is not a light thing to be passed like this. In this connection, Sir, I would submit that I have given notice of an amendment to the Fundamental Right article also. This is only a Directive Principle. The above stated amendments proposed to draft Article 35 were opposed by K.M. Munshi and Alladi Krishnaswami Ayyar. Relevant extracts of their responses are reproduced below: Shri K. M. Munshi (Bombay: General): Mr. Vice-President, I beg to submit a few considerations. This particular clause which is now before the House is not brought for discussion for the first time. It has been discussed in several committees and at several places before it came to the House. The ground that is now put for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke into consideration the benefit which may accrue to the whole community and motto the customs of a part of it. It is not therefore correct to say that such an act is tyranny of the majority. If you will look at the countries in Europe which have a Civil Code, everyone who goes there from any part of the world and every minority, has to submit to the Civil Code. It is not felt to be tyrannical to the minority. The point however is this, whether we are going to consolidate and unify our personal law in such a way that the way of life of the whole country may in course of time be unified and secular. We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance or succession. What have these things got to do with religion I really fail to understand. Take for instance the Hindu Law Draft which is before the Legislative Assembly. If one looks at Manu and Yagnyavalkya and all the rest of them, I think most of the provisions of the new Bill will run counter to their injunctions. But after all we are an advancing society. We are in a stage where we must unify and consolidate the nation by every means without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritish regime. You must know that the Muslim law covers the field of contracts, the field of criminal law, the field of divorce law, the field of marriage and every part of law as contained in the Muslim law. When the British occupied this country, they said, we are going to introduce one criminal law in this country which will be applicable to all citizens, be they Englishmen, be they Hindus, be they Muslims. Did the Muslims take exception, and did they revolt against the British for introducing a single system of criminal law? Similarly we have the law of contracts governing transactions between Muslims and Hindus, between Muslims and Muslims. They are governed not by the law of the Koran but by the Anglo-Indian jurisprudence, yet no exception was taken to that. Again, there are various principles in the law of transfer which have been borrowed from the English jurisprudence. Therefore, when there is impact between two civilizations or between two cultures, each culture must be influenced and influence the other culture. If there is a determined opposition, or if there is strong opposition by any section of the community, it would be unwise on the part of the legislators of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in these matters. We only go a step further than the British who ruled in this country. Why should you distrust much more a national indigenous Government than a foreign Government which has been ruling? Why should our Muslim friends have greater confidence, greater faith in the British Rule than in a democratic Rule which will certainly have regard to the religious tenets and beliefs of all people? Therefore, for those reasons, I submit that the House may unanimously pass this Article which has been placed before the Members after due consideration. Before the amendments were put to vote, Dr. B.R. Ambedkar made the following observations: The Honourable Dr. B.R. Ambedkar: Sir, I am afraid I cannot accept the amendments which have been moved to this article. In dealing with this matter, I do not propose to touch on the merits of the question as to whether this country should have a Civil Code or it should not. That is a matter which I think has been dealt with sufficiently for the occasion by my friend, Mr. Munshi, as well as by Shri Alladi Krishnaswami Ayyar. When the amendments to certain fundamental rights are moved, it would be possible for me to make a full statement on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot all. My honourable friends have forgotten, that, apart from the North-West Frontier Province, up till 1937 in the rest of India, in various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law in the matter of succession. In order to bring them on the plane of uniformity with regard to the other Muslims who observed the Shariat Law, the Legislature had to intervene in 1937 and to pass an enactment applying the Shariat Law to the rest of India. I am also informed by my friend, Shri Karunakara Menon, that in North Malabar the Marumakkathayam Law applied to all-not only to Hindus but also to Muslims. It is to be remembered that the Marumakkathayam Law is a Matriarchal form of law and not a Patriarchal form of law. The Mussulmans, therefore, in North Malabar were up to now following the Marumakkathayam law. It is therefore no use making a categorical statement that the Muslim law has been an immutable law which they have been following from ancient times. That law as such was not applicable in certain parts and it has been made applicable ten years ago. Therefore if it was found necessary that for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incorporated in the Constitution as Article 44 (extracted above), it was submitted, that as expressed in Article 25(2)(b), so also the debates of Article 44, the intent of the Constituent Assembly was to protect 'personal laws' of different communities by elevating their stature to that of other fundamental rights, however with the rider, that the legislature was competent to amend the same. 95. Sequentially, learned senior Counsel invited our attention to the Constituent Assembly debates with reference to Article 25 so as to bring home his contention, that the above Article preserved to all their 'personal laws' by elevating the same to the stature of a fundamental right. The instant elevation, it was pointed out, was by incorporating Articles 25 and 26 as components of Part III - Fundamental Rights, of the Constitution. It would be relevant to record, that Article 25 as it now exists, was debated as draft Article 19 by the Constituent Assembly. It was pointed out, that only one amendment proposed by Mohamed Ismail Sahib and its response by Pt. Laxmikanta Mitra would bring home the proposition being canvassed, namely, that 'personal laws' were inalienabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no revision at all and in all those cases what was done was that the Muslim personal law was elucidated and it was made clear that these laws shall apply to the Muslims. They did not modify them at all. Therefore those enactments and legislations cannot be cited now as matters of precedents for us to do anything contravening the personal law of the people. Under this amendment what I want the House to accept is that when we speak of the State doing anything with reference to the secular aspect of religion, the question of the personal law shall not be brought in and it shall not be affected. xxx xxx xxx The question of professing, practising and propagating one's faith is a right which the human being had from the very beginning of time and that has been recognised as an inalienable right of every human being, not only in this land but the whole world over and I think that nothing should be done to affect that right of man as a human being. That part of the Article as it stands is properly worded and it should stand as it is. That is my view. Another honourable Member spoke about the troubles that had arisen as a result of the propagation of religion. I would say tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in preference to others and that no citizen in the State will have any preferential treatment or will be discriminated against simply on the ground that he professed a particular form of religion. In other words in the affairs of the State the professing of any particular religion will not be taken into consideration at all.) This I consider to be the essence of a secular state. At the same time we must be very careful to see that this land of ours we do not deny to anybody the right not only to profess or practise but also to propagate any particular religion. Mr. Vice-President, this glorious land of ours is nothing if it does not stand for lofty religious and spiritual concepts and ideals. India would not be occupying any place of honour on this globe if she had not reached that spiritual height which she did in her glorious past. Therefore I feel that the Constitution has rightly provided for this not only as a right but also as a fundamental right. In the exercise of this fundamental right every community inhabiting this State professing any religion will have equal right and equal facilities to do whatever it likes in accordance with its religion provided it does not clash w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rict Judge to grant dissolution of marriage on petition of a married Muslim woman on certain grounds. These changes have been introduced in the interest of the females who, in such matters, are at present at the mercy of their husbands. I am sure that these wholesome changes will be supported by the House. In addition to the above, the Select Committee have made a few other amendments which are fully explained in the report, and I need not take the time of the House in dilating upon them. I hope that the Bill in its present form will meet with the approval of the whole House. Sir, I move. Mr. Deputy President (Mr. Akhil Chandra Dattas): Motion moved: That the Bill to make provision for the application of the Moslem Personal Law (Shariat) to Moslems in British India, as reported by the Select Committee, be taken into consideration. Mr. Abdul Qaiyum (North-West Frontier Province: General): Sir, I am in sympathy with the objects which this very useful Bill aims at. There is a great awakening among the Muslim masses, and they are terribly conscious of their wretched condition socially, politically and economically. There is a desire in the 107 108 Appendix B community for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me litigation came to an end the property for which people were fighting would disappear. It was with a view to put an end to this uncertainty that people in the Frontier Province pressed for an Act which was subsequently passed into law. I have only one thing to say. Personally I want the Muslims in India in matters affecting them to follow the personal law of the Muslims as far as they can. I want them to move in this direction because it is a thing which is going to help the Muslims and because the Muslims form a very important minority community in this country-they are 80 millions-all well-wishers of this country will agree with me that if it enhances the states of Muslims, if it brings the much needed relief to the Muslim women, it will be a good thing for the cause of the Indian nation. Therefore, in our Province an Act was passed which goes much further than this particular Bill which is now under discussion before this House. It is a very well-known fact that under the new Government of India Act, agricultural land and waqfs and religious trusts are provincial subjects and that this Honourable House cannot legislate about matters which are now on the provincial legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. I submit, Sir, that the dead hand of customary law must be removed. We are living in an age in which very important changes are taking place. After all this customary law is a thing of the past When many other things are going the way of all flesh, when even systems of Government have to change, when even mighty Empires have disappeared, when we see signs of softening even in the hearts of the Government of India, when we have got popular Congress Governments in seven Provinces-a thing which nobody would have believed six months ago or one year ago. I submit that it is high time that we got rid of this dead hand of custom. After all custom is a horrible thing as far as this particular matter is concerned, and by endorsing the principles of this Bill we would be doing justice to millions of Indian women who profess Muslim faith. I hope, Sir, the day is not far off when other communities will also bring similar measures and when in India women and men will be treated equally in the eyes of law in the matter of property, political rights, social rights and in all other respects. I have, therefore, great pleasure in supporting the principles of this Bill. Based on the aforesaid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Article 25 of the Constitution. Matters of belief and faith, it was submitted, have been accepted to constitute the fundamental rights of the followers of the concerned religion. Only such practices of faith, permitted to be interfered with Under Article 25(1), as are opposed to public order, morality and health. It was pointed out, that in addition to the above, a court could interfere only when articles of faith violated the provisions of Part III - Fundamental Rights, of the Constitution. Insofar as the reliance placed by the Petitioners on Articles 14, 15 and 21 is concerned, it was submitted, that Articles 14, 15 and 21 are obligations cast on the State, and as such, were clearly inapplicable to matters of 'personal law', which cannot be attributed to State action. 97. While concluding his submissions, learned senior Counsel also affirmed, that he would file an affidavit on behalf of the AIMPLB. The aforesaid affidavit was duly filed, which reads as under: 1. I am the Secretary of All India Muslim Personal Law Board which has been arraigned as Respondent No. 3 and as Respondent No. 8 respectively to the above-captioned Writ Petitions. I am conversant with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested the power with the legislature, to interfere with 'personal law' on the ground of social welfare and reform. It was therefore contended, that the prayer made by the Petitioner and those supporting the Petitioner's case before this Court, should be addressed to the members of the community who are competent to amend the existing traditions, and alternatively to the legislature which is empowered to legislatively abrogate the same, as a measure of social welfare and reform. With the above observations, learned senior Counsel prayed for the rejection of the prayers made by the Petitioners. 99. Mr. Raju Ramachandran, Senior Advocate, entered appearance on behalf of Jamiat Ulema-i-Hind, i.e., Respondent No. 1 in Suo Motu Writ Petition (Civil) No. 2 of 2015 and Respondent No. 9 in Writ Petition (Civil) No. 118 of 2016. At the beginning of his submissions, learned senior Counsel stated, that he desired to endorse each one of the submissions advanced before this Court by Mr. Kapil Sibal, Senior Advocate. We therefore hereby record the aforesaid contention of learned senior Counsel. 100. In addition to the above, it was submitted, that the cause raised by the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, that a person, who had consciously opted for the matrimonial alliance under 'personal law' cannot complain, that the 'personal law' was unfavourable or discriminatory. It was submitted, that in the above view of the matter, the very filing of the instant petition before this Court, and the support of the Petitioner's cause by those who have been impleaded, or had appeared to represent the Petitioner's cause, must be deemed to be wholly misconceived in law. 101. The second submission advanced at the hands of the learned senior Counsel, was that the issues raised by the Petitioner with reference to the 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. In this behalf, learned senior Counsel invited the Court's attention to Maharshi Avadhesh v. Union of India (1994) Suppl. (1) SCC 713, wherein the Petitioner had approached this Court by filing a writ petition Under Article 32 of the Constitution, with the following prayers: (i) A writ of mandamus to the Respondents to consider the question of enacting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, those who supported the Petitioner's cause, as also by the Union of India, in order to contend, that the practice of 'talaq-e-biddat' has been done away with in other Islamic countries, as a matter of social reform, on account of its being abhorrent, and also unilateral and arbitrary. It was submitted, that the constitutional validity of 'personal law' in India, cannot be tested on the basis of enacted legislations of other countries. At this juncture, learned senior Counsel desired us to notice, that the instant submission had been advanced without prejudice to the contention being canvassed by him, that the validity of 'personal law' cannot be tested at all, with reference to the fundamental rights vested in individuals under Part III of the Constitution, for the reason, that 'personal law' cannot be treated as law within the meaning of Article 13 of the Constitution. 105. Mr. Raju Ramachandran, learned senior Counsel, then endeavoured to establish the validity of 'talaq-e-biddat' - triple talaq. It was submitted, that out of the five schools of Sunni Muslims 'talaq-e-biddat' was considered a valid form of divorce of four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up for consideration before this Court in the Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt; Mahant Jagannath Ramanuj Das v. The State of Orissa; Sri Ventatamana Devaru v. The State of Mysore; Durgah Committee, Ajmer v. Syed Hussain Ali and several Ors. cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion. It was pointed out, that the above view of this Court had been affirmed by this Court in N. Adithyan v. Travancore Devasom Board, wherein in paragraphs 9 and 16, it was observed as under: 9. This Court, in Seshammal v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the process of harmonizing the various rights. The vision of the founding fathers of the Constitution to liberate the society from blind and ritualistic adherence to mere traditional superstitious beliefs sans reason or rational basis has found expression in the form of Article 17. The legal position that the protection Under Articles 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion or practices regarded as parts of religion, came to be equally firmly laid down. In continuation of the above submission, learned senior Counsel also placed reliance on Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of U.P., wherein this Court held as under: 28.....All secular activities which may be associated with religion but which do not relate or constitute an essential part of it may be amenable to State Regulations but what constitutes the essential part of religion may be ascertained primarily from the doctrines of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia declares that it shall abide by and ensure these provisions in conformity with its policy of non-interference in the personal affairs of any Community without its initiative and consent. In view of the clear stance adopted at the time of signing the Convention, as also, at the time of its ratification, it was submitted, that there could be no doubt, that India had itself committed that it would not interfere with personal affairs of any community, without the initiative and consent of the concerned community. It was submitted, that the aforesaid commitment could not be ignored by the Union of India. While addressing this Court on the issue under reference, it was submitted, that the position adopted by the Union of India, was in clear derogation of the stance adopted on behalf of the India, as has been detailed above. 107. Learned senior Counsel also seriously disputed the submissions advanced at the hands of the Petitioners based on repudiation of the practice of 'talaq-e-biddat' in various secular countries with Muslims in the majority, as also, theocratic States, through express legislation on the issue (-for details, refer to Part-5 - Abrogation of the practic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was unenforceable. Learned senior Counsel, in order to raise his challenge, first and foremost, drew our attention to Sections 2 and 3 of the Muslim Personal Law (Shariat) Application Act, 1937 (-for details, refer to Part-4 - Legislation in India, in the field of Muslim 'personal law'). It was submitted, that Section 2 aforesaid, commenced with a non obstante clause. It was pointed out, that the aforesaid non obstante Clause was referable only to amplify the exclusion of such customs and usages, as were contrary to Muslim 'personal law' - 'Shariat'. It was submitted, that reference was pointedly made only to such customs and usages as were not in consonance with the Muslim 'personal law' - 'Shariat'. It was asserted, that the mandate of Section 2 was aimed at making Muslim 'personal law' - 'Shariat' as the Rule of decision , even when customs and usages were to the contrary. It was sought to be explained, that the Shariat Act neither defined nor expounded, the parameters of the same, with reference to subjects to which Sections 2 and 3 were made applicable. It was therefore submitted, that the enactment under reference did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersonal Law (Shariat) Application Act, 1937. According to learned senior Counsel, the Muslim 'personal law' did not metamorphized into a statute, and as such, the rights and duties of Muslims in India continued to be governed even after the enactment of the Shariat Act, as before. It was pointed out, that the Shariat Act did not substitute, nor did it provide for any different set of rights and obligations other than those which were recognized and prevalent as Muslim 'personal law' - 'Shariat'. As such, it was contended, that it was wholly unjustified to assume, that Muslim 'personal law' - 'Shariat' was given statutory effect, through the Shariat Act. It was therefore submitted that a challenge to the validity of Section 2 of the above enactment, so as to assail the validity of 'talaq-e-biddat' as being contrary to the fundamental rights contained in Part III of the Constitution, was an exercise in futility. Insofar as the instant assertion is concerned, learned senior Counsel advanced two submissions - firstly, that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 did not by itself bring about any law providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'personal law' - 'Shariat' a statutory flavour. 110. It was also submitted, that Sunnis were a religious denomination within the meaning of Article 25 of the Constitution, and therefore, were subject to public policy, morality and health. Sunni Muslims, therefore had a right inter alia to manage their own affairs in matters relating to religion. It was pointed out, that it could not be gainsaid, that marriage and divorce were matters of religion. Therefore, Sunnis as a religious denomination, were entitled to manage their own affairs in matters of marriage and divorce, which are in consonance with the Muslim 'personal law' - 'Shariat'. It was therefore submitted, that the provisions relating to marriage and divorce, as were contained in the Muslim 'personal law' - 'Shariat', were entitled to be protected as a denominational right, Under Article 25 of the Constitution. 111. Mr. V. Shekhar, Mr. Somya Chakravarti, Senior Advocates, Mr. Ajit Wagh, Ajmal Khan, Senior Advocate, Mr. V.K. Biju, Mr. Banerjee, Mr. Ashwani Upadhyay, Mr. Vivek C. Solsha, Ms. Rukhsana, Ms. Farah Faiz, Advocates also assisted the Court. Their assistance to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I of the Constitution (-for that, is the case set up by the Petitioner). Even if the conclusions after the debate travelling the course narrated in the foregoing paragraph does not lead to any fruitful results for the Petitioner's cause, it is their case, that the practice of 'talaq-e-biddat' being socially repulsive should be declared as being violative of constitutional morality - a concept invoked by this Court, according to the Petitioner, to interfere with on the ground that it would serve a cause in larger public interest. The Petitioners' cause, in the instant context is supported by the abrogation of the practice of 'talaq-e-biddat', the world over in countries with sizeable Muslim populations including theocratic Islamic States. The following examination, shall traverse the course recorded herein above. I. Does the judgment of the Privy Council in the Rashid Ahmad case, upholding 'talaq-e-biddat', require a relook? 115. It would not be necessary for this debate-about the validity of 'talaq-e-biddat' under the Muslim 'personal law' - 'Shariat', to be prolonged or complicated, if the decision rendered by the Privy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -biddat'), would have to be in conformity (-and not in conflict), with the provisions of Part III - Fundamental Rights, of the Constitution. Needless to mention, that all these are important legal questions, requiring examination. 116. In our considered view, the matter would most certainly also require a fresh look, because various High Courts, having examined the practice of divorce amongst Muslims, by way of 'talaq-e-biddat', have arrived at the conclusion, that the judgment in the Rashid Ahmad case was rendered on an incorrect understanding, of the Muslim 'personal law' - 'Shariat'. 117. If the Muslim Personal Law (Shariat) Application Act, 1937, had incorporated the manner in which questions regarding intestate succession, special property of females including personal property inherited or obtained under contract or gift or matters such as marriage, dissolution of marriage, including talaq, ila, jihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (-as in Section 2 thereof), had to be dealt with, as per Muslim 'personal law' - 'Shariat' according to the Petitioners, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (Quran IV: 34). The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously. As the learned author, Ahmad A. Galwash notices, the pagan Arab, before the time of the Prophet, was absolutely free to repudiate his wife whenever it suited his whim, but when the Prophet came He declared divorce to he the most disliked of lawful things in the sight of God. He was indeed never tired of expressing his abhorrence of divorce. Once he said: 'God created not anything on the face of the earth which He loveth more than the act of manumission. (of slaves) nor did He create anything on the face of the earth which he detesteth more than the act of divorce . Commentators on the Quoran have rightly observed - and this tallies with the law now administered in some Muslim countries like I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dat', was not in consonance with the Muslim 'personal law'. The Kerala High Court, in the Nazeer case (authored by, Justice A. Muhamed Mustaque) highlighted the woeful condition of Muslim wives, because of the practice of 'talaq-e-biddat', and recorded its views on the matter. 120. In view of the position expressed hereinabove, we are of the considered view, that the opinion expressed by the Privy Council with reference to 'talaq-e-biddat', in the Rashid Ahmad case, holding that 'talaq-e-biddat' results in finally and irrevocably severing the matrimonial tie between spouses, the very moment it is pronounced, needs to be examined afresh. More particularly, because the validity of the same as an approved concept, of Muslim 'personal law' - 'Shariat', was not evaluated at that juncture (-as it indeed could not have been, as the legislation was not available, when the Privy Council had rendered its judgment), in the backdrop of the Shariat Act, and also, the provisions of the Constitution of India. II. Has 'talaq-e-biddat', which is concededly sinful, sanction of law? 121. The Petitioners, and Ors. who support the Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity from the 10th century A.D. The submission was, that just as 'Sati' had been declared as unacceptable, the practice of 'talaq-e-biddat' should likewise be declared as unacceptable in law. (ii) 'Devadasi' translated literally means, a girl dedicated to the worship and service of a diety or temple. The surrender and service of the 'Devadasi', in terms of the practice, was for life. This practice had also been in vogue since time immemorial, even though originally 'Devadasis' had a high status in society, because the Rulers/Kings of the time, were patrons of temples. During British Rule in India, the Rulers backing and support to temples, waned off. It is believed, that after funds from the Rulers stopped, to sustain themselves 'Devadasis' used dancing and singing as a means of livelihood. They also commenced to indulge in prostitution. The life of the 'Devadasi', thereupon came into disrepute, and resulted in a life of destitution. The practice had another malady, tradition forbade a 'Devadasi' from marrying. (iii) So far as 'polygamy' is concerned, we are of the view that polygamy is well understood, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;Devadasi' and 'polygamy' were abhorrent, and could well be described as sinful. They were clearly undesirable and surely bad in theology. It is however important to notice, that neither of those practices came to be challenged before any court of law. Each of the practices to which our pointed attention was drawn, came to be discontinued and invalidated by way of legislative enactments. The instances cited on behalf of the Petitioners cannot therefore be of much avail, with reference to the matter in hand, wherein, the prayer is for judicial intervention. 126. We would now venture to attempt an answer to the simple prayer made on behalf of the Petitioners, for a summary disposal of the Petitioner's cause, namely, for declaring the practice of 'talaq-e-biddat', as unacceptable in law. In support of the instant prayer, it was submitted, that it could not be imagined, that any religious practice, which was considered as a sin, by the believers of that very faith, could be considered as enforceable in law. It was asserted, that what was sinful could not be religious. It was also contended, that merely because a sinful practice had prevailed over a long dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imple issue, would obviously have a simple answer. Irrespective of what has been stated by the learned Counsel for the rival parties, there can be no dispute on two issues. Firstly, that the practice of 'talaq-e-biddat' has been in vogue since the period of Umar, which is roughly more than 1400 years ago. Secondly, that each one of learned Counsel, irrespective of who they represented, (-the Petitioners or the Respondents), acknowledged in one voice, that 'talaq-e-biddat' though bad in theology, was considered as good in law. All learned Counsel representing the Petitioners were also unequivocal, that 'talaq-e-biddat' was accepted as a valid practice in law. That being so, it is not possible for us to hold, the practice to be invalid in law, merely at the asking of the Petitioners, just because it is considered bad in theology. III. Is the practice of 'talaq-e-biddat', approved/disapproved by hadiths ? 128. At the beginning of our consideration, we have arrived at the conclusion, that the judgment rendered by the Privy Council in the Rashid Ahmad case, needs a reconsideration, in view of the pronouncements of various High Courts including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration with reference to the Rukia Khatun case has been recorded in paragraph 32. The judgment in the Masroor Ahmed case has been dealt with in paragraph 33. And finally, the Nazeer case has been deciphered, by incorporating the challenge, the consideration and the conclusion in paragraph 34 hereinabove. For reasons of brevity, it is not necessary to record all the above 'hadiths' for the second time. Reference may therefore be made to the paragraphs referred to above, as the first basis expressed on behalf of the Petitioners, to lay the foundation of their claim, that the practice, of 'talaq-e-biddat' cannot be accepted as a matter of 'personal law' amongst Muslims, including Sunni Muslims belonging to the Hanafi school. In fact, learned senior Counsel, asserted, that the position expressed by the High Courts, had been approved by this Court in the Shamim Ara case. 132. Mr. Anand Grover, Senior Advocate, reiterated and reaffirmed the position expressed in the four judgments (two of the Gauhati High Court, one of the Delhi High Court, and the last one of the Kerala High Court) to emphasize his submissions, as a complete justification for accepting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut, that the instant transcript was of Egyptian origin, and further emphasized, that the same therefore needed to be accepted as genuine and applicable to the dispute, because Egypt was primarily dominated by Sunni Muslims belonging to the Hanafi school. In the above publication, it was submitted, that the practice of instant triple talaq was described as sinful. Reference was then made to Woman in Islamic Shariah by Maulana Wahiduddin Khan (published by Goodword Books, reprinted in 2014), wherein, irrespective of the number of times the word 'talaq' was pronounced (if pronounced at the same time, and on the same occasion), was treated as a singular pronouncement of talaq, in terms of the 'hadith' of Imam Abu Dawud in Fath al-bari 9/27. It was submitted, that the aforesaid 'hadith' had rightfully been taken into consideration by the Delhi High Court in the Masroor Ahmed case. In addition to the above, reference was made to Marriage and family life in Islam by Prof. (Dr.) A. Rahman (Adam Publishers and Distributors, New Delhi, 2013 edition), wherein by placing reliance on a Hanafi Muslim scholar, it was opined that triple talaq was not in consonance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Bab man kara an yatliq aI rajal imratahuu thalatha fi maqad wahadi wa ajaza dhalika alayhi, Hadith number: 18089; (Musannaf ibn Abi Shayba, Kitab al-Talaq, bab fi al rajal yatlaqu imratahuu miata aw alfa, Hadith number: 18098; Musannaf Abd al-Razzaq, Kitab al-talaq, Hadith number 11340; Musannaf ibn Abi Shayba, Kitab aI-Talaq, Hadith no: 18091; Musannaf Ibn Abi Shayba, Hadith no: 18087; Al-Muhadhdhab, 4/305; and Bukhari, 3/402 (-for details, refer to paragraph 87 above). 135. Having dealt with the position expounded in the Quran and 'hadiths' as has been noticed above, learned senior Counsel attempted to repudiate the veracity of the 'hadiths' relied upon, in all the four judgments rendered by the High Courts. In this behalf learned senior Counsel provided the following compilation for this Court's consideration: 1. The Jiauddin Ahmed case Sl. No. Reference Comments (i) Maulana Mohammad Ali (referred to at paras 7, 11, 12 and 13 of the judgment) He is a Qadiyani. MirzaGhulam Ahmed (founder of the Qadiyani School) declared himself to be the Prophet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v Mahmoud Rida Murad (Referred in para 8 of the judgment) He authored the book entitled as Islamic Digest of Aqeedah and Fiqh. He took the view that triple talaq does not conform to the teachings of the Prophet. He is a follower of the Ahl-e-Hadith school. Vi Sayyid Abdul Ala Maududi (Referred in para 11 of the judgment) He is a scholar of the Hanafi School. Though the passages extracted in the judgment indicate that he was of the view that three pronouncements can be treated as one depending on the intention. However, subsequently he has changed his own view and has opined that triple talaq is final and irrevocable. vii Dr. Abu Ameenah Bilal Philips (Referred in para 19 of the judgment) He authored the book Evolution of Fiqh . He states that Caliph Umar introduced triple talaq in order to discourage abuse of divorce. He is a follower of the Ahl-e Hadith school. viii Mohammed Hashim Kamali (Referred in para 23 of the judgment) He was of the view that Caliph Umar introduced t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Based on the submissions advanced on behalf of the AIMPLB, as have been noticed hereinabove, it was sought to be emphasized, that such complicated issues relating to norms applicable to a religious sect, could only be determined by the community itself. Learned Counsel cautioned, this Court from entering into the thicket of the instant determination, as this Court did not have the expertise to deal with the issue. 137. Having given our thoughtful consideration, and having examined the rival 'hadiths' relied upon by learned Counsel for the parties, we have no other option, but to accept the contention of learned senior Counsel appearing on behalf of the AIMPLB, and to accept his counsel, not to enter into the thicket of determining (on the basis of the 'hadiths' relied upon) whether or not 'talaq-e-biddat' - triple talaq, constituted a valid practice under the Muslim 'personal law' - 'Shariat'. In fact, even Mr. Salman Khurshid appearing on behalf of the Petitioners (seeking the repudiation of the practice of the 'talaq-e-biddat') had pointed out, that it was not the role of a court to interpret nuances of Muslim 'personal law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wering Respondent, feeling fed up with all such activities unbecoming of the Petitioner wife, has divorced her on 11-7-1987. The particulars of the alleged talaq are not pleaded nor the circumstances under which and the persons, if any, in whose presence talaq was pronounced have been stated. Such deficiency continued to prevail even during the trial and Respondent 2, except examining himself, adduced no evidence in proof of talaq said to have been given by him on 11-7-1987. There are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq. 16. We are also of the opinion that the talaq to be effective has to be pronounced. The term pronounce means to proclaim, to utter formally, to utter rhetorically, to declare, to utter, to articulate (see Chambers 20th Century Dictionary, New Edition, p. 1030). There is no proof of talaq having taken place on 11-7-1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5-12-1990. We are very clear in our mind that a mere plea taken in the written statement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hadiths' relied upon by the rival parties. We truly do not find ourselves, upto the task. We have chosen this course, because we are satisfied, that the controversy can be finally adjudicated, even in the absence of an answer to the proposition posed in the instant part of the consideration. IV. Is the practice of 'talaq-e-biddat', a matter of faith for Muslims? If yes, whether it is a constituent of their 'personal law'? 140. In the two preceding parts of our consideration, we have not been able to persuade ourselves to disapprove and derecognize the practice of 'talaq-e-biddat'. It may however still be possible for us, to accept the Petitioners' prayer, if it can be concluded, that 'talaq-e-biddat' was not a constituent of 'personal law' of Sunni Muslims belonging to the Hanafi school. And may be, it was merely a usage or custom. We would, now attempt to determine an answer to the above noted poser. 141. As a historical fact, 'talaq-e-biddat' is known to have crept into Muslim tradition more than 1400 years ago, at the instance of Umayyad monarchs. It can certainly be traced to the period of Caliph Umar-a senior com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about its sustenance. The only debate in these articles was about the consistence or otherwise, of the practice of 'talaq-e-biddat'-with Islamic values. Not that, the practice was not prevalent. The ongoing discussion and dialogue, clearly reveal, if nothing else, that the practice is still widely prevalent and in vogue. 144. The fact, that about 90% of the Sunnis in India, belong to the Hanafi school, and that, they have been adopting 'talaq-e-biddat' as a valid form of divorce, is also not a matter of dispute. The very fact, that the issue is being forcefully canvassed, before the highest Court of the land, and at that-before a Constitution Bench, is proof enough. The fact that the judgment of the Privy Council in the Rashid Ahmad case as far back as in 1932, upheld the severance of the matrimonial tie, based on the fact that 'talaq' had been uttered thrice by the husband, demonstrates not only its reality, but its enforcement, for the determination of the civil rights of the parties. It is therefore clear, that amongst Sunni Muslims belonging to the Hanafi school, the practice of 'talaq-e-biddat', has been very much prevalent, since time immemo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal law', and got transformed into 'statutory law'. It is in this context, that it was submitted, by Ms. Indira Jaising, learned senior Counsel and some others, that the tag of 'personal law' got removed from the Muslim 'personal law'-'Shariat', after the enactment of the Shariat Act, at least for the questions/subjects with reference to which the legislation was enacted. Insofar as the present controversy is concerned, suffice it to notice, that the enactment included ... dissolution of marriage, including talaq ... amongst the questions/subjects covered by the Shariat Act. And obviously, when the parties are Muslims, 'talaq' includes 'talaq-e-biddat'. The pointed contention must be understood to mean, that after the enactment of the Shariat Act, dissolution of marriage amongst Muslims including 'talaq' (and, 'talaq-e-biddat') had to be considered as regulated through a State legislation. 148. Having become a part of a State enactment, before the Constitution of India came into force, it was the submission of learned senior Counsel, that all laws in force immediately before the commencement of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution. And rule of decision on questions/subjects covered by the Shariat Act, would be deemed to be matters of State determination. Learned senior Counsel was however candid, in fairly acknowledging, that 'personal laws' which pertained to disputes between the family and private individuals (where the State had no role), cannot be subject to a challenge on the ground, that they are violative of the fundamental rights contained in Part III of the Constitution. The simple logic canvassed by learned Counsel was, that all questions pertaining to different 'personal laws' amongst Muslims having been converted into rule of decision could no longer be treated as private matters between the parties, nor would they be treated as matters of 'personal law . In addition, the logic adopted to canvass the above position was, that if it did not alter the earlier position, what was the purpose of bringing in the legislation (the Shariat Act). 151. On the assumption, that 'personal law' stood transformed into 'statutory law', learned senior Counsel for the Petitioners assailed the constitutional validity of 'talaq-e-biddat', on the touchstone of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riat', as the rule of decision , in situations where customs and usages were to the contrary. 154. Learned senior Counsel for the Respondents desired us to accept their point of view, for yet another reason. It was submitted, that the Muslim Personal Law (Shariat) Application Act, 1937, did not decide what was, and what was not, Muslim 'personal law'-'Shariat'. It was therefore pointed out, that it would be a misnomer to consider, that the Shariat Act, legislated in the field of Muslim 'personal law'-'Shariat' in any manner on Muslim 'personal law'-'Shariat'. It was submitted, that Muslim 'personal law'-'Shariat' remained what it was. It was pointed out, that articles of faith as have been expressed on the questions/subjects regulated by the Shariat Act, have not been dealt with in the Act, they remained the same as were understood by the followers of that faith. It was accordingly contended, that the Muslim 'personal law'-'Shariat', was not introduced/enacted through the Shariat Act. It was also pointed out, that the Shariat Act did not expound or propound the parameters on different questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e used therein, has that effect. The Shariat Act, in our considered view, neither lays down nor declares the Muslim 'personal law'-'Shariat'. Not even, on the questions/subjects covered by the legislation. There is no room for any doubt, that there is substantial divergence of norms regulating Shias and Sunnis. There was further divergence of norms, in their respective schools. The Shariat Act did not crystallise the norms as were to be applicable to Shias and Sunnis, or their respective schools. What was sought to be done through the Shariat Act, in our considered view, was to preserve Muslim 'personal law'-'Shariat', as it existed from time immemorial. We are of the view, that the Shariat Act recognizes the Muslim 'personal law' as the 'rule of decision' in the same manner as Article 25 recognises the supremacy and enforceability of 'personal law' of all religions. We are accordingly satisfied, that Muslim 'personal law'-'Shariat' as body of law, was perpetuated by the Shariat Act, and what had become ambiguous (due to inundations through customs and usages), was clarified and crystalised. In contrast, if suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered by the Bombay High Court in the Narasu Appa Mali case. We may briefly advert thereto. In the said judgment authored by M.C. Chagla, CJ, in paragraph 13 and Gajendragadkar, J. (as he then was) in paragraph 23, recorded the following observations: 13. That this distinction is recognised by the Legislature is clear if one looks to the language of Section 112, Government of India Act, 1915. That Section deals with the law to be administered by the High Courts and it provides that the High Courts shall, in matters of inheritance and succession to lands, rents and goods, and in matters of contract and dealing between party and party, when both parties are subject to the same personal law or custom having the force of law, decide according to that personal law or custom, and when the parties are subject to different personal laws or customs having the force of law, decide according to the law or custom to which the Defendant is subject. Therefore, a clear distinction is drawn between personal law and custom having the force of law. This is a provision in the Constitution Act, and having this model before them the Constituent Assembly in defining law in Article 13 have expressl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce by way of repeal or amendment, and surely it cannot be contended that it was intended by this provision to authorise the President to make alterations or adaptations in the personal law of any community. Although the point urged before us is not by any means free from difficulty, on the whole after a careful consideration of the various provisions of the Constitution, we have come to the conclusion that personal law is not included in the expression laws in force used in Article 13(1). 23. .....The Constitution of India itself recognises the existence of these personal laws in terms when it deals with the topics falling under personal law in item 5 in the Concurrent List--List III. This item deals with the topics of marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law. Thus it is competent either to the State or the Union Legislature to legislate on topics falling within the purview of the personal law and yet the expression personal law is not used in Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'math' (monastery) comprised of Bangla Kuti and other buildings and lands endowed by his devotees. 'S' belonged to the Sant Math Sampradaya, which is a religious denomination of the Dasnami sect, founded by the 'Sankaracharya' (head of a monastery). During this lifetime, 'S' initiated 'A' as his 'chela' (disciple) and gave him full rights of initiation and 'bhesh' (spiritual authority). After the death of 'S', his 'bhesh' and sampradaya (succession of master or disciples) gave 'A' the 'chadar mahanti' (cloak of the chief priest) of the 'math' and made him the 'mahant' (chief priest), according to the wishes of 'S'. 'A' thereafter initiated the Plaintiff, a 'sudra' (lowest caste of the four Hindu castes), as his 'chela' according to the custom and usage of the sect and after this death, in accordance with his wishes the 'mahants' and 'sanyasis' (persons leading a life of renunciation) of the 'bhesh' and 'sampradaya' gave the 'chadar mahanti' to the Plaintiff, and installed him as the 'mahant' of the &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Indians being Hindus, Sikhs, Buddhists, Jains etc. whereunder since 1956, if not earlier, the female heir is put on a par with a male heir. Next in the line of numbers is the Shariat law, applicable to Muslims, whereunder the female heir has an unequal share in the inheritance, by and large half of what a male gets. Then comes the Indian Succession Act which applies to Christians and by and large to people not covered under the aforesaid two laws, conferring in a certain manner heirship on females as also males. Certain chapters thereof are not made applicable to certain communities. Sub-section (2) of Section 2 of the Hindu Succession Act significantly provides that nothing contained in the Act shall apply to the members of any Scheduled Tribe within the meaning of Clause (25) of Article 366 of the Constitution, unless otherwise directed by the Central Government by means of a notification in the Official Gazette. Section 3(2) further provides that in the Act, unless the context otherwise requires, words importing the masculine gender shall not be taken to include females. General Rule of legislative practice is that unless there is anything repugnant in the subject or context, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt. With regard to the statutory provisions of the Act, he has proposed to the reading down of Sections 7 and 8 in order to preserve their constitutionality. This approach is available from p. 36 (paras 47, 48) onwards of his judgment. The words male descendant wherever occurring, would include female descendants . It is also proposed that even though the provisions of the Hindu Succession Act, 1925 in terms would not apply to the Schedule Tribes, their general principles composing of justice, equity and fair play would apply to them. On this basis it has been proposed to take the view that the Scheduled Tribe women would succeed to the estate of paternal parent, brother or husband as heirs by intestate succession and inherit the property in equal shares with the male heir with absolute rights as per the principles of the Hindu Succession Act as also the Indian Succession Act. However, much we may like the law to be so we regret our inability to subscribe to the means in achieving such objective. If this be the route of return on the court's entering the thicket, it would follow a beeline for similar claims in diverse situations, not stopping at tribal definitions, and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct void; (d) to declare the unfettered and absolute discretion allowed to a Hindu spouse to make testamentary disposition without providing for an ascertained share of his or her spouse and dependant, void. 3. In writ Petition (C) No. 721 of 1996, the reliefs prayed for are the following: (a) to declare Sections 10 and 34 of Indian Divorce Act void and also to declare Sections 43 to 46 of the Indian Succession Act void. The position expressed in respect of the above questions, after noticing the legal position propounded by this Court in the Madhu Kishwar case (1996) 5 SCC 125, was recorded in paragraph 4 as under: 4. At the outset. we would like to state that these Writ Petitions do not deserve disposal on merits inasmuch as the arguments advanced by the learned Senior Advocate before us wholly involve issues of State policies with which the Court will not ordinarily have any concern. Further, we find that when similar attempts were made, of course by others, on earlier occasions this Court held that the remedy lies somewhere else and not by knocking at the doors of the courts. (iv) Reference may also be made to the Sardar Syedna Taher Saifuddin Saheb case: AIR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion. 14. Bearing these principles in mind, we have to approach the controversy in the present case. 16. It is now well settled that Article 25 secures to every person, subject of course to public order, health and morality and other provisions of Part III, including Article 17 freedom to entertain and exhibit by outward acts as well as propagate and disseminate such religious belief according to his judgment and conscience for the edification of others. The right of the State to impose such restrictions as are desired or found necessary on grounds of public order, health and morality is inbuilt in Articles 25 and 26 itself. Article 25(2)(b) ensures the right of the State to make a law providing for social welfare and reform besides throwing open of Hindu religious institutions of a public character to all classes and Sections of Hindus and any such rights of the State or of the communities or classes of society were also considered to need due Regulation in the process of har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Bombay High Court in the Narasu Appa Mali case, and the judgments rendered by this Court affirming the same, by assuming the stance that the position needed to be revisited (-for details, refer to paragraph 71 above). There are two reasons for us not to entertain this plea. Firstly, even according to the learned Attorney General, the proposition has been accepted by this Court in at least two judgments rendered by Constitution Benches (-of 5-Judge each), and as such, we (-as a 5-Judge Bench) are clearly disqualified to revisit the proposition. And secondly, a challenge to 'personal law' is also competent Under Article 25, if the provisions of Part III-Fundamental Rights, of the Constitution, are violated, which we shall in any case consider (hereinafter) while examining the submissions advanced on behalf of the Petitioners. Likewise, we shall not dwell upon the submissions advanced in rebuttal by Mr. Kapil Sibal, Senior Advocate. 163. So far as the challenge to the practice of 'talaq-e-biddat', with reference to the constitutional mandate contained in Article 25 is concerned, we have also delved into the submissions canvassed, during the course of heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quires, the State to treat everyone equally. Even Article 21 is a protection from State action, inasmuch as, it prohibits the State from depriving anyone of the rights ensuring to them, as a matter of life and liberty (-except, by procedure established by law). We have already rejected the contention advanced on behalf of the Petitioners, that the provisions of the Muslim Personal Law (Shariat) Application Act, 1937, did not alter the 'personal law' status of 'Shariat'. We have not accepted, that after the enactment of the Shariat Act, the questions/subjects covered by the said legislation ceased to be 'personal law', and got transformed into 'statutory law'. Since we have held that Muslim 'personal law'-'Shariat' is not based on any State Legislative action, we have therefore held, that Muslim 'personal law'-'Shariat', cannot be tested on the touchstone of being a State action. Muslim 'personal law'-'Shariat', in our view, is a matter of 'personal law' of Muslims, to be traced from four sources, namely, the Quran, the 'hadith', the 'ijma' and the 'qiyas'. None of these c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted, that gender equality, gender equity and gender justice, were values intrinsically intertwined in the guarantee assured to all (-citizens, and foreigners) Under Article 14. It was asserted, that the conferment of social status based on patriarchal values, so as to place womenfolk at the mercy of men, cannot be sustained within the framework of the fundamental rights, provided for under Part III of the Constitution. It was contended, that besides equality, Articles 14 and 15 prohibit gender discrimination. It was pointed out, that discrimination on the ground of sex, was expressly prohibited Under Article 15. It was contended, that the right of a woman to human dignity, social esteem and self-worth were vital facets, of the right to life Under Article 21. It was submitted, that gender justice was a constitutional goal, contemplated by the framers of the Constitution. Referring to Article 51A(e) of the Constitution, it was pointed out, that one of the declared fundamental duties contained in Part IV of the Constitution, was to ensure that women were not subjected to derogatory practices, which impacted their dignity. It was pointed out, that gender equality and dignity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only amongst individuals but also amongst groups of people belonging to Scheduled Castes (for short 'Dalits'), Scheduled Tribes (for short 'Tribes') and Other Backward Classes of citizens (for short 'OBCs') to secure adequate means of livelihood and to promote with special care the economic and educational interests of the weaker Sections of the people, in particular, Dalits and Tribes so as to protect them from social injustice and all forms of exploitation. By 42nd Constitution (Amendment) Act, secularism and socialism were brought in the Preamble of the Constitution to realise that in a democracy unless all Sections of society are provided facilities and opportunities to participate in political democracy irrespective of caste, religion and sex, political democracy would not last long. Dr Ambedkar in his closing speech on the draft Constitution stated on 25-11-1949 that what we must do is not to be attained with mere political democracy; we must make our political democracy a social democracy as well. Political democracy cannot last unless there lies on the base of it a social democracy. Social democracy means a way of life which recognises liber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 217. In other words, equal protection requires affirmative action for those unequals handicapped due to historical facts of untouchability practised for millennium which is abolished by Article 17; for tribes living away from our national mainstream due to social and educational backwardness of OBCs. xxx xxx xxx 16. The Constitution seeks to establish a secular socialist democratic republic in which every citizen has equality of status and of opportunity, to promote among the people dignity of the individual, unity and integrity of the nation transcending them from caste, sectional, religious barriers fostering fraternity among them in an integrated Bharat. The emphasis, therefore, is on a citizen to improve excellence and equal status and dignity of person. With the advancement of human rights and constitutional philosophy of social and economic democracy in a democratic polity to all the citizens on equal footing, secularism has been held to be one of the basic features of the Constitution (Vide: S.R. Bommai v. Union of India (1994) 3 SCC 1) and egalitarian social order is its foundation. Unless free mobility of the people is allowed transcending sectional, caste, religi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we must unify and consolidate the nation by every means without interfering with religious practices. If, however, in the past, religious practices have been so construed as to cover the whole field of life, we have reached a point when we must put our foot down and say that these matters are not religion, they are purely matters for secular legislation. Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation [Vide: Constituent Assembly Debates, Vol. VII, pp. 356-58]. xxx xxx xxx 26. Human rights are derived from the dignity and worth inherent in the human person. Human rights and fundamental freedoms have been reiterated in the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. The human rights for women, including girl child are, therefore, inalienable, integral and an indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, although it is doubtful whether the American doctrine of suspect legislation is followed in this country. In Sarla Mudgal v. Union of India (1995) 3 SCC 635 it was held that marriage, succession and like matters of secular character cannot be brought within the guarantee enshrined Under Articles 25 and 26 of the Constitution. It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies. Last of all, our attention was drawn to the Masilamani Mudaliar case (1996) 8 SCC 525, wherefrom reliance was placed on the following: 15. It is seen that if after the Constitution came into force, the right to equality and dignity of person enshrined in the Preamble of the Constitution, Fundamental Rights and Directive Principles which are a trinity intended to remove discrimination or disability on grounds only of social status or gender, removed the pre-existing impediments that stood in the way of female or weaker segments of the society. In S.R. Bommai v. Union of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be disturbed now and I want only the continuance of a practice that has been going on among the people for ages past ..... Under this amendment what I want this House to accept is that when we speak of the State doing anything with reference to the secular aspect of religion, the question of personal law shall not be brought in and it shall not be affected. ..... The question of professions, practicing and propagating one's faith is a right which the human being had from the very beginning of time and that has been recognized as an inalienable right of every human being, not only in this land, but the world over and I think that nothing should be done to affect that right of man as a human being. That part of the Article as it stands is properly worded and it should stand as it is. It is apparent, that the position expressed in the Sarla Mudgal case clearly reiterates the above exposition during the Constituent Assembly debates. The response to the above statement (-of Mohammed Ismail Sahib), was delivered by Lakshmikanta Mitra, who observed, This Article 19 of the Draft Constitution confers on all persons the right to profess, practise and propagate any religion they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reform. It is also necessary to notice at this stage, that the judgment in the Valsamma Paul case, cannot be the basis for consideration in the present controversy, because it did not deal with issues arising out of 'personal law' which enjoy a constitutional protection. What also needs to be recorded is, that the judgment in the John Vallamattom case expresses that the matters of the nature, need to be dealt with through legislation, and as such, the view expressed in the above judgment cannot be of any assistance to further the Petitioners' cause. 171. The debates of the Constituent Assembly with reference to Article 44, are also relevant. We may refer to draft Article 25 (which came to be enacted as Article 44). The Article requires the State to endeavour to secure a uniform 'civil code'. A member who debated the provision during the deliberations of the Constituent Assembly, canvassed that groups and Sections of religious denominations be given the right to adhere to their own personal law (-Mohamed Ismail Sahib), as it was felt, that interference in 'personal law' would amount to interfering with ...the way of life and religion of the people... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for, on the matter in hand, under the Indian Constitution. It is also not possible, to read into the Constitution, what the Constituent Assembly consciously and thoughtfully excluded (-or, to overlook provisions expressly incorporated). One cannot make a reference to decisions of the U.S. Supreme Court, though there would be no difficulty of their being taken into consideration for persuasive effect, in support of a cause, in consonance with the provisions of the Constitution of India and the laws. In fact, this Court is bound by the judgments of the Supreme Court of India, which in terms of Article 141 of the Constitution, are binding declarations of law. 174. The prayer made to this Court by those representing the Petitioners' cause, on the ground that the practice of 'talaq-e-biddat' is violative of the concept of constitutional morality cannot be acceded to, and is accordingly declined. VIII. Reforms to 'personal law' in India: 175. In our consideration, it is also necessary to briefly detail legislation in India with regard to matters strictly pertaining to 'personal law', and particularly to the issues of marriage and divorce, i.e., matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her provisions were made by 22 and 23 Vic., C. 61, and 23 and 24 Vic., C. 144. The Act of Parliament for establishing the High Courts, however, does not purport to give to the Crown the power of importing into the Charter all the provisions of the Divorce Court Act, and some of them, the Crown clearly could not so import, such, for instance, as those which prescribe the period of re-marriage, and those which exempt from punishment clergymen refusing to re-marry adulterers. All these are, in truth, matters for Indian legislation, and I request that you will immediately take the subject into your consideration, and introduce into your Council a Bill for conferring upon the High Court, the jurisdiction and powers of the Divorce Court in England, one of the provisions of which should be to give an appeal to the Privy Council in those cases in which the Divorce Court Act gives an appeal to the House of Lords. 34. The objects of the provision at the end of Clause 35 is to obviate any doubt that may possibly arise as to whether, by vesting the High Court with the powers of the Court for Divorce and Matrimonial Causes in England, it was intended to take away from the Courts within Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Respondent if the Respondent had been alive; or (vii) has wilfully refused to consummate the marriage and the marriage has not therefore been consummated; or (viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the Respondent; or (ix) has deserted the Petitioner for at least two years immediately preceding the presentation of the petition; or (x) has treated the Petitioner with such cruelty as to cause a reasonable apprehension in the mind of the Petitioner that it would be harmful or injurious for the Petitioner to live with the Respondent. (2) A wife may also present a petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality. (iii) In addition to the above, consequent upon a further amendment, Section 10A was added thereto, to provide for dissolution of marriage by consent. What is sought to be highlighted is, that it required legislation to provide for divorce amongst the followers of the Christian faith in India. The instant legislation provided for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marriage. The grounds for divorce are set out in Section 32, which is reproduced herein below: 32. Grounds for divorce.-Any married person may sue for divorce on any one or more of the following grounds, namely: (a) that the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the Defendant to consummate it; (b) that the Defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit: Provided that divorce shall not be granted on this ground, unless the Plaintiff; (1) was ignorant of the fact at the time of the marriage, and (2) has filed the suit within three years from the date of the marriage; (bb) that the Defendant has been incurable of the unsound mind for a period of two years or upwards immediately preceding the filing of the suit or has been suffering continuously or intermittently from mental disorder of such kind and to such an extent that the Plaintiff cannot reasonable be expected to live with the Defendant. Explanation.-In this clause,- (a) the expression mental disorder means mental illness, arrested or incomplete development of mind, psychopathi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (g) that the Defendant has deserted the Plaintiff for at least two years; (h) that an order has been passed against the Defendant by a Magistrate awarding separate maintenance to the Plaintiff, and the parties have not had marital intercourse for one year or more since such decree or order; (j) that the Defendant has ceased to be a Parsi by conversion to another religion; Provided that divorce shall not be granted on this ground if the suit has been filed more than two years after the Plaintiff came to know of the fact. (iii) In addition to the above, Section 32B introduced by way of an amendment, provides for divorce by mutual consent, and Section 34 provides for suits for judicial separation, and Section 36 provides for suits for restitution of conjugal rights. 178(i). The Special Marriage Act, 1872 provided for inter-faith marriages. The same came to be replaced by the Special Marriage Act, 1954. The statement of objects and reasons thereof is reproduced hereunder: Statement of objects and reasons This Bill revises and seeks to replace the Special Marriage Act of 1872 so as to provide a special form of marriage which can be taken advantage of by any pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hapter V provides the remedies of restitution of conjugal rights and judicial separation. Chapter VI defines void and voidable marriages, and provides for nullity of marriage and divorce. Section 27 included in Chapter VI incorporates the grounds for divorce, which are extracted hereunder: 27. Divorce.-(1) Subject to the provisions of this Act and to the Rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the Respondent-- (a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (b) has deserted the Petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or (c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); (d) has since the solemnization of the marriage treated the Petitioner with cruelty; or (e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the Petitioner can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the district court on the ground-- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. In addition to the above, Section 28 provides for divorce by mutual consent. 179. The Foreign Marriage Act, 1969 followed the Special Marriage Act, 1954. It was enacted on account of uncertainty of law related to foreign marriages. The statement of objects and reasons of the Foreign Marriage Act, 1969 expresses the holistic view, which led to the passing of the legislation. The same is reproduced below: Statement of objects and reasons This Bill seeks to implement the Twenty-third Report of the Law Commission on the law relating to foreign marriages. There is, at present considerable uncertainty as to the law on the subject, as the existing legislation touches ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incorporation of the said marriage in the 'marriage notice book' is contained in Section 6. The publication of such notice is provided for in Section 7. Objections to the proposed marriage can be filed Under Section 8. Consequent upon the fulfillment of the conditions and determination by the marriage officer, the place and form of solemnization of marriage are detailed in Section 13, whereupon, the marriage officer is required to enter a certificate of marriage, which is accepted as evidence of the fact that the marriage between the parties had been solemnized. Chapter III mandates the registration of foreign marriages, solemnized under other laws. Section 17 provides for necessary requirements therefor. (v) It would be relevant to mention, that matrimonial reliefs as are provided for under the Special Marriage Act, 1954 (-which are contained in Chapters IV, V and VI thereof) have been adopted for marriages registered under the Foreign Marriage Act, 1969 (-see paragraph 179 above). 180. Muslims are followers of Islam. Muslims consider the Quran their holy book. For their personal relations, they follow the Muslim 'personal law'-'Shariat'. The Muslim P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, was passed in 1955. Section 5 of the Hindu Marriage Act, 1955, provides for the conditions of a valid Hindu marriage. Section 7 incorporates the ceremonies required for a Hindu marriage. Section 8 provides for the requirement of registration of Hindu marriages. The remedies of restitution of conjugal rights and judicial separation, are provided for in Sections 9 and 10 respectively. Provisions related to nullity of marriages and divorce are contained in Sections 11 and 12. The grounds of divorce have been expressed in Section 13, which is reproduced below: 13. Divorce.-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the Petitioner with cruelty; or (ib) has deserted the Petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or (ii) has ceased to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce on the ground- (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the Petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or (iii) that in a suit Under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding Under Section 125 of the Code of Criminal Procedure, 1973, (2 of 1974) or under corresponding Section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or (iv) that her marriage (whether consummated or not) was solemnized before she attained the age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as the nation was seen internationally as a defaulters to those conventions and declarations. It was pointed out, that by not consciously barring 'talaq-e-biddat', and by knowingly allowing the practice to be followed, India was seen as persisting and propagating, what the international community considers abhorrent. It was therefore submitted, that the practice of 'talaq-e-biddat' be declared as unacceptable in law, since it was in conflict with international conventions and declarations. 184. We may, in the first instance, briefly point out to the submissions advanced by Ms. Indira Jaising, learned senior Counsel. She placed reliance on the Universal Declaration of Human Rights, adopted by the United Nations General Assembly as far back as in 1948. She drew our attention to the preamble thereof, to emphasise, that the declaration recognized the inherent dignity of human beings as equal and inalienable. She highlighted the fact, that the declaration envisioned equal rights for men and women-both in dignity and rights. For this, she placed reliance on Article 1 of the Declaration. Referring to Article 2, she asserted, that there could be no discrimination on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason or necessity while examining the issue of 'talaq-e-biddat', to fall back upon international conventions and declarations. The Indian Constitution itself provides for the same. 187. The reason for us, not to accede to the submissions advanced at the behest of those who support the Petitioners' cause, with pointed reference to international conventions and declarations, is based on Article 25 of the Constitution, whereby 'personal law' of all religious denominations, is sought to be preserved. The protection of 'personal laws' of religious sections, is elevated to the stature of a fundamental right, inasmuch as Article 25 of the Constitution, which affords such protection to 'personal law' is a part of Part III (-Fundamental Rights), of the Constitution. It is therefore apparent, that whilst the Constitution of India supports all conventions and declarations which call for gender equality, the Constitution preserves 'personal law' through which religious communities and denominations have governed themselves, as an exception. 188. Our affirmation, that international conventions and declarations are not binding to the extent they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate the working environment. These international instruments cast an obligation on the Indian State to gender-sensitise its laws and the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the international conventions and instruments and as far as possible, give effect to the principles contained in those international instruments. The courts are under an obligation to give due regard to international conventions and norms for construing domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. (See with advantage -- Prem Shankar Shukla v. Delhi Admn., Mackinnon Mackenzie and Co. Ltd. v. Audrey D' Costa; Sheela Barse v. Secy., Children& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everse Burdens: A Balancing Duty published in 2007 CLJ (March Part) 142 it has been stated: In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent Defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the Defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk of great injustice--where the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment. 45. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d which are established by the customs of the populations concerned shall be respected, within the framework of national laws and Regulations, insofar as they satisfy the needs of these populations and do not hinder their economic and social development. 2. Arrangements shall be made to prevent persons who are not members of the populations concerned from taking advantage of these customs or of lack of understanding of the laws on the part of the members of these populations to secure the ownership or use of the lands belonging to such members. Thus, removal of the population, by way of an exceptional measure, is not ruled out. It is only subject to the condition that lands of quality at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. We may, however, notice that this Convention has not been ratified by many countries in the Convention held in 1989. Those who have ratified the 1989 Convention are not bound by it. 106. Furthermore, the United Nations adopted a Declaration on the Rights of Indigenous People in September 2007. Articles 3 to 5 thereof read as under: 3. Indigenous peoples have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion, national or social origin, property, birth or other status. Article 23(3) of UDHR 23. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. Article 5(a) of CEDAW 5. States parties shall take all appropriate measures-- (a) to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudice and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; Article 2 of CERD 2. (1) States parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end-- * * * (c) each State party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and Regulations which have the effect of creating or perpetuating rac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars, and as such, has to be accepted as being constituent of their 'personal law'. (5) 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. (6) '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. (7) 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. (8) 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 legislati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arian 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, practicing the same faith) unacceptable, in today's world and age. The Constitution extends this guarantee, because faith constitutes the religious consciousness, of the followers. It is this religious consciousness, which binds believers into separate entities. The Constitution endeavours to protect and preserve, the beliefs of each of the separate entities, Under Article 25. 194. Despite the views expressed by those who challenged the practice of 'talaq-e-biddat', being able to demonstrate that the practice transcends the barriers of constitutional morality (emerging from different provisions of the Constitution), we have found ourselves unable to persuade ourselves, from reaching out in support of the Petitioners concerns. We cannot accept the Petitioners' claim, because the challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the instant case, both prayers have been made. Replacement has been sought by reading the three pronouncements in 'talaq-e-biddat', as one. Alternatively, replacement has been sought by reading into 'talaq-e-biddat', measures of arbitration and conciliation, described in the Quran and the 'hadiths'. The prayer is also for setting aside the practice, by holding it to be unconstitutional. The wisdom emerging from judgments rendered by this Court is unambiguous, namely, that while examining issues falling in the realm of religious practices or 'personal law', it is not for a court to make a choice of something which it considers as forward looking or non-fundamentalist. It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and 'personal law', must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be (-including self-proclaimed rationalists, of the same faith). Article 25 obliges all Constitutional Courts to protect 'personal laws' and not to find fault therewith. Interference in matters of 'personal law' is clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on an issue. However, the position as it presents in the present case, seems to be a little different. Herein, the views expressed by the rival parties are not in contradiction. The Union of India has appeared before us in support of the cause of the Petitioners. The stance adopted by the Union of India is sufficient for us to assume, that the Union of India supports the Petitioners' cause. Unfortunately, the Union seeks at our hands, what truly falls in its own. The main party that opposed the Petitioners' challenge, namely, the AIMPLB filed an affidavit before this Court affirming the following position: 1. I am the Secretary of All India Muslim Personal Board will issue an advisory through its Website, Publications and Social Media Platforms and thereby advise the persons who perform 'Nikah' (marriage) and request them to do the following: (a) At the time of performing 'Nikah' (marriage), the person performing the 'Nikah' will advise the Bridegroom/Man that in case of differences leading to Talaq the Bridegroom/Man shall not pronounce three divorces in one sitting since it is an undesirable practice in Shariat; (b) That at the time of per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other religious denominations (see at IX-Reforms to 'personal law' in India), even in India, but not for the Muslims. We would therefore implore the legislature, to bestow its thoughtful consideration, to this issue of paramount importance. We would also beseech different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation. 200. Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing 'talaq-e-biddat' as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining 'talaq-e-biddat' (three pronouncements of 'talaq', at one and the same time)-as one, or alternatively, if it is decided that the practice of 'talaq-e-biddat' be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate. 201. Disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable as the Rule of decision in the matters enumerated in Section 2. Therefore, while talaq is governed by Shariat, the specific grounds and procedure for talaq have not been codified in the 1937 Act. 206. In that view of the matter, I wholly agree with the learned Chief Justice that the 1937 Act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman, J. that the 1937 Act is a legislation regulating triple talaq and hence, the same can be tested on the anvil of Article 14. However, on the pure question of law that a legislation, be it plenary or subordinate, can be challenged on the ground of arbitrariness, I agree with the illuminating exposition of law by Nariman, J. I am also of the strong view that the Constitutional democracy of India cannot conceive of a legislation which is arbitrary. 207. Shariat, having been declared to be Muslim Personal Law by the 1937 Act, we have to necessarily see what Shariat is. This has been beautifully explained by the renowned author, Asaf A.A. Fyzee in his book Outlines of Muhammadan Law, 5th Edition, 2008 at page 10.9 ...What is morally beautiful that must be done; and what is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to talaq in three Suras-in Sura II while dealing with social life of the community, in Sura IV while dealing with decencies of family life and in Sura LXV while dealing explicitly with talaq. 210. Sura LXV of the Quran deals with talaq. It reads as follows: Talaq, or Divorce. In the name of God, Most Gracious, Most Merciful. 1. O Prophet! When Ye Do divorce women, Divorce them at their Prescribed periods, And count (accurately) Their prescribed periods: And fear God your Lord: And turn them not out Of their houses, nor shall They (themselves) leave, Except in case they are Guilty of some open lewdness, Those are limits Set by God: and any Who transgresses the limits Of God, does verily Wrong his (own) soul: Thou knowest not if Perchance God will Bring about thereafter Some new situation. 2. Thus when they fulfill Their term appointed, Either take them back On equitable terms Or part with them On equitable terms; And take for witness Two persons from among you, Endued with justice, And establish the evidence (As) before God. Such Is the admonition given To him who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention is firm for divorce, God heareth and knoweth all things. 228. Divorced women Shall wait concerning themselves For three monthly periods. Nor is it lawful for them To hide what God Hath created in their wombs, If they have faith In God and the Last Day. And their husbands Have the better right To take them back In that period, if They wish for reconciliation. And women shall have rights Similar to the rights Against them, according To what is equitable; But men have a degree (of advantage) over them. And God is Exalted in Power, Wise. 229. A divorce is only Permissible twice: after that, The parties should either hold Together on equitable terms, Or separate with kindness. It is not lawful for you, (Men), to take back Any of your gifts (from your wives), Except when both parties Fear that they would be Unable to keep the limits Ordained by God. If ye (judges) do indeed Fear that they would be Unable to keep the limits Ordained by God, There is no blame on either Of them if she give Something for her freedom. These are the limits Ordained by God; S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authors and judges who dealt with talaq in Muslim Law as good even if pronounced at whim or in tantrum, and argued against the diehard view of Batchelor, J. that this view is good in law, though bad in theology . Maybe, when the point directly arises, the question will have to be considered by this Court but enough unto the day the evil thereof and we do not express our opinion on this question as it does not call for a decision in the present case. 12. More than two decades later, Shamim Ara has referred to, as already noted above, the legal perspective across the country on the issue of triple talaq starting with the decision of the Calcutta High Court in Furzund Hossein v. Janu Bibee in 1878 and finally, after discussing two decisions of the Gauhati High Court namely Jiauddin Ahmed v. Anwara Begum and Rukia Khatun v. Abdul Khalique Laskar, this Court held as follows- 13. There is yet another illuminating and weighty judicial opinion available in two decisions of the Gauhati High Court recorded by Baharul Islam, J. (later a Judge of the Supreme Court of India) sitting singly in Jiauddin Ahmed v. Anwara Begum (1981) 1 Gau LR 358 and later speaking for the Division Bench in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rawther v. Sowramma and the other of Justice v. Khalid in Mohd. Haneefa v. Pathummal Beevi. No doubt, Sowaramma was not a case on triple talaq, however, the issue has been discussed in the judgment in paragraph 7 which has also been quoted in Shamim Ara. ..The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. ...It is a popular fallacy that a Muslim male enjoys, under the Quoranic law, unbridled authority to liquidate the marriage. 'The whole Quoran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him, if they (namely, women) obey you, then do not seek a way against them .' (Quoran IV: 34). The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l or in writing and it must be for a reasonable cause. It must be preceded by an attempt of reconciliation of husband and wife by two arbitrators one chosen from the family of the wife and other by husband. If their attempts fail then talaq may be effected by pronouncement. The said procedure has not been followed. The Supreme Court has culled out the same from Mulla and the principles of Mohammedan Law. XXXX 17. I am of the considered view that the alleged talaq is not a valid talaq as it is not in accordance with the principles laid down by the Supreme Court. If there is no valid talaq the relationship of the wife with her husband still continues and she cannot be treated as a divorced wife.... (Emphasis supplied) 18. In A.S. Parveen Akthar v. The Union of India , the High Court of Madras was posed with the question on the validity and constitutionality of Section 2 of the 1937 Act in so far as it recognises triple talaq as a valid form of divorce. The Court referred to the provisions of the Quran, opinions of various eminent scholars of Islamic Law and previous judicial pronouncements including Shamim Ara and came to the following conclusion: 45. Thus, the law wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r be accepted in view of the authoritative pronouncement of the Supreme Court in Shamim Ara v. State of U.P. 6. The only thing to be further considered in this case is whether the divorce alleged to have been effected by the husband by pronouncement of talaq on 23-7-1999 is proved or not. The mere pronouncement of talaq three times even in the presence of the wife is not sufficient to effect a divorce under Mohammadan Law. As held by the Supreme Court in Shamim Ara's case 2002 (3) KLT 537 (SC), there should be an attempt of mediation by two mediators; one on the side of the husband and the other on the side of the wife and only in case it was a failure that the husband is entitled to pronounce talaq to divorce the wife... (Emphasis supplied) 21. In Masroor Ahmed, Justice Badar Durrez Ahmed, held as follows: 32. In these circumstances (the circumstances being-(1) no evidence of pronouncement of talaq; (2) no reasons and justification of talaq; and (3) no plea or proof that talaq was preceded by efforts towards reconciliation), the Supreme Court held that the marriage was not dissolved and that the liability of the husband to pay maintenance continued. Thus, after Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 25. 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. 26. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court by Dipti Nagpaul D Souza.] 32. For this purpose, a PIL be separately registered and put up before the appropriate Bench as per orders of Hon ble the Chief Justice of India. (at pages 53 and 55) Several writ petitions have thereafter been filed and are before us seeking in different forms the same relief namely, that a Triple Talaq at one go by a Muslim husband which severs the marital bond is bad in constitutional law. 2. Wide ranging arguments have been made by various counsel appearing for the parties. These have been referred to in great detail in the judgment of the learned Chief Justice. In essence, the petitioners, supported by the Union of India, state that Triple Talaq is an anachronism in today s day and age and, constitutionally speaking, is anathema. Gender discrimination is put at the forefront of the argument, and it is stated that even though Triple Talaq may be sanctioned by the Shariat law as applicable to Sunni Muslims in India, it is violative of Muslim women s fundamental rights to be found, more particularly, in Articles 14, 15(1) and 21 of the Constitution of India. Opposing this, counsel for the Muslim Personal Board and others who suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter speaking about Prophet Mahomed, has this to say: The Prophet had established himself as the supreme overlord and the supreme preceptor. Arabia was steeped in ignorance and barbarism, superstition and vice. Female infanticide, drinking, lechery and other vices were rampant. However, the Prophet did not nominate a successor. His death was announced by Abu Bakr and immediate action was taken to hold an election. As it happened, the Chiefs of the tribe of Banu Khazraj were holding a meeting to elect a Chief and the Companions went to the place. This meeting elected Abu Bakr as the successor. The next day Abu Bakr ascended the pulpit and everyone took an oath of allegiance (Bai at). This election led to the great schism between the Sunnis and Shias. The Koreish tribe was divided into Ommayads and Hashimites. The Hashimites were named after Hashim the great grand-father of the Prophet. There was bitter enmity between the Ommayads and the Hashimites. The Hashimites favoured the succession of Ali and claimed that he ought to have been chosen because of appointment by the Prophet and propinquity to him. The election in fact took place when the household of the Prophet (including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The school is also known as Kufa School . Although taught by the great Imam Jafar-as-Sadik, the founder of the Shia School, Abu Hanifa was, also a pupil of Abu Abdullah ibn-ul-Mubarak and Hamid bin-Sulaiman and this may account for his founding a separate school. This school was favoured by the Abbasid Caliphs and its doctrines spread far and wide. Abu Hanifa earned the appellation The Great Imam . The school was fortunate in possessing, besides Abu Hanifa, his two more celebrated pupils, Abu Yusuf (who became the Chief Kazi at Baghdad) and Imam Muhammad Ash-Shaybani, a prolific writer, who has left behind a number of books on jurisprudence. The founder of the school himself left very little written work. The home of this school was Iraq but it shares this territory with other schools although there is a fair representation. The Ottoman Turks and the Seljuk Turks were Hanafis. The doctrines of this school spread to Syria, Afghanistan, Turkish Central Asia and India. Other names connected with the Kufa School are Ibn Abi Layla and Safyan Thawri. Books on the doctrines are al-Hidaay of Marghinani (translated by Hamilton), Radd-al-Mukhtar and Durr-ul-Mukhtar of Ibn Abidin and al-M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of those too, who have not had their courses. (LXV: 4). (2) Talak hasan- This consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs. The first pronouncement should be made during a tuhr, the second during the next tuhr, and the third during the succeeding tuhr. Talak Hasan is based on the following Quranic injunctions: Divorce may be pronounced twice, then keep them in good fellowship or let (them) go kindness. (II: 229). So if he (the husband) divorces her (third time) she shall not be lawful to him afterward until she marries another person. (II: 230). (3) Talak-ul-bidaat or talak-i-badai.- This consists of (i) Three pronouncements made during a single tuhr either in one sentence, e.g., I divorce thee thrice, - or in separate sentences e.g., I divorce thee, I divorce thee, I divorce thee , or (ii) a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage, e.g., I divorce thee irrevocably. Talak-us-sunnat and talak-ul-biddat The Hanafis recognized two kinds of talak, namely, (1) talak-us-sunnat, that is, talak according to the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., of innovation; therefore not approved) (i) three declarations (the so-called triple divorce) at one time, (ii) one irrevocable declaration (generally in writing). The talaq al-sunna, most approved form consists of one single pronouncement in a period of tuhr (purity, i.e., when the woman is free from her menstrual courses), followed by abstinence from sexual intercourse during that period of sexual purity (tuhr) as well as during the whole of the iddat. If any such intercourse takes place during the periods mentioned, the divorce is void and of no effect in Ithna Ashari and Fatimi laws. It is this mode or procedure which seems to have been approved by the Prophet at the beginning of his ministry and is consequently regarded as the regular or proper and orthodox form of divorce. Where the parties have been away from each other for a long time, or where the wife is old and beyond the age of menstruation, the condition of tuhr is unnecessary. A pronouncement made in the ashan form is revocable during iddat. This period is three months from the date of the declaration or, if the woman is pregnant, until delivery. The husband may revoke the divorce at any time during the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the husband behaves in a gentlemanly manner and does not treat the wife as a chattel. The second is a form in which the Prophet tried to put an end to a barbarous pre-Islamic practice. This practice was to divorce a wife and take her back several times in order to ill-treat her. The Prophet, by the rule of the irrevocability of the third pronouncement, indicated clearly that such a practice could not be continued indefinitely. Thus if a husband really wished to take the wife back he should do so; if not, the third pronouncement after two reconciliations would operate as a final bar. These rules of law follow the spirit of the Quranic injunction: when they have reached their term take them back in kindness or part from them in kindness . A disapproved form of divorce is talaq by triple declarations in which three pronouncements are made in a single tuhr , either in one sentence e.g. I divorce thee triply or thrice or in three sentences I divorce thee, I divorce thee, I divorce thee. Such a talaq is lawful, although sinful, in Hanafi law; but in Ithna Ashari and the Fatimi laws it is not permissible. This is called talaq al-ba in, irrevocable divorce. Another form of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty of females, including personal properly 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, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). 13. A word as to the meaning of the expression Shariat . A.A.A. Fyzee (supra), at pages 9-11, describes Shariat as follows: Coming to law proper, it is necessary to remember that there are two different conceptions of law. Law may be considered to be of divine origin, as is the case with the Hindu law and the Islamic law, or it may be conceived as man-made. The latter conception is the guiding principle of all modern legislation; it is, as Ostrorog has pointed out, the Greek, Roman, Celtic or Germanic notion of law. We may be compelled to act in accordance with certain principles because God desires us to do so, or in the alternative because the King or the Assembly of wise men or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al force ; it is the distilled essence of the civilization of a people ; it reflects the people s soul more clearly than any other organism. This is true of Islam more than of any other faith. The Shari at is the central core of Islam; no understanding of its civilization, its social history or its political system, is possible without a knowledge and appreciation of its legal system. Shariat (lit., the road to the watering place, the path to be followed) as a technical term means the Canon law of Islam, the totality of Allah s commandments. Each one of such commandments is called hukm (pl. ahkam). The law of Allah and its inner meaning is not easy to grasp; and Shariat embraces all human actions. For this reason it is not law in the modern sense; it contains an infallible guide to ethics. It is fundamentally a Doctrine of Duties, a code of obligations. Legal considerations and individual rights have a secondary place in it; above all the tendency towards a religious evaluation of all the affairs of life is supreme. According to the Shariat religious injunctions are of five kinds, al-ahkam al-khamsah. Those strictly enjoined are farz, and those strictly forbidden are haram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsonal law. 16. We are afraid that such a constricted reading of the statute would be impermissible in law. True, the Objects and Reasons of a statute throw light on the background in which the statute was enacted, but it is difficult to read the non-obstante clause of Section 2 as governing the enacting part of the Section, or otherwise it will become a case of the tail wagging the dog. A similar attempt was made many years ago and rejected in Aswini Kumar Ghosh v. Arabinda Bose, 1953 SCR 1. This Court was concerned with Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951. Section 2 of the said Act read as follows: Notwithstanding anything contained in the Indian Bar Councils Act, 1926, or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may, be permitted to practice in that High Court every Advocate of the Supreme Court shall be entitled as of right to practice in any High Court whether or not he is an Advocate of that High Court: Provided that nothing in this section shall be deemed to entitle any person, merely by reason of his being an Advocate of the Supreme Court, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw made by the legislature before the Constitution came into force, 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 III of the Constitution, to the extent of such inconsistency. 20. At this stage, it is necessary to refer to the recognition of Triple Talaq as a legal form of divorce in India, as applicable to Sunni Muslims. In an early Bombay case, Sarabai v. Rabiabai, (1906) ILR 30 Bom 537, Bachelor, J. referred to Triple Talaq and said that it is good in law though bad in theology . In a Privy Council decision in 1932, 5 years before the 1937 Act, namely Rashid Ahmad v. Anisa Khatun, (1931-32) 59 IA 21: AIR 1932 PC 25, the Privy Council was squarely called upon to adjudicate upon a Triple Talaq. Lord Thankerton speaking for the Privy Council put it thus: There is nothing in the case to suggest that the parties are not Sunni Mahomedans governed by the ordinary Hanafi law, and, in the opinion of their Lordships, the law of divorce applicable in such a case is correctly stated by Sir R.K Wilson, in his Digest of Anglo-Muhammadan Law, 5th ed., at p. 136, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression law cannot be read into the expression laws in force in Article 13(3) is itself no longer good law See Sant Ram Ors. v. Labh Singh Ors., (1964) 7 SCR 756. 23. It has been argued somewhat faintly that Triple Talaq would be an essential part of the Islamic faith and would, therefore, be protected by Article 25 of the Constitution of India. Article 25 reads as follows: Article 25 - Freedom of conscience and free profession, practice and propagation of religion.- (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) 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. Explanation I.-The wearing and carrying of kirpans shall be dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion. What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background, etc. of the given religion. (See generally the Constitution Bench decisions in Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [AIR 1954 SC 282 : 1954 SCR 1005], Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [AIR 1962 SC 853 : 1962 Supp (2) SCR 496] and Seshammal v. State of T.N. [(1972) 2 SCC 11 : AIR 1972 SC 1586] regarding those aspects that are to be looked into so as to determine whether a part or practice is essential or not.) What is meant by an essential part or practices of a religion is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fth degree: Haram: That which is forbidden. Obviously, Triple Talaq does not fall within the first degree, since even assuming that it forms part of the Koran, Hadis or Ijmaa, it is not something commanded . Equally Talaq itself is not a recommended action and, therefore, Triple Talaq will not fall within the second degree. Triple Talaq at best falls within the third degree, but probably falls more squarely within the fourth degree. It will be remembered that under the third degree, Triple Talaq is a permissible action as to which religion is indifferent. Within the fourth degree, it is reprobated as unworthy. We have already seen that though permissible in Hanafi jurisprudence, yet, that very jurisprudence castigates Triple Talaq as being sinful. It is clear, therefore, that Triple Talaq forms no part of Article 25(1). This being the case, the submission on behalf of the Muslim Personal Board that the ball must be bounced back to the legislature does not at all arise in that Article 25(2)(b) would only apply if a particular religious practice is first covered under Article 25(1) of the Constitution. 26. And this brings us to the question as to when petitions have been filed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Madras v. V.C. Row [[1952] SCR 594 at 597]) and it must always regard it as its solemn duty to protect the said fundamental rights zealously and vigilantly (Vide Daryao v. State of U.P. [[1962] 1 SCR 574 at p. 582]) 28. We are heartened to note that in a recent U.S. Supreme Court decision the same thing has been said with respect to knocking at the doors of the U.S. Supreme Court in order to vindicate a basic right. In Obergefell v. Hodges, 135 S. Ct. 2584 at 2605, decided on June 26, 2015, the U.S. Supreme Court put it thus: The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een borrowed from the 14th Amendment to the Constitution of the United States of America. In a revealing judgment, Subba Rao, J., dissenting, in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14 at 34 further went on to state that whereas equality before law is a negative concept, the equal protection of the law has positive content. The early judgments of this Court referred to the discrimination aspect of Article 14, and evolved a rule by which subjects could be classified. If the classification was intelligible having regard to the object sought to be achieved, it would pass muster under Article 14 s anti-discrimination aspect. Again, Subba Rao, J., dissenting, in Lachhman Das v. State of Punjab, (1963) 2 SCR 353 at 395, warned that overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the Article of its glorious content. He referred to the doctrine of classification as a subsidiary rule evolved by courts to give practical content to the said Article. 33. In the pre-1974 era, the judgments of this Court did refer to the rule of law or positive aspect of Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an arbitrary power of patronage. Though Rule 9(1) requires the appointment of successful candidates to Class I posts in the order of merit and thereafter to Class II posts in the order of merit, Rule 9(1) is subject to Rule 9(2), and under the cover of Rule 9(2) the Government can even arrogate to itself the power of assigning a Class I post to a less meritorious and a Class II post to a more meritorious candidate. We hold that the latter part of Rule 9(2) gives the Government an arbitrary power of ignoring the just claims of successful candidates for recruitment to offices under the State. It is violative of Articles 14 and 16(1) of the Constitution and must be struck down. (pages 353 354) 35. In the celebrated Indira Gandhi v. Raj Narain judgment, reported in 1975 Supp SCC 1, Article 329-A sub-clauses (4) and (5) were struck down by a Constitution Bench of this Court. Applying the newly evolved basic structure doctrine laid down in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, Ray, C.J. struck down the said amendment thus: 59. Clause (4) suffers from these infirmities. First, the forum might be changed but another forum has to be created. If the constituent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Absence of arbitrary power, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by ordinary law courts and that the Constitution is not the source but the consequence of the rights of individuals, as defined and enforced by the courts. The second meaning grew out of Dicey s unsound dislike of the French Droit Administratif which he regarded as a misfortune inflicted upon the benighted folk across the Channel [See S.A. de Smith: Judicial Review of Administrative Action, (1968) p. 5]. Indeed, so great was his influence on the thought of the day that as recently as in 1935 Lord Hewart, the Lord Chief Justice of England, dismissed the term administrative law as continental jargon . The third meaning is hardly apposite in the context of our written Constitution for, in India, the Constitution is the source of all rights and obligations. We may not therefore rely wholly on Dicey s exposition of the rule of law but ever since the second world war, the rule has come to acquire a positive content in all democratic countries. [See Wade and Phillips: Constitutional Law (Sixth Edn., pp. 70-73)] The International Commission of Juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., a way of life , and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 . Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. [Emphasis Supplied] 40. This was further clarified in A.L. Kalra v. Project and Equipment Corpn., (1984) 3 SCC 316, following Royappa (supra) and holding that arbitrariness is a doctrine distinct from discrimination. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was for the first time in E.P. Royappa v. State of Tamil Nadu [(1974) 4 SCC 3, 38: 1974 SCC (L S) 165, 200: (1974) 2 SCR 348] that this Court laid bare a new dimension of Article 14 and pointed out that that article has highly activist magnitude and it embodies a guarantee against arbitrariness. This Court speaking through one of us (Bhagwati, J.) said: [SCC p. 38: SCC (L S) p. 200, para 85] The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., a way of life , and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not paraphrase of Article 14 nor is it the objective and end of that article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an authority under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution. [Emphasis Supplied] 42. In this view of the law, a three Judge Bench of this Court in K.R. Lakshmanan (Dr.) v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to understand how the State Government can acquire and take over the functioning of the race-club when it has already enacted the 1974 Act with the avowed object of declaring horse-racing as gambling? Having enacted a law to abolish betting on horse-racing and stoutly defending the same before this Court in the name of public good and public morality, it is not open to the State Government to acquire the undertaking of horse-racing again in the name of public good and public purpose. It is ex facie irrational to invoke public good and public purpose for declaring horse-racing as gambling and as such prohibited under law, and at the same time speak of public purpose and public good for acquiring the race-club and conducting the horse-racing by the Government itself. Arbitrariness is writ large on the face of the provisions of the 1986 Act. 49. We, therefore, hold that the provisions of 1986 Act are discriminatory and arbitrary and as such violate and infract the right to equality enshrined under Article 14 of the Constitution. 50. Since we have struck down the 1986 Act on the ground that it violates Article 14 of the Constitution, it is not necessary for us to go into th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only has the procedure established by law to be just, fair and reasonable, but also the law itself has to be reasonable as Articles 14 and 19 have now to be read into Article 21. [See at SCR pp. 646-48: SCC pp. 393-95, paras 198-204 per Beg, C.J., at SCR pp. 669, 671-74 687: SCC pp. 279-84 296-97, paras 5-7 18 per Bhagwati, J. and at SCR pp. 720-23 : SCC pp. 335-39, paras 74-85 per Krishna Iyer, J.]. Krishna Iyer, J. set out the new doctrine with remarkable clarity thus: (SCR p. 723: SCC pp. 338-39, para 85) 85. To sum up, procedure in Article 21 means fair, not formal procedure. Law is reasonable law, not any enacted piece. As Article 22 specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detentions should conform to Article 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Article 21 are available. Otherwise, as the procedural safeguards contained in Article 22 will be available only in cases of preventive and punitive detention, the right to life, more fundamental than any other forming part of personal liberty and paramount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review. But unwittingly, I should think, they have imported the most vital and active element of the concept by their theory of review of reasonable restrictions which might be imposed by law on many of the fundamental rights. Taken in its modern expanded sense, the American due process clause stands as a high level guarantee of reasonableness in relation between man and state, an injunction against arbitrariness or oppressiveness. I have had occasion to consider this question in Kesavananda Bharati s case. I said: When a court adjudges that a legislation is bad on the ground that it is an unreasonable restriction, it is drawing the elusive ingredients for its conclusion from several sources If you examine the cases relating to the imposition of reasonable restrictions by a law, it will be found that all of them adopt a standard which the American Supreme Court has adopted in adjudging reasonableness of a legislation under the due process clause. In fact, Mithu v. State of Punjab, (1983) 2 SCC 277, followed a Constitution Bench judgment in Sunil Batra v. Delhi Administration Ors., (1978) 4 SCC 494. In that case, Section 30(2) of the Prisons Act was challenged as bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the Indian Penal Code, by which a mandatory sentence of death was imposed on life convicts who commit murder in jail. The argument made by the learned counsel on behalf of the petitioner was set out thus: 5. But before we proceed to point out the infirmities from which Section 303 suffers, we must indicate the nature of the argument which has been advanced on behalf of the petitioners in order to assail the validity of that section. The sum and substance of the argument is that the provision contained in Section 303 is wholly unreasonable and arbitrary and thereby, it violates Article 21 of the Constitution which affords the guarantee that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Since the procedure by which Section 303 authorises the deprivation of life is unfair and unjust, the Section is unconstitutional. Having examined this argument with care and concern, we are of the opinion that it must be accepted and Section 303 of the Penal Code struck down. (at page 283) After quoting from Sunil Batra (supra), the question before the Court was set out thus: 6 The question which then arises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the various circumstances which we have mentioned in this judgment, we are of the opinion that Section 303 of the Penal Code violates the guarantee of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except according to procedure established by law. (at pages 293, 294 and 296) In a concurring judgment, Chinnappa Reddy, J., struck down the Section in the following terms: 25. Judged in the light shed by Maneka Gandhi [(1978) 1 SCC 248] and Bachan Singh [(1980) 2 SCC 684], it is impossible to uphold Section 303 as valid. Section 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon as he pronounces the accused guilty of the offence. So final, so irrevocable and so irrestitutable is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive. Section 303 is such a law and it must go the way of all bad laws. I agree with my Lord Chief Justice that Section 303, India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been laid down in several Judgments of this Court, some of which are referred to in Om Kumar (infra) and, therefore, there is no reason why arbitrariness cannot be used in the aforesaid sense to strike down legislation under Article 14 as well. (3) The third reason given is that the Courts cannot sit in Judgment over Parliamentary wisdom. Our law reports are replete with instance after instance where Parliamentary wisdom has been successfully set at naught by this Court because such laws did not pass muster on account of their being unreasonable , which is referred to in Om Kumar (infra). We must never forget the admonition given by Khanna, J. in State of Punjab v. Khan Chand, (1974) 1 SCC 549. He said: 12. It would be wrong to assume that there is an element of judicial arrogance in the act of the Courts in striking down an enactment. The Constitution has assigned to the Courts the function of determining as to whether the laws made by the Legislature are in conformity with the provisions of the Constitution. In adjudicating the constitutional validity of statutes, the Courts discharge an obligation which has been imposed upon them by the Constitution. The Courts woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India, freedom to reside and settle in any part of India - this Court has occasion to consider whether the restrictions imposed by legislation were disproportionate to the situation and were not the least restrictive of the choices. The burden of proof to show that the restriction was reasonable lay on the State. Reasonable restrictions under Articles 19(2) to (6) could be imposed on these freedoms only by legislation and courts had occasion throughout to consider the proportionality of the restrictions. In numerous judgments of this Court, the extent to which reasonable restrictions could be imposed was considered. In Chintamanrao v. State of M.P. [AIR 1951 SC 118: 1950 SCR 759] Mahajan, J. (as he then was) observed that reasonable restrictions which the State could impose on the fundamental rights should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public . Reasonable implied intelligent care and deliberation, that is, the choice of a course which reason dictated. Legislation which arbitrarily or excessively invaded the right could not be said to contain the quality of reasonableness unless it struck a proper balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three Judges Bench decision in McDowell (supra) when it is said that a constitutional challenge can succeed on the ground that a law is disproportionate, excessive or unreasonable , yet such challenge would fail on the very ground of the law being unreasonable, unnecessary or unwarranted . The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution. 46. We only need to point out that even after McDowell (supra), this Court has in fact negated statutory law on the ground of it being arbitrary and therefore violative of Article 14 of the Constitution of India. In Malpe Vishwanath Acharya v. State of Maharashtra, (1998) 2 SCC 1, this Court held that afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive competence or whether the legislation is ultra vires the provisions of the Constitution. If any of the provisions of the legislation violates fundamental rights or any other provisions of the Constitution, it could certainly be a valid ground to set aside the legislation by invoking the power of judicial review. A legislation could also be challenged as unreasonable if it violates the principles of equality adumbrated in our Constitution or it unreasonably restricts the fundamental rights under Article 19 of the Constitution. A legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground. The validity of a constitutional amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law. This Court in State of Rajasthan v. Union of India [(1977) 3 SCC 592] said: (SCC p. 660, para 149) 149. if a question brought before the court is purely a political question not involving determination of any legal or constitutional right or obligation, the court would not entertain it, since the court is concerned only with adjudication of legal rights and liabilities. 50. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of unreasonableness, arbitrariness, proportionality, etc. always raises an element of subjectivity on which a court cannot strike down a statute or a statutory provision, especially when the right to property is no more a fundamental right. Otherwise the court will be substituting its wisdom to that of the legislature, which is impermissible in our constitutional democracy. [Emphasis Supplied] 51. In a recent Constitution Bench decision in Natural Resources Allocation, In re, Special Reference No.1 of 2012, (2012) 10 SCC 1, this Court went into the arbitrariness doctrine in some detail. It referred to Royappa (supra), Maneka Gandhi (supra) and Ajay Hasia (supra) (and quoted from paragraph 16 which says that the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached ). It then went on to state that arbitrariness and unreasonableness have been used interchangeably as follows: 103. As is evident from the above, the expressions arbitrariness and unreasonableness have been used interchangeably and in fact, one has been defined in terms of the other. More recently, in Sharma Transport v. Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifestly arbitrary ; i.e. when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favoritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment. Positively speaking, it should conform to norms which are rational, informed with reason and guided by public interest, etc. 52. Another Constitution Bench decision reported as Dr. Subramanian Swamy v. Director, Central Bureau of Investigation, (2014) 8 SCC 682, dealt with a challenge to Section 6-A of the Delhi Special Police Establishment Act, 1946. This Section was ultimately struck down as being discriminatory and hence violative of Article 14. A specific reference had been made to the Constitution Bench by the reference order in Dr. Subramanian Swamy v. Director, Central Bureau of Investigation, (2005) 2 SCC 317, and after referring to several judgments including Ajay Hasia (supra), Mardia Chemicals (supra), Malpe Vishwanath Acharya (supra) and McDowell (supra), the reference inter alia was as to whether arbitrariness and unreasonableness, being facets of Article 14, are or are not available as grounds to invalidate a legislation. After referring to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is another view or because another method may be considered to be as good or even more effective, like any issue of social, or even economic policy. It is well settled that the courts do not substitute their views on what the policy is. (at pages 721-722) Since the Court ultimately struck down Section 6-A on the ground that it was discriminatory, it became unnecessary to pronounce on one of the questions referred to it, namely, as to whether arbitrariness could be a ground for invalidating legislation under Article 14. Indeed the Court said as much in paragraph 98 of the judgment as under (at page 740): Having considered the impugned provision contained in Section 6-A and for the reasons indicated above, we do not think that it is necessary to consider the other objections challenging the impugned provision in the context of Article 14. 53. However, in State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453 at paragraph 22, in State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312 at paragraphs 17 to 19, in Rajbala v. State of Haryana Ors., (2016) 2 SCC 445 at paragraphs 53 to 65 and Binoy Viswam v. Union of India, (2017) 7 SCC 59 at paragraphs 80 to 82, McDowell (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary . Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, Parliament never intended the authority to make such Rules; they are unreasonable and ultra vires . In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution. 44. Also, in Sharma Transport v. State of A.P. [(2002) 2 SCC 188], this Court held: (SCC pp. 203-04, para 25) 25. The tests of arbitrary action applicable to executive action do not necessarily apply to delegated legislation. In order to strike down a delegated legislation as arbitrary it has to be estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her from the husband s; if the attempts fail, talaq may be effected (para 13). In Rukia Khatun case [(1981) 1 Gau LR 375] the Division Bench stated that the correct law of talaq, as ordained by the Holy Quran, is: (i) that talaq must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, talaq may be effected. The Division Bench expressly recorded its dissent from the Calcutta and Bombay views which, in their opinion, did not lay down the correct law. 14. We are in respectful agreement with the abovesaid observations made by the learned Judges of the High Courts. (at page 526) 57. 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 long ..... X X X X Extracts X X X X X X X X Extracts X X X X
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