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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 ..... s, 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? 115-120 II. Has 'talaq-e-biddat', which is concededly sinful, sanction of law? 121-127 III. Is the practice of 'talaq-e-biddat', approved/disapproved by "hadiths"? 128-139 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'? 140-145 V. Did the Muslim Personal Law (Shariat) Application Act, 1937 confer statutory status to the subjects regulated by the said legislation? 146-157 VI. Does 'talaq-e-biddat', violate the parameters expressed in Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and as such, the same cannot be considered sacrosanctal to the tenets of the Muslim religion. 2. The counter affidavit filed by respondent no.5 - the petitioner's husband - Rizwan Ahmad, discloses, that the 'nikah' (marriage) between the petitioner and the respondent was solemnized on 11.04.2001, as per 'Shariat', at Allahabad. It was submitted, that the petitioner - Shayara Bano, performed her matrimonial duties intermittently, coming and leaving the matrimonial home from time to time. The matrimonial relationship between the parties resulted in the births of two children, a son - Mohammed Irfan (presently about 13 years old) studying in the 7th standard, and a daughter - Umaira Naaz (presently about 11 years old) studying in the 4th standard, both at Allahabad. 3. It is the case of the respondent-husband, that the petitioner-wife, left her matrimonial home on 9.4.2015 in the company of her father - Iqbal Ahmad and maternal uncle - Raees Ahmed, as well as children - Mohammed Irfan and Umaira Naaz, to live in her parental home. The respondent claims, that he continued to visit the petitioner, for giving her maintenance, and for enquiring about her well being. When the husband m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and physically abused by the Respondent and his family. She was often beaten and kept hungry in a closed room for days. The family of the Respondent administered her with medicines that caused her memory to fade. Due to the medicines she remained unconscious for long hours. Xxx xxx xxx 2.6 On 09.04.2015, the Respondent attempted to kill the Petitioner by administering medicines. These medicines on inspection by a doctor on a later date were revealed to cause loss of mental balance after regular consumption. The Respondent brought the Petitioner to Moradabad in a critical near-death condition with the intention of abandoning her if his dowry demands were not fulfilled. 2.7. Thereafter on 10.04.2015 the Respondent called the parents of the Petitioner to Moradabad to take their daughter. The parents of the Petitioner requested him to come to Kashipur to meet and settle the issue. He refused to go to Kashipur and said that they should come and take their daughter or fulfil his demands for more dowry. He demanded Rs. 5,00,000/- (Rupees Five Lakh Only). 2.8. Due to the unreasonable demands and the torturous behaviour of the Respondent husband, the Petitioner's parents came to Mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious accident before marriage. I for the sake of my children and you tolerated that. I became despondent from your persistent demand of living at your parental house and your being of stubborn nature, your giving threat of implicating in false case and threat of inflicting injury to yourself and of consuming poison and implicating me in false case on that count given on daily basis and complained about the same to your paternal uncle but your father replied that whenever you do such acts sleeping pills be given to you. I found this very baffling, upon asking your father told that since the time before your marriage you had been under treatment for mental ailment. I ignored such a big incident and the information received about you. Resultantly you became audacious in your behavior. When reported all these things to your father, your father told me that this is the time of children's holidays you be sent to your parents' house with children. You take them back after the atmosphere is changed and summer vacations are over. Acting on the words of your father I left you at your parents' place along with children and while going, you took away gold jewelry given by me including a gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahmed) S/o Iqbal Ahmed Ghaus Nagar, Karaili, Allahabad" 8. Based on the above, the case of the respondent-husband is, that he had pronounced 'talaq' in consonance with the prevalent and valid mode of dissolution of Muslim marriages. It was submitted, that the pronouncement of divorce by him, fulfils all the requirements of a valid divorce, under the Hanafi sect of Sunni Muslims, and is in consonance with 'Shariat' (Muslim 'personal law'). 9. It is also the submission of the respondent-husband, that the present writ petition filed by the petitioner-wife under Article 32 of the Constitution of India, is not maintainable, as the questions raised in the petition are not justiciable under Article 32 of the Constitution. 10. Keeping in view the factual aspect in the present case, as also, the complicated questions that arise for consideration in this case (and, in the other connected cases), at the very outset, it was decided to limit the instant consideration, to 'talaq-e-biddat' - triple talaq. Other questions raised in the connected writ petitions, such as, polygamy and 'halala' (-and other allied matters), would be dealt with separately. The determination of the present controv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fresh 'mahr'. 'Mahr' is a mandatory payment, in the form of money or possessions, paid or promised to be paid, by the groom or by the groom's father, to the bride, at the time of marriage, which legally becomes her property. However, on the third pronouncement of such a 'talaq', the couple cannot remarry, unless the wife first marries someone else, and only after her marriage with other person has been dissolved (either through 'talaq' - divorce, or death), can the couple remarry. Amongst Muslims, 'talaq-e-ahsan' is regarded as - 'the most proper' form of divorce. 14. 'Talaq-e-hasan' is pronounced in the same manner, as 'talaq-e-ahsan'. Herein, in place of a single pronouncement, there are three successive pronouncements. After the first pronouncement of divorce, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. The same procedure is mandated to be followed, after the expiry of the first month (during which marital ties have not been resumed). 'Talaq' is pronounced again. After the second pronouncement of 'talaq', if there is resumption of cohabitation within a period of one month, the pronounceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at even those schools that recognized 'talaq-e-biddat' described it, "as a sinful form of divorce". It is acknowledged, that this form of divorce, has been described as "bad in theology, but good in law". We have recorded the instant position at this juncture, because learned counsel for the rival parties, uniformly acknowledge the same. Part-3. The Holy Quran - with reference to 'talaq': 17. Muslims believe that the Quran was revealed by God to the Prophet Muhammad over a period of about 23 years, beginning from 22.12.609, when Muhammad was 40 years old. The revelation continued upto the year 632 - the year of his death. Shortly after Muhammad's death, the Quran was completed by his companions, who had either written it down, or had memorized parts of it. These compilations had differences of perception. Therefore, Caliph Usman - the third, in the line of caliphs recorded a standard version of the Quran, now known as Usman's codex. This codex is generally treated, as the original rendering of the Quran. 18. During the course of hearing, references to the Quran were made from 'The Holy Quran: Text Translation and Commentary' by Abdullah Yusuf Ali, (published by Kitab Bhawan, N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of season, or cultivate in a manner which will injure or exhaust the soil. So also, in the relationship towards a wife, 'verse' 223 exalts the husband, to be wise and considerate towards her, and treat her in such manner as will neither injure nor exhaust her. 'Verses' 222 and 223 exhort the husband, to extend every kind of mutual consideration, as is required towards a wife. (ii) Reference is also necessary to 'verses' 224 to 228 contained in section 28 of 'sura' II of the Quran. The same are extracted below: "224. And make not God's (name) an excuse In your oaths against Doing good, or acting rightly, Or making peace Between persons; For God is one Who heareth and knoweth All things. 225. God will not Call you to account For thoughtlessness In your oaths, But for the intention In your hearts; And He is Oft-forgiving Most Forbearing. 226. For those who take An oath for abstention From their wives, A waiting for four months Is ordained; If then they return, God is Oft-forgiving, Most Merciful. 227. But if their intention Is firm for divorce, God heareth And knoweth all things. 228. Divorced women Shall wait conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against reconciliation, the Quran ordains, that it is unfair to keep the wife tied to her husband indefinitely. The Quran accordingly suggests, that in such a situation, divorce is the only fair and equitable course. All the same it is recognized, that divorce is the most hateful action, in the sight of the God. (iii) 'Verses' 229 to 231 contained in 'section' 29 of 'sura' II, and 'verses' 232 and 233 included in 'section' 30 of 'sura' II, as also 'verse' 237 contained in 'section' 31 in 'sura' II, are relevant on the issue of divorce. The same are extracted below: "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; So do not transgress them If any do transgress The limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rhaps, also treat her with cruelty. It is permissible for the wife, in such a situation, to extend some material consideration to the husband. Separation of this kind, at the instance of the wife, is called 'khula'. 'Verse' 230 is in continuation of the first part of 'verse' 229. The instant 'verse' recognizes the permissibility of reunion after two divorces. When divorce is pronounced for the third time, between the same parties, it becomes irreversible, until the woman marries some other man and he divorces her (or is otherwise released from the matrimonial tie, on account of his death). The Quranic expectation in 'verse' 230, requires the husband to restrain himself, from dissolving the matrimonial tie, on a sudden gust of temper or anger. 'Verse' 231 provides, that a man who takes back his wife after two divorces, must not put pressure on her, to prejudice her rights in any way. Remarriage must only be on equitable terms, whereupon, the husband and wife are expected to lead a clean and honourable life, respecting each other's personalities. The Quranic message is, that the husband should either take back the wife on equitable terms, or should set her free with kindness. &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me is reproduced below: "237. And if ye divorce them Before consummation, But after the fixation Of a dower for them, Then the half of the dower (Is due to them), unless They remit it Or (the man's half) is remitted By him in whose hands Is the marriage tie; And the remission (Of the man's half) Is the nearest to righteousness. And do not forget Liberality between yourselves. For God sees well All that ye do." In case of divorce before consummation of marriage, it is recognized, that only half the dower fixed needed to be refunded to the wife. It is however open to the wife, to remit the half due to her. And likewise, it is open to the husband to remit the half which he is entitled to deduct (and thus pay the whole dower amount). 19. Reference is also necessary to 'verses' 34 and 35, contained in 'section' 6, as well as, 'verse' 128 contained in 'section' 19, of 'sura' IV. All the above verses are extracted below: "34. Men are the protectors And maintainers of women, Because God has given The one more (strength) Than the other, and because They support them From their means. Therefore the righteous women Are devoutly obe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is cautioned not to be greedy. He is required to protect the wife's economic interest. In case of disputation between the couple, for economic reasons, the Quran ordains, that sanctity of the marriage itself, is far greater than any economic interest, and accordingly suggests, that if separation can be prevented by providing some economic consideration to the wife, it is better for the husband to make such a concession, than to endanger the future of the wife and children. 20. The last relevant 'verses' - 1 and 2, are contained in 'section' 1 of 'sura' - LXV. The same are reproduced below: "1. 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 fulfil Their term appointed, Either take them back On equitable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fessing the Muslim religion, was also regulated by custom or usage. It was also regulated by 'Shariat' - the Muslim 'personal law'. The status of Muslim women under customs and usages adopted by Muslims, were considered to be oppressive towards women. Prior to the independence of India, Muslim women organisations condemned customary law, as it adversely affected their rights, under the 'Shariat'. Muslim women claimed, that the Muslim 'personal law' be made applicable to them. It is therefore, that the Muslim Personal Law (Sharait) Application Act, 1937 (hereinafter referred to, as the Shariat Act), was passed. It is essential to understand, the background which resulted in the enactment of the Shariat Act. The same is recorded in the statement of objects and reasons, which is reproduced below: "For several years past it has been the cherished desire of the Muslims of British India that Customary Law should in no case take the place of Muslim Personal Law. The matter has been repeatedly agitated in the press as well as on the platform. The Jamiat-ul-Ulema-i-Hind, the greatest Moslem religious body has supported the demand and invited the attention of all concerned to the urgent ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thereafter the provisions of section 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies were also specified. (2) Where the prescribed authority refuses to accept a declaration under sub-section (1), the person desiring to make the same may appeal to such officer as the Government may, by general or special order, appoint in this behalf, and such officer may, if he is satisfied that the appellant is entitled to make the declaration, order the prescribed authority to accept the same. xxx xxx xxx 5. Dissolution of marriage by Court in certain circumstances.-The District Judge may, on petition made by a Muslim married woman, dissolve a marriage on any ground recognized by Muslim Personal Law (Shariat)." A close examination of Section 2, extracted above, leaves no room for any doubt, that custom and usage, as it existed amongst Muslims, were sought to be expressly done away with, to the extent the same were contrary to Muslim 'personal law'. Section 2 also mandated, that Muslim 'personal law' (Shariat) would be exclusively adopted as "... the rule of decision ..." in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as have issued fatwas to the effect that in cases enumerated in clause 3, Part A of this Bill (now see section 2 of the Act), a married Muslim woman may obtain a decree dissolving her marriage. A lucid exposition of this principle can be found in the book called "Heelatun Najeza" published by Maulana Ashraf Ali Sahib who has made an exhaustive study of the provisions of Maliki Law which under the circumstances prevailing in India may be applied to such cases. This has been approved by a large number of Ulemas who have put their seals of approval on the book. As the Courts are sure to hesitate to apply the Maliki Law to the case of a Muslim woman, legislation recognizing and enforcing the above mentioned principle is called for in order to relieve the sufferings of countless Muslim women. One more point remains in connection with the dissolution of marriages. It is this. The Courts in British India have held in a number of cases that the apostasy of a married Muslim woman ipso facto dissolves her marriage. This view has been repeatedly challenged at the bar, but the Courts continue to stick to precedents created by rulings based on an erroneous view of the Muslim Law. The Ulemas h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran; (ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law: Provided that- (a) no decree shall be passed on ground (iii) until the sentence has become final; (b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and (c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground." 27. We may record here, that the Dissolution of Muslim Marriages Act, 1939, is irrelevant for the present controversy on account of the fact, that the issue in hand does not pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords which may or may not bear the implication of a divorce, shall not effect a divorce unless the husband actually intended it." (iii) Iraq: Is a theocratic State, which declares Islam to be its official religion. The majority of Iraq's Muslims is Shias. On the issue in hand, it has enacted the following legislation: Code of Personal Status 1959 Law 188 of 1959 as amended by Law 90 of 1987 "Article 35. No divorce shall be effective when pronounced by the persons mentioned below: (a) one who is intoxicated, insane or imbecile, under duress, or not in his senses due to anger, sudden calamity, old age or sickness; (b) a person in death-sickness or in a condition which in all probabilities is fatal and of which he actually dies, survived by his wife." xxx xxx xxx Article 37. (1) Where a Talaq is coupled with a number, express or implied, not more than one divorce shall take place. (2) If a woman is divorced thrice on three separate occasions by her husband, no revocation or remarriage would be permissible after that. xxx xxx xxx Article 39. (1) When a person intends to divorce his wife, he shall institute a suit in the Court of Personal Status requesting that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation: Family Law 1984 Law 10 of 1984 as amended by Law 15 of 1984 "Article 28. Divorce is termination of the marriage bond. No divorce will become effective in any case except by a decree of a competent court and subject to the provision of Article 30. Article 29. Divorce is of two kinds - revocable and irrevocable. Revocable divorce does not terminate the marriage till the expiry of Iddat. Irrevocable divorce terminates the marriage forthwith. Article 30. All divorces shall be revocable except a third-time divorce, one before consummation of marriage, one for a consideration, and those specified in this law to be irrevocable. Article 31. A divorce shall be effective only if pronounced in clear words showing intention to dissolve the marriage. Symbolic or metaphorical expression will not dissolve the marriage. Article 32. A divorce pronounced by a minor or insane person, or if pronounced under coercion, or with no clear intention to dissolve the marriage, shall have no legal effect. Article 33. (1) A divorce meant to be effect on some action or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kes place, a report will be filed with the court. Article 83. If reconciliation attempts fail, the court shall fix an amount to be deposited by the husband in the court within thirty days towards payment of the wife's post-divorce dues and maintenance of children. xxx xxx xxx Article 90. No divorce is permissible for a person who is not in his senses or is under coercion or provocation. xxx xxx xxx xxx Article 92. Multiple expressions of divorce, oral or written, shall have the effect of a single divorce only. xxx xxx xxx Article 123. Every divorce pronounced by the husband shall be revocable, except a third-time divorce, divorce before consummation of marriage, divorce by mutual consent, and divorce by Khula or Talaq-e-Tafweez. (ix) Sudan: 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 the following legislation in place: Law on Talaq 1935 Judicial Proclamation No.4 of 1935 "Article 1. A divorce uttered in a state of intoxication or under duress shall be invalid and ineffective. Article 2. A contingent divorce which is not meant to be effective immediatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental injury by the fact of divorce under clauses (ii) and (iii) shall be directed to indemnify the aggrieved spouse. (2) As regards the woman to be indemnified for material injury in terms of money, the same shall be paid to her after the expiry of Iddat and may be in the form of retention of the matrimonial home. This indemnity will be subject to revision, increase or decrease in accordance with the changes in the circumstances of the divorced wife until she is alive or until she changes her marital status by marrying again. If the former husband dies, this indemnity will be a charge on his estate and will have to be met by his heirs if they consent to it and will be decided by the court if they disagree. They may pay her in a lump sum within one year from the former husband's death the indemnity claimable by her. Article 32 (1) No divorce shall be decreed except after the court has made an overall inquiry into the causes of rift and failed to effect reconciliation. (2) Where no reconciliation is possible the court shall provide, even if not asked to, for all important matters relating to the residence of the spouses, maintenance and custody of children and meeting the chil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Article 66. The words that if an oath or vow is broken it will effect a divorce will not dissolve the marriage even if the said oath or vow is broken. Article 67. A divorce can be revoked by the husband during the Iddat period. After the expiry of Iddat, a direct remarriage between them will be lawful. xxx xxx xxx Article 71. If a man arbitrarily divorces his wife without any reasonable ground and it causes hardship to her, the court may grant her compensation payable by the husband not exceeding maintenance for one year in accordance with her status. The court may decide if the compensation will be paid as a lump sum or in instalments." B. Laws of Southeast Asian States (i) Indonesia: The Constitution of Indonesia guarantees freedom of religion among Indonesians. However, the Government recognizes only six official religions - Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place: (a) Law of Marriage 1974 Law 1 of 1974 "Article 38. A divorce shall be effected only in the court and the court shall not permit a divorce before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who desires a divorce shall present an application for divorce to the court in the prescribed form accompanied by a statutory declaration containing (a) particulars of the marriage and the name, ages and sex of the children, if any, of the marriage; (b) particulars of the facts giving the court jurisdiction under Section 45; (c) particulars of any previous matrimonial proceedings between the parties, including the place of the proceedings; (d) a statement as to the reasons for desiring divorce; (e) a statement as to whether any, and if so, what steps have been taken to effect reconciliation; (f) the terms of any agreement regarding maintenance and habitation of the wife and the children of the marriage, if any, and the division of any assets acquired through the joint effort of the parties, if any, or where no such agreement has been reached, the applicant's proposals regarding those matters; and (g) particulars of the order sought. (2) Upon receiving an application for divorce, the court shall cause summons to be served on the other party together with a copy of the application and the statutory declaration made by the applicant, and the summons shall direct the other party to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all appear or act for any party in any proceeding before a Conciliatory Committee and no party shall be represented by any person other than a member of his or her family without the leave of the Conciliatory Committee. (13) Where the Committee reports to the court that reconciliation has been effected and the parties have resumed their conjugal relationship, the court shall dismiss the application for divorce. (14) Where the Committee submits to the court a certificate that it is unable to effect reconciliation and to persuade the parties to resume the conjugal relationship, the court shall advise the husband to pronounce one Talaq before the court, and where the court is unable to procure the presence of the husband before the court to pronounce one Talaq, or where the husband refuses to pronounce one Talaq, the court shall refer the case to the Hakams [arbitrators] for action according to section 48. (15) The requirement of sub-section (5) as to reference to a Conciliatory Committee shall not apply in any case (a) where the applicant alleges that he or she has been deserted by an does not know the whereabouts of the other party; (b) where the other party is residing outsid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties to nominate a representative. The representatives shall be appointed by the court to constitute, with the Clerk of the Court as Chairman, an Agama [religious scholars] Arbitration Council which shall try and submit to the court a report on the result of arbitration on the basis of which, and such other evidence as may be allowed, the court will pass an order. (3) The provisions of this Article will be observed if the wife exercises right to Talaq-e-Tafweez. xxx xxx xxx Article 183. A person who fails to comply with the requirements of Article 85, 161 and 162 of this Code shall be penalized by imprisonment or a fine of two hundred to two thousand Pesos, or both." C. Laws of Sub-continental States (i) Pakistan & Bangladesh: Are both theocratic States, wherein Islam is the official religion. In both countries Muslims of the Sunni sect constitute the majority. On the issue in hand, it has the following legislation in place: Muslim Family Laws Ordinance 1961 Ordinance VIII of 1961 amended in Bangladesh by Ordinance 114 of 1985 (Bangladesh changes noted below relevant provisions) "Section 7. (1) Any man who wishes to divorce his wife shall, as soon as may be afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... description permitted to a wife by the Muslim law governing the sect to which the parties belong, the procedure laid down in the Schedule III shall be followed so far as the nature of the divorce claimed in each case renders it possible or necessary to follow that procedure. 29. 'Talaq-e-biddat' is effective, the very moment it is pronounced. It is irrevocable when it is pronounced. Part-6. Judicial pronouncements, on the subject of 'talaq-e-biddat': 30. Rashid Ahmad v. Anisa Khatun AIR 1932 PC 25 . (i) The facts: The primary issue that came to be adjudicated in the above case, pertained to the validity of 'talaq-e-biddat' pronounced by Ghiyas-ud-din, a Sunni Mohomedan of the Hanafi school, to his wife Anisa Khatun - respondent no.1. The marriage of the respondent with Ghiyas-ud-din had taken place on 28.08.1905. Ghiyas-ud-din divorced her on or about 13.09.1905. Ghiyas-ud-din pronounced triple talaq, in the presence of witnesses, though in the absence of his wife - Anisa Khatun. Respondent no.1 - Anisa Khatun received Rs. 1,000 in payment of 'dower' on the same day, which was confirmed by a registered receipt. Thereafter, Ghiyas-ud-din executed a 'talaqnama' (decree of divo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ma until she had married another and the latter had divorced her or died, the respondents maintained that the acknowledgment of their legitimacy by Ghiyas-ud-din, subsequent to the divorce, raised the presumption that Anisa Fatima had in the interval married another, who had died or divorced her, and that Ghiyas-ud-din had married her again, and that it was for the appellants to displace that presumption. In support of this contention, they founded on certain dicta in the judgment of this Board in Habibur Rahman Chowdhury v. Altaf Ali Chowdhury L.R. 48 I.A. 114. Their Lordships find it difficult to regard this contention as a serious one, for these dicta directly negative it. The passage relied on, which related to indirect proof of Mahomedan marriage by acknowledgment of a son as a legitimate son is as follows: "It must not be impossible upon the face of it, i.e., it must not be made when the ages are such that it is impossible in nature for the acknowledgor to be the father of the acknowledgee, or when the mother spoken to in an acknowledgment, being the wife of another, or within prohibited degrees of the acknowledgor, it would be apparent that the issue would be the issue of ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court, on the ground that he had divorced her, by pronouncing divorce by adopting the procedure of 'talaq-e-biddat'. (iii) The challenge : It is in the above circumstances, that the validity of 'talaq-e-biddat', and the wife's entitlement to maintenance came to be considered by the Guahati High Court, which examined the validity of the concept of 'talaq-e-biddat'. (iv) The consideration : (a) The High Court placed reliance on 'verses' 128 to 130, contained in 'section' 19, of 'sura' IV, and 'verses' 229 to 232, contained in 'sections' 29 and 30 of 'sura' II, and thereupon, referred to the commentary on the above verses by scholars (Abdullah Yusuf Ali and Maulana Mohammad Ali) and the views of jurists (Ameer Ali and Fyzee), with pointed reference to 'talaq', which was narrated as under: "Islam tried to maintain the married state as far as possible, especially where children are concerned, but it is against the restriction of the liberty of men and women in such vitally important matters as love and family life. It will check hasty action as far as possible and leave the door to reconciliation open at many stages. Even after divorce a suggestion of reconciliation is made, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection' 6, of 'sura' IV, and again referred to the commentary on the above 'verse' (by Abdullah Yusuf Ali), who had interpreted the same as under: "An excellent plan for settling family disputes, without too much publicity or mud-throwing, or resort to the chicaneries of the law. The Latin countries recognise this plan in their legal system. It is a pity that Muslims do not resort to it universally, as they should. The arbiters from each family would know the idiosyncrasies of both parties, and would be able, with God's help, effect a real reconciliation." Maulana Mohammad Ali has commented on the above verse thus: "This verse lays down the procedure to be adopted when a case for divorce arises. It is not for the husband to put away his wife; it is the business of the judge to decide the case. Nor should the divorce case be made too public. The Judge is required to appoint two arbitrators, one belonging to the wife's family and the other to the husband's. These two arbitrators will find out the facts but their objective must be to effect a reconciliation between the parties. If all hopes of reconciliation fail, a divorce is allowed. But the final decision rests wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re as husband and wife..." He then refers to the condition laid down in Sura IV verse 35. The learned author proceeds: "The 'shiqaq' or breach of the marriage agreement may also arise from the conduct of either party; for instance, if either of them misconducts himself or herself, or either of them is consistently cruel to the other, or, as may sometimes happen there is incompatibility of temperament to such an extent that they cannot live together in marital agreement. The 'shiqaq' in these cases is more express, but still it will depend upon the parties whether they can pull on or not. Divorce must always follow when one of the parties finds it impossible to continue the marriage agreement and is compelled to break it off. At first sight it may look like giving too much latitude to the parties to allow them to end the marriage contract thus, even if there is no reason except incompatibility of temperament, but this much is certain that if there is such disagreement that the husband and the wife cannot pull together, it is better for themselves, for their offspring and for society in general that they should be separated than that they should be compelled to l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , though bad in theology". These observations have been based on the concept that women were chattal belonging to men, which the Holy Quran does not brook. Costello, J. In 59 Calcutta 833 has not, with respect, laid down the correct law of talaq. In my view the correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters-one from the wife's family the other from the husband's. If the attempts fail, talaq may be effected. xxx xxx xxx 16. In the instant case the petitioner merely alleged in his written statement before the Magistrate that he had pronounced talaq to the opposite party; but he did not examine himself, nor has he adduced any evidence worth the name to prove 'talaq'. There is no proof of talaq, or its registration. Registration of marriage and divorce under the Assam Muslim Marriages and Divorces Registration Act, 1935 is voluntary, and unilateral. Mere registration of divorce (or marriage) even if proved, will not render valid divorce which is otherwise invalid under Muslim Law." A perusal of the conclusion recorded by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent-husband, on 12.4.1972. "7. The first point to be decided, therefore, is whether the opposite party divorced the Petitioner. The equivalent of the word 'divorce' is 'talaq' in Muslim Law. What is valid 'talaq' in Muslim law was considered by one of us (Baharul Islam, J. as he then was) sitting singly in Criminal Revision No. 199/77 (supra). The word 'talaq' carries the literal significance of 'freeing' or 'the undoing of knot'. 'Talaq' means divorce of a woman by her husband. Under the Muslim law marriage is a civil contract. Yet the rights and responsibilities consequent upon it are of such importance to the welfare of the society that a high degree of sanctity is attached to it. But in spite of the sacredness of the character of the marriagetic, Islam recognizes the necessity in exceptional circumstances of keeping the way open for its dissolution. There has been a good deal of misconception of the institution of 'talaq' under the Muslim law. From the Holy Quran and the Hadis, it appears that though divorce was permitted, yet the right could be exercised only under exceptional circumstances. The Holy Proph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce duly effected by the husband." What Munro and Abdur Rahmim, JJ. in ILR 30 Madras 22 precisely held was that impropriety of the husband's conduct would in no way affect the legal validity of a divorce duly effected by the husband. The emphasis was that a talaq would be valid only if it is effected in accordance with the Muslim Law. In ILR 5, Rangoon 18, their Lordships of the Privy Council observed: "According to that law (the Muslim Law), a husband can effect a divorce whenever he desires." But the Privy Council has not said that the divorce need not be duly effected or that procedure enjoined by the Quran need not be followed. 8. It is needless to say that Holy Quran is the primary source and is the weightiest authority on any subject under the Muslim Law. The Single Judge in Criminal Revision No. 199/77 in his judgment quoted the relevant verses of the Quran, to deal with divorce. We need not refer to all the Verses. It will be sufficient if we refer to only one of them, which is Sura IV verse 35. It reads: "If ye fear a breach Between them twain, Appoint two arbiters One from his family, And the other from hers; If they wish for peace, God will cause Their recon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions... Indeed, a deeper study of the subject disclosed a surprisingly rational, realistic and modern law of divorce.... ....." The learned Judge has further observed: "It is a popular fallacy that a Muslim male enjoys, under the Quranic law, Unbridled Authority to liquidate the marriage. The whole Quran 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' (Quran IV: 34)" (iv) The conclusion: Based on the above consideration above, the High Court recorded the following conclusion: "11. In our opinion the correct law of 'talaq' as ordained by Holy Quran is: (i) that 'talaq' must be for a reasonable cause; and (ii) that it must be preceded by an attempt at reconciliation between the husband and 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. In our opinion the Single Judge has correctly laid down the law in Criminal Revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, the husband had lied to the Court, (and to her, as well) when he had sought her restitution, from the Court, by making out as if the marriage was still subsisting. It was her claim, that she would not have agreed to conjugal relations with him, had she known of the divorce. And therefore, her consent to have conjugal relations with Masroor Ahmed, was based on fraud committed by him, on her - Aisha Anjum. She therefore accused Masroor Ahmed, for having committed the offence under Section 376 of the Indian Penal Code, i.e., the offence of rape. She also claimed maintenance from her husband, under Section 125 of the Criminal Procedure Code. During the pendency of the above proceedings, the parties arrived at an amicable settlement on 1.9.2007. (ii) The challenge: The position expressed by the High Court in paragraph 12 of the judgment, crystalises the challenge. Paragraph 12, is reproduced below: "12. Several questions impinging upon muslim law concepts arise for consideration. They are:- (1) What is the legality and effect of a triple talaq? (2) Does a talaq given in anger result in dissolution of marriage? (3) What is the effect of non-communication of the tala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of triple talaq has brought about extreme misery to the divorced women and even to the men who are left with no chance to undo the wrong or any scope to bring about a reconciliation. It is an innovation which may have served a purpose at a particular point of time in history12 but, if it is rooted out such a move would not be contrary to any basic tenet of Islam or the Quran or any ruling of the Prophet Muhammad. 27. In this background, I would hold that a triple talaq (talaq-e-bidaat), even for sunni muslims be regarded as one revocable talaq. This would enable the husband to have time to think and to have ample opportunity to revoke the same during the iddat period. All this while, family members of the spouses could make sincere efforts at bringing about a reconciliation. Moreover, even if the iddat period expires and the talaq can no longer be revoked as a consequence of it, the estranged couple still has an opportunity to re-enter matrimony by contracting a fresh nikah on fresh terms of mahr etc." A perusal of the conclusions recorded by the High Court would reveal, that triple talaq pronounced at the same time, is to be treated as a single pronouncement of divorce. And t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , from the Urdu book "Hikmatul Islam" by Moulana Wahidul Khan. The High Court also took into consideration Quranic verses (all of which have been, extracted above). The High Court even took note of the two judgments of the Gauhati High Court (referred to above), besides other High Court judgments, and thereupon, observed as under: "12. This case only symptomize the harsh realities encountered by women belonging to Muslim community, especially of the lower strata. It is a reminder to the court unless the plight of sufferers is alleviated in a larger scheme through legislation by the State, justice will be a distant dream deflecting the promise of justice by the State "equality before the law". The State is constitutionally bound and committed to respect the promise of dignity and equality before law and it cannot shirk its responsibility by remaining mute spectator of the malady suffered by Muslim women in the name of religion and their inexorable quest for justice broke all the covenants of the divine law they professed to denigrate the believer and faithful. Therefore, the remainder of the judgment is a posit to the State and contribution for settlement of the 'legal vex' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is filed by the husband alleging that the triple talaq pronounced by him is not valid in accordance with Islamic law. Therefore, proceedings initiated before the Magistrate under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and consequent order will have to be set aside. This case depicts the misuse of triple talaq, wife appears to have accepted the talaq and moved the Magistrate court on a folly created by husband. There are innumerable cases as revealed from the empirical data referred in the research in which neither party are aware of the procedure of talaq according to the personal law. This Court under Article 226 of the Constitution of India is not expected to go into the disputed questions of fact. The entire exercise in this judgment is to alert the State that justice has become elusive to the Muslim woman and the remedy thereof lies in codification of law of divorce. This court cannot grant any relief to the writ petitioner as the true application of the law to be considered in a given facts is upon the Court trying the matter. It is for the subordinate court to decide whether there was application of Islamic law in effecting divorce by triple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia. It is for the State to consider the formulation of codified law to govern the matter. Therefore, I conclude by drawing attention of those who resist any form of reform of the divorce law of Muslim community in India to the following verses of Holy Quran. (Chapter 47:2) "And those who believe and do good works and believe in that which is revealed unto Muhammad - and it is the truth from their Lord-He riddeth them of their ill deeds and improveth their state." "Thus we display the revelations for people who have sense" (Chapter 30:28) The Registry shall forward the copy of this judgment to Union Law Ministry and Law Commission of India." A perusal of the conclusions drawn by the High Court reveals, that the practice of 'talaq-e-biddat', was deprecated by the Court. The Court however called upon the legislature, to codify the law on the issue, as would result in the advancement of justice, as a matter of institutional form. Part-7. The petitioner's and the interveners' contentions: 35. On behalf of the petitioner, besides the petitioner herself, submissions were initiated by Mr. Amit Singh Chadha, Senior Advocate. He invited this Court's attention to the legislative hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d senior counsel, then placed reliance on the Jiauddin Ahmed2, and the Rukia Khatun3 cases (-for details, refer to Part-6 - Judicial pronouncements, on the subject of 'talaq-e-biddat'). Based on the above judgments, it was submitted, that courts of this country had not found favour with the practice of triple talaq, in the manner prevalent in India. It was contended, that 'talaq-e-biddat' should not be confused with the profession, practice and propagation of Islam. It was pointed out, that 'talaq-e-biddat' was not sacrosanctal to the profession of the Muslim religion. It was accordingly submitted, that this Court had an indefeasible right, to intervene and render justice. In order to press his claim based on constitutional morality, wherein the petitioners were claiming not only gender equality, but also the progression of their matrimonial life with dignity, learned senior counsel placed reliance on Manoj Narula v. Union of India20, wherein this Court observed as under: "The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a Constitution made for a progressive society. Working of such a Constitution depends upon the prevalent atmosphere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their official State religion. It was accordingly contended, that had 'talaq-e-biddat' been an essential part of religion, i.e., if it constituted a core belief, on which Muslim religion was founded, it could not have been interfered with, by such legislative intervention. It was accordingly suggested, that this Court should have no difficulty whatsoever in remedying the cause with which the petitioners had approached this Court, as the same was not only violative of the fundamental rights enshrined in the Constitution, but was also in contravention of the principle of constitutional morality emerging therefrom. 38. Last of all, it was contended, that it is nobody's case before this Court, that 'talaq-e-biddat' is a part of an edict flowing out of the Quran. It was submitted, that triple talaq is not recognized by many schools of Islam. According to learned counsel, all concerned acknowledge, that 'talaq-e-biddat' has all along been treated irregular, patriarchal and even sinful. It was pointed out, that it is accepted by all schools - even of Sunni Muslims, that 'talaq-e-biddat' is "bad in theology but good in law". In addition, it was pointed out, that even the Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-hasan' were approved by the Quran and the 'hadith'. It was submitted, that 'talaq-e-biddat' is neither recognized by the Quran, nor approved by the 'hadith'. With reference to 'talaq-e-biddat', it was asserted, that the same was contrary to Quranic prescriptions. It was submitted, that the practice of 'talaq-e-biddat' was traceable to the second century, after the advent of Islam. It was asserted, that 'talaq-e-biddat' is recognized only by a few Sunni schools, including the Hanafi school. In this behalf, it was also brought to our notice, that most of the Muslims in India belonged to the Hanafi school of Sunni Muslims. It was submitted, that even the Hanafi school acknowledges, that 'talaq-e-biddat' is a sinful form of divorce, but seeks to justify it on the ground that though bad in theology, it is good in law. In India 'talaq-e-biddat', according to learned counsel, gained validity based on the acceptance of the same by the British courts, prior to independence. It was submitted, that the judgments rendered by the British courts were finally crystallized, in the authoritative pronouncement by the Privy Council in the Rashid Ahmad case1. It was pointed out, that thereafter, 'ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Masroor Ahmed case4, and by the Kerala High Court in the Nazeer case5 to bring home his contention, that 'talaq-e-biddat' was wholly unjustified and could not be recognized as a valid means of divorce in the Muslim community. It was the vehement submission of learned counsel, that the legal position being canvassed on behalf of the petitioners, clearly emerged from the judgments referred to above, and should be treated as the foundation, for adoption and declaration by this Court. It was therefore prayed, that triple talaq as was being practiced in India, be declared unsustainable in law. 41. It was also contended by learned senior counsel, that the settled principles applicable in all common law jurisdictions including India was that courts do not test the constitutionality of laws and procedures, if the issue arising between the parties can be decided on other grounds. It was submitted, that only when the relief being sought, cannot be granted without going into the constitutionality of the law, only then courts need to enter the thicket of its constitutional validity. Learned counsel invited the Court's attention, to the judgment of this Court in State of Bihar v. Rai Baha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an interpretation of 'personal law', as would incorporate the ingredients of the permissible and acceptable modes of talaq into 'talaq-e-biddat'. 42. In the present determination, learned senior counsel submitted, that it would be essential to recognize the existence of distortions in the 'hadiths'. It was pointed out, that it was by now well settled, that there were various degrees of reliability and/or authenticity of different 'hadiths' (reference in this behalf was made to - Principles of Mohomedan Law by Sir Dinshaw Fardunji Mulla, LexisNexis, Butterworths Wadhwa, Nagpur, 20th edition). It was the contention of learned senior counsel, that the All India Muslim Personal Law Board (hereinafter referred to as, the AIMPLB), had relied on 'hadiths', that were far removed from the time of the Prophet. It was submitted, that they were therefore far less credible and authentic, and also distorted and unreliable, as against the 'hadiths' taken into consideration in the judgments rendered by the High Courts (-for details, refer to Part-6 - Judicial pronouncements, on the subject of 'talaq-e-biddat'). It was pointed out, that the AIMPLB had relied upon a later 'hadith' (that is, Sun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n adopted by the AIMPLB, in its pleadings to demonstrate the validity of the practice of 'talaq-e-biddat'. 43. Based on the above submissions, it was contended, that the judgment rendered by the Privy Council in the Rashid Ahmad case1 with reference to the validity of 'talaq-e-biddat' needed to be overruled. Since 'talaq-e-biddat' cannot be traced to the Quran, and since the Prophet himself deprecated it, and since 'talaq-e-biddat' was considered sinful by all schools of Sunni Muslims, and as invalid by all the Shia Muslim schools, it could not be treated to be a part of Muslim 'personal law'. It was asserted, that triple talaq was not in tune with the prevailing social conditions, as Muslim women were vociferously protesting against the practice. Learned senior counsel solicited, that this Court in order to resolve the present dispute, declare that the pronouncement of triple talaq by a Muslim husband, in order to divorce his wife, would be treated as a single pronouncement of talaq, and would have to follow the procedure of 'talaq-e-ahsan' (or, 'talaq-e-hasan') in accordance with the Quran, so as to conclude a binding dissolution of marriage by way of 'talaq', in terms of Muslim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Based on the foundation recorded in the preceding paragraph, it was submitted, that the question in the present controversy was, whether "rule of decision" (the term used in Section 2, of the Shariat Act) could be challenged, on the ground that the same was violative of the fundamental rights postulated in Part III of the Constitution? It was the pointed contention of learned counsel, that no "rule of decision" can be violative of Part III of the Constitution. It was acknowledged (we would say - fairly), that 'personal law' which pertained to disputes between the family and private individuals (wherein the State has no role), cannot be subject to a challenge, on the ground of being violative of the fundamental rights enshrined in Part III of the Constitution. It was submitted, that insofar as Muslim 'personal law' is concerned, it could no longer be treated as 'personal law', because it had been statutorily declared as "rule of decision" by Section 2 of the Shariat Act. It was therefore asserted, that all questions pertaining to Muslims, 'personal law' having been described as "rule of decision" could no longer be treated as private matters between parties, nor can they be treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d enunciation of law, the signification of right to livelihood gets clearly spelt out. A clause in the bye-laws of a trade union, which calls itself an Association, which is accepted by the statutory authority, cannot play foul of Article 21." 46. Learned senior counsel, thereupon attempted to express the same position, through a different reasoning. It is necessary to recall, that the question posed for consideration is, whether this Court should accept "rule of decision" under Section 2 of the Shariat Act - as "laws in force" within the meaning of Article 13 of the Constitution, and thereby, test the validity thereof, on the touchstone of the fundamental rights enshrined in Part III of the Constitution? It was the fervent contention of learned senior counsel, that all questions falling for consideration within the meaning of the term "rule of decision" had necessarily to be treated as "laws in force". Thus, it was submitted, that such laws were to be in consonance with the provisions of Part III - Fundamental Rights, of the Constitution. Insofar as the challenge to the constitutional validity of 'talaq-e-biddat' is concerned, learned senior counsel, adopted the submissions advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conventions. 48. It was acknowledged, by learned senior counsel, that India recognises a plural legal system, wherein different religious communities are permitted to be governed by different 'personal laws', applicable to them. It was submitted, that there could be no dispute, that different religious communities can have different laws, but the laws of each religious community must meet the test of constitutional validity and/or constitutional morality, inasmuch as, they cannot be violative of Articles 14 and 15 of the Constitution. Viewed in the above context, it was submitted, that even though matters of faith and belief are protected by Article 25 of the Constitution, yet law relating to marriage and divorce were matters of faith and belief, were also liable to be tested on grounds of public order, morality and health, as well as, on the touchstone of the other provisions of Part III of the Constitution. Therefore, on a plain reading of Article 25, according to learned senior counsel, the right to freedom of conscience was subject to public order, morality, health, and the other provisions contained in Part III of the Constitution. And as such, according to learned counsel, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the nature of talaq-e-biddat, whereby, a Muslim woman's status was associated with adverse civil consequences, on the unilateral determination of the male spouse, by way of a private declaration, must be considered (-and therefore, be held) as clearly unsustainable in law. 50. Mr. Salman Khurshid, Senior Advocate, appearing as an intervener, submitted, that for searching a solution to a conflict, or for the resolution of a concern under Islamic law, reference had first to be made to the Quran. The availability of an answer to the disagreement, from the text of the Quran, has to be treated as a final pronouncement on the issue. When there is no clear guidance from the Quran, reference must be made to the traditions of the Prophet Muhammad - 'sunna', as recorded in the 'hadiths'. If no guidance is available on the issue, even from the 'hadiths', reference must then be made to the general consensus of opinion - 'ijma'. If a resolution to the dispute is found in 'ijma', it should be considered as a final view on the conflicting issue, under Islamic law. It was submitted, that the precaution that needed to be adopted while referring to 'hadiths' or 'ijma' was, that neither of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that AN As-Sahbâ' said to Ibn 'Abbâs: "Tell us of something interesting that you know. Wasn't the threefold divorce counted as one at the time of the Messenger of Allah and Abü Bakr?" He said: "That was so, then at the time of 'Umar the people began to issue divorces frequently, so he made it binding upon them. v. "Mahmud-b, Labeed reported that the Messenger of Allah was informed about a man who gave three divorces at a time to his wife. Then he got up enraged and said, 'Are you playing with the Book of Allah who is great and glorious while I am still amongst you? So much so that a man got up and said; shall I not kill him." vi. According to an Hadith quoted by M. Mohammed Ali in Manual of Hadeth p. 2861 from Masnad of Imam Ahmad bin Hanbul 1:34, the procedure during the time of Prophet and the caliphate of Abu Bakr, and the first two years of Hazrat Umar was that divorce uttered thrice was considered as one divorce. The Umar said, "people had made haste in a matter in which that was moderation for them, so we may make it take effect with regard to them. So he made it take effect to them." The Holy Quran is however very clear on the point that such a divorce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept that in their Hadith it says: "...kill him"." Based on the above, it was submitted, that in terms of the clear message in the Quran, the acts and sayings of the Prophet Muhammad are to be obeyed. Therefore, when the aforementioned 'hadiths' are available stating in clear terms, that the Prophet Muhammad, considered the pronouncement of three divorces in one sitting as one, that should be given due expression. It was the contention of learned senior counsel, that it is reported, that when once news was brought to the Prophet Muhammad, that one of his disciples had divorced his wife, by pronouncing three talaqs at one and the same time, the Prophet Muhammad stood up in anger and declared that the man was making a plaything of the words of God, and made him take back his wife. The instance, which is supported by authentic support through available text, according to learned senior counsel, was sufficient by itself, to dispose of the present controversy. 52. It was also submitted, that even if one examines the deeds of the Prophet Muhammad's companions, it was quite clear from the 'hadiths', that the same were followed during Caliph Abu Bakr's time, and also during the first two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adith' which enjoin, that in case of breach between husband and wife, it should be referred to the arbitration, and failing an amicable settlement, a divorce was permissible, subject to a period of waiting or 'idaat', during which a reconciliation was also to be attempted, and if successful, the husband could take back his wife. The main idea in the procedure for divorce, as laid down by Islam, it was submitted, was to give the parties an opportunity for repproachment. If three pronouncements are treated as a 'mughallazah' - divorce, then no opportunity is available to the spouses, to retrieve a decision taken in haste. The rule of 'talaq-e-biddat', it was pointed out, was introduced long after the time of the Prophet. It was submitted, that it renders the measures provided for in the Quran against hasty action ineffective, and thereby deprives people of a chance to change their minds, to retrieve their mistakes and retain their wives. 54. Based on the above submissions, it was contended, that though matters of religion have periodically come before courts in India, and the issues have been decided in the context of Articles 25 and 26 of the Constitution. Raising concerns over is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the 'hadiths' in case of a conflict. And thereupon, the Imam had the responsibility to resolve issues of conflict, not on the basis of his own views, but by reading the verses, namely, the Quran and the 'hadiths', and to determine therefrom, the correct interpretation. It was submitted, that the role of a court, not being a body well versed in the intricacies of faith, would not extend to an interpretation of either the Quran or the 'hadiths', and therefore, 'talaq-e-biddat' should also be interpreted on the touchstone of reasonableness, in tune with the prevailing societal outlook. 57. Ms. Nitya Ramakrishna, Advocate, appeared on behalf of respondent no.11 (in Writ Petition (C) No.118 of 2016) - Dr. Noorjehan Safia Niaz, who was impleaded as such, by an order dated 29.6.2016. It was submitted by learned counsel, that 'talaq-e-biddat' was a mode of divorce that operated instantaneously. It was contended, that the practice of 'talaq-e-biddat', was absolutely invalid even in terms of Muslim 'personal law' - 'Shariat'. It was submitted, that it was not required of this Court to strike down the practice of 'talaq-e-biddat', it was submitted, that it would suffice if this Court merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, made a huge blunder by upholding 'talaq-e-biddat' - triple talaq. Learned counsel placed reliance on a number of judgments rendered by different High Courts, culminating in the recent judgments of three High Courts (-for details, refer to Part-6 - Judicial pronouncements, on the subject of 'talaq-e-biddat'). 60. Based on the above, it was asserted, that 'talaq-e-biddat' could not be considered as a valid mode for severing matrimonial ties under the Muslim 'personal law' - 'Shariat'. In view of the above submissions, and on a reiteration of the submissions advanced by learned counsel who had entered appearance prior to her, it was submitted, that the clear preponderance of judicial opinion after independence of India has been, that Muslim 'personal law', does not approve 'talaq-e-biddat', and therefore, in terms of the Muslim 'personal law', this Court should declare 'talaq-e-biddat', as unacceptable in law, and should also declare it as unconstitutional. 61. Dr. Rajan Chandra and Mr. Arif Mohd. Khan, Advocates, appeared on behalf of the Muslim Women Personal Law Board. It was their contention, that it has been acknowledged by all concerned, including the AIMPLB, that 'talaq-e- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r been accepted as a valid means of divorce, even under the Muslim 'personal law'. Adopting the submissions of learned counsel, who had already assisted this Court on behalf of the petitioners, it was submitted, that this Court should declare 'talaq-e-biddat', as unconstitutional and violative of Articles 14 and 15 of the Constitution. 62. The learned Attorney General for India - Mr. Mukul Rohatgi commenced his submissions by contending, that in this case, this Court has been called upon to determine, whether the practice of 'talaq-e-biddat' was compatible with contemporary constitutional morality and the principles of gender equality and gender equity guaranteed under the Constitution. In the context of the above debate, it was submitted, that the pivotal issue that needed to be answered was, whether under a secular Constitution, Muslim women could be discriminated against, merely by virtue of their religious identity. And/or whether Muslim women, could be relegated to a status significantly more vulnerable than their counterparts who professed other faiths - Hindu, Christian, Zoroastrian, Buddhist, Sikh, Jain, etc.. In other words, the fundamental question for determination by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f, reliance was placed on C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil28, wherein a 3-Judge Bench of this Court observed as under: "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 India [(1994) 3 SCC 1] this Court held that the Preamble is part of the basic structure of the Constitution. Handicaps should be removed only under rule of law to enliven the trinity of justice, equality and liberty with dignity of person. The basic structure permeates equality of status and opportunity. The personal laws conferring inferior status on women is anathema to equality. Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution lest they become void under Article 13 if they violate fundamental righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for women, including girl child are, therefore, inalienable, integral and indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth, culturally, socially and economically. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights." Reference was also made to Anuj Garg v. Hotel Association of India29, wherein it was submitted, that this Court had emphasized on the value of gender equality, and the need to discard patriarchal mindset. For arriving at the above conclusion, it was submitted, that this Court had relied upon international jurisprudence, to strike down a law which debarred women from employment on the pretext that the object of the law was, to afford them protection. The Court held that "it is for the court to review that the majoritarian impulses rooted in moralistic tradition do not impinge upon individual autonomy (of the women)". The Court also quoted from a judgment of the U.S. Supreme Court where discrimination w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cratic societies, or countries where Islam is the State religion. It was contended, that the impugned practice was repugnant to the guarantee of secularism, which it was pointed out, was an essential feature of the Constitution. Perpetuation of regressive or unjust practices in the name of religion, it was submitted, was anathema to a secular Constitution, which guarantees non-discrimination on grounds of religion. It was also submitted, that in the context of gender equality and gender equity, the larger goal of the State was, to strive towards the establishment of a social democracy, where each one was equal to all others. Reference in this behalf was made to the closing speech on the draft Constitution on 25th November, 1949, of Dr. Ambedkar who had stated: "What we must do is not to be attained with mere political democracy; we must make out political democracy and a social democracy as well. Political democracy cannot last unless there lies on the base of it a social democracy." A social democracy has been described as "A way of life which recognizes liberty, equality and fraternity as principles of life". It was therefore submitted, that in order to achieve social democracy, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Law should be capable to expand freedom of the people and the legal order can weigh with utmost equal care to provide the underpinning of the highly inequitable social order. Judicial review must be exercised with insight into social values to supplement the changing social needs. The existing social inequalities or imbalances are required to be removed readjusting the social order through rule of law...." The learned Attorney General then submitted, that in paragraph 20 of the Valsamma Paul case20, it was noted, that various Hindu practices which were not in tune with the times, had been done away with, in the interest of promoting equality and fraternity. In paragraph 21 of the above judgment, this Court had emphasized the need to divorce religion from 'personal law'. And in paragraph 22, a mention was made about the need to foster a national identity, which would not deny pluralism of Indian culture, but would rather preserve it. Relevant extracts of the aforesaid judgment relied upon during the course of hearing, are reproduced herein below: "21. The Constitution through its Preamble, Fundamental Rights and Directive Principles created secular State based on the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues and traditional notions about the role of women in society, were an impediment to the goal for achieving social democracy. In this behalf it was contended, that gender inequity impacts not only women, but had a ripple effect on the rest of the community, preventing it from shaking out of backwardness and partaking to the full, liberties guaranteed under the Constitution. Citizens from all communities, it was submitted, had the right to the enjoyment of all the constitutional guarantees, and if some sections of society were held back, it was likely to hold back the community at large, resulting in a lopsided development, with pockets of social backwardness. According to the learned Attorney General, this kind of lopsided development was not in the larger interest of the integrity and development of the nation. It was submitted, that secularism, equality and fraternity being the overarching guiding principles of all communities, must be given effect to. This would move the entire citizenry forward, guaranteeing to women equal rights, and at the same time, preserving diversity and plurality. 67. It was the emphatic assertion of the learned Attorney General, that freedom of religi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "equally" entitled to the freedom of conscience, and the right to profess, practice and propagate religion. This, according to the learned Attorney General, should be understood to mean, that the rights conferred by this article were equally available to women, and were not confined to men alone. Therefore, it was contended, that any patriarchal or one sided interpretation of religion (or a practice of religion), ought not to be countenanced. 69. It was emphasised by the learned Attorney General, that it was necessary to draw a line between religion per se, and religious practices. It was submitted, that the latter were not protected under Article 25. "Religion", according to the learned Attorney General, has been explained by this Court in A.S. Narayana Deekshitulu v. State of A.P.34, as under : "86. A religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by those who profess religion to be conducive to their spiritual well-being. A religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is not every aspect of religion that has been safeguarded by Articles 25 and 26 nor has the Constitution provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal application as to what is religion and what are matters of religious belief or religious practice. That is far from saying that it is not possible to state with reasonable certainty the limits within which the Constitution conferred a right to profess religion. Therefore, the right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right to propagating religion which is subject to legislation by the State limiting or regulating any activity - economic, financial, political or secular which are associated with religious belief, faith, practice or custom. They are subject to reform on social welfare by appropriate legislation by the State. Though religious practices and performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in a particular doctrine, that by itself is not conclusive or decisive. What are essential parts of religion or religious belief or matters or religion and religious practice is essentially a question of fact to be considered in the context in which the question has arisen and the evidence - factual or legislative or historic - presented in that context is required to be considered an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly polygamy prevailed across communities for several centuries, including the ancient Greeks and Romans, Hindus, Jews and Zoroastrians. It was pointed out, that polygamy had less to do with religion, and more to do with social norms of that time. In the Quran as well, it was contended, it appears that the prevalence (or perhaps, rampant practice) of polygamy in pre-Islamic society, was sought to be regulated and restricted, so as to treat women better than they were treated in pre-Islamic times. It was submitted, that the practice of polygamy was a social practice rather than a religious one, and therefore, would not be protected under Article 25. It was sought to be explained, that 'talaq-e-biddat' was similarly a practice never clearly recognized, nor was it seen with favour, and needed to be examined in the background of the above narrated historic position. 70. In order to be able to seek interference, with reference to the issue canvassed, and in order to surmount the legal object in advancing his contentions, the learned Attorney General pointed out, that there was an apparent misconstruction, which had led to the conclusions drawn by the Bombay High Court, in State of Bomba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not exhaustive, and should be read as if it encompassed within its scope, 'personal law' as well. It was submitted, that under clause (2) of Article 246 of the Constitution, Parliament and State Legislatures had the power to make laws, also on the subject enumerated in entry 5 of the Concurrent List in the Seventh Schedule, pertaining to "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." Since the subjects expressed in entry 5 aforementioned, were relatable to 'personal law', therefore, 'personal law', according to the learned Attorney General, was liable to include law within the meaning of sub-clause (a) of clause (3) of Article 13 of the Constitution. The observations of the Bombay High Court in the Narasu Appa Mali case23, it was contended, were contrary to the plain language of Article 13. Secondly, it was submitted, the plain language of Article 13(3)(a) which defines "law" as including "any...custom or usage having in the territory of India the force of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " It was also asserted, that this Court had further held, "Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution lest they become void under Article 13 if they violate fundamental rights." It is significant to note, that this case concerned the inheritance rights of Hindu women. In view of the aforesaid, it was submitted, that the observations in the Narasu Appa Mali case23, that 'personal law' was not covered under Article 13, was incorrect and not binding upon this Court. 72. It was also contended, that the Constitution undoubtedly accords guarantee of faith and belief to every citizen, but every practice of faith could not be held to be an integral part of religion and belief. It was therefore submitted, that every sustainable (and enforceable) religious practice, must satisfy the overarching constitutional goal, of gender equality, gender justice and dignity. It was asserted, that the practice of 'talaq-e-biddat', could not be regarded as a part of any "essential religious practice", and as such, could not be entitled to the protection of Article 25. The test of what amounts to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defence of the Commonwealth and steps were taken against them under the National Security Regulations of the State. The legality of the action of the Government was questioned by means of a writ petition before the High Court and the High Court held that the action of the Government was justified and that Section 116, which guaranteed freedom of religion under the Australian Constitution, was not in any way infringed by the National Security Regulations (Vide Adelaide Company v. Commonwealth, 67 CLR 116, 127). These were undoubtedly political activities though arising out of religious belief entertained by a particular community. In such cases, as Chief Justice Latham pointed out, the provision for protection of religion was not an absolute protection to be interpreted and applied independently of other provisions of the Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery." Reference was then made to Ratilal v. State of Bombay37, wherein it was observed as under: "13. Religious practices or performances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o take up first the complaint founded on Article 25(1). That article runs as follows: "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, practice and propagate religion." After referring to the provisions of clause (2) which lays down certain exceptions which are not material for our present purpose this Court has, in Ratilal Panachand Gandhi v. The State of Bombay [(1954) SCR 1055, 1062-1063] explained the meaning and scope of this article thus: "Thus, subject to the restrictions which this article imposes, every person has a fundamenta l right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and section also violates the fundamental rights of the petitioners ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others. It is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution. The free exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is a goat and that for seven a cow or a camel. It is therefore, optional for a Muslim to sacrifice a goat for one person or a cow or a camel for seven persons. It does not appear to be obligatory that a person must sacrifice a cow. The very fact of an option seems to run counter to the notion of an obligatory duty. It is, however, pointed out that a person with six other members of his family may afford to sacrifice a cow but may not be able to afford to sacrifice seven goats. So there may be an economic compulsion although there is no religious compulsion. It is also pointed out that from time immemorial the Indian Mussalmans have been sacrificing cows and this practice, if not enjoined, is certainly sanctioned by their religion and it amounts to their practice of religion protected by Article 25. While the petitioners claim that the sacrifice of a cow is essential, the State denies the obligatory nature of the religious practice. The fact, emphasised by the respondents, cannot be disputed, namely, that many Mussalmans do not sacrifice a cow on the Bakr Id Day. It is part of the known history of India that the Moghul Emperor Babar saw the wisdom of prohibiting the slaughter of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contrasted with the second portion of Article 25(2)(b), far from precise and is flexible in its content. In this connection it has to be borne in mind that limitations imposed on religious practices on the ground of public order, morality or health have already been saved by the opening words of Article 25(1) and the saving would cover beliefs and practices even though considered essential or vital by those professing the religion. I consider that in the context in which the phrase occurs, it is intended to save the validity only of those laws which do not invade the basic and essential practices of religion which are guaranteed by the operative portion of Article 25(1) for two reasons: ( 1 ) To read the saving as coveringeven the basic essential practices of religion, would in effect nullify and render meaningless the entire guarantee of religious freedom - a freedom not merely to profess, but to practice religion, for very few pieces of legislation for abrogating religious practices could fail to be subsumed under the caption of "a provision for social welfare or reform". (2) If the phrase just quoted was intended to have such a wide operation as cutting at even the essentials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration on the Protection of Women and Children in Emergency and Armed Conflict (1974), Inter-American Convention for the Prevention, Punishment and Elimination of Violence against Women (1955), Universal Declaration on Democracy (1997), and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (1999). It was submitted by the learned Attorney General, that the Government of India ratified the Vienna Declaration and the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) on 19-6-1993. The preamble of CEDAW reiterates, that discrimination against women violated the principles of equality of rights and respect for human dignity. And that, such inequality was an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country. It was emphasized that such inequality, also hampered the growth of the personality from society and family, and made it more difficult for the full development of potentialities of women, in the service of their countries and of humanity. Article 1 of the CEDAW, it was pointed out, defines discrimination against women, while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation are encouraged, and men and women are considered equal in matters of family and divorce. In Indonesia, divorce is a judicial process, where those marrying under Islamic Law, can approach the Religious Court for a divorce, while others can approach District Courts for the same. In Iran and Sri Lanka, divorce can be granted by a Qazi and/or a court, only after reconciliation efforts have failed. It was submitted, that even Islamic theocratic States, have undergone reform in this area of the law, and therefore, in a secular republic like India, there is no reason to deny women, the rights available all across the Muslim world. The fact that Muslim countries have undergone extensive reform, it was submitted, also establishes that the practice in question is not an essential religious practice. 76. In the circumstance aforesaid, it was submitted, that the practice of 'talaq-e-biddat' cannot be protected under Article 25(1) of the Constitution. Furthermore, since Article 25(1) is subject to Part III of the Constitution, as such, it was liable to be in consonance with, and not violative of the rights conferred through Articles 14, 15 and 21 of the Constitution. Since the practice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt would enact a legislation within no time, laying down grounds on which Muslim men could divorce their wives. We have accordingly recorded the above episode, because it has relevance to the outcome of the present matter. 78. Mr. Tushar Mehta, learned Additional Solicitor General of India, endorsed all the submissions and arguments, advanced by the learned Attorney General. On each aspect of the matter, the learned Additional Solicitor General, independently supported the legal propositions canvassed on behalf of the Union of India. Part-8. The rebuttal of the petitioners' contentions: 79. The submissions advanced on behalf of the petitioners, were first of all sought to be repudiated by the AIMPLB - respondent no.8 (hereinafter referred to as the AIMPLB). Mr. Kapil Sibal, Senior Advocate, and a number of other learned counsel represented the AIMPLB. In order to lay down the foundation to the submissions sought to be canvassed on behalf of the respondents, it was asserted, that ceremonies performed at the time of birth of an individual, are in consonance with the religious norms of the family to which the child is born. And thereafter, in continuation each stage of life during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aveson, who defined the term as under: "The idea of the personal law is based on the conception of man as a social being, so that those transactions of his daily life which affect him most closely in a personal sense, such as marriage, divorce, legitimacy, many kinds of capacity, and succession, may be governed universally by that system of law deemed most suitable and adequate for the purpose ..." Based on the cumulative definition of the term 'personal law', it was submitted, that the evolution of the matters of faith relating to religious practices, must necessarily be judged in the context of practices adopted by the concerned community, with reference to each individual aspect of 'personal law'. It was conceded, on behalf of the AIMPLB, that 'personal laws' were per se subservient to legislation, and as such, 'personal laws' were liable to be considered as mandatory, with reference to numerous aspects of an individual's life, only in the absence of legislation. 81. Even though it was acknowledged, that legislation on an issue would override 'personal law' on the matter, it was pointed out, that in the absence of legislation 'personal laws' in the Indian context, could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution, would not include faith of religious denominations, embedded in their 'personal law'. Insofar as the instant aspect of the matter is concerned, reference was also made to Section 112 of the Government of India Act, 1915, wherein a clear distinction was sought to be drawn between 'personal laws' and 'customs having force of law'. Section 112, aforementioned is extracted hereunder: "112. Law to be administered in cases of inheritance and succession. - The high courts at Calcutta, Madras and Bombay, in the exercise of their original jurisdiction in suits against inhabitants of Calcutta, Madras or Bombay, as the case may be, shall, in maters 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." It was pointed out, that in framing Article 13, the choice of the words "custom and usage" and the exclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diths' declared talaq by itself, as not a good practice, and yet - recognized the factum of talaq, and its legal sanctity. It was submitted, that talaq was accepted by all believers of Islam. It was therefore contended, that it was absurd for the petitioners to have submitted that the Quran alone, provided the details with reference to which, and in the manner in which, talaq could be administered. It was therefore asserted, that a close examination of the challenge raised by the petitioners would reveal that talaq as a concept itself was not under challenge at the hands of the petitioners. It was pointed out, that truthfully the petitioners were merely assailing the course adopted by Muslim men, in divorcing their wives through the 'talaq-e-biddat' procedure. 85. Learned counsel acknowledged the position adopted on behalf of the petitioners, namely, that Islam represents (i) what is provided for in the Quran, (ii) what was stated and practiced by the Prophet Muhammad from time to time, and (iii) what was memorized and recorded in the 'hadiths' which through centuries of generations, Muslim belief represents what the Prophet Muhamad had said and practiced. It was asserted, that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be able to maintain the limits set by Allah. Now, if you apprehend that they would not maintain the limits set by Allah, then, there is no sin or them in what she gives up to secure her release. These are the limits set by Allah. Therefore, do not exceed them. Whosoever exceeds the limits set by Allah, then, those are the transgressors. (Quran, Al-Baqarah 2:229) ii. Thereafter, if he divorces her, she shall no longer remain lawful for him unless she marries a man other than him. Should he too divorce her, then there is no sin on them in their returning to each other, if they think they would maintain the limits set by Allah. These are the limits set by Allah that He makes clear to a people who know (that Allah is alone capable of setting these limits. (Quran, Al-Baqarah 2:229 and 230) iii. When you have divorced women, and they have reached (the end of) their waiting period, do not prevent them from marrying their husbands when they mutually agree with fairness. Thus, the advice is given to everyone of you who believes in Allah and in the Hereafter. This is more pure and clean for you. Allah knows and you do not know. (Quran, Al-Baqarah, 2:232) iv. O Prophet, when you peopl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illing of Ali. So you are divorced thrice". She covered herself with her cloth and said, "By Allah I did not mean this". She stayed until her iddat lapsed and she departed. Hasan bin Ali sent her the remaining dower and a gift of twenty thousand dirhams. When the messenger reached her and she saw the money she said "this is a very small gift from the beloved from whom I have been separated". When the messenger informed Hasan bin Ali about this he broke into tears saying, "Had I not heard from my father reporting from my grandfather that the Prophet (Pbuh) said that whoever pronounced triple talaaq upon his wife, she will not be permitted to him till the time she marries a husband other than he, I would have taken her back. (AI-Sunan AI-Kubra Iil Bayhaqi, Hadith number: 14492) v. Uwaymar Ajlani complained to the Prophet (Pbuh) that he had seen his wife committing adultery. His wife denied this charge. In line with the Quranic command, the Prophet (Pbuh) initiated "a proceeding for the couple. Upon the completion of the process, Uwaymar said: "If I retain her, I Will be taken as a liar". So in the Prophet's presence, and without the Prophet's command, he pronounced Triple Talaq. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Bukhari, 3/402)" 88. Based on the factual position recorded in the previous three paragraphs, it was submitted, that this Court should not attempt to interpret the manner in which the believers of the faith had understood the process for pronouncement of talaq. It was pointed out, that matters of faith should best be left to be interpreted by the community itself, in the manner in which its members understand their own religion. This, according to learned counsel, was imperative in view of the absolute contradictions which clearly emerge from a collective perusal of the submissions advanced on behalf the petitioners, as also, those canvassed on behalf of the respondents. It was submitted, that different scholars have applied different interpretations. It was also pointed out, that the interpretations relied upon on behalf of the petitioners, were mostly of scholars who did not belong to the Sunni faith, and were therefore irrelevant, for the determination of the interpretation of the believers and followers of the Hanafi school of Sunni Muslims. One of the scholars relied upon, according to learned senior counsel, was a disciple of Mirza Ghulam Ahmed (the founder of the Quadini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself record his own understanding what the Prophet Muhammad had said. It was pointed out, that he had two disciples - Abu Yusuf and Imam Mohammed. It was submitted, that Imam Abu Yusuf in his book "Ikhtilaaf Abi Hanifah wabni Abi Laila" (first edition, 1357) stated the following on the triple talaq: "i. If the man said to his wife, "Your matter is in your hand:, she said, "I have divorced myself three times". Abu Haneefah (may Allah be pleased with him) says: "If the husband intends three times, then it is three." Reference was also made to the writings of Imam Abu Mohammed in his book entitled "Al-Mautta" (first volume), wherein he asserted as under: "i. Muhammad says: So we follow this that if she chooses her husband then it will not be counted a divorce, and if she chooses herself then it is accorfding to what her husband intended, if his intention is one hen it will be counted one irrevocable (Baainah) divorce, and if his is three it will be three divorces. This is the saying of Abu Hanifah." 91. Reference was also made to writings with respect to 'talaq-e-biddat' by scholars of other schools. In this behalf, the Court's attention was invited to the following: "(i) M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slims 'talaq-e-biddat' - triple talaq was a part and parcel of their 'personal law', namely, a part and parcel of their faith, which they had followed generation after generation, over centuries. That being the position, it was submitted, that 'talaq-e-biddat' should be treated as the constitutionally protected fundamental right of Muslims, which could not be interfered with on the touchstone of being violative of the fundamental rights, enshrined in the Constitution - or for that matter, constitutional morality propounded at the behest of the petitioners. 93. Learned senior counsel reiterated, that judicial intereference in the matter of 'personal law' is not the proper course to be adopted for achieving the prayers raised by the petitoners. Reference was made by a large number of Muslim countries across 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), which had provided the necessary succor by legislating on orthodox practices, which were not attuned to present day social norms. It was submitted, that in all the countries in which the practice of 'talaq-e-biddat' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Serbs, Croats and Slovenes, is obliged under treaty obligations to guarantee the rights of minorities. The clause regarding rights of Mussulmans reads as follows: "The Serb, Croat and Slovene State agrees to grant to the Mussulmans in the matter of family law and personal status provisions suitable for regulating these matters in accordance with the Mussulman usage." We find similar clauses in several other European constitutions also. But these refer to minorities while my amendment refers not to the minorities alone but to all people including the majority community, because it says, "Any group, section or community of people shall not be obliged" etc. Therefore it seeks to secure the rights of all people in regard to their existing personal law. Again this amendment does not seek to introduce any innovation or bring in a new set of laws for the people, but only wants the maintenance of the personal law already existing among certain sections of people. Now why do people want a uniform civil code, as in article 35? Their idea evidently is to secure harmony through uniformity. But I maintain that for that purpose it is not necessary to regiment the civil law of the peopl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o propagate religion, I think the present article tries to undo what has been given in article 19. I submit, Sir, that we must try to prevent this anomaly. In article 19 we enacted a positive provision which is justiciable and which any subject of a State irrespective of his caste and community can take to a Court of law and seek enforcement. On the other hand, by the article under reference we are giving the State some amount of latitude which may enable into ignore the right conceded. And this right is not justiciable. It recommends to the State certain things and therefore it gives a right to the State. But then the subject has not been given any right under this provision. Submit that the present article is likely to encourage testate to break the guarantees given in article 19. I submit, Sir, there are certain aspects of the Civil Procedure Code which have already interfered with our personal laws and very rightly so. But during the 175 years of British rule, they did not interfere with certain fundamental personal laws. They have enacted the Registration Act, the Limitation Act, the Civil Procedure Code, the Criminal Procedure Code, the Penal Code, the Evidence Act, the Tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mere idealism. It is a question of stern reality which we must not refuse to face and I believe it will lead to a considerable amount of misunderstanding and resentment amongst the various sections of the country. What the British in 175 years failed to door was afraid to do, what the Muslims in the course of 500 years refrained from doing, we should not give power to testate to do all at once. I submit, Sir, that we should proceed not in haste but with caution, with experience, with statesmanship and with sympathy. Mahbood Ali Baig Sahib Bahadur: Sir, I move that the following proviso be added to article 35: "Provided that nothing in this article shall affect the personal law of the citizen." My view of article 35 is that the words "Civil Code" do not cover the strictly personal law of a citizen. The Civil Code covers laws of this kind: laws of property, transfer of property, law of contract, law of evidence etc. The law as observed by a particular religious community is not covered by article 35. That is my view. Anyhow, in order to clarify the position that article 35 does not affect the personal law of the citizen, I have given notice of this amendment. Now, Sir, if for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orce, endowments and so many other matters. The House will not that one of the reasons why the Britisher, having conquered this country, has been able to carry on the administration of this country for the last 150 years and over was that he gave a guarantee of following their own personal laws to each of the various communities in the country. That is one of the secrets of success and the basis of the administration of justice on which even the foreign rule was based. I ask, Sir, whether by the freedom we have obtained for this country, are we going to give up that freedom of conscience and that freedom of religious practices and that freedom of following one's own personal law and try or aspire to impose upon the whole country one code of civil law, whatever it may mean, - which I say, as it is, may include even all branches of civil law, namely, the law of marriage, law of inheritance, law of divorce and so many other kindred matters? In the first place, I would like to know the real intention with which this clause has been introduced. If the words "Civil Code" are intended only to apply to matters procedure like the Civil Procedure Code and such other laws which are unifo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amers of this article mean by this. On a matter of such grave importance, I am very sorry to find that the framers or the draftsmen of this article have not bestowed sufficiently serious attention to that. Whether it is copied from anywhere or not, I do not know. Anyhow, if it is copied from anywhere, I must condemn that provision even in that Constitution. It is very easy to copy sections from other constitutions of countries where the circumstances are entirely different. There are ever so many multitudes of communities following various customs for centuries or thousands of years. By one stroke of the pen you want to annul all that and make them uniform. What is the purpose served? What is the purpose served by this uniformity except to murder the consciences of the people and make them feel that they are being trampled upon as regards their religious rights and practices? Such a tyrannous measure ought not to find a place in our Constitution. I submit, Sir, there are ever so many sections of the Hindu community who are rebelling against this and who voice forth their feelings in much stronger language than I am using. If the framers of this article say that even the majority co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits legislation covering secular activities. The whole object of this article is that as and when the Parliament thinks proper or rather when the majority in the Parliament thinks proper an attempt may be made to unify the personal law of the country. A further argument has been advanced that the enactment of a Civil Code would be tyrannical to minorities. Is it tyrannical? Nowhere in advanced Muslim countries the personal law of each minority has been recognised as so sacrosanct as to prevent the enactment of a Civil Code. Take for instance Turkey or Egypt. No minority in these countries is permitted to have such rights. But I go further. When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Cutchi Memons were highly dissatisfied. They then followed certain Hindu customs; for generations since they became converts they had done so. They did not want to conform to the Shariat; and yet by legislation of the Central Legislature certain Muslim members who felt that Shariat law should be enforced upon the whole community carried their point. The Khojas and Cutchi Memons most unwillingly had to submit to it. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he personal law of inheritance, succession etc. is really apart of their religion. If that were so, you can never give, for instance, equality to women. But you have already passed a Fundamental Right to that effect and you have an article here which lays down that there should be no discrimination against sex. Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India. xxx xxx xxx Shri Alladi Krishanaswami Ayyar (Madras: General): Mr. Vice-President, after the very full exposition of my friend the Honourable Mr. Munshi, it is not necessary to cover the whole ground. But it is as well to understand whether there can be any real objection to the article as it runs. "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." xxx xxx xxx Now, my friend Mr. Pocker levelled an attack against the Drafting Committee on the ground that they did not know their bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omain of religion. Under the Moslem law, unlike under Hindu law, marriage is purely a civil contract. The idea of a sacrament does not enter into the concept of marriage in Muslim jurisprudence though the incidence of the contract may be governed by what is laid down in the Koran and by theater jurists. Therefore, there is no question of religion being in danger. Certainly no Parliament, no Legislature will be so unwise as to attempt it, apart from the power of the Legislature to interfere with religious tenets of peoples. After all the only community that is willing to adapt itself to changing times seems to be the majority community in the country. They are willing to take lessons from the minority and adapt their Hindu Laws and take a leaf from the Muslims for the purpose of reforming even the Hindu Law. Therefore, there is no force to the objection that is put forward to Article 35. The future Legislatures may attempt a uniform Civil Code or they may not. The uniform Civil Code will run into every aspect of Civil Law. In regard to contracts, procedure and property uniformity is sought to be secured by their finding a place in the Concurrent List. In respect of these matters the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the intention of those who desire to have Article 35 as part of the Constitution to bring about that change. Therefore, the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have, as a matter of fact, covered the whole lot of the field which is covered by a uniform Civil Code in this country. It is therefore too late now to ask the question whether we could do it. As I say, we have already done it. Coming to the amendments, there are only two observations which I would like to make. My first observation would be to state that members who put forth these amendments say that the Muslim personal law, so far as this country was concerned, was immutable and uniform through the whole of India. Now I wish to challenge that statement. I think most of my friends who have spoken on this amendment have quite forgotten that up to 1935 the North-West Frontier Province was not subject to the Shariat Law. It followed the Hindu Law in the matter of succession and in other matters, so much so that it was in 1939 that the Central Legislature had to come into the field and to abrogate the application of the Hindu Law to the Muslims of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code may be purely voluntary. Parliament may feel the ground by some such method. This is not a novel method. It was adopted in the Shariat Act of 1937 when it was applied to territories other than the North-West Frontier Province. The law said that here is a Shariat law which should be applied to Mussulmans who wanted that he should be bound by the Shariat Act should go to an officer of the state, make a declaration that he is willing to be bound by it, and after he has made that declaration the law will bind him and his successors. It would be perfectly possible for parliament to introduce a provision of that sort; so that the fear which my friends have expressed here will be altogether nullified. I therefore submit that there is no substance in these amendments and I oppose them. When the matter was put to vote by the Vice President of the Constituent Assembly, it was resolved as under: Mr. Vice-President: The question is: That the following proviso be added to Article 35: 'Provided that any group, Section or community or people shall not be obliged to give up its own personal law in case it has such a law'. The motion was negatived. Based on the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other community. Sir, here what we are concerned with is only the practice of the members of certain families coming under one community. It is a family practice and in such cases as succession, inheritance and disposal of properties by way of wakf and will, the personal law operates. It is only with such matters that we are concerned under personal law. In other matters, such as evidence, transfer of property, contracts and in innumerable other questions of this sort, the civil code will operate and will apply to every citizen of the land, to whatever community he may belong. Therefore, this will not in any way detract from the desirable amount of uniformity which the state may try to bring about, in the matter of the civil law. This practice of following personal law has been there amongst the people for ages. What I want under this amendment is that that practice should not be disturbed now and I want only the continuance of a practice that has been going on among the people for ages past. On a previous occasion Dr. Ambedkar spoke about certain enactments concerning Muslim personal law, enactments relating to Wakf, Shariat law and Muslim marriage law. Here there was no questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be free to impose in the interests of public morality, public order and public health and also in so far as the right conferred here does not conflict in any way with the other provisions elaborated under this part of the Constitution. Some of my Friends argued that this right ought not to be permitted in this Draft Constitution for the simple reason that we have declared time and again that this is going to be a secular State and as such practice of religion should not be permitted as a fundamental right. It has been further argued that by conferring the additional right to propagate a particular faith or religion the door is opened for all manner of troubles and conflicts which would eventually paralyse the normal life of the State. I would say at once that this conception of a secular State is wholly wrong. (By secular State, as I understand it, is meant that the State is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. This means in essence that no particular religion in the State will receive any State patronage whatsoever. The State is not going to establish, patronis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al property and to claim dissolution of marriage on certain grounds. After explaining the object of the Bill briefly, it gives me great pleasure to say that the Bill has met with a unanimous support from the Select Committee except in one or two points. Objection has been taken to the words "or Law" in Clause 2 of the Bill by Messrs Mudie, Muhammad Azhar Ali and Sir Muhammad Yarnin Khan in their minutes of dissent. As there is an amendment on the agenda for the omission of these words, I shall deal with it when it is moved. Meanwhile, I would confine my remarks to the modifications suggested by the Select Committee. The main changes made by it are two, one relating to the exclusion of the agricultural land from the purview of the Bill, and the other concerning the amplification of the word "divorce". As succession to agricultural land is an exclusively provincial subject under the Government of India Act, 1935, it had, much against my wish, to be excluded from the Bill. Having regard to the different forms of dissolution of marriage recognised by the Shariat, it was considered necessary to provide for all of them. In order to implement the provisions in this respect, a new Clause 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver a Muslim died, at least before the Frontier Shariat Law was enacted in the North-West Frontier Province, his daughter, his sister and his wife all used to be thrown into the street, and the reversioner in the tenth degree would come round and collar all his property. I think that the conscience of all those who believe in progress, social, political and economic will revolt against such practice and once people realise that this Bill is primarily intended to improve the status of women and to confer upon them benefits which are lawfully their due under the Muhammadan law, then they will gladly support this measure. 'Custom' is a very indefinite term. I know it as a lawyer that in my Province whenever a question of custom used to crop up it used to involve any amount of research work, lawyers used to indulge in research work to find out cases, look up small books on customary law and it was found that the custom varied from tribe to tribe, from village to village and it has been held, by the High Court in our Province before the Shariat Act came into force, that custom varied from one part of the village to the other. The position was so uncertain that people had to spen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long overdue. I have known cases where a widow who was enjoying life estate-and whose reversioners were waiting for her death-did not die but happened to have a very long life. There have been cases in the Northwest Frontier Province where people have taken the law into their own hands and in order to get the property they have murdered the widow. I can cite other cases before this Honourable House. There have been cases which I have come across in my legal and professional career where, when a man dies leaving a wife who by customary law has to enjoy the property till her death or remarriage, certain reversioners come forward and bring a suit to declare that the widow had married one of the reversioners with a view to proving that she was no longer a widow and with a view to terminate her life estate. There have been numerous cases where families have been ruined, murderers and stabbings have taken place because the dead hand of customary law stood in the way of the reversioners who were anxious to get what they could not get and in order to deprive the poor widow, false cases have been tromped up that she had remarried. There have been many other illegal tricks resorted to by peo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hariat' comprised of the declarations contained in the Quran, or through 'hadiths', 'ijmas' and 'qiyas' (-for details, refer to Part-2 - The practiced modes of 'talaq' amongst Muslims). It was pointed out, that the articles of faith, as have been expressed on a variety of subjects of Muslim 'personal law' - 'Shariat', have been in place ever since they were declared by the Prophet Mohammed. Insofar as the practice of 'talaq-e-biddat' is concerned, it was submitted, that it has been practised amongst Muslims for the last 1400 years. It was submitted, that the same is an accepted mode of divorce amongst Muslims. It was therefore urged, that it was not for this Court to decide, whether the aforesaid practice was just and equitable. The reason for this Court not to interfere with the same, it was submitted was, that the same was a matter of faith, of a majority of Muslims in this country, and this Court would be well advised to leave such a practice of faith, to be determined in the manner as was considered fit by those who were governed thereby. A belief, according to learned senior Counsel, which is practiced for 1400 years, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 017 in relation to Divorce (Talaq) in the Muslim community. Thereby it was resolved to convey a code of conduct/guidelines to be followed in the matters of divorce particularly emphasizing to avoid pronouncement of three divorces in one sitting. A copy of the resolution dated April 16, 2017 alongwith the relevant Translation of Resolution Nos. 2, 3, 4 & 5 relating to Talaq (Divorce) is enclosed herewith for the perusal of this Hon'ble Court and marked as Annexure A-1 (Colly) [Page Nos. 4 to 12] to the present Affidavit. Based on the above affidavit, it was contended, that social reforms with reference to 'personal law' must emerge from the concerned community itself. It was reiterated, that no court should have any say in the matter of reforms to 'personal law'. It was submitted, that it was not within the domain of judicial discretion to interfere with the matters of 'personal law' except on grounds depicted in Article 25(1) of the Constitution. It was contended, that the practice of 'talaq-e-biddat' was not liable to be set aside, on any of the above grounds. 98. While supplementing the contentions noticed in the preceding paragraph, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arriage Act, 1954, and such of the parties who accept the choice (even if they profess the Muslim religion), would automatically escape from all religious practices, including 'talaq-e-biddat'. It was therefore contended, that such of the couples who married in terms of their 'personal law', must be deemed to have exercised their conscious option to be regulated by the 'personal law', under which they were married. Having exercised the aforesaid option, it was submitted, that it was not open to a Muslim couple to then plead, against the practice of 'talaq-e-biddat'. It was submitted, that when parties consent to marry, their consent does not extend to the choice of the person with reference to whom the consent is extended, but it also implicitly extends to the law by which the matrimonial alliances are to be regulated. If the consent is to marry in consonance with the 'personal law', then the rigours of 'personal law' would regulate the procedure for dissolution of marriage. And likewise, if the consent is to marry under the Special Marriage Act, 1954, the consent is to be governed by the provisions of the aforesaid legislation. In su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere fact that a Muslim husband takes more than one wife is an act of cruelty. 103. It was pointed out, that having heard the above matter, the same was dismissed by recording the following observations in paragraph 4 of the judgment: 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. 104. Having raised the two preliminary objections with reference to the entertainment of the prayer made by the Petitioner, learned Counsel invited the Court's attention to abolition of the practice of 'talaq-e-biddat' in other countries. It was submitted, that (-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), the above contention was adopted both by the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for returning to each other if they think that they can keep (within) the limits of Allah. These are the limits of Allah, which He makes clear to a people who know. It was pointed out, that the belief that after a husband has divorced his wife by pronouncing talaq thrice, it had been interfered that the three pronouncements should be treated as a singular pronouncement. It was pointed out, that High Courts have no such jurisdiction as has been exercised by them on the subject of 'talaq-e-biddat'. It was accordingly asserted, that the above action constituted the creation of inroads into 'personal law' of Muslims, which stood protected Under Article 25 of the Constitution. In this behalf, it was also submitted, that while deciding the issue whether a belief or a practice constituted an integral part of religion, this Court held, that the above question needed to be answered on the basis of the views of the followers of the faith, and none else. In order to support his above submission, learned senior Counsel, placed reliance on the Sardar Syedna Taher Saifuddin Saheb case, wherein this Court observed as under: The content of Articles 25 and 26 of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutes an essential part 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 Regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was also pointed out, that supplanting of the views of one of the schools on the beliefs of the other four schools, of Sunni Muslims, with reference to 'talaq-e-biddat', was in clear breach of the understanding of Muslims. 106. Learned senior Counsel also disputed the reliance on International Conventions by all those who had assisted this Court on behalf of the Petitioner. In this behalf, it was pointed out, that reliance on International Conventions, particularly on CEDAW was wholly misplaced, since India had expressed a clear reservation to the Conventions in order to support its constitutional policy of non-interference in the personal affairs of any community. In this behalf, while making a particular reference to CEDAW, it was submitted, that the above declarations/reservations were first made at the time of signing the aforesaid conventions and thereafter, even at the time of ratification. In this behalf, it was pointed out, that the first declaration was made by India in the following format: i) With regard to articles 5(a) and 16(1) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;personal law'. Additionally, it was submitted, that provision in this behalf was available in Article 25(2)(b), which provides that for espousing the cause of social welfare and reform it was open to the legislature even to legislate on matters governed under 'personal law'. It was therefore contended that all such submissions advanced on behalf of the Petitioners need to be ignored. 108. Mr. V. Giri, Senior Advocate, entered appearance on behalf of Jamiat-ul-Ulama-i-Hind (represented by its General Secretary, 1 Bahadur Shah Zafar Marg, New Delhi) - Respondent No. 7 in Suo Motu Writ Petition (Civil) No. 2 of 2015 and Respondent No. 6 in Writ Petition (Civil) No. 118 of 2016. It would be relevant to mention, at the outset, that learned senior Counsel endorsed the submissions advanced by Mr. Kapil Sibal and Mr. Raju Ramachandra, Senior Advocates, who had assisted this Court before him. Learned senior Counsel focused his contentions, firstly to the challenge raised to the validity of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, insofar as, it relates to 'talaq-e-biddat' on the ground, that the same being unconstitutional, was unenforce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the adjudication of disputes amongst Muslims, even prior to the above enactment in 1937. Understood in the aforesaid manner, it was submitted, that Muslim 'personal law' as a body of law, was only perpetuated, by the Shariat Act. It was submitted, that the Muslim 'personal law' had not been subsumed by the statute nor had the 1937 Act codified the Muslim 'personal law'. It was submitted, that the 1937 legislation was only statutorily declared that the Muslim 'personal law', as a set of rules, would govern the Muslims in India, and that, it would be the Muslim 'personal law' that would have an overriding effect over any custom or usage to the contrary. It was therefore reiterated, that the legislature which enacted the Muslim Personal Law (Shariat) Application Act, 1937, neither modified nor amended even in a small measure, the Muslim 'personal law' applicable to the Muslims in India, nor did the legislature while enacting the above enactment, subsumed the Muslim 'personal law', and therefore, the character of the Muslim 'personal law' did not undergo a change on account of the enactment of the Muslim Personal Law (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and propagate religion, was a universal right, guaranteed to every person, to act in affirmation of his own faith. It was submitted, that the above ambit was the core of the secular nature of the Indian Constitution. It was accordingly pointed out, that the confines of the rights protected Under Article 25(1), could be assailed on limited grounds of public order, morality and health, and also if, the provisions of Part III - Fundamental Rights, of the Constitution were breached. 109. It was submitted, that a breach of the provisions contained in Part III - Fundamental Rights under the Constitution, could only be invoked with reference to a State action, as only State action has to conform to Articles 14, 15 and 21. It was therefore submitted, that a facial subjugation of the right Under Article 25(1) to the other provisions of the Constitution would be inapplicable in the case of 'personal law', that has no source to any statute, or State action. It was submitted, that the Shariat Act affirms the applicability of Muslim 'personal law' - 'Shariat' and perpetuates it by virtue of Section 2 thereof. And therefore, it would not give the Muslim 'personal l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the other, we will need to determine whether divorce by way of 'talaq-e-biddat' - triple talaq, falls foul of Part III - Fundamental Rights of the Constitution (this determination would be subject to, the acceptance of the Petitioner's contention, that the practice has statutory sanction). However, if We conclude to the contrary, namely, that the 'talaq-e-biddat' - triple talaq, has the stature of 'personal law', We will have to determine the binding effect of the practice, and whether it can be interfered with on the judicial side by this Court. The instant course would be necessary, in view of the mandate contained in Article 25 of the Constitution, which has been relied upon by those who are opposing the Petitioner's cause. 114. Even if we agree with the proposition that 'talaq-e-biddat' - triple talaq constitutes the 'personal law' governing Muslims, on the issue of divorce, this Court will still need to examine, whether the practice of 'talaq-e-biddat' - triple talaq, violates the acceptable norms of "... public order, morality and health and to the other provisions ..." of Part III of the Constitution (-for that, is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property of Ghyas-ud-din. The judgment in the Rashid Ahmad case: AIR 1932 PC 25 was rendered in 1932. The asserted statutory status of Muslim 'personal law' (as has been canvassed by the Petitioners), emerged from the enactment of the Muslim Personal Law (Shariat) Application Act, 1937. The 'Shariat' Act expressly provided, that the Muslim 'personal law' - 'Shariat', would constitute "the Rule of decision", in causes where the parties were Muslim. It is not in dispute, that besides other subjects, consequent upon the enactment of the Shariat Act, dissolution of marriage amongst Muslims, by way of 'talaq', would also have to be in consonance with the Muslim 'personal law' - 'Shariat'. As noticed herein above, 'talaq-e-biddat' is one of the forms of dissolution of marriage by 'talaq', amongst Muslims. According to the Petitioners case, the issue needed a fresh look, of the conferment of statutory status to Muslim 'personal law' - 'Shariat'. It was submitted, that after having acquired statutory status, the questions and subjects (including 'talaq-e-biddat'), would have to be in confor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the expression 'failed to provide for her maintenance' and about the grounds recognised as valid for dissolution under Muslim law. Since infallibility is not an attribute of the judiciary, the view has been ventured by Muslim jurists that the Indo-Anglian judicial exposition of the Islamic law of divorce has not exactly been just to the Holy Prophet or the Holy Book. Marginal distortions are inevitable when the Judicial Committee in Downing Street has to interpret Manu and Muhammad of India and Arabia. The soul of a culture - law is largely the formalized and enforceable expression of a community's cultural norms - cannot be fully understood by alien minds. 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 Quaranic 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"." (Quran IV: 34). The Islamic "law gives to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inference, that the proposition of law pronounced by the Privy Council in the Rashid Ahmad case needed a relook. 119. It would be relevant to mention, that in the interregnum, the validity of 'talaq-e-biddat' was considered by a learned Single Judge (Justice Baharul Islam, as he then was) of the Gauhati High Court, in the Jiauddin Ahmed case M, wherein, the High Court took a view different from the one recorded by the Privy Council (-in the Rashid Ahmad case. In doing so, it relied on 'hadiths', 'ijma' and 'qiyas'. The issue was again examined, by a Division Bench of the Gauhati High Court, in the Mst. Rukia Khatun case. Yet again, the High Court (speaking through, Chief Justice Baharul Islam, as he then was), did not concur with the view propounded by the Privy Council. The matter was also examined by a Single Judge (Justice Badar Durrez Ahmed, as he then was) of the Delhi High Court in the Masroor Ahmed case. Herein again, by placing reliance on relevant 'hadiths', the Delhi High Court came to the conclusion, that the legal position expressed by the Privy Council on 'talaq-e-biddat', was not in consonance with the Muslim ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med as bad in theology. It was submitted, that this practice is clearly patriarchal, and therefore, cannot be sustained in today's world of gender equality. In order to persuade this Court, to accept the Petitioners' prayer - to declare the practice of 'talaq-e-biddat' as unacceptable in law, the Court's attention was invited to the fact, that the present controversy needed a similar intervention, as had been adopted for doing away with similar patriarchal, irregular and sinful practices amongst Hindus. In this behalf, reference was made to the practices of 'Sati', 'Devadasi' and 'Polygamy'. 123(i). We may only highlight, that 'Sati' was commonly described as - widow burning. The practice required a widow to immolate herself, on her husband's pyre (or alternatively, to commit suicide shortly after her husband's death). 'Sati' just like 'talaq-e-biddat', had been in vogue since time immemorial. It is believed, that the practice of 'Sati' relates back to the 1st century B.C.. On the Indian sub-continent, it is stated to have gained popularity from the 10th century A.D. The submission was, that just a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal. The other legislations enacted on the same issue, included the 1934 Bombay Devadasi Protection Act, the 1957 Bombay Protection (Extension) Act, and the Andhra Pradesh Devadasi (Prohibition of Dedication) Act of 1988. It is therefore apparent, that the instant practice was done away with, through legislation. (iii) The last of the sinful practices brought to our notice was 'polygamy'. Polygamy was permitted amongst Hindus. In 1860, the Indian Penal Code made 'polygamy' a criminal offence. The Hindu Marriage Act was passed in 1955. Section 5 thereof provides, the conditions for a valid Hindu marriage. One of the conditions postulated therein was, that neither of the parties to the matrimonial alliance should have a living spouse, at the time of the marriage. It is therefore apparent, that the practice of polygamy was not only done away with amongst Hindus, but the same was also made punishable as a criminal offence. This also happened by legislation. 125. The factual and the legal position noticed in the foregoing paragraph clearly brings out, that the practices of 'Sati', 'Devadasi' and 'polygamy' were abhorrent, and could well be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as like a sword hanging over the matrimonial alliance, during the entire duration of the marriage. It was submitted, that the fear of 'talaq-e-biddat', was a matter of continuous mental torture, for the female spouse. We were told, that the extent of the practice being abhorrent, can be visualized from the aforesaid, position. It was submitted, that the practice was extremely self-effacing, and continued to be a cause of insecurity, for the entire duration of the matrimonial life. It was pointed out, that this practice violated the pious and noble prescripts of the Quran. It was highlighted, that even those who had appeared on behalf of the Respondents, had acknowledged, that the practice of 'talaq-e-biddat' was described as irregular and sinful, even amongst Muslims. It was accordingly asserted, that it was accepted by one and all, that the practice was bad in theology. It was also acknowledged, that it had no place in modern day society. Learned Counsel therefore suggested, that triple talaq should be simply declared as unacceptable in law, and should be finally done away with. 127. A simple issue, would obviously have a simple answer. Irrespective of what has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y learned Counsel appearing for the rival parties, to support their individual claims. 130. A number of learned Counsel who had appeared in support of the Petitioners' claim, that the practice of 'talaq-e-biddat' was un-Islamic, and that this Court needed to pronounce it as such, invited our attention to a set of 'hadiths', to substantiate their position. The assertions made on behalf of the Petitioners were opposed, by placing reliance on a different set of 'hadiths'. Based thereon, we will endeavour to record a firm conclusion, whether 'talaq-e-biddat', was or was not, recognized and supported by 'hadiths'. 131. First of all, we may refer to the submissions advanced by Mr. Amit Singh Chadha, Senior Advocate, who had painstakingly referred to the 'hadiths' in the four judgments of the High Courts (-for details, refer to Part-6 - Judicial pronouncements, on the subject of 'talaq-e-biddat'). Insofar as the Jiauddin Ahmed case is concerned, details of the entire consideration have been narrated in paragraph 31 hereinabove. Likewise, the consideration with reference to the Rukia Khatun case has been recorded in paragraph 32 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mohammad. As against the above, it was submitted, that the 'hadiths' of Bhukahri (published by Darussalam, Saudi Arabia), also relied upon by the AIMPLB, were obvious examples of a clear distortion. Moreover, it was submitted, that the 'hadiths', relied upon by the AIMPLB were not found in the Al Bukhari Hadiths. It was therefore submitted, that reliance on the 'hadiths' other than those noticed in the individual judgments referred to hereinabove, would be unsafe (-for details, refer to paragraph 42). 133. Learned senior Counsel also asserted, that as a historical fact Shia 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 placed reliance on "The lawful and the prohibited in Islam" by Al-Halal Wal Haram Fil Islam (edition - August 2009). It was pointed out, that the instant transcript was of Egyptian origin, and further emphasized, that the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject of triple talaq, and in order to demonstrate, that the same is not in consonance with the Quranic verses, the Court's attention was drawn to Quran, Al-Baqarah 2:229; Quran, Al-Baqarah 2:229 and 230; Quran, Al-Baqarah 2:232; and Quran, Al-Talaq 65:1 (-for details, refer to paragraph 86 above). Besides the aforesaid, learned senior Counsel invited this Court's attention to the statements attributed to the Prophet Mohammad, with reference to talaq. On this account, the Court's attention was drawn to Daraqutni, Kitab Al-Talaq wa Al-Khula wa Al-Aiyla, 5/23, Hadith number: 3992; Daraqutni, 5/81; Kitab al-Talaq wa Al-Khulawa aI-Aiyala, Hadith number: 4020; Sunan Bayhaqi, 7/547, Hadith number: 14955; AI-Sunan AI-Kubra Iil Bayhaqi, Hadith number: 14492; and Sahi al-Bukhari Kitab al-Talaq, Hadith number: 5259 (-for details, refer to paragraph 86 above). Representing the AIMPLB, learned senior Counsel, also highlighted 'hadiths' on the subject of 'talaq' and drew our attention to Sunan Abu Dawud, Bad Karahiya al-Talaq, Hadith no: 2178; Musannaf ibn Abi Shaybah, Bab man kara an yatliq aI rajal imratahuu thalatha fi maqad wahadi wa ajaza dhalika alayhi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee talaqs have to be pronounced in three consecutive months, it is not a general rule as the three pronouncements have to be made when the wife is not in her menses, which would obviously require about three months. It is submitted, that the said extract is irrelevant and out of context as it does not specifically deal with validity of triple talaq. iv Sheikh Yusuf Al-Qaradawi (Referred in para 8 of the judgment) He regarded triple talaq as against God's law. It is submitted that he was a follower of the Ahl-e-Hadith School. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s accordingly asserted, that supplanting the views of other schools of Sunni Muslims, with reference to the practice of 'talaq-e-biddat' by the proponents of the Hanafi school, and even with the beliefs of Shia Muslims, was a clear breach of a rightful understanding of the school, and the practice in question. 136. 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 va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent 2 vaguely makes certain generalized accusations against the Appellant wife and states that ever since the marriage he found his wife to be sharp, shrewd and mischievous. Accusing the wife of having brought disgrace to the family, Respondent 2 proceeds to state, vide para 12 (translated into English) -- "The answering 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel of Mr. Kapil Sibal and Mr. Salman Khurshid, Senior Advocates. It would be appropriate for us, to refrain from entertaining a determination on the issue in hand, irrespective of the opinion expressed in the four judgments relied upon by learned Counsel for the Petitioners, and the Quranic verses and '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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This debate and discussion in the Muslim community-as has been presently demonstrated by the disputants during the course of hearing, and as has been highlighted through articles which appeared in the media (at least during the course of hearing), presumably by knowledgeable individuals, reveal views 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, except as provided by and Under Article 25. 147. The contention now being dealt with, was raised with the object of demonstrating, that after the enactment of the Muslim Personal Law (Shariat) Application Act, 1937, the questions and subjects covered by the Shariat Act, ceased to be '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-bidda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as they are inconsistent with the provisions of Part III of the Constitution, shall to the extent of such inconsistency, be considered as void. 150. In order to support the issue being canvassed, it was submitted, that no "rule of decision" can be violative of Part III of the Constitution. 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 purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 2 of the Shariat Act, were only such customs and usages as were in conflict with the Muslim 'personal law'-'Shariat'. It was accordingly submitted, that the object behind Section 2 of the Shariat Act was to declare the Muslim 'personal law'-'Shariat', 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een Muslims. Even usages and customs of particular villages were given overriding effect over Muslim 'personal law'-'Shariat'. We are also satisfied to accept the contention of the learned senior Counsel, that a perusal of Section 2 and the non obstante Clause 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above proposition is strenuously opposed by all the learned Counsel who appeared on behalf of the Respondents, more particularly, learned senior Counsel representing the AIMPLB. During the course of the instant opposition, our attention was invited to the judgment rendered 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 De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts would be void. But it is clear from the language of Arts. 372(1) and 372(2) that the expression "laws in force" used in this Article does not include personal law because Article 372(2) entitles the President to make adaptations and modifications to the law in force 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. (i) Reference may first of all be made to the Shri Krishna Singh case (1981) 3 SCC 689. The factual position which arose in the above case, may be noticed as under: 'S', a Hindu ascetic, established the Garwaghat Math at Varanasi in 1925. The '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 accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also essential to Madhu Kishwar v. State of Bihar, wherein this Court observed a under: It is worthwhile to account some legislation on the subject. The Hindu Succession Act governs and prescribes Rules of succession applicable to a large majority of 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) furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36 (para 46) of his judgment that under the circumstances it is not desirable to declare the customs of tribal inhabitants as offending Articles 14, 45 and 21 of the Constitution and each case must be examined when full facts are placed before the court. 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 ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (2) of Hindu Marriage Act, 1955, as void offending Articles 14 and 15 of the Constitution of India; (c) to declare Sections 3 (2), 6 and 9 of the Hindu Minority and Guardianship Act read with Section 6 of Guardians and Wards Act 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, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as they have the protective shield of Article 25 (except as provided in the provision itself). 162. To be fair to the learned Attorney General, it is necessary to record, that he contested the determination recorded 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 ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the territory of India. Likewise, Article 15 prohibits the State from taking discriminatory action on the grounds of religion, race, caste, sex or place of birth, or any of them. The mandate of Article 15 requires, 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'-' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out, that the fundamental right to equality, guaranteed to every citizen Under Article 14 of the Constitution, must be read to include, equality amongst women of different religious denominations. It was 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 fundamenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cles 15(4) and 16(4) aim at establishing social and economic justice in political democracy to all Sections of society, to eliminate inequalities in status and to provide facilities and opportunities 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erate consistently with Articles 15(4), 16(4), 38, 39, 46 and 335 of the Constitution, vide per majority in Indra Sawhney v. Union of India 1992 Supp (3) SCC 217 known as Mandal case 1992 Supp (3) SCC 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Articles 25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation, 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Ismail Sahib) stated, "This practice of following 'personal law' has been there amongst the people for ages. What we want under this amendment is that that practice should 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), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any doubt, that the framers of the Constitution were firm in making 'personal law' a part of the fundamental rights. With the liberty to the State to provide for social 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 perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution. It is therefore not possible to refer to substantive due process, as the basis of the decision of the present controversy, when there are express provisions provided 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 briefl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction as the Court for Divorce and Matrimonial Causes in England, established in virtue of the Act 20 and 21 Vic., C. 85, and in regard to which further 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able form; or (vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a variety of matrimonial suits, wherein Section 30 deals with suits for nullity. Section 31 deals with suits for dissolution of 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 cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant has prior to the filing of the suit undergone at least one year's imprisonment out of the said period; (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 Marri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 thereof. (iv) Chapter IV of the enactment deals with consequences of marriage under the Act. Chapter 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 inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce 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 uncer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice of an intended marriage is provided for in Section 5. The 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lized inter-religious marriages. (ii) The Hindu Marriage Act, 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her marriage by a decree of divorce 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try internationally, 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore no reason 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 ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnational 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., Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Reverse 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial 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 racial discrimination wherever it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 legislative intervention is permissible Under Articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 raised is in respect of an issue of 'personal law' which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 beyond judicial examination. The judiciary must therefore, always exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 performing 'Nikah' (Marriage), the person performing the 'Nikah' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia), 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. Disposed of in the above terms. Note: The emphases supplied in all the quotations in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 morally ugly must not be done. That is law or Shariat and nothing else can be law. But what is absolutely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 believes In God and the Last Day. And for those who fear God, He (ever) prepares A way out, 3. And He provides for him From (sources) he n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; So do not transgress them If any do transgress The limits ordained by God, Such persons wrong (Themselves as well as others). 230. So if a husband Divorces his wife (irrevocably), He cannot, after that, Re-marry her until After she has married Another husband and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Rukia Khatun v. Abdul Khalique Laskar (1981) 1 Gau LR 375. In Jiauddin Ahmed case a plea of previous divorce i.e. the husband having divorced the wife on some day much previous to the date of filing of the written statement in the Court was taken and upheld. The question posed before the High Court was whether there has been valid ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 repudiates his wife capriciously." ....Commentators on the Quoran have rightly observed-and this tallies with the law now administered in some Muslim countries like Iraq-that the husband must satisfy the court about the reasons for divorce. However, Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 with regard to talaq, as declared by the apex Court, is that talaq must be for a reasonable cause and must be preceded by attempt at reconciliation between the husband and the wife by two arbiters one chosen by wife's family and the other from husband's family and it is only if their attempts fail, talaq may be effected. XXXX 48. Having regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fe 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 Shamim Ara (supra), the position of the law relating to talaq, where it is contested by either spouse, is that, if it has to take effect, first of all the pronouncement of talaq must be proved (it is not sufficient to merely state in court in a written statement or in some other pleading that talaq was given at some earlier point of time), then reasonable cause must be sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 sense, what is bad in theology is bad in law as well. R.F. Nariman, J. Having perused a copy of the learned Chief Justice's judgment, I am in respectful disagreement with the same. 1. This matter has found its way to a Constitution Bench of this Court because of certain newspaper articles which a Division Bench of this Court in Prakash v. Phulavati, (2016) 2 SCC 36, adverted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 supported them, then relied heavily upon a Bombay High Court judgment, being State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84, for the proposition that personal laws are beyond the pale of the fundamental rights Chapter of the Constitution and hence cannot be struck down by this Court. According to them, in this view of the matter, this Court should fold its hands and send Muslim women and other w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old 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 Ali) was engaged in the obsequies. This offended the Hashimites. It may, however, be said that Ali, regardless of his own claims, immediately swore allegiance to Abu Bakr. Ali was not set up when the second and third elections of Omar and Osman took place, but he never went against these decisions and accepted the new Caliph each time and gave him unstinted support. Abu Bakr was sixty years old and was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hool 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-Mukhtasar of Kuduri. The Fatawa-i-Alamgiri collected in Aurangzeb's time contain the doctrines of this school with other material." 7. Needless to add, the Hanafi school has supported the practice of Triple Talaq amongst the Sunni Muslims in India for many centuries. 8. Marriage in Islam is a contract, and like other contracts, may under certain circumstances, be terminated. There is something astonishingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wice, 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 rules laid down in the sunnat (traditions) of the Prophet; and (2) talak-ul-biddat, that is, new or irregular talak. Talak-ul-biddat was introduced by the Omeyyade monarchs in the second century of the Mahomedan era. Talak-ul-sunnat is of two kinds, namely, (1) ahsan, that is, most proper, and (2) hasan, that is, proper. The talak-ul-biddat or heretical divorce is good in law, though bad in theology and it is the most commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 iddat. Such revocation may be by express words or by conduct. Resumption of conjugal intercourse is a clear case of revocation. For instance, H pronounces a single revocable talaq against his wife and then says 'I have retained thee' or cohabits with her, the divorce is revoked under Hanafi as well as Ithna Ashari law. After the expiration of the iddat the divorce becomes irrevocable. A Muslim wife after divorce is entitled to mainte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usband 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 disapproved divorce is a single, irrevocable pronouncement made either during the period of tuhr or even otherwise. This form is also called talaq al-ba'in and may be given in writing. Such a 'bill of divorcement' comes into operation immediately and severs the marital tie. This form is not recognized by the Ithna Ashari or the Fatimi schools." [Emphasis Supplied] 11. It is at this stage that the 1937 Act needs consideration. The Statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms 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 leader of the community or social custom demand it of us, for the good of the people in general. In the case of Hindu law, it is based first on the Vedas or Sruti (that which is heard); secondly on the Smriti (that which is remembered by the sages or rishis). Although the effect of custom is undoubtedly great yet dharma, as defined by Hindu lawyers, implies a course of conduct which is approved by God. Now, what is the Islamic notion of law? In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed) 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. Between them we have two middle categories, namely, things which you are advised to do (mandub), and things which you are advised to refrain from (makruh) and finally there are things about which religion is indifferent (ja'iz). The daily prayers, five in number, are farz; wine is haram; the addition prayers like those on the Eid are mandub; certain kinds of fish are makruh; and there are thousands of ja'iz things such as travelling by air. Thus the Shari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 practice in any High Court of which he was at any time a judge, if he had given an undertaking not to practice therein after ceasing to hold office as such judge." 17. The argument made before this Court was that the non-obstante clause furnishes the key to the proper interpretation of the scope of the Section and the enacting clause must, therefore, be construed as conferring only a right co-extensive with the disability removed by the opening clause. This argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai 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, as follows: "The divorce called talak may be either irrevocable (bain) or revocable (raja). A talak bain, while it always operates as an immediate and complete dissolution of the marriage bond, differs as to one of its ulterior effects according to the form in which it is pronounced. A talak bain may be effected by words addressed to the wife clearly indicating an intention to dissolve the marriage, either:-(a) Once, followed by abstinence from sexual intercourse, for the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 deemed to be included in the profession of the Sikh religion. Explanation II.-In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly." 24. "Religion" has been given the widest possible meaning by this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shiru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alaq 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 under Article 32 of the Constitution of India, is it permissible for us to state that we will not decide an alleged breach of a fundamental right, but will send the matter back to the legislature to remedy such a wrong. 27. In Prem Chand Garg v. Excise Commissioner, U.P., 1963 (Supp.) 1 SCR 885, this Court held: "2. Article 32(1) provides that the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed, and sub-art. (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15, 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 to be applied by the courts." West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943). This is why "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." 29. However, counsel for the Muslim Personal Board relied heavily on this Court's decision in Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573. This judgment refers to several earlier decisions to hold that the declarations sought for did not deserve disposal on merits, which involve i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elligible" 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 Article 14, the concomitant of which is that if an action is found to be arbitrary and, therefore, unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground. In S.G. Jaisinghani v. Union of India, (1967) 2 SCR 703, this Court held: "In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 power became itself the forum to decide the disputes the constituent power by repealing the law in relation to election petitions and matters connected therewith did not have any petition to seize upon to deal with the same. Secondly, any decision is to be made in accordance with law. Parliament has power to create law and apply the same. In the present case, the constituent power did not have any law to apply to the case, because the previous law did not apply and no other law was applied by clause (4). The validation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, (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 Jurists, which has a consultative status under the United Nations, held its Congress in Delhi in 1959 where lawyers, judges and law teachers representing fifty-three countries affirmed that the rule of law is a dynamic concept which should be employed to safeguard and advance the political and civil rights of the individual in a free society. One of the committees of that Congress emphasised that no law should subject any individual to discriminatory treatment. These principles must vary from country to country depending upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 held: "19... It thus appears well-settled that Article 14 strikes at arbitrariness in executive/administrative action because any action that is arbitrary must necessarily involve the negation of equality. One need not confine the denial of equality to a comparative evaluation between two persons to arrive at a conclusion of discriminatory treatment. An action per se arbitrary itself denies equal of (sic) protection by law. The Constitution Bench pertinently observed in Ajay Hasia case [(1981) 1 SCC 722: 1981 SCC (L&S) 258: AIR 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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 viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 T.N., (1996) 2 SCC 226, struck down a 1986 Tamil Nadu Act on the ground that it was arbitrary and, therefore, violative of Article 14. Two separate arguments were addressed under Article 14. One was that the Act in question was discriminatory and, therefore, violative of Article 14. The other was that in any case the Act was arbitrary and for that reason would also violate a separate facet of Article 14. This is clear from paragraph 45 of the said judgment. The judgment went on to accept both these arguments. In so far as the discriminati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic 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 the question of its validity on the ground of Article 19 of the Constitution." [Emphasis Supplied] 43. Close upon the heels of this judgment, a discordant note was struck in State of A.P. v. McDowell & Co., (1996) 3 SCC 709. Another three Judge Bench, in repelling an argument based on the arbitrariness facet of Article 14, held: "43. Shri Rohinton Nariman submitted that inasmuch as a large number of persons falling within the exempted categories are allowed to consume intoxicating liquors in the State of Andhra Pradesh, the total prohibition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in. 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 people and what is good and bad for them. The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety (see Council of Civil Service Unions v. Minister for Civil Service [1985 AC 374: (1984) 3 All ER 935: (1984) 3 WLR 1174] which decision has been accepted by this Court as well) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to the happiness, dignity and worth of the individual, will not be entitled to any procedural safeguard save such as a legislature's mood chooses." 28. Close on the heels of Maneka Gandhi case [Maneka Gandhi v. Union of India, (1978) 2 SCR 621: (1978) 1 SCC 248] came Mithu v. State of Punjab [(1983) 2 SCC 277: 1983 SCC (Cri) 405], in which case the Court noted as follows: (SCC pp. 283-84, para 6) "6. ... In Sunil Batra v. Delhi Admn. [(1978) 4 SCC 494: 1979 SCC (Cri) 155], while dealing with the question as to whether a person awaiting death ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 being unconstitutional, because every prisoner under sentence of death shall be confined in a cell apart from all other prisoners, that is to say he will be placed under solitary confinement. The Constitution Bench read down Section 30(2) to refer only to a person who is sentenced to death finally, which would include petitions for mercy to the Governor and/or to the President which have not yet been disposed of. In so holding, Desai, J. speaking for four learned Judges, held (at pages 574-575): "228. The challenge under Article 21 must fail on our i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 before us is whether the sentence of death, prescribed by Section 303 of the Penal Code for the offence of murder committed by a person who is under a sentence of life imprisonment, is arbitrary and oppressive so as to be violative of the fundamental right conferred by Article 21." (at page 285) After setting out the question thus, the Court further stated: "9......Is a law which provides for the sentence of death for the offence of murder, without affording to the accused an opportunity to show cause why that sentence should not be imposed, just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Indian Penal Code, must be struck down as unconstitutional." (at page 298) It is, therefore, clear from a reading of even the aforesaid two Constitution Bench judgments that Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be "arbitrary". However, the three Judge Bench in Mcdowell (supra) dealt with the binding Constitution Bench decision in Mithu (supra) as follows (at page 739): "45. Reference was then made by Shri G. Ramaswamy to the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 would be shirking their responsibility if they hesitate to declare the provisions of a statute to be unconstitutional, even though those provisions are found to be violative of the Articles of the Constitution. Articles 32 and 226 are an integral part of the Constitution and provide remedies for enforcement of fundamental rights and other rights conferred by the Constitution. Hesitation or refusal on the part of the Courts to declare the provisions of an enactment to be unconstitutional, even though they are found to infringe the Constitution because of any notion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "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 between the rights guaranteed and the control permissible under Articles 19(2) to (6). Otherwise, it must be held to be wanting in that quality. Patanjali Sastri, C.J. in State of Madras v. V.G. Row [AIR 1952 SC 196: 1952 SCR 597: 1952 Cri LJ 966], observed that the Court must keep in mind the "nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time". This principle of proportional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proportionate, 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 after passage of time, a law can become arbitrary, and, therefore, the freezing of rents at a 1940 market value under the Bombay Rent Act would be arbitrary and violative of Article 14 of the Constitution of India (see paragraphs 8 to 15 and 31). 47. Similarly in Mardia Chemicals Ltd. & Ors. v. Union of India & Ors. etc. etc., (2004) 4 SCC 311 at 354, this Court struck down Section 17(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, as follows: "64. The condition of pre-deposit in the present case is bad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsequent Constitution Bench in K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1, dealt with the constitutional validity of the Roerich and Devikarani Roerich Estate (Acquisition and Transfer) Act, 1996, the legal validity of Section 110 of the Karnataka Land Reforms Act, 1961, Notification No. RD 217 LRA 93 dated 8-3-1994 issued by the State Government thereunder and the scope and content of Article 300-A of the Constitution. While examining the validity of a legislation which deprives a person of property under Article 300-A, this Court when faced with Mcd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Govt. of A.P. [(2002) 2 SCC 188], this Court has observed thus: (SCC pp. 203-04, para 25) "25. ... In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression 'arbitrarily' means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone." (at page 81) After stating all this, it then went on to comment, referring to McDowell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 the submissions of counsel, and several judgments on the discrimination aspect of Article 14, this Court held: "48. In E.P. Royappa [E.P. Royappa v. State of T.N., (1974) 4 SCC 3: 1974 SCC (L&S) 165], it has been held by this Court that the basic principle which informs both Articles 14 and 16 are equality and inhibition against discrimination. This Court observed in para 85 as under: (SCC p. 38) "85. ... 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 republ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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) was read as being an absolute bar to the use of "arbitrariness" as a tool to strike down legislation under Article 14. As has been noted by us earlier in this judgment, Mcdowell (supra) itself is per incuriam, not having noticed several judgments of Benches of equal or higher strength, its reasoning even otherwise being flawed. The judgments, following McDowell (supra) are, therefore, no longer good law. 54. To complete the picture, it is important to note that subordinate legislation can be struck down on the ground that it is arbitrary and, therefore, violative of Article 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 established that there is manifest arbitrariness. In order to be described as arbitrary, it must be shown that it was not reasonable and manifestly arbitrary. The expression "arbitrarily" means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone." (at pages 736-737) 55. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers v. Union of India, (1985) 1 SCC 641, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws 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 longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression "laws in force" in Article 13(1) a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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