In the Supreme Court of India

Shayara Bano … (Petitioner) v. Union of India and others … (Respondents) (with suo moto writ petition of)

  • Afreen Rehman
  • Gulshan Parveen
  • Ishrat Jahan

In a landmark verdict, the apex court bans the practice of Triple Talaq which allows Muslim men to leave their wives immediately by uttering “talaq” thrice. The practice of triple talaq has been declared unconstitutional by 3:2 majority.The Supreme Court has banned the practice of triple talaq for six months until Parliament introduces new legislation to regulate the practice.

Facts-

The petitioner-Shayara Bano, has approached the Court, for assailing the divorce pronounced by her husband – Rizwan Ahmad on 10.10.2015, wherein he affirmed “…in the presence of witnesses saying that I gave ‘talak, talak, talak’, hence like this I divorce from you from my wife. From this date there is no relation of husband and wife. The petitioner has sought a declaration, that the ‘talaq-ebiddat’ pronounced by her husband on 10.10.2015 be declared as void ab initio. It was also her contention, that such a divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as, the Shariat Act), be declared unconstitutional. During the course of hearing, it was submitted, that the ‘talaq-e-biddat’ (-triple talaq), pronounced by her husband is not valid, as it is not a part of ‘Shariat’ (Muslim ‘personal law’). It was also submitted, that the practice of ‘talaq-e-biddat’ is violative of the fundamental rights guaranteed to citizens in India, under 4 Articles 14, 15 and 21 of the Constitution. The Petitioner’s husband in a counter affidavit claimed that his 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 claimed, that he continued to visit the petitioner, for giving her maintenance, and for enquiring about her well being. When the husband 5 met the wife at her parental home in May and June 2015, she refused to accompany him, and therefore, refused to return to the matrimonial home. Finding himself in the above predicament, Rizwan Ahmad approached the Court of the Principal Judge, Family Court at Allahabad, Uttar Pradesh, by preferring Matrimonial Case No.1144 of 2015 with a prayer for restitution of conjugal rights. But then he realized that his wife was not ready for the reconciliation he withdrew the suit.

Nature and kinds of Talaq-

  • Talaq Ahsan (Most Proper):

This is the most proper form of repudiation of marriage. The reason is twofold: First, there is the possibility of revoking the pronouncement before the expiry of the Iddat period. Secondly, the evil words of Talaq are to be uttered only once. Being an evil, it is preferred that these words are not repeated. In the Ahsan Talaq there is a single declaration during the period of purity followed by no revocation by husband for three successive periods of purity. In this form, the following formalities are required:

(a) The husband has to make a single pronouncement of Talaq during the Tuhr of the wife. Tuhr is the period of wife’s parity i.e. a period between two menstruations. As such, the period of Tuhr is the period during which cohabitation is possible. But if a woman is not subjected to menstruation, either because of old age or due to pregnancy, a Talaq against her may be pronounced any time.

(b) After this single pronouncement, the wife is to observe an Iddat of three monthly courses. If she is pregnant at the time of pronouncement the Iddat is, until the delivery of the child. During the period of Iddat, there should be no revocation of Talaq by the husband. Revocation may be express or implied. Cohabitation with the wife is an implied revocation of Talaq. If the cohabitation takes place even once during this period, the Talaq is revoked and it is presumed that the husband has reconciled with the wife. When the period of Iddat expires and the husband does not revoke the Talaq either expressly or through consummation, the Talaq becomes Irrevocable and final. It may be noted that the characteristic feature of the Ahsan form of Talaq is a single pronouncement followed by no revocation during the period of three month’s Iddat. Therefore, where a husband makes any declaration in anger, but realizing his mistake afterward, wants to cancel it, there is sufficient time for him to do so. Single pronouncement of the civil words of Talaq and sufficient opportunity to the spouses for reconciliation are the two reasons for calling this form as the ‘most proper’ form of Talaq.

  • Talaq Hasan (Proper):

This Talaq is also regarded to be the proper and approved form of Talaq. In this form too, there is a provision for revocation. But it is not the best mode because evil words of Talaq are to be pronounced three times in the successive Tuhrs. The formalities required under this form are as under:

(a) The husband has to make a single declaration of Talaq in a period of ‘Tuhr.

(b) In the next Tuhr, there is another single pronouncement for the second time.It is significant to note that the first and second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, the words of Talaq become ineffective as if no Talaq was made at all.

(c) But, if no revocation is made after the first or second declaration then lastly the husband is to make the third pronouncement in the third period of purity (Tuhr). As soon as this third declaration is made, the Talaq becomes irrevocable and the marriage dissolves and the wife have to observe the required Iddat.It may be noted that the important feature of Talaq Hasan is its revocability before the third pronouncement and its irrevocability after the third. In order to make an effective Talaq, the words must be uttered three times in three consecutive periods of purity.

  • Talaq-ul-Bidaat (Irrevocable):

This Talaq is also known as Talaq-ul-Bain. It is a disapproved mode of divorce. A peculiar feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. The Prophet never approved a Talaq in which there was no opportunity for reconciliation.Therefore, the irrevocable Talaq was not in practice during his life. The Talaq-ul-Bid’at has its origin in the second century of the Islamic-era. According to Ameer Ali, this mode of Talaq was introduced by the Omayad Kings because they found the checks in the Prophet’s formula of Talaq inconvenient to them.18 Since then this mode of Talaq has been in practice among the Sunni Muslims.

A Biddat Talaq becomes final as soon as the words have been uttered and the marriage is completely dissolved. A Sunni husband, who wants to divorce his wife irrevocably, may do so in any of the following manners:(a) The husband may make three pronouncements in a period of purity (Tuhr) saying: “I divorce thee, I divorce thee, and I divorce thee”. He may declare his triple Talaq even in one sentence saying: “I divorce thee thrice”, or “I pronounce my first, second and third Talaq.”(b) The husband may make only one declaration in a period of purity expressing his intention to divorce the wife irrevocably saying: “I divorce thee irrevocably” or “I divorce thee in Bain”.[1]

Various Articles of the Indian Constitution which came up in the Judgment

Article 25 of the Constitution– The ‘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. The Constitution preserves ‘personal law’ through which religious communities and denominations have governed themselves, as an exception. 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.

Article 142 of the Constitution– Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc

( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself

Article 13 of the Constitution

Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void

(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality

For the better understanding –

The Quran is divided into ‘suras’ (chapters). Each ‘sura’ contains ‘verses’, which are arranged in sections.

  • ‘Verse’ 222 -It has been interpreted to mean, that matters of physical cleanliness and purity should be looked at, not only from a man’s point of view, but also from the woman’s point of view. The ‘verse’ mandates, that if there is danger of hurt to the woman, she should have every consideration. The Quran records, that the action, of men towards women is often worse. It mandates, that the same should be better with reference to the woman’s health, both mental and spiritual.
  • ‘verses’ 226 and 227– It postulate, that the husband and wife in a difficult relationship, are allowed a period of four months, to determine whether an adjustment is possible. Even though reconciliation is recommended, but if the couple is 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.
  • 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 explains, –that the termination of the contract of marriage, is treated as a serious matter for family and social life. And as such, every lawful advice, which can bring back those who had lived together earlier, provided there is mutual love and they can live with each other on honourable terms, is commended. After following the above parameters, the Quran ordains, that it is not right for outsiders to prevent the reunion of the husband and wife
  • Verse 237-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).
  • Verse’ 34– extends to the husband the right to admonish his wife who is either disloyal, or ill-conducts herself. Such admonition can be by refusing to share her bed, and as a last resort, even to beat her lightly. Thereafter, if the woman does not return to obedience, the husband is advised not to use means of annoyance against her.
  • ‘Verse’ 35,- sets out the course of settlement of family disputes. It postulates the appointment of two arbitrators – one representing the family of the husband, and the other the family of the wife. The arbitrators are mandated to explore the possibility of reconciliation. In case reconciliation is not possible, dissolution is advised, without publicity or mud-throwing or by resorting to trickery or deception.

The issue-

  • Can a court, based on a righteous endeavour, declare that a matter of faith, be replaced – or be completely done away with.
  • Article 25 obliges all Constitutional Courts to protect ‘personal laws’ and not to find fault therewith.
  • Whether it is a fit case for the jurisdiction of the Court under Article 142.
  • 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?

Arguments

  • 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-biddat’ was derogatory to the dignity of women, and that, it breaches the concept of gender equality. It was submitted, that the above position could easily be remedied through judicial intervention. In this behalf, the court’s attention was drawn to Article 13 of the Constitution, which mandates, that all laws in force in the territory of India (immediately before the commencement of the Constitution), as were inconsistent with the Fundamental Rights contained in Part III of the Constitution, were to the extent of such inconsistency, to be treated as void.
  • It was also submitted, that the Quran did not recognize ‘talaq-ebiddat’. It was pointed out, that the Prophet Muhammad considered only two forms of divorce to be valid, namely, ‘talaq-e-ahsan’ and ‘talaq-e-hasan’. Despite there being numerous schools of Muslim jurisprudence, only two schools recognized ‘talaq-e-biddat’ as a mode of divorce.
  • The learned counsel on behalf of the petitioner submitted that that this Court should declare ‘talaq-e-biddat’, as unconstitutional and violative of Articles 14 and 15 of the Constitution.
  • The rights of a Muslim woman to human dignity, social esteem and self-worth, it was submitted, were vital facets of a woman’s right to life with dignity, under Article 21 of the Constitution.
  • Article 51A (e)- to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women. Based on this the Muslim women can not be subjected to arbitrary and unilateral whims of their husbands, as in the case of divorce by triple talaq amongst Shia Muslims belonging to the Hanafi school.

Judgment

The Court explained that reason for it to probe the possibility of exercising the jurisdiction under Article 142, arises only for one simple reason, that all concerned are unequivocal, that besides being arbitrary the practice of ‘talaq-e-biddat’ is gender discriminatory. The court observed till such time as legislation in the matter is considered, The court was 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-ebiddat’ (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.[2]

[1] http://www.shareyouressays.com/117523/what-are-the-kinds-of-talaq-under-muslim-law-in-india

[2] The whole case analysis has been done by taking notes and references from the actual judgment.

Leave a Reply