CASE: SHAYARA BANO V. UNION OF INDIA AND ORS., (2017)

Shayara Bano                                   … Petitioner                                   Versus Union of India and others                … Respondents


Writ Petition (C) No. 118 of 2016


PROCEDURAL BACKGROUND

To go over the facts briefly, Shayara Bano, a woman survivor of domestic violence and dowry harassment had been unilaterally divorced through “Instant Triple Talaq” (or divorce, hereinafter ITT). She filed a petition before the Supreme Court seeking a declaration that the practices of ITT, polygamy, and nikah halala in Muslim personal law were illegal, unconstitutional, and in violation of Articles 14 (equality before law), 15 (non-discrimination), 21 (right to life with dignity) and 25 (right to freedom of conscience and religion) of the Indian Constitution. The Court however chose to examine the issue of ITT alone. The Union of India supported the petition. Among the others whointervened in this case, the All India Muslim Personal Law Board and the Jamiat Ulema-e-Hind argued that the Court did not have jurisdiction to entertain a constitutional challenge to Muslim personal law and that the matter was in the domain of the legislature. The Bebaak Collective and the Centre for Study of Society and Secularism – two organisations working with Muslim women – supported the petition and urged the Court to declare that personal law was subject to the Fundamental Rights. Bharatiya Muslim Mahila Andolan and Majlis – also women’s rights organisations – argued that in view of previous decisions of the Court, the bench need not consider the question whether constitutional validity of ITT, but should rather emphasise the existing legal remedies.

FACTS OF THE CASE

The petitioner-Shayara Bano, has approached the Supreme Court, for challenging the divorce

pronounced by her husband (Rizwan Ahmad) on 10.10.2015, wherein in the presence of witnesses he declared that I gave ‘talak, talak, talak’, hence like this I divorce from my wife. The divorce was pronounced before Mohammed Yaseen (son of Abdul Majeed) and Ayaaz Ahmad (son of Ityaz Hussain) the two witnesses.

The petitioner has sought a declaration, that the ‘talaq-e-biddat’ pronounced by her husband on 10.10.2015 be declared as void ab initio. It is also her contention, that such a divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony, believed under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as, the Shariat Act), be declared unconstitutional. It was also submitted, that the practice of ‘talaq-e-biddat’ is violative of the fundamental rights guaranteed to citizens in India, under Articles 14, 15 and 21 of the Constitution.


REASONING

Krishna Iyer, J. , in A. Yusuf Rowther v. Sowramma[1] has observed: the view that the muslim husband enjoys an arbitrary 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 that it’s 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]”

Based on the consideration above the high court recorded the following conclusion:

In the opinion of the court, law of “talaq” as ordained by holy Quran is : (i) that “talaq”must be for a reasonable cause ;and(ii) that it must be proceeded by an attempt of reconciliation between the husband and wife by two arbiters , one chosen by the wife from her family and other by the husband from his family. If their attempts fail ,”talaq”may be affected. In the opinion the single judge has correctly laid down the law in Jiauddin Ahmed v. Anwara Begam[2], and with respect the Calcutta High Court in Ahmad Kasim Molla v. Khatun Bibi [3]and the Bombay high court in Sarabai v. Rabiabai[4] have not laid down the correct law”.

A perusal of the consideration extracted above, when examined closely reveals that the Gauhati High Court listed the following essential ingredients of a valid “talaq” under Muslim law. Firstly, “talaq” to be based on good case, and must not be at the mere desire, sweet will, whim, and caprice of the husband. Secondly, it must not be secret. Thirdly, between the pronouncement and the finality, there must be a time gap, so that the passions of the parties may calm down and reconciliation may be possible. Fourthly, there has to be a process of arbitration (as a means of reconciliation), therein the arbitrators are representatives of both the husband and wife. If the above ingredients do not exist, “talaq” (divorce) would be invalid. For the reason, that the “Talaq-e-Biddat” – Triple Talaq pronounced by the respondent husband Abdul Khalique Laskar, did not satisfy all the ingredients for a valid divorce, the High Court concluded that the marriage was subsisting and accordingly held the wife to be entitled to maintenance.

Khehar CJ. . ., During the course of our consideration, we will endeavour to examine a series of complicated issues. We will need to determine the legal sanctity of “Talaq-e-Biddat” – Triple Talaq. This will enable us to ascertain whether the practice of “Talaq” has a legislative sanction, because it is the petitioner’s case that it is so to express legislation [the Muslim Personal Law (Shariat) Application Act, 1937]. But the stance adopted on behalf of those contesting the petitioner’s claim is that its stature is that of “Personal Law”, and on that accounts the practice of “Talaq-e-Biddat” as a constitutional protection.

Relevant to the case is also the judgement in Sri Adi Visheshwara of Kashi Vishwanath Temple case[5] , wherein it was held that : All secular activities which may be associated with religion, but which do not relate or constitute an essential part of it may be amenable to State regulations but what constitute the essential part of religion may be ascertained primarily from the doctrines of the religion itself according to its tenets, historical background and change in evolved process ,etc. The concept of essentiality is not itself a determinative factor. It is one matters of religion or religious practices or belief are integral part of the religion. It must be decided whether the practices or matters are considered integral by the community itself. Though not conclusive this is one of the facets to be noticed. The practice in question is religious in character and whether it could be regarded as integral and essential part of the religion and if the court find upon evidence adduced before it that it is an integral or essential part of the religion, Article 25 accords protection to it.

The position seems to be clear that the judicial interference with “Personal laws” can be rendered only in such manner as has been provided for in Article 25 of the Constitution. It is not possible to breach the parameters of matters of faith, as they have the protective shield of Article 25(except) as provided in the provisions itself.

I. Does the judgement of the Privy Council in Rashid Ahmed Case[6] , upholding “Talaq-e-Biddat”, require a relook?

It would not be necessary for this debate about the validity of “Talaq-e-Biddat” under the Muslim Personal Law-“Shariat”, to be prolonged or complicated, if the decision rendered by the Privy Council Rashid Ahmad Case is to be considered as a final word on its validity, as also on the irrevocable nature of divorce, by way of “Talaq-e-Biddat”. The debate would end forth with. The aforesaid judgement was rendered by applying Muslim Personal Law. In the above judgement, “Talaq-e-Biddat” was held as valid and binding. The pronouncement in Rashid Ahmad Case is of extreme significance, because Anisa Khatun, the erstwhile wife and her former Husband, Ghiyas-ud-din had continued to cohabit and live together with her husband for a period of fifteen years after the pronouncement of “Talaq-e-Biddat”. During this post-divorce cohabitation, five children were born to Anisa Khatun through Ghiyas-ud-din. And yet, the Privy council held that the marital relationship between the parties had ceased forthwith, on the pronouncement of “Talaq-e-Biddat”- “Triple Talaq”. The Privy Council also held that five children born to Anisa Khatun could not be considered as the legitimate children of Ghiyas-ud-din and his erstwhile wife. The children born to Anisa Khatun after the parties stood divorced, were therefore held as disentitled to inherit the property of Ghiyas-ud-din. The judgement in Rashid Ahmad Case was rendered in 1932. In our considered view the matter would most certainly also require a fresh look because various High Courts having examined the practice of divorce amongst Muslims by the way of “Talaq-e-Biddat”, have arrived at the conclusion that the judgement in Rashid Ahmad Case was rendered on an incorrect understanding of the Muslim Personal Law- “Shariat”. After the Privy Council had rendered the judgement in Rashid Ahmad Case, and well after the ascertain statutory status came to be conferred on Muslim Personal Law- “Shariat”, the issue came up for consideration before the Kerala High Court in A. Yusuf Rawther v. Sowramma, wherein the High Court examined the above decision of the privy council in Rashid Ahmad Case, and expressed that the views of the British Courts on Muslim Personal Law, were based on an incorrect understanding of “Shariat”. In the above judgement a learned single judge (V.R. Krishna Iyer, J… as he then was) of the Kerala High Court recorded the following observations:

The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic Injunction. It is a popular fallacy that a Muslim male enjoy, 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”.’ The Islamic Law gives to the man primarily the faculty of dissolving the marriage if the wife, by her endocility 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.

II. Has “Talaq-e-Biddat”, which is concededly sinful, sanction of law?

The petitioners actually call for a simple and summary disposal of the controversy, by requiring us to hold that whatever is irregular and sinful cannot have the sanction of law. The above prayer is supported by contending that “Talaq-e-Biddat” is proclaimed as bad in theology. It was submitted that this practice is clearly patriarchal in today’s world of gender equality. In order to persuade this court, to accept the petitioner’s 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 (sati, devdasi and polygamy) amongst Hindus.


DISPOSITION

A perusal of the consideration recorded by the judges reveals that the practice of “Talaq-e-Biddat” has been done away with, by way of legislation in a large number of Egalitarian states , sizeable Muslim population and even by theocratic Islamic state .Even ALL INDIA MUSLIM PERSONAL LAWS BOARD, the main contestant of the petitioners prayers ,whilst accepting the position canvassed on behalf of the petitioners assume the position that it was not within the realm of judicial discretion to set aside a matter of faith and religion. We have accepted the position assumed by AIMPLB . It was, however, acknowledged even by AIMPLB that legislative will could salvage the situation. This assertion was based on a conjoint reading of article 25(2) and article 44 of the constitution, read with entry 5 of the Concurrent List contained in the VII Schedule to the constitution. There can be no doubt and it is are definitive conclusion that the position can only be salvaged by way of legislation .We understand that it is not appropriate to tender advice to legislature to enact law on an issue .However the position as it presents in the present case ,seems to be a little different . Herein, the views expressed by the rival parties are not in contradiction. The Union of India have appeared before us in support of the cause of the petitioners the stance adopted by the union of India is sufficient for us to assumed that the Union of India supports the petitioners’s cause unfortunately the Union seeks at our hands, what truly false in its own .The main party that opposed the petitioners challenged, namely, AIMPLB filed an affidavit before the court affirming the following position:

I, the secretary of All India Muslim Personal Board, will issue an advisory through its website, publications and social media platforms and thereby advice 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 will advise both the bridegroom/man and the bride/woman to incorporate a condition in the ‘Nikahnama’ to exclude resorting to pronouncement of three divorces by her Husband in one sitting.

I say and submit that, in addition, the board is placing on record that the working committee of the board had earlier already passed certain resolution in the meeting held on 15.04.2017 and 16.04.2017 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 16.04.2017 along with relevant translation of resolutions nos. 2, 3, 4 and 5 relating to Talaq (divorce) is enclosed here with for the perusal of this hon’ble court and marked as annexure A-1 (colly) pp 4-12 to the present affidavit.

A perusal of the above affidavit reveals that All India Muslim Personal Law Board has undertaken to issue an advisory through its website, to advise those who enter into a matrimonial alliance to agree in the “Nikahnama” , that their marriage would not be dissolvable by “Talaq-e-Biddat”. AIMPLB has sworn an affidavit to prescribe guidelines to be followed in matters of divorce emphasizing that “Talaq-e-Biddat” be avoided. It would not be incorrect to assume that even AIMPLB is on board, to assuage the petitioner’s cause.

In view of the position expressed above , we are satisfied that this is a case which presents a situation where this court exercise its discretion to issue appropriate directions under article 142 of the Constitution. We therefore hereby direct the Union of India to consider appropriate legislation, particularly with reference to “Talaq-e-Biddat”. We hope and expect that a contemplated legislation will also take into consideration advances in Muslim Personal Law- “Shariat” as have been corrected by legislation the world over, even by theocratic Islamic states.

Till such time as legislation in 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 pronouncement 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 all together ,, the injunction would continue till legislation is finally enacted. Failing which, the injunction shall cease to operate. The case is Disposed off in the above terms.


JUDGEMENT ANALYSIS

In view of the different opinions recorded, by a majority of 3:2 the practice of 'talaq-e-biddat' - triple talaq is set aside Triple Talaq is hurting the moral sentiments of muslim womens and considered as gender discrimantory. Article 14 of the Indian Constitution Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 21 provides, Protection of life and personal liberty i.e. No person shall be deprived of his life or personal liberty except according to procedure established by law. The grounds on which triple talaq is rendered arbitrary is unexplained, except that Hanafi Shariat law considers triple talaq as lawful yet sinful in that it incurs the wrath of God. It is indeed surprising to note that inspite of the initial refusal to hold the 1937 Act as a mere declaration of Shariat as the Muslim personal law, the learned Judge later on looks at Quran as the basis for holding triple talaq “arbitrary” and therefore violative of Article 14. . As a historical fact,” Talaq-e-Biddat” is known to have crept into muslim tradition for more than 1400 years ago, at the instance of Umayyad monarchs. Although it is a popular fallacy that a Muslim male enjoy, 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”.’ The Islamic Law gives to the man primarily the faculty of dissolving the marriage if the wife, by her endocility 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.

[1] 1970 SCC Online Ker 49 : AIR 1971 Ker 261 [2] (1981) 1 Gau LR 358 [3] 1931 SCC Online Cal 278 : ILR (1932) 59 Cal 833 [4] 1905 SCC Online Bom 31 : ILR (1906) 30 Bom 537 [5] Sri Adi Visheshwara of Kashi Vishwanath Temple case v. State of U.P.(1997) 4 SSC 606 [6] Rashid Ahmad v. Anisa Khatun, 1931 SCC Online PC 78



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