-by Muhammad Isa Hakim
Factual Background
The controversy
around Triple Talaq came to court after a suo-motu writ petition was initiated
by the Supreme Court in the case of Prakash
v. Phulavati[1]
- a case which pertained to the interpretation of Hindu Succession Act, 1956
and had nothing to do with Muslim law. Be that as it may, the reference by the
Supreme Court was in respect of two specific issues, (i) polygamy and (ii)
arbitrary divorce.[2]However,
at the preliminary stage the Court limited the scope of the case to only
Talaq-e-biddat (Triple Talaq). It was after the saidsuo-motu writ petition,
that a number of interventions were filed by Muslim women’s groups and the
Muslim Personal Law Board and similar organisations, supporting and opposing
the motion respectively.
By and large,
the contention of most of the Muslim women’s organisations was that the
practice of Triple Talaq was un-Islamic, un-Quranic and had no place in Muslim
personal law(Shariat). However, the Centre and one organization contended that
the practice was unconstitutional as it violates Article 14, 15 and 21 of the
Constitution. Against the Centre’s contention, the heavily debated NarasuAppa Mali[3]
judgment holds the field. The 1952 judgment of the Bombay High Court held that
‘personal law’ does not fall within the meaning of the term ‘laws in force’
under Article 13(3)(b) of the Constitution. Therefore, the validity of personal
law cannot be tested on the anvil of provisions of Part III of the
Constitution. In other words, the High Court created a distinction between ‘personal
law’ and ‘statutory law’ and held that only the latter could be challenged as
being unconstitutional. The said judgment has, since then, held the field and
was heavily relied on by theSupreme Court in Ahmedabad Women Action Groupv. Union of India[4]
as well.
Due to this
contentious Bombay High Court judgment, in every case pertaining to a
constitutional challenge to personal laws, the Court is called on to decide on
the correctness of the NarasuAppa Mali
case. Fortunately, the Court has made a final determination on the issue.
In this
backdrop, essentially, there were two issues before the Supreme Court in the
present case.
(i)
Whether personal laws can be tested on the anvil of
fundamental rights? (In other words – the validity of NarasuAppa Mali.)
(ii)
Whether the practice of Triple Talaq is
un-Islamic/un-Constitutional?
The Three Judgments
The verdict of
the Court was split. Three separate judgments were delivered – two judgments
supported by two judges each and one judgment by Justice Joseph. The learned
Judge did not fully concur with either of the judgments and hence there is no
clear-cut majority judgment. Instead, there are majority ‘opinions’ which haveto
be ascertained based on the collective decisions of the judges on the two
issues.
It is
interesting to note that Chief Justice Khehar’s judgment (supported by Justice Nazeer)
does not record disagreement with either of the two judgments. This indicates
that Chief JusticeKhehar’s judgment was the first judgment to be written in the
case. JusticeNariman’s judgment (supported by JusticeLalit) is in dissent ofChief
Justice Khehar’s judgment as recorded in the first paragraph of the judgment.
In this deadlock, JusticeJoseph gave his judgment partly agreeing and partly
disagreeing with both the previous judgments. It is in this context, that the
learned Judge’s judgment becomes crucial.
The Decision and theRatioDecidendi
The majority
‘opinions’ on the two questions demonstrated above, are as follows:
(i)
Whether personal
laws can be tested on the anvil of fundamental rights?
· Chief
JusticeKhehar(supported by JusticeNazeer)
Answer:No.
Reasoning:
There is a
distinction between personal law and statutory law. The personal law of the
Muslims cannot be conferred with the status of statutory law merely by virtue
of the Muslim Personal Law (Shariat), Application Act, 1937. The limited
purpose of the 1937 Act was to negate the overriding effect on customs and
usages over the Muslim personal law.(Para
156)
An example of
Muslim Personal Law crystallising into statutory law was the Dissolution of
Muslim Marriages Act, 1939 which codified the grounds of divorce for Muslim
women.(Para 157)
Further, the
fundamental rights enshrined under Article 14, 15 and 21 of the Constitution
are available against State action. By virtue of the distinction between
personal law and statutory law, there Muslim personal law cannot be challenged
on the touchstone of State action.(Para
165)
· JusticeNariman(supported
byJustice Lalit)
Answer: Yes.
Reasoning:
Muslim Personal
Law is both recognized and enforced by virtue of the 1937 Act. It is clear from
the operative words of Section 2 which state that the “the rule of decision in cases
where the parties are Muslims shall be Muslim personal law (Shariat)”.(Para 18)
The 1937 Act is a law made by the
legislature before the Constitution came into force, it would fall squarely
within the expression “laws in force” in Article 13(3)(b) and would be hit by
Article 13(1) if found to be inconsistent with the provisions of Part III of
the Constitution. (Para 19)
· Justice Joseph
Answer: No.
Reasoning:Adopts the reasoning ofChief Justice Khehar. (Para 5)
Ratio decidendi: (By 3:2 majority) Personal law does not fall within the definition
of ‘laws in force’ under Article 13(3)(b) and consequently, it can’t be
challenged on the provisions of Part – III of the Constitution.
(ii)
Whether the
practice of Triple Talaq is un-Islamic/un-Constitutional?
· Chief Justice
Khehar (supported by Justice Nazeer)
Answer: No.
Reasoning:
The practice of Triple Talaq has
to be considered integral to the religious denomination in question – Sunnis
belonging to the Hanafi school. The practice of Triple Talaq, has had the
sanction and approval of the religious denomination which practiced it and is
thereby a part of their ‘personal law’. (Para
145)
Personal law has a constitutional
protection. This protection is extended to ‘personal law’ through Article 25 of
the Constitution. The stature of ‘personal law’ is that of a fundamental right.
The elevation of personal law to this stature came about when the Constitution
came into force. Personal law of every religious denomination, is protected
from invasion and breach, except as provided by and under Article 25. (Para 146)
· JusticeNariman
(supported byJusticeLalit)
Answer: Yes. The practice of Triple Talaq is
un-Constitutional.
Reasoning:
Triple Talaq is a form of
Talaq which is itself considered to be something innovative, namely, that it is
not in the Sunna, being an irregular or heretical form of Talaq. It is
violative of Article 14 as it 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.(Para 57)
·
JusticeJoseph
Answer: Yes. The practice of Triple
Talaq is un-Islamic.
Reasoning:
Triple Talaq is against the
basic tenets of the Holy Quran and consequently, it violates Shariat. It cannot
be considered integral to the religious denomination. (Para 10)
Relies on Shamin Ara v. State of U.P.[5],
which held that Triple Talaq given without prior efforts of reconciliation as
mandated in the Quran would be invalid.(Para
26)
Decision:
(By 3:2 majority) The practice of Triple
Talaq is set-aside.
A tabular summary of the
decisions of the judges is as follows:
Issue
|
Chief
JusticeKhehar(supported by Justice Nazeer)
|
JusticeNariman(supported
by Justice Lalit)
|
JusticeJoseph
|
Majority opinion
|
Whether
personal laws can be tested on the anvil of fundamental rights?
|
No.
|
Yes.
|
No.
|
No. 3:2.
|
Whether the
practice of Triple Talaq is un-Islamic/un-Constitutional?
|
No.
|
Yes. Un-Constitutional
|
Yes. Un-Islamic
|
Yes. 3:2.
|
Triple
Talaq: Not Unconstitutional
As seen above, the practice
of Triple Talaq was set-aside by a majority of 3 judges but for two very
different reasons. JusticeNariman (supported by JusticeLalit) held it to be
‘unconstitutional’ for being manifestly arbitrary and thereby violative of
Article 14 of the Constitution. However, JusticeJoseph held it to be un-Islamic
as it was against the basic tenets of the Quran. In view of the different
reasons adopted by the learned judges to arrive at the conclusion, it would be
incorrect to conclude the practice as unconstitutional. The Court in its order
uses the term ‘set-aside’ acknowledging this nicety. However, there can be no
doubt that the resultant effect of the judgment is that the practice of Triple
Talaq as a form of divorce is legally prohibited.
The
Balancing Act by Justice Kurian Joseph
A conciliatory
role was played by Justice Joseph in the present case.It
has been demonstrated above, that the learned Judge delivered his judgment at
the end after careful consideration of both the judgments. The judgment is
extremely significant as it forms a majority with different judgments on different
issues.
In para 5, the
learned judge forms a majority withChief JusticeKhehar’s judgment on the first
issue, in the following words:
“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.”
On the second issue, Justice Joseph
J. adopts a unique approach by holding that the practice of Triple Talaq is
un-Islamic relying on the Shamim Ara
case. It is this balanced approach of the learned Judge, which is truly
remarkable. It was ensured that the practice of Triple Talaq is done away with,
whilst insulating personal laws of different communities from any challenge
under fundamental rights and thereby confirming the NarasuAppa Mali judgment as law of the land.
It is this balanced approach
which reminds one of JusticeKhanna’s judgment in KesavanandaBharati v. State of Kerala[6]where
the learned Judge formed majority with different sets of judges. The 13
judge-bench in KesavanandaBharati was
also starkly divided. Six judges held that fundamental rights could not be
abrogated while six judges were in favour of absolute amending power of
Parliament. It was Justice Khanna who held that the Parliament would have
absolute amending power but it could not alter the basic structure of the
Constitution. This balanced approach between two divergent views ultimately reconciled
the longstanding tussle between the Parliament and the Judiciary. A similar
feat of reconciliation between personal law and constitutional rights was
achieved by the judgment ofJusticeJoseph which makes the ultimate verdict of the
Court landmark in its true sense.
