Triple talaq is sinful and no more lawful in India

Supreme Court: Triple talaq is manifestly arbitrary.

(An abstract of the decision of Supreme Court dated 22 August 2017)

Types of Talaq in Muslim Law

‘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if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked.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cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. It is significant to note, that the first and the second pronouncements may be revoked by the husband. If he does so,
either expressly or by resuming conjugal relations, ‘talaq’ pronounced by the husband becomes ineffective, as if no ‘talaq’ had ever been expressed. If the third ‘talaq’ is pronounced, it becomes irrevocable.
Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, in the third ‘tuhr’ (period of purity), as soon as the third declaration is made, the ‘talaq’ becomes
irrevocable, and the marriage stands dissolved, whereafter, the wife has to observe the required ‘iddat’ (the period after divorce, during which a woman cannot remarry.

Its purpose is to ensure, that the male parent of any offspring is clearly identified). And after the third ‘iddat’, the husband and wife cannot remarry, unless the wife first marries someone else, and only after her marriage with another person has been dissolved (either through divorce or death), can the couple remarry. The distinction between ‘talaq-e-ashan’ and ‘talaq-e-hasan’ is, that in the former there is a single pronouncement of ‘talaq’ followed by abstinence during the period of ‘iddat’, whereas, in the latter there are three pronouncements of ‘talaq’,  interspersed with abstinence. As against ‘talaq-e-ahsan’, which is regarded as ‘the most proper’ form of divorce, Muslims regard ‘talaq-e-hasan’ only as‘the proper form of divorce’.

{The validity of above form of talaq i.e.  ‘talaq-e-ashan’ and ‘talaq-e-hasan’ is not considered by court}

The third kind of ‘talaq’ is – ‘talaq-e-biddat’. This is effected by one definitive pronouncement of ‘talaq’ such as, “I talaq you irrevocably” or three simultaneous pronouncements, like “talaq, talaq, talaq”, uttered at the same time, simultaneously.

In ‘talaq-e-biddat’, divorce is effective forthwith. The instant talaq, unlike the other two categories of ‘talaq’ is irrevocable at the very moment it is pronounced. Even amongst Muslims ‘talaq-e-biddat’, is considered irregular.

Validity of ‘talaq-e-biddat’ in India.

Majority view (by Kurian Joseph J. concurring with Nariman J.)

“What is bad in theology was once good in law but after Shariat has been declared as the personal law, whether what is Quranically wrong can be legally right is the issue to be considered in this case. Therefore, the simple question that needs to be answered in this case is only whether triple talaq has any legal sanctity……”

“……The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality. 51 In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat……..”

“…….Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice and thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq. I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right can be injuncted……”

“……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.”

Majority view (by R.F. Nariman J. and UU Lalit J. with Kurian J. concurring)

“…….all forms of Talaq recognized and enforced by Muslim personal law are recognized and enforced by the 1937 Act. This would necessarily include Triple Talaq when it comes to the Muslim personal law applicable to Sunnis in India. Therefore, it is very difficult to accept the argument on behalf of the Muslim Personal Board that Section 2 does not recognize or enforce Triple Talaq. It clearly and obviously does both, because the Section makes Triple Talaq “the rule of decision in cases where the
parties are Muslims…….”.

“……. As we have concluded that 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, to the extent of such inconsistency….”

“…….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….”

“…….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…”

“…..That the arbitrariness doctrine contained in Article 14 would apply to negate legislation, subordinate legislation and executive action….”

“……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…….”

“…..What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14….”

“…Manifest arbitrariness, therefore, must be capriciously, something done irrationally by legislature capriciously, irrationally and/or the without  adequate determining principles…”

“……Applying the test of manifest arbitrariness to the case at hand, it is clear that 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. We have noticed how in Fyzee’s book (supra), the Hanafi school of Shariat law, which itself recognizes this form of Talaq, specifically states that though lawful it is sinful in that it incurs the wrath of God…….”

“….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…..”

“…..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) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.

Minority view (by Jagdish Singh Khehar CJI and S. Abdul Nazeer, J.)

(1) Despite the decision of the Rashid Ahmad case 1 on the subject of ‘talaq-e-biddat’, by the Privy Council, the issue needs a fresh examination, in view of the subsequent developments in the matter.

(2) All the parties were unanimous, that despite the practice of ‘talaq-e-biddat’ being considered sinful, it was accepted amongst Sunni Muslims belonging to the Hanafi school, as valid in law, and has been in practice amongst them.
(3) It would not be appropriate for this Court, to record a finding, whether the practice of ‘talaq-e-biddat’ is, or is not, affirmed by ‘hadiths’, in view of the enormous contradictions in the ‘hadiths’, relied upon by the rival parties.
(4) ‘Talaq-e-biddat’ is integral to the religious denomination of Sunnis belonging to the Hanafi school. The same is a part of their faith, having been followed for more than 1400 years, and as such, has to be accepted as being constituent of their ‘personal law’.

(5) The contention of the petitioners, that the questions/subjects covered by the Muslim Personal Law (Shariat) Application Act, 1937, ceased to be ‘personal law’, and got transformed into ‘statutory law’, cannot be accepted, and is accordingly rejected.
(6) ‘Talaq-e-biddat’, does not violate the parameters expressed in Article 25 of the Constitution. The practice is not contrary to public order, morality and health. The practice also does not violate Articles 14, 15 and 21 of the Constitution, which are limited to State actions alone.
(7) The practice of ‘talaq-e-biddat’ being a constituent of ‘personal law’ has a stature equal to other fundamental rights, conferred in Part III of the Constitution. The practice cannot therefore be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention.
(8) Reforms to ‘personal law’ in India, with reference to socially unacceptable practices in different religions, have come about only by way of legislative intervention. Such legislative intervention is permissible under Articles 25(2) and 44, read with entry 5 of the Concurrent List, contained in the Seventh Schedule of the Constitution. The said procedure alone need to be followed with reference to the practice of ‘talaq-e-biddat’, if the same is to  be set aside.
(9) International conventions and declarations are of no avail in the present controversy, because the practice of ‘talaq-e-biddat’, is a component of ‘personal law’, and has the protection of Article 25 of the Constitution.

“……….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 exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem…………….. In view of the position expressed above, we are satisfied, that this is a case which presents a situation where this Court should 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 the 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. “

[Source: Shayara Bano vs. Union of India, decided on 22 August 2017 by Supreme Court of India]