Unanswered Questions In Triple Talaq Judgment: Will TT Be Counted As One Or Are They Void Having No Effect On The Validity Of Marriage?

Shayara Bano’s dreams came crumbling down when she received a letter from her husband in October, 2015, declaring instant triple talaq (talaq-e-biddat) to her, bringing her matrimonial life to an end. Finding every door of hope closed on her face, she decided to take the struggle for gender justice head on. Shayara Bano petitioned the Supreme Court in 2016 with the plea to pronounce talaq-e-biddat as illegal, null and void; and unconstitutional. Considering the social costs involved in the matter, apex court heard it with utmost priority; day-to-day hearings were held and the decision was reserved on May 18, 2017.

On August 22, 2017, after deliberating on various aspects of the issues involved in the bunch of petitions, the Supreme Court, in three separate judgments, struck down talaq-e-biddat by a ratio of 3:2 as violative of the provisions of Articles 14, 15, 21 and 25 of the Constitution. In other words, the court observed that instant triple talaq is illegal, void and unconstitutional. Surely, the decision entails the values of equality, dignity and secularism.

Instant triple talaq is the unrestrained power of the husband, which disturbs and conflicts with the constitutional values of equality and dignity. Unequal power equation affects the psyche of women and they remain in constant fear of instant triple divorce. Freedom of religion was never meant to give anybody the right to continue patriarchy in the name of maintaining religious identity. Indian Muslims must accept this welcome decision of the highest court of the land when 22 Muslim countries, including our neighbours like Pakistan, Bangladesh and Sri Lanka, have either banned it or regulated it and made its validity and legality possible only on the initiative of the courts. Logic defies that in this modern era where right to life with dignity is sine qua non, divorce through Skype, WhatsApp and text messages is beyond any comprehension. Striking down instant triple talaq is in consonance to the modern constitutional values.

What happened with Shah Bano, who had to bow down under pressure, cannot happen with Shayara Bano and other Muslim women who stood against this unequal and discriminatory power of severing matrimonial relationship. Today’s women are more aware of the misuse of religious edicts by the clerics and how religious leadership is more interested in the continuance of patriarchal personal laws than making efforts to salvage the deteriorating conditions of the women. Siddiqua Ahmed’s (Shah Bano’s daughter) observation sums up the churning for equality in the Muslim society. She says: “I am for the Supreme Court judgment in the sense that it will help illiterate women who are constantly under pressure and live in the fear of being given talaq.”

The Indian Constitution and judiciary are fully committed to the principles of equality and non-discrimination on the basis of sex. Shayara Bano’s case is now the law of the land under Article 141 of the Indian Constitution, as the Supreme Court’s decisions are binding on all courts within the territory of India.

Minority View: Talaq-e-biddat is integral part of Islam and hence protected by religious freedom clause under Article 25 of the Constitution

Justice JS Khehar wrote the minority judgment supported by Justice S Abdul Nazeer. Justice Khehar was of the view that instant triple talaq has been in vogue since centuries and hence it is the integral part of Islam. It’s because of this reason, according to him,talaq-e-biddat would get the protection of religious freedom clause, which is a fundamental right under Article 25. He held that constitutional courts have no right to interfere in the religious affairs.

The initial confusion in the media on the day judgment regarding upholding of talaq-e-biddat by the apex court was caused because Chief Justice of India Khehar read first the operative part of his judgment, which ultimately proved to be the minority view. Majority judgment prevails and minority judgment has no legally binding operation. With all due respect to him, the minority judgment written by Justice Khehar lacked clarity. On one hand, he held talaq-e-biddat an integral part of Islam; hence protected by Article 25, and on the other hand, he directed the Union of India to bring a law on instant triple talaq to make it ineffective. Now, the question arises; what has been held to be protected under fundamental rights clause and how come the government be directed to legislate on its abolition. The other aspect creating constitutional dilemma is whether something given immunity under fundamental rights be injuncted or stayed for six months under Article 142 of the Indian Constitution, which arms the Supreme Court to go an extra mile ‘in the interest of justice’. Justice Khehar wrote in the judgment: “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.”Justice Kurian expressed disagreement with Chief Justice Khehar on this point. He wrote in his judgment: “I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right can be injuncted.” A lot of confusion prevailed in the views of Justice Khehar, which asks for serious answers.

Majority View: Talaq-e-biddat is unconstitutional and unIslamic

Two separate judgments were penned down by Justice RF Nariman and Justice Kurian Joseph. Justice UU Lalit concurred with Justice Nariman. Both of these judgments held talaq-e-biddat as unconstitutional and unIslamic. Justice Nariman was of the view that talaq-e-biddat is not essential part of Islam. Therefore, it is not protected under Article 25. Justice Kurian went to the extent of saying what’s not good in theology cannot be good in law. He observed in his judgment that talaq-e-biddat makes divorce final and closes the doors of reconciliation and hence is against basic tenets of Holy Quran. What is bad in theology is bad in law as well. Talaq-e-biddat is innovation in Islam and hence unIslamic. Article 25 will not come to help and protect it.  “This Court in Shamim Ara vSs State of UP and Another has held, though not in so many words, that triple talaq lacks legal sanctity. Therefore, in terms of Article 141, ShamimAra is the law that is applicable in India.” said Justice Kurian. He further held that “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”.

Justice Nariman observed that “the Privy Council in Rashid Ahmad, 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”. He further wrote: “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.” Considering the line of arguments advanced by Justice Nariman and Justice Kurian in separate judgments, one can conclude that Justice Nariman held instant triple talaq unconstitutional on the ground of fundamental right, whereas Justice Kurian struck it down on the basis of religion. Since three judges out of five held talaq-e-biddat to be invalid and illegal, the law that stands today is that there is no existence of talaq-e-biddat in Muslim law as applicable in India now.

Muslim Personal Law (Shariat) Application Act, 1937: Does this make talaq a statutory law

Constitutional courts in India have been of the view that only codified laws can be checked on the anvil of Article 13 and be declared as null and void if they violate it to the extent of inconsistency. As almost all personal laws are derivatives of religions, they are categorised and remained as un-codified laws except personal laws of few religious communities. It’s because of the above mentioned reason that these personal laws escape the judicial scrutiny. The Muslim Personal Law (Shariat) Application Act, 1937, applied certain matters of the Shariat to the Muslims in the Indian sub-continent. Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, provides “notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal law (Shariat)”.

In Shayara Bano case, the question arose whether instant triple divorce is codified or un-codified law within the meaning of Section 2 of the Act of 1937. The 1937 Act seeks to recognise and enforce tala-e-biddat through Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, as only word talaq is included in it. So, all forms of talaq existing in Muslim societies were sought to be enforced by Section 2 of the 1937 Act.

In our considered view, the Muslim Personal Law (Shariat) Application Act, 1937, can be bracketed as ‘laws in force’ within the meaning of Article 13(3)(b) and therefore, judicial review of this Act of 1937, may be carried out by higher judiciary, if it is inconsistent with fundamental rights. Article 13(3)(b) says: “‘Laws in force’ includes laws passed or made by a 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.” The technical difference between statutory and non-statutory laws or codified and non-codified laws should be done away with by the higher judiciary so as to bring all laws under the power of judicial review allowing higher judiciary to cleanse all personal laws from blatant discriminations and biases based on religion, caste and gender. In our humble opinion, Section 2 of the Act of 1937, made talaq a statutory provision available to Muslims to severe their marital ties. Justice Nariman and Justice Kurian said the 1937 Act recognised instant triple talaq as statutory right and hence it comes under the ambit of judicial scrutiny under Article 13.

Article 13 in the Indian Constitution mandates that any law, framed before or after the Constitution should not infringe or violate fundamental rights. Judges holding majority view should have gone further to check other discriminations in Muslim Law or any other personal laws but judges restrained themselves. They observed that “Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him”. The constitutional court has squandered a golden opportunity of pruning all personal laws of inequality and gender biases by not declaring all personal laws as ‘laws in force’ within the meaning of Article 13.

Necessity of declaring personal laws to be ‘laws in force’ under Article 13 of the Constitution

Uncodified personal laws are exempt from constitutional scrutiny. The Supreme Court should have decided to do away with the artificial distinction between un-codified and codified laws. The Bombay High Court in the State of Bombay vs Narasu Appa Mali (1952) held that personal laws are not ‘laws’ with the meaning Article 13(1) which says any pre-constitutional law in contravention of fundamental rights will be declared null and void. The high court said only codified laws can be tested, un-codified laws will escape the teeth of Article 13. The highest constitutional court has to confront with this question in future and it will come to haunt the court again and again. All personal laws (un-codified laws) are to be declared as ‘laws in force’ under Article 13. This is the only panacea against all forms of discrimination existing in personal laws of all religious communities. Personal laws have to pass the test of constitutionality.

Instant three pronouncements will amount to one: Shamim Ara vs State of Uttar Pradesh (2002)

Post-Shayara Bano decision, one natural question arises: what will be the effect of declaring instant triple talaq illegal and unconstitutional? Whether it will amount to single pronouncement and then allowing the wife to go for iddat period (the waiting period after divorce) or setting aside instant triple divorce means that actually no pronouncement has ever taken place at all. The Shayara Bano judgment has not clearly hinted in this respect. The judgment delivered by Justice Kurian has some indication about the effects of declaring instant triple divorce unconstitutional. He said in his judgment that valid procedure of talaq is enunciated in Shamim Ara case. As per the Shamim Ara judgment, a cooling-off period is must for the legal validity of talaq. Reasons must be advanced and efforts made for reconciliation have to be shown for effectuating talaq legally. The apex court said in Shamim Ara 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 and the other from the husband’s; if the attempts fail, ‘talaq’ may be effected”.

Quranic procedure is to be followed for the valid talaq. The intention of the Quranic provision of talaq is to provide time and chances for reconciliation. If this procedure is not followed, nothing will make the talaq valid legally. Hence, the word ‘talaq’ repeated thrice would amount to ‘single pronouncement of talaq’ as the time and reconciliation efforts are absent in it. Judges delivering the majority decision should have made effects of ‘declaring tala-e-biddiat as illegal’ crystal clear. Still, much clarity is required on the point of effects of the Shayara Bano case.

Can past instant triple divorces be challenged after this judgment?

None of the five judges have dealt with the above question. What will happen to the instant triple divorces already effected or given? There is no clear-cut decision about past divorces in Shayara Bano case. Judges could have given this judgment a retrospective effect in order to save many women from the curse of talaq-e-biddat. One hopes the Supreme Court clarifies its judgment with regard to this aspect. Some authoritative and clarificatory order has to be passed to save those marriages, annulment of which had happened because of the now declared illegality of instant triple divorce.

Stage-by-stage approach to enacting Uniform Civil Code

The Constitution of India aspires that citizens be governed by the Uniform Civil Code (UCC) under Article 44, which mandates that "the State shall endeavour to secure for citizens a uniform civil code throughout the territory of India." The UCC shall include matters relating to marriage, divorce, maintenance, inheritance, adoption, gift, endowments etc. The intention behind UCC is to provide a system of laws, where every person is treated equally without any discrimination based on gender, caste, religion or race. Purging all personal laws of their inherent biases based on caste, gender and religion is the first step towards achieving UCC. Since the laws based on religion were conceptualized centuries back, they do not meet the modern constitutional values. As suggested earlier above, declaring all personal laws to be ‘laws in force’ under Article 13 will help purging things inconsistent with fundamental rights given in part III of the Indian Constitution.

Purging inequalities in personal laws will bring at least some uniformity in laws governing civil life of persons. Piecemeal or stage-by-stage approach should be adopted to enact UCC. This will prepare the different religious communities to be ready psychologically for the adoption of UCC. It will take time, how much is difficult to answer. But any hurried attempt will boomerang. UCC has to be religious neutral; it must not have the trappings of the legal and customary provisions of any particular religion. No community would have reservations about such a religious neutral code. The government, leaving aside ideologies and political agenda, must come forward to draft such a code and discuss it with all stakeholders. Any religious neutral code encompassing gender equality should be welcomed with all embracing gestures. Religion minus personal laws will harmonise religious freedom clause and Article 44.

What gains are achieved by Shayara Bano case?

The Shah Bano case was followed by lots of protest and upheavals. Such things were not witnessed in the aftermath of Shayara Bano decision. This shows that Muslim community has travelled a huge distance from Shah Bano to Shayara Bano as far as maturing of understanding of civil liberties and rights are concerned. The pervasive sway of religious leadership has been decimated to a larger extent. The community has matured in their understanding of constitutional values.

Abolition of instant triple talaq is the historic movement in the life of the nation. This will go a long way in ushering a legal and social ecosystem where parity, liberty and dignity will be values to be cherished. The Shayara Bana case is the solemn affirmation of gender justice and parity of husband and wife.

Religion is a personal affair and it should remain confined to the individual’s private domain. Laws governing the nation must be equal for all. This will further strengthen the rule of law, which is the basic structure of the Constitution. The government and citizens have a duty to uphold it. Democracy matures when equality, liberty, dignity and fraternity are celebrated as constitutional festivities. The legal sojourn from Shah Bano to Shayara Bano is a saga of this celebration.

Abdul Hafiz Gandhi is the Head of the Department of Law, Unity Law & Degree College, Lucknow, and Nazia Khan,  an Assistant Professor, Department of Political Science, Jamia Millia Islamia, New Delhi.

Views of the authors are personal.

Email IDs: abdulhafizgandhi@gmail.com and nazia.jnu@gmail.com