On 11 May 2017 the 5 Judge Constitutional Bench began hearing the Triple Talaq case. This case tags W.P. (C) 118 /2016 (Shayara Bano v. Union of India & Ors) and the Suo W.P. (C) 2 /2015 (In re: Muslim Women’s Quest for Equality). The Chief Justice began by framing two fundamental issues:
Mr. Amit Chadha. Sr. Adv. representing Shayara Bano began by arguing that triple talaq is not a form of divorce recognised by The Muslim Personal Law (Shariat) Application Act, 1937. He pointed out that several High Court and Supreme Court decisions have restricted the unilateral power of Muslim men to divorce women and criticised the practice of triple talaq as it does not have Quranic sanction. Moreover, these judgments affirm that the Quran permits divorce for reasonable cause and if preceded by attempts at reconciliation. He urged the court to strike down triple talaq as allowing an un-codified power to Muslim men to divorce violates Articles 14 and 15 of the Constitution.
He then responded to two arguments made in the written submissions of the All India Muslim Personal Law Board (AIMPLB). First, he argued that by virtue of the 1937 Act, Muslim personal laws are statutory laws covered by the Article 13 expression ‘laws in force’ and subject to Part III of Constitution. He distinguished the Bombay High Court decision in State of Bombay v. Narasu Appa Mali (AIR 1952 Bom 84) as it excludes only non-codified/ non-statutory personal law from Part III of the Constitution and hence does not apply to this case.
Next, he argued that the practices challenged in this case are not essential practices of Islam as is evident from legislations in other Islamic countries that have prohibited such practices. Further, he argued that the right to religion in Article 25 of the Indian Constitution is subject to other provisions in Part III which includes Articles 14, 15 and 21. Hence, the challenged practices are not protected by Article 25.
He concluded by suggesting that if triple talaq is struck down, the law of divorce for Muslims would be the Dissolution of Muslim Marriages Act, 1939 that could apply equally to the entire Muslim community, irrespective of gender.
Mr. Anand Grover, Sr. Adv. representing the Bharatiya Muslim Mahila Andolan (BMMA) began by pointing out that that under Islamic Law, divorce is of primarily three types: talaq, which comprises of modes of divorce at the instance of husband, khula, which is divorce at the instance of the wife and third is mubarat, which is mutual consent divorce. He then clarified that Talaq itself is of three types: talaq ahsan and talaq hasan, both of which are approved by the Quran and Hadith and the third type which is talaq-e-bidat, which is neither recognized by the Quran nor the Hadith. Notably, the word “talaq” in Section 2 of The Muslim Personal Law (Shariat) Application Act, 1937 that makes Sharia Law applicable to Indian Muslims does not include triple talaq / talaq-e-bidat.
The core of his argument was that talaq-e-bidat was not a part of Muslim Personal Law, the Court need not consider the constitutional validity of the practice at all. Instead, it should confirm Justice Badar Durrez Ahmed Delhi High Court decision in Masroor Ahmed v. State (NCT of Delhi), 2008 (103) DRJ 137. Mr. Anand Grover concluded by urging the court to read down legislation instead of striking them down as unconstitutional.
Ms. Indira Jaising, Sr. Adv. representing the Intervenors argued that personal laws – codified or un-codified – regardless of the community, are subject to Article 13 of the Indian Constitution and therefore void to the extent that they violate fundamental rights. Her main concern with the practice of unilateral triple talaq was that it alters the civil status of a married woman and can leave her destitute and hence allowing one party to a marriage the right to unilateral private talaq is against public policy and unconstitutional. Further, this practice discriminates between Muslim men and women as it confers males the privilege of unilateral talaq but Muslim woman must approach a court of law to obtain a divorce on stated grounds under the Dissolution of Muslim Marriages Act 1939.
She concluded by advancing the general proposition that any divorce which is unilateral in nature and without judicial oversight violates Articles 14, 15 and 21 of the Indian Constitution. As the general Islamic concept of marriage among Muslims is admittedly a contract it cannot be dissolved in a unilateral manner. As Section 23 of the Indian Contract Act, 1872 provides that any agreement that is immoral or opposed to public policy is void, any rule of law or custom that permits unilateral termination of a marriage contract cannot be a part of a valid Muslim marriage contract.
(This post relies on contributions from Meher Dev)