October 4, 2022

The analysis of Minority Judgment in triple talaq case

In Triple Talaq Case[1], there was five judge’s bench consisting Chief Justice of India J.S.Kehar, Abdul Nazeer, Kurian Joseph, Rohinton Nariman and Uday Umesh Lalit. The first two judges, Jagdish Singh Kehar and Abdul Nazeer gave the judgment upholding the triple talaq as it was continuing since time immemorial. However, they left it to the parliament to make it void by legislation.

The other three judges, Kurian joseph, Rohinton Nariman and UU Lalit gave judgments in favor of petitioners and declared the practice of triple talaq unconstitutional and void ab initio. Kurian Joseph, J. wrote his judgment separately and Nariman, J. and Lalit, J. gave judgment together.

Justice Kurian Joseph

In this article, I am analyzing the judgement of minority view, i.e. the judgment of two judges.

The Questions before the court in Triple Talaq Case

To understand the judgement of majority view as well as minority view, it is expedient to know the questions before the court in this case.

In the case, the minority gave its judgment with the help of following issues-

I. Does the judgment of the Privy Council in the Rashid Ahmad case, upholding talaq-e-biddat, require a relook?

The case of Rashid Ahmed v. Anisa Khatoon[2] was considered an important authority on the subject of triple talaq before the present case. The facts of the case were interesting. In this case, Gyasuddin gave talaq to his wife Anisa Khatoon in 1905 in the presence of two witnesses. Even after the pronouncement of talaq, Anisa Khatoon lived with Gyasuddin for a further period of fifteen years i.e. to the death of Gyasuddin. In this cohabitation, five children were born.

After the death of Gyasuddin, the issue of talaq arose due to property matters and Anisa Khatoon challenged the divorce on the contention that she was not present at the time of divorce and Gyasuddin always treated her as his wife.

However, the contention of the anisa could not find the force in the privy council and privy council held that even though Gyasuddin treated her as his wife and she lived with him but the divorce was valid ab initio and the children were illegitimate.

In the present case (Shayra Bano), it was the submission of petitioner’s counsel that the judgment rendered by the Privy Council in the Rashid Ahmad case with reference to the validity of talaq-e-biddat needed to be overruled. Since talaq-e-biddat cannot be traced to the Quran, and since the Prophet himself deprecated it, and since talaq-e-biddat was considered sinful by all schools of Sunni Muslims, and as invalid by all the Shia Muslim schools, it could not be treated to be a part of Muslim personal law.

For a considerable time, this position of talaq as set by privy council, remained in force in India. The Indian court in various cases showed their displeasure with the position taken by privy council in Gyasuddin case.

After the privy council case in 1932, the Indian legislator also enacted ‘Muslim person law (shariat) application Act, 1937, by which personal law was made applicable on the personal matters of muslims.

After the Privy Council had rendered the judgment in the Rashid Ahmad case, and well after the 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[3], wherein, the High Court examined the above decision of the Privy Council in the 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 said judgment, Justice single judge V.K. Krishna Iyer (as he then was) made following observation-

“Since infallibility is not an attribute of the judiciary, the view has been ventured by Muslim jurists that the Indo-Anglian judicial exposition of the Islamic law of divorce has not exactly been just to the Holy Prophet or the Holy Book. Marginal distortions are inevitable when the Judicial Committee in Downing Street has to interpret Manu and Muhammad of India and Arabia. The soul of a culture law is largely the formalized and enforceable expression of a community’s cultural norms cannot be fully understood by alien minds. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions.”

Again in Fuzlunbi v. K. Khader Vali[4], Justice Krishna Iyer (as the supreme court judge) while in a three judge bench, made a very poignant observation on the erroneous approach of Batchelor, J. in Sarabai v. Rabiabai[5] on the famous comment good in law, though bad in theology. (In an early Bombay case, Sarabai v. Rabiabai, (supra), Bachelor, J. referred to Triple Talaq and said that it is good in law though bad in theology.)

THE following observation was made by Justice V.K. Krishna Iyer,

“……it is necessary to mention that Chief Justice Baharul Islam, in an elaborate judgment replete with quotes from the Holy Quran, has exposed the error of early English authors and judges who dealt with talaq in Muslim Law as good even if pronounced at whim or in tantrum. Maybe, when the point directly arises, the question will have to be considered by this court, but enough unto the day the evil thereof and we do not express our opinion on this question as it does not call for a decision in the present case.”

It would be relevant to mention, that in the interregnum, the validity of talaq-e-biddat was considered by a learned Single Judge (Justice Baharul Islam, as he then was) of the Gauhati High Court, in the Jiauddin Ahmed case[6], wherein, the High Court took a view different from the one recorded by the Privy Council (-in the Rashid Ahmad case).

The issue was again examined, by a Division Bench of the Gauhati High Court, in the Mst. Rukia Khatun case[7] Yet again, the High Court (speaking through, Chief Justice Baharul Islam, as he then was), did not concur with the view propounded by the Privy Council.

The matter was also examined by a Single Judge (Justice Badar Durrez Ahmed, as he then was) of the Delhi High Court in the Masroor Ahmed case[8]. Herein again, by placing reliance on relevant hadiths, the Delhi High Court came to the conclusion, that the legal position expressed by the Privy Council on talaq-e-biddat, was not in consonance with the Muslim personal law.

Justice Abdul Nazeer

After reviewing the catena of case laws on the subject of Triple talaq and the views expressed by the courts against it on the basis of Quran, Hadith, Ijma and Qiyas, the court reached on the conclusion in the present case (Shayra bano) that there is need to examine the practice of talaq freshly.

After accepting the necessity to consider the practice of talaq afresh, the second issue of the court was to check if triple talaq has sanctity of law in India.

II. Has talaq-e-biddat, which is concededly sinful, sanction of law?

In the present case, this was the major contention of the petitioner’s side that Talaq-e-biddat (tripe talaq) do not have reference in Quran and Hadith and only talaq-e-ahsan and hasan are mentioned in the Quran. On this question, even respondent was in agreement with the petitioner.

But the minority view in the judgement did not accept the said contention and said that,

“The submission does not need a serious examination, because even talaq-e-ahsan and talaq-e-hasan which the petitioners acknowledge as the most proper, and the proper forms of divorce respectively, also do not find mention in the Quran. Despite the absence of any reference to talaq-e-ahsan and talaq-e-hasan in the Quran, none of the petitioners has raised any challenge thereto, on this score. A challenge to talaq-e-biddat obviously cannot be raised on this ground.

We are satisfied, that the different approved practices of talaq among Muslims, have their origin in hadiths and other sources of Muslim jurisprudence. And therefore, merely because it is not expressly provided for or approved by the Quran, cannot be a valid justification for setting aside the practice….

…(-the petitioners or the respondents), acknowledged in one voice, that talaq-e-biddat though bad in theology, was considered as good in law. All learned counsel representing the petitioners were also unequivocal, that talaq-e-biddat was accepted as a valid practice in law. That being so, it is not possible for us to hold, the practice to be invalid in law, merely at the asking of the petitioners, just because it is considered bad in theology.”

This was also the contention of the petitioner that triple talaq should be ended as other sinful practices like sati, devadasi were ended. On this contention, the minority view said that those practices were ended though legislation and not by Court’s order.

III. Is the practice of talaq-e-biddat, approved/disapproved by hadiths?

In answer of the first issue, the court was of the view that rashid ahmed case need fresh review but the court also taken in notice the views expressed by the various high courts (mentioned above in first issue) after rashid ahmed case. According to minority view,

“this fact cannot be ignored that the judges in those cases were Sunni muslims belonging to the Hanafi school.

In the four judgments referred to above, the High Courts relied on hadiths to support and supplement the eventual conclusion drawn. There is certainly no room for any doubt, that if hadiths relied upon by the High Courts in their respective judgments, validly affirmed the position expressed with reference to talaq-e-biddat, there would be no occasion for us to record a view to the contrary.”

The court (minority view) considered it appropriate to refrain from entertaining a determination on triple talaq. The court did not find themselves upto the task. In giving such opinion the court affirmed the contention of respondent’s counsel kapil sibbal and amicus curie Salman Khurshid who advised the court that it was not the role of a court to interpret nuances of Muslim personal law (Shariat).

It was submitted by Salman Khurshid that the Imam alone had the authority to resolve a religious conflict amongst Muslims. The Imam would do so, not on the basis of his own views, but by relying on the verses from the Quran, and the hadiths, and based on other jurisprudential tools available, and thereupon he would render the correct interpretation. Salman Khurshid, also cautioned the Court, that it was not its role to determine the true intricacies of faith.

Salman Khurshid

IV. Is the practice of talaq-e-biddat, a matter of faith for Muslims? If yes, whether it is a constituent of their personal law?

Although, in the above mentioned consideration, the court did not disapprove and derecognize the triple talaq, but again, the court tried to consider the contention of petitioner that talaq-e-biddat was not a constituent of personal law of Sunni Muslims belonging to the Hanafi school. And it was merely a usage or custom.

And in answer of this question, the court said that

“We are satisfied, that the practice of talaq-e-biddat has to be considered integral to the religious denomination in question Sunnis belonging to the Hanafi school. There is not the slightest reason for us to record otherwise.”

In reaching the abovementioned conclusion, the court took the note of following reasons-

  • The practice of talaq-e-biddat is widespread in Islamic countries, Had it not been so, legislation would not have been required on the subject. It is therefore clear that the practice of talaq-e-biddat was not limited to certain areas, but was widespread.
  • The debate and discussion amongst Islamic jurists in the relevant hadiths reveal, that the practice of triple talaq was certainly, in vogue amongst Muslims, whether it was considered and treated as irregular or sinful, is quite another matter.

In the present case, all parties (petitioner as well as respondent) agreed that that though considered as improper and sacrilegious, it was indeed accepted as lawful.

  • The fact, that about 90% of the Sunnis in India, belong to the Hanafi school, and that, they have been adopting talaq-e-biddat as a valid form of divorce, is also not a matter of dispute.
  • The fact that the judgment of the Privy Council in the Rashid Ahmad case as far back as in 1932, upheld the severance of the matrimonial tie, based on the fact that talaq had been uttered thrice by the husband, demonstrates not only its reality, but its enforcement, for the determination of the civil rights of the parties.

It is therefore clear, that amongst Sunni Muslims belonging to the Hanafi school, the practice of talaq-e-biddat, has been very much prevalent, since time immemorial.

Justice Jagdish singh kehar

V. Did the Muslim Personal Law (Shariat) Application Act, 1937 confer statutory status to the subjects regulated by the said legislation?

Muslim Personal Law (Shariat) Application Act, 1937 (Sharia act, in short), was enacted on the demand of muslim community because before the sharia act, such custom and usage were in existence which were wrongly affecting the rights of muslim women in property and other matters and courts were also recognising those bad customs in their decisions.

Section 2 of Sharia act, 1937 made applicable muslim personal law (sharia law) in the matters connected with muslims in India. These matters also included the matter of talaq.

In the present case, it was one of the contention of the petitioner that since article 13 of the constitution provided that all customs, laws, which are in consistent with the part III (fundamental rights) will be declared void, therefore, the sharia act as it was the legislation, should come under the preview of section 13 and talaq should be declared void as it is against the fundamental right of petitioners. Because after the enactment of the Shariat Act, 1937, the questions and subjects covered by the Shariat Act, ceased to be personal law, and got transformed into statutory law.

But the minority view denied to accept such contention, on this particular issue, it was the conclusion of the minority that,

“The Shariat Act did not crystallise the norms as were to be applicable to Shias and Sunnis, or their respective schools. What was sought to be done through the Shariat Act, in our considered view, was to preserve Muslim personal law Shariat, as it existed from time immemorial. We are of the view, that the Shariat Act recognizes the Muslim personal law as the rule of decision in the same manner as Article 25 recognises the supremacy and enforceability of personal law of all religions. We are accordingly satisfied, that Muslim personal law Shariat as body of law, was perpetuated by the Shariat Act, and what had become ambiguous (due to inundations through customs and usages), was clarified and crystallised……

……. Having concluded as above, we must also hold (-which we do), that the practices of Muslim personal law Shariat cannot be required to satisfy the provisions contained in Part III Fundamental Rights, of the Constitution, applicable to State actions, in terms of Article 13 of the Constitution.”

Thus, the court held (minority view), that the provisions of the Muslim Personal Law (Shariat) Application Act, 1937 did not alter the personal law status of the Muslim personal law Shariat. And next the court had to deal with the question that Since talaq-e-biddat remains a matter of personal law, applicable to a Sunni Muslim belonging to the Hanafi school, can it be declared as not enforceable in law, as it violates the parameters expressed in Article 25 (which is also one of the pointed contentions of those supporting the petitioners case)?

VI. Does talaq-e-biddat, violate the parameters expressed in Article 25 of the Constitution?

And after reviewing a catena of case laws the court found that, that the judicial interference with personal law 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 provision itself). And the court expressed its final opinion that,

“It is not possible for us to accept, that the practice of talaq-e-biddat can be set aside and held as unsustainable in law for the three defined purposes expressed in Article 25(1), namely, for reasons of it being contrary to public order, morality and health. Viewed from any angle, it is impossible to conclude, that the practice impinges on public order, or for that matter on health. We are also satisfied, that it has no nexus to morality, as well.

Therefore, in our considered view, the practice of talaq-e-biddat cannot be struck down on the three non-permissible/prohibited areas which Article 25 forbids even in respect of personal law. It is therefore not possible for us to uphold the contention raised on behalf of the petitioners on this account.”

The court also rejected the contention that talaq is violates the rights guaranteed under article 14,15 and 21. The court said,

 “Personal law, being a matter of religious faith, and not being State action, there is no question of its being violative of the provisions of the Constitution of India, more particularly, the provisions relied upon by the petitioners, to assail the practice of talaq-e-biddat, namely, Articles 14, 15 and 21 of the Constitution.”

VII. Constitutional morality and talaq-e-biddat:

One of the issues canvassed on behalf of the petitioners was on the ground, that the constitutional validity of the practice of talaq-e-biddat triple talaq, was in breach of constitutional morality.

It was asserted, that women belonging to any individual religious denomination, cannot suffer a significantly inferior status in society, as compared to women professing some other religion. It was pointed out, that the fundamental right to equality, guaranteed to every citizen under Article 14 of the Constitution, must be read to include, equality amongst women of different religious denominations. It was submitted, that gender equality, gender equity and gender justice, were values intrinsically intertwined in the guarantee assured to all (-citizens, and foreigners) under Article 14. And right of a woman to human dignity, social esteem and self-worth were vital facets, of the right to life under Article 21.

After reviewing the contentions of rival parties and the position of laws, the constitutional assembly’s debate and other aspect, the court declined to accept to declare talaq unconstitutional and said,

“There can be no doubt, that the personal law has been elevated to the stature of a fundamental right in the Constitution. And as such, personal law is enforceable as it is. All constitutional Courts, are the constitutional guardians of all the Fundamental Rights (included in Part III of the Constitution). It is therefore the constitutional duty of all Courts to protect, preserve and enforce, all fundamental rights, and not the other way around. It is judicially unthinkable for a Court, to accept any prayer to declare as unconstitutional (-or unacceptable in law), for any reason or logic, what the Constitution declares as a fundamental right. Because, in accepting the prayer(s), this Court would be denying the rights expressly protected under Article 25.”

VIII. Reform to personal law in India

The court reviewed the development of personal laws of different communities in India. After the review the court found out that the matters relating to personal laws in India were altered through legislation and court never alter the personal laws’ status.

According the court,

“Therefore, in continuation of the conclusion already recorded, namely, that it is the constitutional duty of all courts to preserve and protect personal law as a fundamental right, any change thereof, has to be only by legislation under Articles 25(2) and 44, read with entry 5 of the Concurrent List contained in the Seventh Schedule to the Constitution.”

IX. Impact of international conventions and declarations on talaq-e-biddat

At last, the court tried to notice if there is any impact of international convention and declaration on municipal laws. Because, it was the contention of the petitioner’s counsel that, the practice of talaq-e-biddat was rendered impermissible, as soon as, India accepted to be a signatory to international conventions and declarations, with which the practice was in clear conflict. It was submitted, that continuation of the practice of talaq-e-biddat, sullied the image of the country internationally, as the nation was seen internationally as a defaulter to those conventions and declarations. It was pointed out, that by not consciously barring talaq-e-biddat, and by knowingly allowing the practice to be followed, India was seen as persisting and propagating, what the international community considers abhorrent.

The court’s attention was invited to Universal Declaration of Human Rights, 1948 and International Conventions on Economic, Social and Cultural Rights (ICESCR). But the court adopted balanced approach and said that,

“We have not the least doubt, that the Indian State is committed to gender equality. This is the clear mandate of Article 14 of the Constitution…. Articles 15 and 16 of the Constitution, prohibit any kind of discrimination on the basis of sex. There is therefore no reason or necessity while examining the issue of talaq-e-biddat, to fall back upon international conventions and declarations……. The reason for us, not to accede to the submissions advanced at the behest of those who support the petitioners cause, with pointed reference to international conventions and declarations, is based on Article 25 of the Constitution, whereby personal law of all religious denominations, is sought to be preserved…… It is therefore apparent, that whilst the Constitution of India supports all conventions and declarations which call for gender equality, the Constitution preserves personal law through which religious communities and denominations have governed themselves, as an exception.”

The court said that that international conventions and declarations are not binding to the extent they are in conflict with domestic laws.

The final decision

At the end, the minority reached on the conclusion that it was not the duty of the court to interfere in personal matters, however, the legislator may make legislation on the issue.

While finalising its judgement, the court had the views,

“Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion……The Constitution assures believers of all faiths, that their way of life, is guaranteed, and would not be subjected to any challenge, even though they may seem to others (-and even rationalists, practicing the same faith) unacceptable, in today’s world and age….

…. In continuation of the position expressed above, we may acknowledge, that most of the prayers made to the Court (-at least on first blush) were persuasive enough, to solicit acceptance. Keeping in mind, that this opportunity had presented itself, so to say, to assuage the cause of Muslim women, it was felt, that the opportunity should not be lost. We are however satisfied that, that would not be the rightful course to tread……The authority to safeguard and compel compliance, is vested under a special jurisdiction in constitutional Courts (-under Article 32, with the Supreme Court; and under Article 226, with the High Courts). Accepting the petitioner’s prayers, would be in clear transgression of the constitutional mandate contained in Article 25….

……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…. 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.”

An overview of the minority judgement

The minority judgment in the present case was the most balanced judgment I have ever seen. The court firstly analysed the teaching of hadith and Quran, the history of talaq and the reference of talaq and after reviewing the existing authorities on the Triple talaq, the court considered the issues in detail.

The court did not transgress its foot from its boundary but made an effort to deliver the best decision while trying to remain in its own created limit, the limit of the court which the supreme court maintain although it may cross on the name of fundamental rights or human rights of people. The court accepted the contentions of the Salman Khurshid and Kapil Sibbal when they said that it is not the work of court to interpret the question of faith and it should be interpreted by the Imam who can interpret these questions in the light of Quran and its teaching as he can understand these things better.

Kapil Sibbal

The court also accepted the contention that since it is continuing from time immemorial and the regulation of this practice in Muslim countries itself show that this practice was also widespread there.

So, we can appreciate the court to remain in limit but these acceptances do not solve the problem at hand. In India, the constitution of the land made supreme court the most powerful court of the world. Also the specific conditions of politics and the situations in which politics found its ways, this came on the shoulder of the court to give justice to the people. Our politics developed in the pressure of religion, caste and by using the tactics, therefore sometimes people don’t expect justice from the government by way of legislation, so they knock the door of the court.

If court will not decide the matter of people where people can go when they also don’t have assurance from the politics itself? So, minority judgment limited the boundaries too much that they could not wipe the tears of the victims.

However, the other side of the court, the majority view came in the support of the victims and pushed their boundaries and made talaq unconstitutional. This is actually what people were accepting from the court because if talaq was started due to some greed of muslim males then why should it be continued on the suffering of lakhs of women when Quran also abhors this practice.

Reference

Shayra Bano v. Union of India, (2017) 9 SCC 1

This paper is authored by Arshi hayat Gnagohi. She is a lawyer, blogger at ababeelfolks and writes on laws, culture, books, cinema, food and literature.


[1] Shayra Bano v. Union of India, (2017)

[2] AIR 1932 PC 25

[3] AIR 1971 Kerala 261

[4] AIR 1980 SC 1730

[5] (1906) ILR 30 Bom 537

[6] Jiauddin Ahmed v. Anwara Begum; (1981) 1 Gau.L.R. 358

[7] Must. Rukia Khatun v. Abdul Khalique Laskar; [(1981) 1 Gau LR 375]

[8] Masroor Ahmed v. State (NCT of Delhi); 2008 (103) DRJ 137