By Faizan Mustafa
August 23, 2017
The constitution Bench of five judges, belonging to five different religious communities, took more than three months to author its 395-page judgment on triple divorce. The historic verdict marks a red-letter day for gender justice in India. However, even judges who held triple divorce unconstitutional based their decision on arbitrariness rather than on the discriminatory nature of triple divorce. Thus, gender justice was not the basis of the majority judgment. The case before the Supreme Court was born out of an unrelated matter regarding the denial of inheritance rights to Hindu women under a 2005 amendment to the Hindu Succession Act (Prakash and Ors versus Phulavati and Ors, October 16, 2015). A Hindu woman had won against her brothers in the High Court but lost in the Supreme Court. At the end of the judgment, the Bench of Justices Adarsh Kumar Goel and Anil R Dave ordered that Muslim law too is discriminatory, for which a separate Public Interest Litigation should be initiated.
The current case was filed by Shayara Bano to get triple divorce, polygamy and halala declared unconstitutional. The case had an interesting twist — her husband had, prior to giving her triple divorce, filed a case for the restitution of conjugal rights, and it was Shayara who had left her matrimonial home. While Phulavati did not get justice and the property to which she was entitled under the progressive 2005 amendment, Muslim women who are victims of instant triple divorce, have got some relief.
Decoding The Supreme Court Verdict On Instant Triple Talaq
The issues in the case were so complicated that we have as many as three judgments. Chief Justice of India J S Khehar authored one opinion, with which Justice S Abdul Nazeer agreed. The second opinion was authored by Justice Kurian Joseph. The third judgment was written by Justice Rohinton F Nariman on behalf of himself and of Justice Uday U Lalit. Justice Kurian agreed with Justice Khehar on some points and with Justice Nariman on others. Let us understand the judgments and reasons for the different opinions. All the opinions have clearly stated that they are dealing just with instant triple divorce, and not with other forms of divorces under Muslim Personal Law.
Nariman: Triple Divorce Is Unconstitutional
Justice Nariman has held that instant irrevocable triple Talaq not preceded by the efforts at reconciliation is unconstitutional, as it is contrary to the right to equality, which includes the right against arbitrariness. The basis of his decision is the recognition of triple divorce by the Shariat Act, 1937. The Act laid down that in matters of Talaq, gift, will, inheritance etc., “the rule of decision where parties are Muslims shall be Muslim Personal Law”. He quoted the 1932 decision of the Privy Council in which triple divorce was held as valid under Sharia to conclude that since instant triple divorce is “manifestly arbitrary”, the Shariat Act, to the extent it recognised triple divorce, is ultra vires the Constitution.
He also observed that the duties or obligations of a Muslim can be divided into five categories, viz., Farz, which must be obeyed and Wajib, which is slightly less important; Mustahab, or recommendatory; Jaiz, which is permissible, and to which religion is indifferent; Makruh, or unworthy; and finally, Haram, or forbidden. Instant triple talaq, he said, is either in category 3 (permissible) or, probably, in category 4, which is undesirable.
Since it is not obligatory or recommended, and is rather sinful or undesirable, it cannot meet the “essentiality test”, and is, thus, not protected by Article 25 (freedom of religion). Also, triple Talaq, which is irrevocable and is valid under Muslim Personal law even when the husband assigns no reason for his action, is arbitrary, and therefore, unconstitutional, Justice Nariman has said.
He has struck down Section 2 of the Shariat Act, which recognises and enforces triple divorce. All parent laws, subordinate legislation and executive orders are subject to fundamental rights, and must be struck down if they are not compatible. Justice Nariman dissented with the judgment of the CJI on the issue of the judiciary not being the right forum to dispose of such matters. The Supreme Court cannot refuse to decide when approached by a litigant under Article 32 against the violation of his/her fundamental rights, and put the ball in Parliament’s court, he said.
Khehar: Major Milestone on Freedom of Religion
Justice Khehar’s judgment is the most detailed — 272 pages — and a major milestone in the history of freedom of religion in India. For the first time in Indian judicial history, freedom of religion subject to restrictions given in Articles 25 and 26 has been held to be “absolute”. After quoting Constituent Assembly debates on Articles 25 and 44, the CJI held that personal law is part of the freedom of religion, which courts are duty-bound to protect. He also said courts are not supposed to find fault with provisions of personal law, which are based on beliefs, not logic. Personal law, he said, is beyond judicial scrutiny.
The CJI explicitly said that accepting the petitioner’s prayer to hold triple talaq unconstitutional would amount to negating freedom of religion. He equated triple divorce to fundamental rights. Disagreeing with Justice Nariman, he observed that since the recognition of Muslim Personal Law by the Shariat Act of 1937 does not give it statutory status, and because Muslim Personal Law is not ‘law’ as held by the Supreme Court, the Shariat Act, or triple Talaq under it, cannot be held unconstitutional. He also turned down the central government’s argument citing international conventions, saying such conventions, if they were contrary to fundamental rights, cannot be implemented.
The CJI also refused to strike down triple divorce as violative of public order, health and morality, or for being contrary to other fundamental rights such as the right to equality or the right to live with human dignity. As in the case of sati and the Devdasi practice, in triple Talaq, too, Parliament should take the lead, keeping in view similar reforms in Muslim countries, he said. Using the Supreme Court’s extraordinary powers under Article 142, he ordered that no triple Talaq will be given for six months. Justice Joseph disagreed with the use of Article 142 in this case.
Joseph: Triple Divorce Is Un-Islamic
The third and most important judgment was delivered by Justice Joseph who fully endorsed the CJI’s opinion on freedom of religion, thereby ensuring its majority. He agreed with Justice Nariman on triple divorce not being an essential part of Muslim Personal Law. But he disagreed with Justice Nariman on the interpretation of the Shariat Act — concurring, rather, with Justice Khehar’s opinion that the Shariat Act is not a legislation regulating triple divorce.
He held that the purpose of the 1937 Act was to remove un-Islamic and oppressive customs and usages from Muslim Personal Law, and since triple divorce is not mentioned in the Quran, it is not a part of Sharia — and thus cannot be enforced under the Shariat Act. What is sinful in theology must be held bad in law as well, Justice Joseph ruled. He also observed that the legislature, while enacting laws on gender justice, must give due weightage to freedom of religion.
Mustafa is Vice-Chancellor, NALSAR University of Law, Hyderabad