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Triple Talaq Judgment and the Continuing Confusion

about the Constitutional Status of Personal Law
SAPTARSHI MANDAL

Saptarshi Mandal (saptman@gmail.com) is at the Jindal Global Law School, Sonipat.

Vol. 52, Issue No. 35, 02 Sep, 2017

The judgment in Shayara Bano does not change the legal position of Instant Triple Talaq
that existed before, but creates confusion on the constitutional status of personal law, and
misses a great opportunity to elaborate on the constitutional vision of justice for women
from minority religious groups.

The Supreme Court’s 22 August judgment in Shayara Bano v Union of India (2017), has
been described by many commentators as the Court declaring the practice of instantant
triple talaq (or divorce, hereinafter ITT) to be “unconstitutional". Such a description of the
judgment is incorrect. The judgment is made up of three separate opinions: one by Chief
Justice Jagdish S Khehar and Justice S Abdul Nazeer; one by Justice Kurian Thomas; and one
by Justices Rohinton F Nariman and Uday U Lalit. The three opinions concur on some issues
and differ on others. This makes the task of figuring out the judgment’s exact holding a
difficult and confusing exercise. Carefully tracing the convergences and divergences leads
one to conclude that the majority faulted ITT and “set it aside” not because it was found to
be unconstitutional, but rather on the grounds that it was un-Islamic. What is more, even
with a five-judge bench decision, the constitutional status of personal law remains as
uncertain as before, which makes the prospects of any future attempt to change
discriminatory personal law provisions by challenging their constitutional validity, difficult.
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Brief Background
To go over the facts briefly, Shayara Bano, a woman survivor of domestic violence and
dowry harassment had been unilaterally divorced through ITT. She filed a petition before
the Supreme Court seeking a declaration that the practices of ITT, polygamy, and nikah
halala in Muslim personal law were illegal, unconstitutional, and in violation of Articles 14
(equality before law), 15 (non-discrimination), 21 (right to life with dignity) and 25 (right to
freedom of conscience and religion) of the Indian Constitution. The Court however chose to
examine the issue of ITT alone. The Union of India supported the petition. Among the others
whointervened in this case, the All India Muslim Personal Law Board and the Jamiat Ulema-
e-Hind argued that the Court did not have jurisdiction to entertain a constitutional challenge
to Muslim personal law and that the matter was in the domain of the legislature. The
Bebaak Collective and the Centre for Study of Society and Secularism – two organisations
working with Muslim women – supported the petition and urged the Court to declare that
personal law was subject to the Fundamental Rights. Bharatiya Muslim Mahila Andolan and
Majlis – also women’s rights organisations – argued that in view of previous decisions of the
Court, the bench need not consider the question whether constitutional validity of ITT, but
should rather emphasise the existing legal remedies.

As has been pointed out by many commentators throughout the course of this case, ITT
lacked legal validity even before this petition was filed, though it had not been declared
“unconstitutional” by any court. Since the 1980s, a number of high courts had held that for
talaq to be valid, it must be pronounced for a reasonable cause, and must be preceded by
attempts at reconciliation facilitated by mediators representing both parties. According
to this view, though widely invoked by husbands and authorised by the clerics, ITT was
already illegal. In an earlier article in this journal commenting on Shayara Bano’s petition, I
had written,

“…far from being rooted solely in religion, two out of the three provisions of Muslim
personal law under scrutiny in this case already exist in a framework shaped by secular
considerations such as reasonableness, equity and state policy favouring monogamy as a
matter of “social reform”. And yet, uncertainty persists over whether personal laws are truly
“laws” that can be examined through the lens of constitutional ideals of equality, non-
discrimination and dignity.” (Mandal 2016)

The issue goes back to a 1951 Bombay High Court judgment in the case, State of Bombay v
Narasu Appa Mali (1952), where a two-judge bench had held that personal law was not
covered by the phrase “laws in force” used by the Constitution in Article 13 to denote all
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those pre-constitutional enactments which were “in force” at the time of adopting the
Constitution, and which were subject to the Fundamental Rights. The two judges held that
this was because the source of personal law was religion rather than the state. The
foundations of this judgment have been criticised by eminent legal scholars like H.M.
Seervai (2015) and A M Bhattacharjee (2016). Several high court benches have also called
for its reconsideration. The Supreme Court affirmed it in the 1980 judgment Sri Krishna
Singh v Mathura Ahir (1980), then implicitly overturned it in the 1996 judgment C
Masilamani Mudaliar and Others v The Idol of Swaminathaswaminathaswami Thirukoil
(1997) and then upheld it again in the 1997 judgment Ahmedabad Women’s Action Group v
Union of India (1997). Thus, Shayara Bano’s case was important not just for how the Court
decided her immediate claims, but also because it offered an opportunity for a five-judge
bench of the Supreme Court to clarify the constitutional status of personal law.

Triple Talaq as Religious Faith

The two two-judge opinions in the Shayara case take diametrically opposite approaches to
the question of constitutionality. Justice Khehar’s opinion to which Justice Nazeer joins,
takes the view that those parts of Muslim personal law on which the state has enacted a law
– such as the Dissolution of Muslim Marriage Act, 1939 or the Muslim Women’s (Protection
of Rights on Divorce) Act, 1986 – can be tested for compliance with the Fundamental Rights,
but those parts that were uncodified cannot be. He bases this on the view that the Muslim
Personal Law (Shariat) Application Act, 1937, which provided that Shariat was the only law
applicable to the Muslims and not customary law, had a limited purpose. That limited
purpose, according to Khehar, was to only state that customary law was not applicable to
the Muslims in matters of marriage, divorce, inheritance, and so on. The 1937 Act did not
automatically bring the uncodified part of Muslim personal law within the state’s
jurisdiction, and as a result, it did not come within the phrase “laws in force” in Article 13 of
the Constitution.

Thus, Khehar affirms the Narasu judgment. Although the Union of India had urged that the
judgment should be reconsidered, Khehar refrains from doing so, stating that the bench
cannot do this as it had been upheld earlier by Supreme Court benches of the same
strength. This is incorrect, as both the instances where Narasu was upheld were two-judge
benches. Khehar further immunises Muslim personal law from constitutional challenge by
holding that it is protected as a matter of religious freedom under Article 25. Specifically on
ITT, the judge holds that it had been practiced by the Sunni community for centuries, which
made it part of their religious faith and was protected from interference by the Court.
Curiously, in framing the issue thus, he gives up his earlier distinction between codified and
uncodified laws, and goes on to hold the entire category of personal law to be immune from
constitutional challenge. He concludes that only the state canbring changes in the domain of
personal law through legislation within permissible limits of Article 25 and trump the
interest of religious freedom. Justices Khehar and Nazeer therefore deny the petition, and
direct the state to legislate on the issue within six months.
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Triple Talaq as Manifest Arbitrariness

Justices Nariman’s opinion with which Justice Lalit concurs goes in the opposite direction.
Nariman takes the view that the function performed by the 1937 Act was not only to
abrogate the application of customary law to Muslims. It also performed a positive function,
in that it also provided what was the applicable law. The entity “Muslim personal law”
according to on this view, was brought into existence by the state in exercise of its civil
authority, which brought it squarely within the phrase “laws in force” in Article 13. Thus,
according to Nariman, even uncodified Muslim personal law can be tested for compliance
with the Fundamental Rights. The judge contradicts the rationale on which Narasu was
based. Further, he sets aside an earlier two-judge bench decision of the Supreme Court that
had relied on Narasu. But curiously, having rejected Narasu in both substance and
application, he notes that the question of whether Narasu is still valid law should be
examined in a “suitable case”.

The centerpiece of Justice Nariman’s opinion is the position that what is “manifestly
arbitrary” is also unreasonable and can be struck down under Article 14, which is concerned
with equality before law and equal protection of the laws. Justice Nariman notes that ITT is
an “irregular or heretical form of talaq” since though lawful, it is considered to be incurring
the wrath of God. For him, the arbitrariness of IIT, when seen through the lens of
constitutional reasoning, its arbitrariness is thrown into sharper focus. The judge concludes:

“…it is clear that 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.” (Shayara Bano v Union of India 2017: para 57)

Thus, in Nariman’s analysis, the religion-based finding that ITT was irregular and sinful,
coincided with the constitutional reasoning-based finding that ITT was manifestly arbitrary.
Justices Nariman and Lalit therefore struck down the 1937 Act, to the extent that it
recognised ITT.

Triple Talaq as Un-Islamic

Justice Joseph does not fully join either of the above positions, but follows a different path.
On the question of the nature of the 1937 Act, he agrees with Justice Khehar and disagrees
with Justice Nariman. Thus, though he agrees with Justice Nariman’s view of arbitrariness
as an appropriate test for Article 14, he holds that the 1937 Act cannot be subjected to it.
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But he disagrees with Justice Khehar too. Justice Khehar held against determining the
validity of ITT by referring to the Hadiths, as he felt that it was beyond the judicial role and
expertise. Justice Joseph on the other hand is of the opinion that the 1937 Act, having
declared Shariat to be the law applicable to Muslims, had essentially left it to the judges to
find out what the Shariat said on an issue. Therefore, leaving the question of
constitutionality aside, what he pursues in his opinion is:

“...whether what is Quranically wrong can be legally right …. the simple question that needs
to be answered in this case is only whether triple talaq has any legal sanctity.” (Shayara
Bano v Union of India 2017: para 1)

His reading of the relevant verses leads him to conclude that “an attempt for reconciliation
and if it succeeds, then revocation are the Quranic essential steps before talaq attains
finality” (Shayara Bano v Union of India 2017: para 10).

This was the view adopted by a number of high courts since the 1980s and thiswas endorsed
by the Supreme Court in Shamim Ara v State of UP in 2002. Further, between 2002 and
2017, a number of high court benches had relied on the Shamim Ara case and invalidated
ITT. Thus, Justice Joseph disagrees with Justice Khehar on two more points: one, that
Shamim Ara dealt with the valid procedure for talaq in general, but did not contain a rule on
ITT and two, that ITT was integral to the religious faith of the Muslims. On the first, he
notes that Shamim Ara had effectively invalidated ITT, though it did not say it in so many
words. On the second issue, he notes that since the purpose of the 1937 Act was to abolish
customs that were contrary to Shariat and ITT wascontrary to the Quranic tenets, it was
abolished by the 1937 Act. Hence, it could not be said to be an integral part of the Muslim
faith and could not be immunised by resorting to Article 25. Here, he again disagrees with
Justice Nariman, who held that the 1937 Act authorised ITT. Justice Joseph reiterates that
the Shamim Ara judgment be upheld and finds ITT to be lacking legal validity, concluding,

“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.” (Shayara Bano v Union of India 2017: para 26)

Conclusion
Having laid out the differences in the three opinions above, we find very few points on
which a clear majority position emerges. Even when the judges agree on the outcome, they
do so for different reasons. Justices Nariman and Lalit find ITT to be un-Islamic and
unconstitutional. Justice Joseph does not go into the question of constitutionality, but finds
IIT to be un-Islamic and hence, invalid. Thus, by no means can it be concluded that in
Shayara Bano, the Court has declared ITT to be unconstitutional.
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On the issue of the constitutional status of personal law, we find an utterly confusing
judgment. Two judges hold at one point that uncodified personal law is beyond the scope of
the Fundamental Rights, but following rather dubious logic, hold at a later point that the
entire domain of personal law is protected as a matter of religious freedom, and they affirm
Narasu. Two other judges hold personal law to be subject to the Fundamental Rights, but
they do not explicitly set aside Narasu. One judge rejects the proposition that uncodified
Muslim personal law can be tested against Fundamental Rights, rejects that it is protected
by religious freedom, acknowledges the ghost of Narasu, but avoids the issue altogether.
Arguably, Justice Joseph’s approach to the problem shows that it could have been tackled
even without a constitutional challenge. But since the petitioners had raised the issue of
constitutionality, the judges could have addressed the issue more thoughtfully.

In the final analysis, the judgment in Shayara Bano does not change the legal position of ITT
that existed before, but creates confusion on the constitutional status of personal law and
misses a great opportunity to elaborate on the constitutional vision of justice for women
from minority religious groups.

I thank Jhuma Sen for discussions and disagreements over the judgment.

References:
Bhattacharjee, Anandamoy M (2016): Muslim Law and the Constitution, Kolkata: Eastern
Law House.

Mandal, Saptarshi (2016): “Do Personal Laws get their Authority from Religion or the State
– Revisting the Constitutional Status,” Economic and Political Weekly, Vol 51, No 50,
http://www.epw.in/journal/2016/50/web-exclusives/do-personal-laws-get-th....

Seervai, Hormasji M (2015): Constitutional Law of India, Vol 1, Ed 4, New Delhi: Universal
Law Publishing.
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