For this purpose, a PIL be separately registered and put up before the appropriate Bench

as per orders of Hon’ble the Chief Justice of India.” (at pages 53 and 55) Several writ
petitions have thereafter been filed and are before us seeking in different forms the same
relief – namely, that a Triple Talaq at one go by a Muslim husband which severs the
marital bond is bad in constitutional law.

2. Wide ranging arguments have been made by various counsel appearing for the parties.
These have been referred to in great detail in the judgment of the learned Chief Justice. In
essence, the petitioners, supported by the Union of India, state that Triple Talaq is an
anachronism in today’s day and age and, constitutionally speaking, is anathema.
Gender discrimination is put at the forefront of the argument, and it is stated that even
though Triple Talaq may be sanctioned by the Shariat law as applicable to Sunni
Muslims in India, it is violative of Muslim women’s fundamental rights to be found,
more particularly, in Articles 14, 15(1) and 21 of the Constitution of India. Opposing this,
counsel for the Muslim Personal Board and others who supported them, then relied
heavily upon a Bombay High Court judgment, being State of Bombay v. Narasu Appa
Mali, AIR 1952 Bom 84, for the proposition that personal laws are beyond the pale of the
fundamental rights Chapter of the Constitution and hence cannot be struck down by this
Court. According to them, in this view of the matter, this Court should fold its hands and
send Muslim women and other women’s organisations back to the legislature, as
according to them, if Triple Talaq is to be removed as a measure of social welfare and
reform under Article 25(2), the legislature alone should do so. To this, the counter
argument of the other side is that Muslim personal laws are not being attacked as such.
What is the subject matter
 of attack in these matters is a statute, namely, the Muslim Personal Law (Shariat)
Application Act, 1937 (hereinafter referred to as the “1937 Act”). According to
them, Triple Talaq is specifically sanctioned by statutory law vide Section 2 of the 1937
Act and what is sought for is a declaration that Section 2 of the 1937 Act is
constitutionally invalid to the aforesaid extent. To this, the Muslim Personal Board states
that Section 2 is not in order to apply the Muslim law of Triple Talaq, but is primarily
intended to do away with custom or usage to the contrary, as the non-obstante clause
in Section 2 indicates. Therefore, according to them, the Muslim personal law
of Triple Talaq operates of its own force and cannot be included in Article 13(1) as
“laws in force” as has been held in Narasu Appa (supra).

State of Kerala, 1957 SCR 837 at 850.

18. It is, therefore, clear that all forms of Talaq recognized and enforced by Muslim
personal law are recognized and enforced by the 1937 Act. This would necessarily
include Triple Talaq when it comes to the Muslim personal law applicable to Sunnis in
India. Therefore, it is very difficult to accept the argument on behalf of the Muslim
Personal Board that Section 2 does not recognize or enforce Triple Talaq. It clearly and
obviously does both, because the Section makes Triple Talaq “the rule of decision in
cases where the parties are Muslims”.

(ii) Second degree: Masnun, Mandub and Mustahab: These are recommended actions.

(iii) Third degree: Jaiz or Mubah: These are permissible actions as to which religion is
indifferent.

(iv) Fourth degree: Makruh: That which is reprobated as unworthy.

(v) Fifth degree: Haram: That which is forbidden.” Obviously, Triple Talaq does not fall
within the first degree, since even assuming that it forms part of the Koran, Hadis or
Ijmaa, it is not something “commanded”. Equally Talaq itself is not a recommended
action and, therefore, Triple Talaq will not fall within the second
degree. Triple Talaq at best falls within the third degree, but probably falls more
squarely within the fourth degree. It will be remembered that under the third
degree, Triple Talaq is a permissible action as to which religion is indifferent. Within
the fourth degree, it is reprobated as unworthy. We have already seen that though
permissible in Hanafi jurisprudence, yet, that very jurisprudence
castigates Triple Talaq as being sinful. It is clear, therefore, that Triple Talaq forms no
part of Article
25(1). This being the case, the submission on behalf of the Muslim Personal Board that
the ball must be bounced back to the legislature does not at all arise in that Article 25(2)
(b) would only apply if a particular religious practice is first covered under Article
25(1) of the Constitution.

14. We are in respectful agreement with the abovesaid observations made by the learned
Judges of the High Courts.”
(at page 526)

57. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any
attempt at reconciliation between the husband and wife by two arbiters from their
families, which is essential to save the marital tie, cannot ever take place. Also, as
understood by the Privy Council in Rashid Ahmad (supra), 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 (supra). This being the case, 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. This
form of Talaq must, therefore, be held to be violative of the fundamental right contained
under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act,
insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the
expression “laws in force” in Article 13(1) and must be struck down as being void to the
extent that it recognizes and enforces Triple Talaq. 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.