Talaq, talaq, talaq is gone: Instant divorce invalidated

By Sneha Jaisingh and Shreya Gupta, Bharucha & Partners

[B]y a majority of 3:2 the practice of ‘talaq-e-biddat’ (triple talaq) is set aside”. With these prosaic words the Supreme Court has done away with a practice that had prevailed India for 1,400 years. Triple talaq originated in the second century after the advent of Islam and although considered as “a sinful form of divorce” it was recognized by a few Sunni schools, primarily the Hanafi sect.

Sneha JaisinghSenior associateBharucha & Partners
Sneha Jaisingh
Senior associate
Bharucha & Partners

The case of Sharaya Bano v Union of India & others, decided last month, is rightly acclaimed as a landmark ruling on the issue of gender discrimination against Muslim women, who had no safeguard against arbitrary divorce, resulting in denial of dignity and security. It is therefore important to consider the backdrop to this ruling and the legal issues that the Supreme Court had to grapple with.

The facts were simple. Sharaya Bano was divorced by her husband, Rizwan Ahmad, pronouncing “talaq, talaq, talaq” on 10 October 2015. She sought a declaration that the talaq-e-biddat pronounced by her husband was void ab initio and that section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (Shariat Act), to that extent was unconstitutional.

Note the backdrop:

  • The Privy Council (in Rashid Ahmad v Anisa Khatun, 1932) had upheld the validity of talaq-e-biddat but the Supreme Court (in Shamim Ara v State of Uttar Pradesh, 2002) was said to have held to the contrary;
  • The Shariat Act, enacted to ensure that customary law did not prevail over Muslim Personal Law, mandated that in “all questions regarding … marriage, dissolution of marriage … the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)”;
  • The Quran was not the source of origin of talaq-e-biddat, nor of talaq-e-ahsan (“the most proper” form of divorce), nor of talaq-e-hasan (“the proper” form of divorce);
  • Other forms of talaq were not the subject of challenge (although the attorney general’s submissions put those in issue);
  • The parties (including the respondents) “[a]cknowledged in one voice, that ‘talaq-e-biddat’ though bad in theology, was considered ‘good’ in law”;
  • Article 14 of India’s constitution guarantees equality before the law and equal protection of law, article 15 prohibits discrimination on grounds of religion and article 25 guarantees free profession, practice and propagation of religion, subject only to public order, morality and health.
Shreya GuptaAssociateBharucha & Partners
Shreya Gupta
Bharucha & Partners

The issues that fell for consideration by the Supreme Court included whether Rashid Ahmad required reconsideration; if talaq-e-biddat was a matter of faith for Muslims was it a constituent of Muslim Personal Law; what was the impact of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Bill of Human Rights.

The dissenting minority (the chief justice and Justice Nazeer) was of the view that although Rashid Ahmad required reconsideration, talaq-e-biddat was a part of Muslim Personal Law and protected by the constitutional freedom of religion. As such, intervention by the legislature was necessary.

According to the majority (Justices Joseph, Nariman and Lalit) Shamim Ara had already decided that “triple talaq lacks legal sanctity”: “As understood by the Privy Council in Rashid Ahmad … 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.”

According to Justice Joseph (and the minority) the Shariat Act did not regulate talaq as it neither provided the grounds nor the procedure for talaq. To that limited extent he disagreed with Justice Nariman that the Shariat Act could be “tested on the anvil of Article 14”. Justice Joseph, however, disagreed with the minority that triple talaq was an integral part of religious practice of Muslims and protected by article 25 of the constitution. He said triple talaq was against the tenets of the Quran and was impermissible after enactment of the Shariat Act and there “cannot be any Constitutional protection to such practice”.

According to Justice Nariman, the Shariat Act recognized and enforced all forms of talaq recognized by Muslim Personal Law but triple talaq was not a religious practice and did not enjoy the protection of article 25 of the constitution. Triple talaq was “manifestly arbitrary” and “violative of the fundamental right” under article 14 of the constitution.

Sharaya Bano is a historical ruling but a number of questions remain to be answered regarding uniform civil code and validity of talaq-e-ahsan and talaq-e-hasan. The parliament needs to address these matters. Hopefully the judiciary will not be called upon to do what the parliament is unwilling to do.

Sneha Jaisingh is a senior associate and Shreya Gupta is an associate at Bharucha & Partners.

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