Constitutional validity of triple talaq
Introduction
The question of constitutional validity of triple talaq (talaq-e-biddat) came up before the apex court of India in the case of Shayara Bano v. Union of Indoa, (2017)9 SCC 1: AIR 2017 SC 4609.
Core issues involved in the case
- Whether triple talaq is unconstitutional?
- Whether triple talaq is anti Islamic or anti Quaran?
- Whether triple talaq is protected by Shariat Act 1937?
Argument supporting triple talaq
Arguments supporting triple talaq is primarily based upon two contentions. Firstly, that the practice of tripple talaq is protected under the protective umbrella of Article 25 of the Constitution i.e. fundamental right of practice of religion. Secondly, that the law of triple talaq is governed by Shariat (Muslim personal law) and hence Article 14 (protection against unfair and arbitrary act) will not be a hindrance in the exercise of practice of triple talaq.
Argument against triple talaq
The contention that the practice of triple talaq is protected under Article 25 is incorrect, because the rights under Article 25 are subject to public order, morality and health and all other provisions of Part III. The language of Article 25 clause 1 starts with the expression “subject to public order and health and other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”
Decision of court
The honourable Supreme Court of India inclined towards the arguments contended by opponents of triple talaq and held that Article 14 will prevail over Article 25, because the rights under Article 25 are subject to public order, morality and health and all other provisions of Part III. Moreover, court reemphasized that it is settled principle of law that Article 25 protects only “essential religious practice” and not “all religious practices.”
After clarifying the constitutional provision, court went on to examine the issue whether triple talaq is an essential Islamic practice or not. To decide this issue court looked into the authentic text of the holy Quaran and found that “Holy Quran has attributed permanence to matrimony. However, in extremely unavoidable situations talaq is permissible, but an attempt for reconciliation, and if it succeeds, then revocations are Quranic essential steps before talaq attains finality. In tripple talaq this door is closed. Hence, tripple talaq is against basic tenets of Holy Quran and consequently it violates Shariat.“ What is bad in theology is also bad in law and hence violative of Article 14. and hence law related to talaq-e-biddat recognised under Section 2 of Shariat Application Act, 1937 is void under Article 13(1) of the Constitution of India.
Analysis of legal provision
A plain reading of Article 25 clause 1 reveals that right to practice religion has been made subject to other provision of Part III of the Constitution. Therefore, it means that Article 14 which is present in Part III will have primacy and prevail over any fundamental right to practice, profess and propagate religion. Therefore, any religious right has to be in conformity with Article 14 and hence, the practice of triple talaq being arbitrary, unreasonable and unfair violates Article 14 of the Constitution.
Analysis of judgment
The apex court concluded that the practice of tripple talaq is not an essential practice of Islam and therefore not protected within the contours of Article 25 of the Constitution of India.
On the issue of traiple talaq being governed by Shariyat, court held that Shariat Act 1937 has not laid down any grounds or procedure for divorce among Muslims. By virtue of Section 2 of 1937 Act, it has made rule of decisions to be applicable for subjects matters enumerated under Section 2 which also includes the subject matter of talaq. Furthermore, court said that 1937 Act, which legitimates talaq is a pre-constitutional law and hence it comes within the ambit of expression “law in force” as defined under Article 13(3)(b) of the Constitution. As per Article 13(1) of the Constitution “all law in force” in the territory of India immediately before the commencement of the Constitution shall be void to the extent of inconsistency with the provisions of Part III. Therefore, the law related to talaq-e-biddat is a pre-constituional law and is void because it is inconsistent with Article 14 which recognizes the fundamental right of protection against arbitrariness and unfairness. Besides this, the court also found rationale behind its decision on its finding that “tripple talaq is against basic tenets of Holy Quran and consequently it violates Shariat.“ What is bad in theology is also bad in law and hence violative of Article 14.”
Post Shayara bano development
After the decision of the Supreme Court in the case of Shayara Bano v. Union of Indoa, (2017)9 SCC 1: AIR 2017 SC 460, the Indian parliament has passed and enacted The Muslim Women (Protection of Rights on Marriage) Act, 2019. Section 3 of the said Act has declared any talaq i.e. talaq-e-biddat or any other form of talaq having the effect of instantaneous and irrevocable divorce as void and illegal. In addition to declaring it as void and illegal it has also prescribed punishment by way of imprisonment upto three years and fine.
The Supreme Court laid down an important principle of law in this judgment i.e. what is bad in theology is also bad in law.
Shayara Bano v. Union of Indoa, (2017)9 SCC 1: AIR 2017 SC 4609
It would be interesting to see whether the same principle (what is bad in theology is also bad in law) will be used in deciding the review petition in Sabrimala case. Wherein, time immemorial religious practices have been pitched in over the fundamental right of equality in terms of entrance in temple for women.