Saturday, 23 June 2018

राजीव तिवारी विरुद्ध छ.ग. राज्य

न्यायालय-प्रफुल्ल सोनवानी, विशेष न्यायाधीश (भ्रष्टाचार निवारण अधिनियम)
बलौदाबाजार, जिला-बलौदाबाजार भाटापारा (छ.ग.)
सेंट्रल फाईलिंग नं.01/2016
विशेष दाण्डिक प्रकरण (भ्रष्टाचार
नि.अधिनियम) क्र.01/2016
संस्थित दिनांक 23.12.2016
छ.ग.राज्य, द्वारा - आरक्षी केन्द्र-एंटी करप्शन ब्यूरो रायपुर
रायपुर (छ.ग.)                                                                                  ..... अभियोजन
।। विरुद्ध ।।
राजीव तिवारी पिता ऋषि कुमार तिवारी, उम्र 37 साल,
पटवारी हल्का नंबर 12, ग्राम टिकुलिया, भाटापारा
जिला-बलौदाबाजार, छ.ग.
स्‍थायी पता मकान नं. 150, कर्मचारी आवास कॉलोनी
5 नं.06 सिमगा, जिला बलौदाबाजार-भाटापारा (छ.ग.)                          ...... अभियुक्त
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छ.ग. राज्य द्वारा श्री अमिय अग्रवाल अतिरिक्त लोक अभियोजक।
आरोपी द्वारा श्री देवा देवांगन अधिवक्ता
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                                                                         ।। निणर्य ।।
(आज दिनांक 30 /अक्टूबर/2017 को घोषित)
1. आरोपी राजीव तिवारी पर धारा 07, 13(1)(डी) व 13(2) भ्रष्टाचार निवारण अधिनियम 1988 के अन्तर्गत आरोप है कि, उसने लोक सेवक के रूप में पटवारी हल्का नंबर 12 तहसील भाटापारा, जिला बलौदाबाजार (छ.ग.) में पटवारी के पद पर पदस्थ रहते हुए प्रार्थी गंगाप्रसाद वर्मा जो कि पिलेश्वर निषाद से एक खेत क्रय किया था का नामांतरण प्रमाणीकरण कराने के एवज में प्रार्थी से 15,000/-रूपये वैध पारिश्रमिक से भिन्न पारितोषण के रूप में मांग किया और दिनांक 01.06.2016 को 10,000/- रिश्वत प्राप्त कर आपराधिक अवचार कारित किया।
2. प्रकरण में स्वीकृत तथ्य कुछ भी नहीं है।
3. अभियोजन का प्रकरण संक्षेप में इस प्रकार है कि, प्रार्थी गंगाप्रसाद वर्मा (अ.सा.04) ने दिनांक 28.05.2016 को पुलिस अधीक्षक एंटी करप्शन ब्यूरो रायपुर के समक्ष उपस्थित होकर एक लिखित शिकायत पत्र प्र.पी. 19 प्रस्तुत कर निवेदन किया कि वह ग्राम दावनबोड थाना भाटापारा जिला बलौदाबाजार भाटापारा का रहने वाला है। उसने माह अप्रेल 2016 में ग्राम टिकुलिया थाना भाटापारा में पिलेश्वर निषाद के खेत 01 एकड 15 डिसमिल को 05,10,000/- (पाँच लाख दस हजार रूपये) में पावर ऑफ अटार्निं के आधार पर कमल किशोर साहू से पंजीयन ऑफिस में चेक के माध्यम से पूरा पैसा भुगतान कर रजिस्ट्री कराया था रजिस्ट्री होने के बाद स्टाम्प पेपर लाकर उसके नाम से ऋण पुस्तिका बनवाने एवं नामांतरण कराने के लिए ग्राम टिकुलिया के पटवारी राजीव तिवारी से स्टाम्प पेपर रजिस्ट्री पेपर के साथ सम्पर्क किया । पटवारी रजिस्ट्री पेपर देखकर कहा कि इस रजिस्ट्री में आपत्ति लगा है ऋण पुस्तिका बनवाने एवं नामांतरण के लिए 15000/- (पन्द्रह हजार रूपये) लगेगा तब वह कहा कि किसान आदमी हूँ, 15000/- (पन्द्रह हजार रूपये) कहां से दूंगा ? तब उसने तहसीलदार से चर्चा कर एक-दो दिन में बताउंगा कहा तब उसने पटवारी से फोन से सम्पर्क किया तो उसने 10,000/-(दस हजार रूपये) से कम में काम नहीं होगा कहा तथा यह भी कहा कि यदि आपत्ति नहीं लगता तो इस काम को तीन हजार रूपये में कर देते वह अपने स्तर पर किया किसी ने भी प्रमाणीकरण नामांतरण में आपत्ति नहीं किया है। पटवारी राजीव तिवारी ऋण पुस्तिका बनाने,प्रमाणीकरण नामांतरण के एवेज में उससे 10,000/-(दस हजार
रूपये) की मांग कर रहा है। वह उसे रिश्वत नहीं देना चाहत है बल्कि रिश्वत लेते पकड्वाना चाहता है।
4. प्रार्थी के उक्त लिखित शिकायत आवेदन के सत्यापन हेतु दिनांक 28.05.2016 को प्रार्थी गंगाप्रसाद को एक डिजीटल वाईस रिकार्डर देकर पुन: आरोपी के पास उसके द्वारा रिश्वत की मांग की जाने वाली वार्तालाप को रिकार्ड कर लाने बोला गया। तब प्रार्थी गंगाप्रसाद द्वारा दिनांक 31.05.2016 मोबाईल के माध्यम से निरीक्षक एस.के.सेन को जानकारी दिया कि, वह दिनांक 29.05.2016 को पटवारी कार्यालय जाकर उससे सम्पर्क कर रिश्वत की मांग की बातचीत को रिकार्ड कर लिया तथा रिकार्ड वार्तालाप में पटवारी राजीव तिवारी द्वारा दस हजार रूपये लेने को सहमत हो जाना बताया तब प्रार्थी गंगाप्रसाद वर्मा को डिजीटल वाईस रिकार्डर के साथ एवं आरोपी को रिश्वत में दिये जाने वाली रकम लेकर महेन्द्र टैक्टर शो रूम के सामने ग्राम तरेंगा लिमतरा भाटापारा रोड में दिनांक 01.06.2016 को उपस्थित होने हेतु निर्देशित किया गया । प्रार्थी के उक्त सूचना की पुलिस अधीक्षक को अवगत कराया गया एवं उसके निर्देशानुसार ट्रेप दल का गठन किया गया एवं ट्रेप कार्यवाही हेतु मौके पर उपस्थित रहने के लिए दो स्वतंत्र राजपत्रित अधिकारियों को ए.सी.बी.कार्यालय रायपुर भेजने हेतु कलेक्टर रायपुर को प्र.पी. 27 का ज्ञापन प्रेषित किया गया। जिस पर दो पंच साक्षी डॉक्टर ए.के.प्रसाद (अ०सा० 01) एवं शादाब मेमन(अ०सा०० 6) एंटी करप्शन ब्यूरो कार्यालय रायपुर में उपस्थित हुए जिन्हें ट्रेप दल में शामिल किया गया ट्रेप दल के सदस्य डी.एस.पी. श्री डी.एस.परिहार,निरीक्षक श्री एस.के.सैन,उपनिरीक्षक रविशंकर तिवारी,उप निरीक्षक श्री झनक लाल साहू, आरक्षक शिवप्रसाद साहू,सैनिक दशरथ धृतलहरे,एवं वाहन चालक चंद्रप्रकाश साहू ए.सी.बी.कार्यालय में दिनांक 01.06.2016 को प्रात: 09.30 बजे उपस्थित होने पर पूर्व निर्धारित स्थान महेन्द्र ट्रेक्टर शो रूम के सामने ग्राम तरेंगा लिमतरा भाटापारा रोड पहुंचे जहां प्रार्थी गंगाप्रसाद उपस्थित मिला जहां प्रार्थी का परिचय ट्रेप दल के सदस्यों से कराया गया । उसी समय प्रार्थी द्वारा द्वितीय शिकायत पत्र प्र.पी.02 दिया गया एवं रिकार्डेड डिजीटल वायस प्रस्तुत किया गया । प्रार्थी द्वारा प्रस्तुत द्वितीय
शिकायत पत्र का अवलोकन करने एवं रिकार्डेड डिजीटल वांयस को सुनने के पश्चात द्वितीय आवेदन पत्र पर टीप अंकित करने के पश्चात आरोपी के विरूद्घ प्रथम दृष्टया अपराध धारा 7 पी.सी. एक्ट 1988 का पाये जाने से अपराध पंजीबद्ध किया गया। वायस रिकार्ड में रिकार्डेड वार्तालाप का प्रार्थी के सहयोग से आवाज सुनकर प्र.पी.03 का लिप्यांतरण तैयार किया गया पश्चात लेपटाप की मदद से रिकार्डेड वार्तालाप का सी.डी.तैयार किया जाकर मूल सी.डी. को लिफाफा में रखकर प्र.पी.04 के अनुसार जप्त किया गया ।
5. प्रार्थी द्वारा पटवारी को रिश्वत के रूप में दिये जाने वाले रिश्वती रकम 1000-1000/-रूपये के 10 नोट, कुल 10,000/-नोट दिये जाने पर पंचसाक्षी ए.के.प्रसाद द्वारा उक्त नोट को अपने हाथ में लेकर गिनती किया गया तथा नोटों के नंबरों को पढ एवं बोलकर निरीक्षक एस.के.से द्वारा तैयार किये गये प्रारंभिक पंचनामा में नोट कराया गया एवं उक्त नोटों पर फिनाफथलीन पावडर लगाने के लिए सैनिक दशरथ धृतलहरे (अ०सा० 07) को दिये जाने पर उसके द्वारा नोटों के दोनों तरफ फिनाफथलीन की हल्की परत लगा कर प्रार्थी के पहने हुए पेंट के पीछे जेब में सावधानी पूर्वक रखवाया गया एवं प्रार्थी को समझाया गया कि उक्त नोट आरोपी के मांगने पर ही
उसके हाथ में देवे तथा रिश्वत देने के पहले और बाद में हाथ न मिलाने को कहा गया एवं यह भी समझाया गया था कि सिर से गमछा उतार कर ट्रेप दल के सदस्यों को ईशारा करना तथा यह भी ध्यान रखना कि उक्त रकम लेने के पश्चात कहां रखता है उसके पश्चात उसके निर्देश पर आरक्षक शिवप्रसाद साहू (अ०सा० 09) के द्वारा एक साफ कांच के गिलास में साफ पानी लेकर सोडियम कार्बोनेट का जलीय घोल तैयार किया गया जो रंगहीन था उस घोल में फिनाफथलीन पावडर लगाने वाले आरक्षक दशरथ धृतलहरे को छोडकर ट्रेप दल के सभी सदस्यों के हाथों की उंगलियों को डुबाया गया तो घोल के रंग में किसी प्रकार का परिवर्तन नहीं हुआ उस घोल को सभी को दिखाकर उसकी आवश्यकता नहीं होने पर फेक दिया गया। आरक्षक शिव प्रसाद साहू द्वारा पुन: सोडियम कार्बोनेट का जलीय घोल तैयार करवाकर फिनाफथलीन पावडर लगाने वाले आरक्षक के हाथों की उंगलियों को धुलवाये जाने पर घोल का रंग परिवर्तित होकर गुलाबी हो गया। उक्त घोल को सभी को दिखाकर समझाया गया कि, यदि आरोपी फिनाफथलीन पावडर लगे नोटों को अपने हाथों में लेगा तो उसके हाथों की उंगलियों में से फिनाफथलीन पावडर चिपक जायेगा और सोडियम कार्बोनेट का जंलीय घोल उसके हाथ धुलाये जाने पर घोल का रंग गुलाबी हो जायेगा। उसके बाद आरक्षक दशरथ धृतलहरे से कोरे कागज पर फिनाफथलीन पावडर का नमूना पुडिया एवं साफ कागज पर उपयोग लागे गये पीतल सील नमूना तैयार कर पृथक-पृथक लिफाफो में सीलबंद कर प्र.पी.06 के अनुसार जप्त किया गया ।




6. पश्चात ट्रेप दल का गठन कर नोटों पर फिनाफथलीन पावडर लगाने वाले आरक्षक दशरथ धृतलहरे को ट्रेप दल में शामिल न कर उससे जप्त समान एवं फिनाफथलीन पावडर के डिब्बे के साथ ए.सी.बी.कार्यालय में रहने बोला गया तथा प्रार्थी को छाया साक्षी आरक्षक शिव प्रसाद साहू के साथ मोटर सायकल से आगे रवाना किया गया तथा ट्रेप दल के शेष सदस्यों एवं पंच साक्षी पीछे-पीछे शासकीय वाहन से पटवारी कार्यालय मोहता बिल्डिंग पहुंच कर प्रार्थी को आगे रवाना किया तथा ट्रेपदल के सभी सदस्य वाहन से उतर कर आपस में नजरी लगाव रखते हुए पटवारी कार्यालय के पास खडे हो गये तथा प्रार्थी एवं छाया साक्षी शिवप्रसाद साहू के साथ पटवारी के पास रिश्वत देने भेजा गया । प्रार्थी द्वारा आरोपी को रिश्वती रकम देकर पूर्व निर्धारित योजना के अनुसार ईशारा किया गया तत्पचात् प्रार्थी के ईशारा पाकर ट्रेप दल के सभी सदस्य आरोपी राजीव तिवारी के कार्यालय में प्रवेश किये और आरेपी पटवारी राजीव तिवारी के दाहिने हाथ को निरीक्षक सेन एवं बांया हाथ को आरक्षक शिवप्रसाद साहू ने पकड लिये निरीक्षक सेन ने आरोपी को अपना परिचय दिया तथा आरोपी का नाम पता पूछने पर अपना नाम राजीव तिवारी पटवारी हल्का नं. 12 होना बताया गया ट्रेप दल प्रभारी श्री डी.एस.परिहार उप पुलिस अधीक्षक द्वारा आरोपी पटवारी से प्रार्थी गंगा प्रसाद वर्मा से दस हजार रूपये रिश्वत लेने की बात पूछने पर उसने रिश्वत लेने से इंकार किया तथा प्रार्थी से कोई रूपये नहीं लेना बताया गया । उसके पश्चात निरीक्षक सेन के निर्देश पर शिवप्रसाद साहू द्वारा आरोपी के हाथ छोडकर साफ कांच के गिलास में पानी लेकर सोडियम कार्बोनेट का जलीय घोल तैयार कर आरोपी एवं प्रार्थी को छोडकर ट्रेप दल के सभी सदस्यों का हाथ धुलाये जाने पर घोल रंगहीन रहा जिसमें किसी प्रकार का परिवर्तन नहीं हुआ जिसे कांच की शीशी में सीलबंद कर रखा गया । उसके बाद पुन: सोडियम कार्बोनेट का जलीय घोल तैयार कर आरोपी राजीव तिवारी के दोनों हाथों की उंगलियों को डुबाये जाने पर घोल का रंग गुलाबी हो गया जिसे एक साफ कांच की शीशी में सीलबंद किया गया । उसके बाद ट्रेप प्रभारी डी.एस.परिहार द्वारा प्रार्थी से लिया गया रिश्वती रकम लिये जाने के संबंध में पटवारी से पूछने पर रिश्वत लेने से इंकार किया तब प्रार्थी को बुलाकर पूछा गया तो प्रार्थी द्वारा बताया गया कि, आरोपी उसे अपने कंप्यूटर कक्ष में ले जाकर अपने हाथ में हाथ में रूपये लेना और कम्प्युटर टेंबल में रखना बताया जहां रिश्वती रकम दिखाई दे रहा था उक्त रिश्वती रकम को पंच साक्षी ए.के.प्रसाद द्वारा बरामद किया गया । संपूर्ण कार्यवाही में प्राप्त घोलों का रासायनिक परीक्षण कराया गया। परीक्षण रिपोर्ट में धनात्मक पाया गया। प्रार्थी से संबंधित दस्तावेज की जप्ती किया गया। घटनास्थल का नजरी नक्शा पटवारी के द्वारा तैयार करवाया गया तथा रिश्वत लेन-देन के समय की बातचीत के संबंध में लिप्यांतरण पंचनामा तैयार किया गया और सी.डी.तैयार की गयी तथा आरोपी को गिरफ्तार किया गया और देहाती नालिसी को राज्य आर्थिक अपराध अन्वेषण /एंटी करप्शन ब्यूरो रायपुर के अपराध क्रमांक 42/2016 में प्रथम सूचनापत्र दर्ज किया गया जो प्र.पी. 15 है । जप्तशुदा घोल एवं फिनाफथलीन पावडर को रासायनिक जांच के लिए राज्य विधि विज्ञान प्रयोगशाला रायपुर प्र.पी.36 का प्रेषित किया गया । आरोपी की सेवा पुस्तिका हेतु तहसीलदार भाटापारा को प्र.पी. 42 का ज्ञापन भेजा गया उक्त ज्ञापन के परिपालन में तहसीलदार भाटापारा द्वारा प्र.पी. 22 के अनुसार ज्ञापन भेजा गया । तत्पश्चात गवाहों के कथन लेखबद्घ किया गया व राज्य शासन से आरोपी के संबंध में अभियोजन स्वीकृति हेतु विधि एवं विधायी कार्य विभाग न्यायिक रायपुर से प्राप्त किया गया जो प्र.पी. 26 है, तत्पश्चात विशेष न्यायाधीश (भ्रष्टाचार निवारण अधिनियम) के समक्ष अभियोग पत्र दिनांक 23.12.2016 को प्रस्तुत किया गया ।
7. मेरे पूर्वाधिकारी श्री बृजेन्द्र कुमार शास्त्री विशेष न्यायाधीश(भ्रष्टाचार नि.अधिनियम) द्वारा दिनांक 18.01.2017 को आरोपी के विरूद्घ धारा 07, 13(1) (डी) व 13(2) भ्रष्टाचार निवारण अधिनियम 1988 के अन्तर्गत आरोप की विरचना की गयी। आरोपी का अभिवाकृ लिया गया जिस पर आरोपी ने अपना अपराध अस्वीकार किया और विचारण चाहा है । अभियोजन साक्ष्य के उपरांत धारा 313 द.प्र.सं. के अन्तर्गत अभियुक्त परीक्षण में आरोपी ने स्वयं को निर्दोष होना कहा और अपने कथन में कहा कि '' ए. सी.बी.वालों के सीखाने पर विद्वेषषश झूठ बोल रहे हैं, मैं निर्दोष हूँ , मुझे झूठा फंसाया गया हैं |'' तथा आरोपी ने अपने प्रतिरक्षा में साक्ष्य नहीं देना व्यक्त किया है।
8. अभियोजन ने अपने समर्थन में निम्न लिखित साक्षियों का साक्ष्य कराया गया है -
अभियोजन अभियोजन साक्षी का नाम साक्ष्य का प्रकार साक्षी क्र. अ.सा.01) श्री ए.के.प्रसाद पंचसाक्षी श्री अनिल बक्शी प्रथम सूचना पत्र लेख 02 (अ.सा.02) कर्ता। अ.सा.03) श्री खिलेश्वर प्रसाद पटवारी पटवारी नक्शा। अ.सा.04) श्री गंगाप्रसाद वर्मा प्रार्थी। 5 अ.सा.05) श्री महेश सिंह राजपूत आरोपी के पदस्थापना जानकारी अ.सा.06) श्री शादाब मेमन पंचसाक्षी | ((अ०सा० 10) श्री विश्वनाथ स्वर्णकार अभियोजन स्वीकृति 10 सहायक ग्रेड-3 9. आरोपी ने अपने समर्थन में किसी साक्षी का साक्ष्य प्रस्तुत नहीं किया है।

प्रकरण के निराकरण हेतु निम्न विचारणीय प्रश्नों पर विचार करना आवश्यक है:-
1- क्या घटना दिनांक को आरोपी लोक सेवक के रूप में पटवारी हल्का नंबर 12 तहसील भाटापारा में पटवारी
के पद पर पदस्थ था ?
2- क्या घटना दिनांक को आरोपी के समक्ष प्रार्थी का नामांतरण एवं प्रमाणीकरण का कार्य लंबित था ?
3- क्या आरोपी, प्रार्थी का नामांतरण एवं प्रमाणी -करण संबंधी कार्य करने हेठु सक्षम प्राधिकारी था ?
4- क्या आरोपी द्वारा प्रार्थी के नाम पर नामांतरण एवं प्रमाणीकरण करने के बदले में वैध पारिश्रमिक से भिन्न राशि र 15, 000 रिश्वत के रूप में प्रार्थी से मांग की थी ?
5- क्या आरोपी द्वारा दिनांक 01.06.2016 को उपरोक्त कार्य के एवज में प्रार्थी से र 10,000 वैध पारिश्रमिक से भिन्न रिश्वत के रूप में प्राप्त किया था ?
6. क्या आरोपी द्वारा लोकसेवक के रूप में आपर्राधिक अवचार कारित किया गया हैं ?

विचारणीय प्रश्न क्रमांक 01 पर निष्कर्ष व निष्कर्ष के आधार:-
10. प्रकरण में आरोपी को पटवारी हल्का नंबर 12 तहसील भाटापारा, तहसील-भाटापारा पलारी, जिला बलौदाबाजार (छ.ग.) में पटवारी के पद पर पदस्थ रहना बताया गया है। इस संबंध में (अ.सा.11)एस.के.सेन ने बताया है कि, उसके द्वारा दिनांक 08.06.2016 को तहसीलदार भाटापारा आरोपी राजीव तिवारी की सेवा पुस्तिका की प्रमाणित प्रतिलिपि प्रदान करने हेतु एक पत्र प्रेषित किया था उक्त पत्र प्रदर्श पी 42 है। उक्त पत्र के परिपालन में तहसीलदार भाटापारा के द्वारा पुलिस अधीक्षक एंटी करप्शन ब्यूरो रायपुर को संबोधित करते हुए एक ज्ञापन प्रेषित कर आरोपी राजीव तिवारी पटवारी की सेवा पुस्तिका, नियुक्ति संबंधी प्रविष्टि एवं पटवारी हल्का नंबर 12 ग्राम टिकुलिया में आरोपी के पदस्थापना संबंधी दस्तावेजों की सत्य प्रतिलिपि प्रेषित किया। उक्त ज्ञापन प्रदर्श पी 24 है।
11. उक्त ज्ञापन के संबंध में अभियोजन की ओर से तहसीलदार महेश सिंह राजपूत (अ.सा.05) ने अपने परीक्षण में बताया है कि, दिनांक 28.06.2016 को कार्यालय पुलिस अधीक्षक एंटी करप्शन ब्यूरो रायपुर से अपराध क्रं० 42/2016 धारा 7,13(1)0,13(2)पी.सी.एक्ट आरोपी राजीव तिवारी हल्का पटवारी क्रमांक 12 टिकुलिया के प्रकरण के संबंध में उनके कार्यालय से निम्न जानकारी चाही गयी थी उन जानकारियों को उसके कार्यालय द्वारा प्र.पी. 22 के अनुसार आवश्यक दस्तावेजा संलग्न कर प्रेषित किया गया है जिसके अ से अ भाग पर उसके हस्ताक्षर है । आरोपी की सेवापुस्तिका की प्रमाणित प्रतिलिपि प्र.पी.23,आरोपी के कतरव्यों एवं उत्तरदायित्वों की विभागीय प्रपत्रों की प्रमाणित प्रतिलिपि, गोपनीय प्रतिवेदन प्रस्तुत किया है जो प्र.पी.24 है ।
12. प्रकरण में आरोपी के विरूद्घ दांडिक प्रकरण चलाने हेतु अभियोजन स्वीकृति प्रदान की गयी है जो प्र.पी.26 है। जिसमें आरोपी को टिकुलिया का पटवारी होना लेख है। उपरोक्त दस्तावेजों के आधार पर यह स्पष्ट है कि आरोपी पटवारी हल्का क्रमांक 12 ग्राम टिकुलिया तहसील भाटापारा जिला बलौदाबाजार में पटवारी के रूप में 
लोक सेवक के पद पर पदस्थ था। उपरोक्त आधारों पर यह स्पष्ट है कि, आरोपी पटवारी हल्का नंबर 12,ग्राम टिकुलिया, तहसील-भाटापारा, जिला बलौदाबाजार- भाटापारा (छ.ग.) में पटवारी के पद पर लोक सेवक के रूप में पदस्थ रहना प्रमाणित हो जाता है ।




विचारणीय प्रश्न क्रमांक 02 एवं 03 पर निष्कर्ष व निष्कर्ष के आधार -
13. प्रकरण में प्रार्थी अ०सा० 4 गंगा प्रसाद वर्मा का कहना है कि, उसने कमल किशोर के पावर ऑफ एटार्नि के माध्यम से तिजेश्वर निषाद की भूमि क्रय की थी जिसके नामांतरण हेतु वह तहसीलदार एवं पटवारी के पास चक्का लगाया करता था उसके पश्चात उसे एक दलाल के माध्यम से उसका काम करवाने के लिए पन्द्रह हजार
रूपये की मांग उक्त दलाल ने की थी उसे उक्त दलाल का नाम मालूम नहीं था जिस कारण वह ए.सी.बी.कार्यालय शिकायत करने के लिए गया था। जहां उसने बताया कि दलाल के द्वारा उसका नामांतरण करवाये जाने के लिए पन्द्रह हजार रूपये की मांग की जा रही है।
14. प्रतिपरीक्षण में साक्षी ने स्वीकार किया कि, उसने पिलेश्वर निषाद के स्वामित्व की भूमि खसरा नं. 677/1 रकबा 0.470 हे. को आम मुख्त्यार के आधार पर कमल किशोर से खरीदा था। साक्षी यह स्वीकार करता है कि उसने उक्त भूमि की संपूर्ण राशि चेक के माध्यम से कमल किशोर को दे दिया। साक्षी यह भी स्वीकार करता है कि रजिस्ट्री बैनामा मिलने के पश्चात वह तहसील कार्यालय भाटापारा गया था। साक्षी ने इस बात से इंकार किया कि भाटापारा तहसील आफिस में उसे पता चला कि पिलेश्वर निषाद ने उक्त भूमि के नामांतरण पर आपत्ति लगाया है। स्व्त: कहता है कि जब वह पटवारी कार्यालय गया था तब आरोपी ने उसे बताया था कि जिस जमीन को आप खरीदे है उस जमीन पर तहसीलदार के न्यायालय में नामांतरण व प्रमाणीकरण की कार्यवाही पर रोक लगाये जाने हेतु आपत्ति किया है। साक्षी ने यह स्वीकार किया कि उसके पश्चात वह तहसीलदार भाटापारा में गया था। जहां उसे पता चला कि पिलेश्वर ने नांमातरण व प्रमाणीकरण पर आपत्ति किया है जिसके संबंध में तहसीलदार भाटापारा ने उसे भी नोटिस दिया था। आरोपी अधिवक्ता के द्वारा दस्तावेज दिखाकर साक्षी से प्रतिपरीक्षण किया गया है जिसमें साक्षी ने आदेश पत्र दिनांक 10.05.20 16 प्र.डी.01 पिलेश्वर द्वारा तहसीलदार को दिया गया आवेदन प्र.डी.02 है। नोटिस प्र.डी.05 तथा कमल किशोर को दी गयी नोटिस प्र.डी.06 व पिलेश्वर को दी गयी नोटिस प्र.डी.07 है प्रार्थी को दी गयी नोटिस प्र.डी.08 है।
15. साक्षी ने स्वीकार किया है कि, नामांतरण और प्रमाणीकरण करने का अधिकार तहसीलदार का है और तहसीलदार के आदेश पर ही नामांतरण और प्रमाणीकरण को पटवारी पंजी में चढाता है । स्वत: कहता है कि, भूमि के नामांतरण हेतु सर्वप्रथम आवेदन पटवारी को देते है।
16. प्रकरण में प्रार्थी ने नामांतरण व प्रमाणीकरण का कार्य लंबित होना कहा है और अपने प्रतिपरीक्षण में स्वीकार करता है कि, नामांतरण और प्रमाणीकरण का अधिकार तहसीलदार को है तथा आरोपी से सीधे बात न होना और दलाल के द्वारा उक्त काम करवाये जाने का कथन करना दर्शित होता है। प्रकरण में प्रस्तुत दस्तावेज प्र..डी.01 से लेकर प्र.डी. 11 तक के दस्तावेज में तहसीलदार के समक्ष उक्त आवेदन प्रस्तुत किया जाना दर्शित होता है वैसे भी नामांतरण का कार्य तहसीलदार का होता है और पटवारी का कार्य नहीं होता है यद्यपि पटवारी उक्त प्रतिवेदन तैयार करता है। परन्तु प्रार्थी ने आरोपी के द्वारा आरोपी के समक्ष अपने नामांतरण का कार्य लंबित नहीं रहना बताया है। तथा प्रार्थी ने अपनी भूमि के नामांतरण हेतु आरोपी के समक्ष कोई आवेदन लिखित में नहीं देना स्वीकार किया है। साथ ही भू राजस्व संहिता के प्रावधानों के अनुसार नामांतरण का अधिकार तहसीदार को होता है।
17. चूंकि नामांतरण का अधिकार तहसीलदार को होता है और प्रार्थी ने आरोपी को कोई भी आवेदन नहीं देना बताया है। जिससे आरोपी के समक्ष प्रार्थी का कोई कार्य लंबित रहने की स्थिति दर्शित नहीं होती है। साथ ही दलाल के माध्यम से नामांतरण के संबंध में जानकारी होना बताया है । ऐसी स्थिति में आरोपी के समक्ष प्रार्थी
का कोई कार्य लंबित रहना प्रमाणित नही हो पाता है। प्रकरण में छ.ग.भू-राजस्व संहिता के प्रावधानों के अनुसार नामांतरण करने का अधिकार तहसीलदार का होता है जिससे आरोपी प्रार्थी का कार्य करने हेतु सक्षम प्राधिकारी होना प्रमाणित नहीं हो पाता है और आरेपी के समक्ष प्रार्थी का कोई कार्य लंबित रहना भी प्रमाणित नहीं हो पाता है।




विचाणीय प्रश्न क्रमांक 04 ,05 व 06 पर निष्कर्ष एवं निष्कर्ष के आधार-
18. प्रार्थी गंगा प्रसाद वर्मा अ०सा० 04 का कहना है कि, एक दलाल के माध्यम से उसका काम करवाने के लिए पन्द्रह हजार रूपये की मांग उक्त दलाल ने किया था जिसका नाम उसे नहीं मालूम है तब वह शिकायत करने ए.सी.बी.कार्यालय चला गया । जहां उसने बताया कि, एक दलाल के द्वारा नामांतरण करवाये जाने के लिए पन्द्रह हजार रूपये की मांग की जा रही है तब ए.सी.बी.कार्यालय में उससे पूछा गया कि, किसके विरूद्घ शिकायत करना चाहते हो तब उसने बताया कि, हो सकता है पटवारी ही मांग रहा हो जिस कारण उसने पटवारी के विरूद्घ शिकायत की थी।
19. प्रतिपरीक्षण में साक्षी ने स्वीकार किया है कि, वह जमीन के नामांतरण हेतु पटवारी के पास गया था । तब आरोपी ने उससे कहा था कि जमीन के नामांतरण के संबंध में पिलेश्वर ने आपत्ति लगाया है । साक्षी ने इस बात से इंकार किया कि पटवारी ने उससे नामातरण के संबंध में पैसे की मांग की थी। स्वत: कहा कि तहसीलदार से करवा लो कहा था। साक्षी ने यह भी स्वीकार किया है कि, दिनांक 01.06.2016 को आरोपी ने अपने कार्यालय में उससे प्रत्यक्ष रूप से रिश्वत की मांग नहीं की थी। स्वत: कहा कि, आरोपी से उसकी केवल मोबाईल पर बात हुई थी और आमने-सामने कोई बात नहीं हुई थी। साक्षी ने यह भी स्वीकार किया कि, उसने मोबाईल में आरोपी को कहा था कि, तहसीलदार आपको कार्यालय में बुला रहे है इसके अलावा और कोई बात नहीं हुई थी।
 20. साक्षी से धारा 165 साक्ष्य अधिनियम के अंतर्गत प्रश्न पूछे गये हैं । जिसमें दलाल लोगों ने दस हजार रूपये स्वयं को देने के लिए कहा था बताया है और उसने सोचा कि पटवारी ने पैसे की मांग की है जिस कारण उसने पटवारी को ले जाकर दिया था। इस प्रकार स्वयं प्रार्थी ने आरोपी के द्वारा पैसे की मांग किये जाने की बात को समर्थन प्रदान नहीं किया है।
 21, अभियोजन के द्वारा आरोपी की मांग के संबंध में टेप रिकार्ड और लिप्यांतरण पंचनामा जिसमें रिश्वत पूर्व बातचीत प्र०पी० 03 है और उसकी सी.डी.लेपटाप के माध्यम से तैयार की गयी जिसका जप्तीपत्र प्र०पी0 04 है। इस संबंध में अ०सा० 11 एस.के.सेन ने बताया है कि प्रार्थी के द्वारा दिनांक 28.05.2016 को ए.सी.बी. में आवेदन प्रस्तुत किया था जो प्र.पी. 19 है उक्त लिखत आवेदन के सत्यापन के लिए उसने प्रार्थी को डिजीटल वायस रिकार्डर को चलाने की विधि समझा कर दिया था जिसका पंचनामा प्र.पी.20 है जिसके ब से ब भाग पर उसके हस्ताक्षर है। दिनांक 30.05.2016 को प्रार्थी ने उसे फोन करके बताया कि, उसने आरोपी के साथ दिनांक 29.05.2016 को कार्यालय में जाकर बातचीत कर रिश्वत मांग वार्ता को रिकार्ड किया है जिसमें आरोपी दस हजार रूपये लेने के लिए सहमत हो गया है। तब उसने प्रार्थी को दिनांक 01.06.2016 को उक्त रिकार्डेड वार्तालाप और द्वितीय शिकायत आवेदनपत्र के साथ लिमतरा भाटापारा रोड मेहन्द्रा ट्रेक्टर शो-रूम के सामने मिलने के लिए कहा था।
 22. प्रतिपरीक्षण में साक्षी ने स्वीकार किया है कि उक्त डिजीटल वायस रिकार्डर में पहले से कोई आवाज मौजूद थी या नहीं अथवा खाली था अथवा नहीं इसकी उसने कोई जांच नहीं किया है। साक्षी ने यह भी स्वीकार किया कि उसने दिनांक 28.05.2016 को डिजीटल वायंस रिकार्डर को प्रार्थी को दिया था जिसे प्रार्थी ने उसे दिनांक 01.06.2016 को वापस किया था। साक्षी ने स्वीकार किया कि उक्त अवधि में वाईस रिकार्डर प्रार्थी के पास था और यदि इस बीच प्रार्थी ने किसी और की बातचीत को पुन: रिकार्ड कर लिया हो तो वह नहीं जानता । साक्षी ने यह भी स्वीकार किया कि उक्त वाईस रिकार्डर में कितने लोगों की आवाज थी वह नहीं बता सकता है। साक्षी ने यह भी स्वीकार किया कि वह घटना के पूर्व आरोपी के आवाज को नहीं पहचानता था। साक्षी यह भी स्वीकार करता है कि लिप्यांतरण पंचनामा में दस हजार रूपये दोगें तब प्रमाणीकरण नामांतरण और ऋणपुस्तिका बनाउंगा वाली बात नहीं है। साक्षी ने यह भी स्वीकार किया कि, उक्त वाईस रिकार्डर में किसी अन्य व्यक्ति की भी आवाज थी।
 23, अ०सा० 04 गंगाप्रसाद वर्मा का कहना है कि इसे शिकायत प्रस्तुत करने के बाद एक माईक्रो वाईस रिकार्डर दिया गया था जिसके संबंध में पंचनामा प्र.पी.20 है वह उक्त टेप रिकार्ड को लेकर आरोपी के कार्यालय में गया था और वहां अत्यधिक भीड थी जिस कारण वह टेप रिकार्ड ठीक से चालू नहीं कर पाया था। प्रतिपरीक्षण में साक्षी ने दिनांक 01.06.2016 को लिमतरा भाटापारा रोड में महिन्द्रा शो-रूम के सामने ए.सी.बी.वालों द्वारा उक्त वायस रिकार्डर की रिकार्डिंग को सुना जाना इंकार किया है और उसका लिप्तयांतरण पंचनामा बनाया जाना भी याद नहीं होना कहा है। साक्षी ने उक्त टेप रिकार्ड की सी.डी.बनाये जाने को भी इंकार किया है।
 24. अ०सा० 01ए.के.प्रसाद पंच साक्षी है जिसने अपने प्रतिपरीक्षण में स्वीकार किया है कि, उसने डिजीटल वायस रिकार्डर को सुना था जिसमें स्पष्ट आवाज नहीं थी और कौन क्या बोल रहा है यह समझ नहीं आ रहा था। अ०सा० 06 शादब मेमन जो भी अन्य पंच साक्षी है उसने अतिरिक्त लोक अभियोजक के द्वारा सूचक प्रश्न पूछे जाने पर प्रार्थी द्वारा प्रस्तुत टेप रिकार्ड की रिकार्डिंग को सुनना इंकार किया है। अ०सा० 07 दशरथ लाल धृतलहरे सैनिक ने अपने प्रतिपरीक्षण में स्वीकार किया है कि जो सी.डी.जप्ती की गयी थी वह खाली थी। 25. प्रकरण में डिजीटल वॉयस रिकार्डर कैसेट के आधार पर रिकार्ड किया जाता है और ऐसे बातचीत को प्रमाणित करने के संबंध में उक्त टेप में जिन व्यक्तियों की आवाजें है उनका आवाज का नमुना लेकर परीक्षण किया जाता है परन्तु प्रकरण में ऐसी कोई जांच कराये जाने का उल्लेख नहीं है। ऐसी स्थिति में उक्त बातचीत आरोपी से ही की गयी है यह स्पष्ट नहीं हो पाता है साथ ही उक्त टेप की आवाजों का भी परीक्षण नहीं करवाया गया है तथा टेप रिकार्ड दो दिन विलंब से प्रार्थी द्वारा जमा किया गया है और उक्त टेप रिकार्ड सीलबंद भी नहीं किया गया था । तथा स्वयं प्रार्थी ने आरपी के पास जाने पर उक्त टेप रिकार्ड को चालू नहीं कर पाना बताया है। जिससे भी स्वयं प्रार्थी के साक्ष्य से उक्त वॉयस रिकार्डर की बातचीत और लिप्यांतरण पंचनामा की कार्यवाही को समर्थन प्राप्त नहीं हो पाता है।
 26. टेप रिकार्डर से टेप की गई वार्ता को साक्ष्य अधिनियम की धारा 3 के अंर्तगत दस्तावेज की श्रेणी में रखा गया है इस संबंध में माननीय सर्वोच्च न्यायालय के न्यायदृष्टांत Ziyauddin Barhanuddin Bukhari Vs Brijmohan Ramdass Mehra and others में टेप रिकार्ड को साक्ष्य में ग्राहय होने की शर्ते बतायी गयी है-




it was held by this court that taperecords of speeches were "documents". as defined by Section 3 of the Evidecne Act, which stood on no different footing than photograplhs, and that they were admissible in evidence on staisfying the following conditions : " (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence , direct or circumstantial, had to be there so as to rule out possibilities of tamering with the record. (c) The subjectmatter recorded had to be shown to be relevant according to rules of 1 (1976) 2 SCC 17 : 1975(supp) SCR 281 relevancy found in the Evidence Act." 
 27. इसी प्रकार माननीय सर्वोच्च न्यायालय के न्याय दृष्टांत R.M.Malkani v. State of Maharashtra में टेप अभिलिखित बातचीत के साक्ष्य में ग्राहय होने की शर्ते बतायी गयी है-
this Court has observed that tape recorded conversation is admissible provided first the conversation is rlevant to the matters in issue: secondly, there is identification of the voice; and, thirdly the accuracy of the tape recorded conversation is proved by eliminating the possiblility of erasing the tape record. 
28. इसके अतिरिक्त प्रकरण में रिश्वत मांगे जाने के संबंध में रिश्वत मांग वार्ता को प्रार्थी व आरोपी के मध्य हुए वार्तालाप को टेप रिकार्ड के माध्यम से टेप किया गया है जिसका लिप्यांतरण पंचनामा तैयार किया गया है। चूंकि लिप्यांतरण पंचनामा को इलेक्ट्रानिक माध्यम से तैयार किया गया है ऐसी स्थिति में वह इलेक्ट्रानिक साक्ष्य की श्रेणी में आता है और ऐसे इलेक्ट्रानिक साक्ष्य को साक्ष्य में ग्राह्य किये जाने हेतु धारा 65(8) साक्ष्य अधिनियम का प्रमाण पत्र होना आवश्यक है । इस संबंध में माननीय 2 (1973)19300471:1973 (2) 507 417 सर्वोच्च न्यायालय के द्वारा प्रतिपादित न्याय दृष्टांत Anvar P.V. Vs P.K.Basheer & Others में इलेक्ट्रानिक एविडेंस की ग्राह्यता के संबंध में सिद्धांत प्रतिपादित किये गये हैं और प्रकरण में लिप्यांतरण पंचनामा के संबंध में धारा 65(B)साक्ष्य अधिनियम का कोई प्रमाण पत्र नहीं है ऐसी स्थिति में लिप्यांतरण पंचनामा एवं रिश्वत लेन-देन वार्ता से अभियोजन को कोई सहायता प्राप्त नहीं हो पाती है।
29. अ०सा० 04 गंगाप्रसाद वर्मा ने बताया है कि, घटना दिनांक को रिश्वती रकम को उसे फिनाफथलीन पावडर लगाकर दिया गया तथा उसके साथ ए.सी.बी.का एक अधिकारी रिश्वती रकम दिये जाते समय गया था उसे निर्देश दिया गया था कि, रिश्वती रकम देने के पश्चात वह सिर का गमछा खोलकर संकेत देगा। वह जब आरोपी के कार्यालय गया तब उस समय वह कार्यालय में नही था उसके पश्चात उसने आरोपी को फोन करके कहा कि, उसे तहसीलदार बुला रहे हैं तब आरोपी आया उस समय बहुत धूल उड रही थी इसलिए वह अपने आंख को पोछने के लिए सिर से गमछा उतार कर आंख पोछने लगा । जिसे ए.सी.बी.वाले ईशारा समझ कर आ गये तब उसने हडबडाहट में रिश्वती रकम को आरोपी के टेबल में रख दिया था। उस समय आरोपी वहां पर मौजूद नहीं था। इसके पश्चात ए.सी.बी.वाले कार्यालय में आकर उससे पूछे कि पटवारी कौन है तब उसने आरोपी की ओर ईशारा किया तब ए.सी.बी.वाले आरोपी को पकड लिए और उसके पश्चात ए.सी.बी.वालों ने उससे पूछा कि, रूपया कहां है तब उसने बताया कि, रूपया टेबल के उपर है।
30. प्रतिपरीक्षण में साक्षी ने स्वीकार किया है कि, आरोपी से दस हजार रूपये रिश्वत लेने की बात पूछे जाने पर आरोपी ने इंकार किया था। साक्षी ने यह भी स्वीकार किया कि,घटना दिनांक को उसने आरेपी को कोई रकम नहीं दिया था | इस साक्षी से धारा 165 साक्ष्य अधिनियम के अन्तर्गत प्रश्न पूछे गये हैं जिसमें पूछा गया है कि, जब साक्षी ने पटवारी को पैसा नहीं दिया है और टेबल पर रख दिया है उक्त बात को ए.सी.बी.को बताया था या नहीं जिस पर प्रार्थी ने बताया कि उसने उक्त बात ए.सी.बी.को नहीं बतायी उक्त बात नहीं बताने का कारण पूछे जाने पर साक्षी ने बताया कि, ए.सी.बी.वालों ने उससे पैसा कहां है पूछा था और पैसे देने के संबंध में पूछा था जिसे उसने टेबल पर रखना बताया था। इस संबंध में पुन: साक्षी से प्रश्न पूछा गया कि किसे पैसा देना बताये थे तब साक्षी ने पटवारी को दस हजार रूपये नामांतरण के लिए देना बताया था। तत्पश्चात साक्षी से पुन: पूछा गया कि, नामांतरण के लिए दस हजार रूपये देने की बात किसने बतायी थी जिस पर साक्षी ने बताया कि उसे दलाल लोगों ने बताया था और दलाल लोगों ने स्वयं को पैसा देने के लिए कहा था। साक्षी का कहना है कि उसने सोचा कि पटवारी ने पैसे की मांग की है जिस कारण पटवारी को लेकर दिया था।
 31. प्रकरण में प्रार्थी ने आरोपी को रिश्वती रकम नही देने की बात कही है और आरोपी के टेबल में रिश्वती रकम को रख देना बताया है और उस समय आरोपी को वहां पर मौजूद नहीं रहना बताया है। अ०सा० 1 ए.के. प्रसाद जो कि पंचसाक्षी है ने बताया है कि आरपी की तलाशी लेने पर कोई पैसा नहीं मिला तब प्रार्थी से पूछने पर प्रार्थी ने बताया कि पैसा उसने टेबल पर रखा है तब टेबल से पैसे को उठाकर नंबर का मिलान किया गया था । तथा साक्षी ने बताया है कि, ए.सी.बी.के कर्मचारी ने सादा पानी लेकर घाल बनाया था जिसमें आरोपी का हाथ धुलाये जाने पर घोल का रंग परिवर्तित नहीं हुआ था। प्रतिपरीक्षण में साक्षी ने यह स्वीकार किया है कि पटवारी कार्यालय के पास तोड-फोड चल रही थी और धूल उड रही थी। साक्षी यह भी स्वीकार करता है कि जहां वह खडा था वहां से आरोपी का कमरा नहीं दिखाई देता है।




32. अ०सा० 06 शादाब मेमन पंच साक्षी ने बताया है कि, आरोपी जहां था वहां ए.सी.बी.वालें कुछ कार्यवाही कर रहे थे जिसे वह स्पष्ट रूप से नहीं देख पाया था।अतिरिक्त लोक अभियोजक के द्वारा सूचक प्रश्न पूछने पर साक्षी ने इस बात की जानकारी नहीं होना कहा है कि अरोपी से रिश्वत की बात पूछने पर आरोपी ने इंकार किया था और यह स्वीकार किया कि प्रार्थी को बुलाकर पूछने पर प्रार्थी ने बताया कि आरोपी ने कम्प्यूटर कक्ष में ले जाकर रूपये लेकर कम्प्यूटर टेबल में रखा है। साक्षी ने स्वीकार किया है कि पंच साक्षी ए.के. प्रसाद ने उक्त नोट को कम्प्यूटर टेबल से उठाया था । साक्षी ने इस बात की जानकारी नहीं होना कहा कि घोल में आरोपी का हाथ धुलाये जाने पर उसका रंग गुलाबी हो गया था।
33. प्रतिपरीक्षण में साक्षी ने स्वीकार किया है कि, पटवारी कार्यालय के आस- पास तोड-फोड की कार्यवाही चल रही थी और वहां बहुत भीड थी और धूल भी उड रहा था। साक्षी ने स्वीकार किया कि, पटवारी कार्यालय के अंदर थोडी देर रूक कर नास्ता करने बाहर चला गया था। साक्षी ने यह स्वीकार किया कि आरोपी के कार्यालय में कम्प्यूटर टेबल में नोट को किसने रखा है उसने नहीं देखा है और यह भी स्वीकार करता है कि ए.सी.बी.वालों ने प्रार्थी से पूछा था तब प्रार्थी ने बताया कि उसने कम्प्यूटर टेबल में नोट को रखा है। 34. अ०सा० 08 रविशंकर तिवारी निरीक्षक हमराह ने बताया है कि, प्रार्थी के द्वारा ईशारा करने के पश्चात तब वे लोग आरेपी के कार्यालय में गये और आरेपी से रिश्वती रकम लेने के संबंध में पूछने पर आरोपी ने इंकार किया और रिश्वती रकम कहां रखे हो यह पूछने पर आरेपी ने रिश्वत लेने से इंकार किया तब प्रार्थी को बुलाकर पूछा गया जिसमें प्रार्थी ने बताया कि उसे कम्प्यूटर रूम ले गये थे जिसमें कम्प्यूटर टेबल के उपर रिश्वती रकम को रखे थे। साक्षी का कहना है कि आरोपी का हाथ घोल में डुबाये जाने पर घोल का रंग हल्का परिवर्तित हुआ था जो गुलाबी नहीं हुआ था।
35. प्रतिपरीक्षण में साक्षी ने यह स्वीकार किया कि आरोपी के कार्यालय के आस-पास तोड-फोड की कार्यवाही चल रही थी जिस कारण बहुत भीड थी और बहुत धुल उड रहा था। साक्षी ने स्वीकार किया कि, पटवारी कार्यालय में चार रूम थे और जिस रूम में आरोपी को पकडे थे उस रूम में रिश्वती रकम नहीं थी और वहां से कम्प्यूटर टेबल नहीं दिख रहा था। साक्षी ने यह भी स्वीकार किया कि, आरपी की तलाशी लेने पर उसकी जेब से कुछ नहीं निकला था। तब प्रार्थी को बुलाकर रिश्वती रकम के संबंध में पूछताछ करने पर प्रार्थी ने बताया था कि रिश्वती रकम कम्प्यूटर टेबल के पास रखा है।
36. अ०सा० 09 शिव प्रसाद साहू आरक्षक ने बताया है कि उसे छाया साक्षी के रूप में प्रार्थी के साथ भेजा गया था और जब प्रार्थी रिश्वत देने आरोपी के कार्यालय के अंदर गया था तब वह बाहर ही खडा था । उसके पश्चात प्रार्थी के ईशारा मिलने पर ए.सी.बी.वाले अंदर चले गये और आरोपी को पकड लिये थे। तब उसने घाल कार्यवाही की थी। आरेपी से रिश्वती रकम के संबंध में पूछने पर आरोपी ने रिश्वत लेने से इंकार किया था इसके पश्चात प्रार्थी को बुलाकर पूछने पर प्रार्थी ने रिश्वती रकम को कम्प्यूटर टेबल में रखना बताया था। उक्त कम्प्यूटर कक्ष में आरोपी को साथ ले जाकर प्रार्थी द्वारा बताये गये कम्प्यूटर टेबल से पंच साक्षियों द्वारा ढूढने पर नोट प्राप्त हुआ था। साक्षी ने बताया कि उसने आरोपी के उंगलियों को घोल में डुबाया था तब घोल का रंग हल्का गुलाबी हो गया था।
37. प्रतिपरीक्षण में साक्षी ने स्वीकार किया कि, जिस कमरे में आरोपी को पकडे थे उसके दूसरे कमरे में रिश्वती रकम बरामद हुआ था। साक्षी यह भी स्वीकार करता है कि जिस रूम में आरोपी को पकडा गया था वहां से रिश्वती रकम रखा हुआ कम्प्यूटर टेबल नहीं दिखायी देता। साक्षी यह स्वीकार करता है कि पटवारी कार्यालय के कम्प्यूटर टेबल पर किसने रिश्वती रकम को रखा था वह नहीं देख पाया था।
38. अ०सा० 11 एस.के.सेन विवेचना अधिकारी ने बताया है कि, प्रार्थी का ईशारा पाकर जब वे लोग आरोपी के कार्यालय के अंदर गये तब आरोपी से पूछने पर आरोपी ने रिश्वत लेने से इंकार किया तब प्रार्थी को बुलाकर पूछने पर प्रार्थी ने बताया कि आरोपी ने कम्प्यूटर कक्ष में ले जाकर रिश्वती रकम को अपने हाथ में लिया और कम्प्यूटर टेबल पर रखवा दिया था। आरोपी का हाथ घोल से धुलाये जाने पर घोल का रंग परिवर्तित होकर हल्का गुलाबी हो गया । साक्षी ने आरोपी के हाथ के घोल को प्र.पी.45 के रूप में पहचाना है। 39. प्रतिपरीक्षण में साक्षी ने इंकार किया कि प्र.पी.45 में गुलाबी घोल नहीं है। साक्षी ने आरेपी के कार्यालय के पास तोडफोड की कार्यवाही होने की जानकारी नहीं होना कहा। साक्षी ने स्वीकार किया कि आरेपी की तलाशी लेने पर आरिपी के पास से रिश्वती रकम की बरामदगी नहीं हुई थी। साक्षी ने यह भी स्वीकार किया कि, आरोपी से रिश्वती रकम के संबंध में पूछने पर आरापी ने अनभिज्ञता जाहिर की थी और किसी से रिश्वती रकम नहीं लेना कहा था। साक्षी ने स्वीकार किया कि, तत्पश्चात प्रार्थी को बुलाकर पूछने पर प्रार्थी ने दूसरे कमरे में कम्प्यूटर टेबल के उपर रिश्वती रकम को रखा होना बताया था। साक्षी ने यह भी स्वीकार किया कि जिस कमरे में उन्होंने आरोपी को पकडा था उस कमरे से दूसरे कमरे में रखा हुआ कम्प्यूटर टेबल दिखाई नहीं देता था | साक्षी ने यह स्वीकार किया कि, रिश्वती रकम दूसरे कमरे के कम्प्यूटर टेबल में रखा हुआ था।
40. प्रकरण में स्वयं प्रार्थी ने आरापी को रिश्वती रकम देने से इंकार है और रिश्वती रकम को टेबल पर रख देना बताया है और प्रकरण में रिश्वती रकम आरोपी के शरीर से बरामद नहीं हुई है साथ ही जिस कक्ष में आरोपी था उस कक्ष से भी रिश्वती रकम बरामद नही हुई है और रिश्वती रकम दूसरे कमरे में रखे कम्प्यूटर टेबल से बरामद हुआ है। आरोपी का हाथ धुलाने पर घोल का रंग परिवर्तित नही होना पंच साक्षी ए.के. प्रसाद ने स्वीकार किया है। जिससे दर्शित होता है कि, आरोपी ने रिश्वती रकम को हाथ में नहीं लिया है इसके अतिरिक्त अन्य साक्षियों ने आरापी का हाथ धुलाये जाने पर हल्का गुलाबी होना बताया है जिससे इस बिन्दु पर विरोधाभाष की स्थिति दर्शित हो रही है। साथ ही आरोपी के द्वारा प्रार्थी से रिश्वती रकम की मांग किया जाना भी प्रमाणित नही हुआ है जो ऐसे अपराधों में आवश्यक शर्त है साथ ही आरोपी के समक्ष प्रार्थी का कार्य लंबित नही था और आरोपी प्रार्थी का कार्य करने हेतु सक्षम प्राधिकारी भी नहीं है जिससे उपरोक्त आधारों पर अभियोजन के प्रकरण पर सन्देह करने का आधार उत्पन्न हो जाता है।
41. प्रकरण में मात्र रिश्वती रकम की बरामदगी से आरोपी को दोष सिद्ध नहीं किया जा सकता। इस संबंध विभिन्न न्यायदृष्टांतों में सिद्धांत प्रतिपादित किये गये हैं जिनमें माननीय सर्वोच्च न्यायालय Krishan Chander Vs. State of Delhi तथा C.M.Girish Babu v. CBI, Cochin तथा M.Narsinga Rao v. State of A.P. माननीय छ.ग. माननीय छ.ग.उच्च न्यायालय के न्यायदृष्टांत S.K.Nande v State of Madhya Pradesh में इसी प्रकार के सिद्धांत प्रतिपादित किये गये हैं।
42, उपरोक्त साक्ष्य की विवेचना के आधार पर आरोपी के समक्ष प्रार्थी का कोई कार्य लंबित रहना प्रमाणित नहीं हुआ है इससे आरोपी के द्वारा रिश्वत की मांग किया जाना और रिश्वत की रकम स्वेच्छापूर्वक प्राप्त किया जाना भी सन्देह से परे प्रमाणित नहीं हो पाता है तथा आरोपी के कब्जे से रिश्वती रकम की जप्ती भी नहीं हुई है । ऐसी स्थिति में आरोपी के द्वारा लोक सेवक के रूप में प्रार्थी से रिश्वत की राशि प्राप्त करना और लोक सेवक के रूप में अवचार कारित किया जाना सन्देह से परे प्रमाणित नहीं हो पाता है।
43. उपरोक्त सभी आधारों पर अभियोजन अपना प्रकरण आरोपी के विरूद्घ धारा (डी) व 13(2) भ्रष्टाचार निवारण अधिनियम 1988 के अन्तर्गत सन्देह से परे प्रमाणित करने में असफल रहा है। अत: सन्देह का लाभ देकर आरोपी राजीव तिवारी को धारा 07,13(1)(डी) व 13(2) भ्रष्टाचार निवारण अधिनियम 1988 के आरोप से दोष मुक्त किया जाता है। 
44. आरोपी दिनांक 01.06.2016 से 04.08.2016 तक कुल दो माह 05 दिन न्यायिक अभिरक्षा में निरूद्ध रहा है। 45. प्रकरण में जप्त संपत्ति 10,000/-(दस हजार रूपये) 1000/-, 1000/-(एक-एक हजार रूपये का दस नोट) की राशि अपील अवधि पश्चात् प्रार्थी को वापस किया जावे अन्यथा किसी दावेदार के उपस्थित न होने पर धारा 458 दं.प्र.सं. के अन्तर्गत कार्यवाही की जावे । प्रकरण में जप्तशुदा 7 नग सीलबंद घोल की शीशियां, दो नग सीलबंद लिफाफा, एक पैकेट में फुलपेंट एवं पर्स, दो नग सी.डी. अपील अवधि बाद नष्ट किया जावे। प्रकरण में जप्त ग्राम टिकुलिया पटवारी हल्का नं. 12 रा.नि.मं. भाटापारा का नामांतरण पंजी वापस किया जावे, अपील होने की दशा में माननीय अपीलीय न्यायालय के निर्देशानुसार निराकरण किया जावे।
निर्णय खुले न्यायालय में दिनांकित हस्ताक्षरित व मुद्रांकित कर घोषित।
मेरे निर्देश में टंकित।
सही /-

(प्रफुल्ल सोनवानी
विशेष न्यायाधीश (भ्रष्टाचार अधि.) 
बलौदाबाजार (छ.ग.) 




छत्तीसगढ़ शासन विरुद्ध पुरूषोत्तम उर्फ छोटू यादव

सत्र प्रकरण क्रमांक-150/2017
न्यायालय : प्रथम अतिरिक्त सत्र न्यायाधीश दुर्ग (छ.ग.)
(पीठासीन अधिकारी : अजीत कुमार राजभानू)
सत्र प्रकरण क्रमांक-150/2017
(अप.क्र.55/2017, थाना कुम्हारी)
संस्थित दिनांक : 08-08-2017
छत्तीसगढ़ शासन, द्वारा : थाना प्रभारी,
आरक्षी केन्द्र कुम्हारी, जिला दुर्ग (छ.ग.)                                                                        ..... अभियोजन

।। विरुद्ध ।।
1. पुरूषोत्तम उर्फ छोटू यादव पिता संतोष यादव उम्र 19 वर्ष ।
2. मुकेश पटेल पिता भागवत पटेल, उम्र 19 वर्ष ।
3. ताराचंद पटेल उर्फ तमाडू़ पिता संतोष पटेल, उम्र 18 वर्ष ।
4. मुकेश साहू पिता जनकू साहू, उम्र 19 वर्ष ।
5. प्रताप पटेल पिता शत्रुहन पटेल, उम्र 19 वर्ष ।
6. सेतुराम धु्रव उर्फ सेतु पिता पूरन धु्रव, उम्र 22 वर्ष ।
7. रोशन यादव पिता रामनारायण यादव, उम्र 20 वर्ष ।

सभी निवासी : महामाया पारा, बाजार चौक,
पटेल पारा, कुम्हारी, जिला दुर्ग (छ.ग.)                                              ..... अभियुक्तगण

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न्यायिक दण्डाधिकारी प्रथम श्रेणी (कु. रूपल अग्रवाल), भिलाई-3 द्वारा दाण्डिक प्रकरण क्रमांक-331/2017 में पारित उपार्पण आदेश दिनांक 27-07-2017 से उद्भुत सत्र प्रकरण ।
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राज्य की ओर से सुश्री फरिहा अमीन, अपर लाक अभियाजक। अभियुक्तगण की ओर से श्री संतोष शर्मा एवं श्री चेतन तिवारी, अधिवक्तागण ।
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।। निणर्य ।।
(आज दिनांक 30-05-2018 का घाषित किया गया)
1- अभियुक्तगण के विरुद्ध भारतीय दण्ड संहिता की धारा-148, 294, 506(बी) एवं 329 सहपठित धारा-34 के अंतर्गत यह आरोप है कि उन्हांने दिनांक 13-03-2017 को 19.00 बजे विकास मिश्रा के घर के सामने, 320 कॉलोनी अटल आवास, कुम्हारी में आपस में मिलकर सामान्य उद्देश्य के अग्रसरण में हॉकी स्टिक, डण्डा, बेल्ट आदि वस्तुओं से सज्जित होकर जमाव कर, बलवा करते हुये सामान्य उद्देश्य के अग्रसरण में रविभूषण सिंह का मॉं, बहन की गंदी-गंदी अश्लील गाली -गलौज कर रविभूषण सिंह को जान से मारने की धमकी देकर आपराधिक अभित्रास कारित किया एवं सभी अभियुक्तगण ने एक साथ मिलकर सामान्य उद्देश्य के अग्रसरण में रविभूषण सिंह से शराब पीने के लिय पैसे मांगकर, पैसे देने हेतु मजबूर करने के लिये उद्यापन करते हुये हॉकी स्टिक, लाठी, डण्डा, बेल्ट एवं हाथ-मुक्का से मारकर स्वेच्छया घार उपहति कारित किया ।
2- अभियोजन कहानी का सार संक्षेप में इस प्रकार है कि प्रार्थी विनाद कुमार सिंह द्वारा दिनांक 14-03-2017 को थाना कुम्हारी में इस आशय की रिपार्ट दर्ज करायी गई कि उसका भाई रविभूषण, उसकी मॉं रामावती के साथ 320 कॉलानी अटल आवास, कुम्हारी में रहता है, जो दिनांक 13-03-2017 को अपने घर के सामने खड़ा था, तभी वहां सेतुराम यादव अपने साथियां के साथ मॉं, बहन की गंदी-गंदी गालियां देने लगा, जिसे उसके भाई रविभूषण ने मना किया, तो इसी बात से नाराज होकर यह कहते हुये कि तू हमका मना करने वाला कौन होता है, उसके भाई रविभूषण को मॉं, बहन की गंदी-गंदी गाली देकर जान से मारने की धमकी देते हुये अपने पास रखे डण्डे, हॉकी स्टिक से मारपीट करने लगे, जिससे उसका भाई नीचे गिर गया । वह अपने भाई को उपचार हेतु कृष्णा हॉस्पिटल, कुम्हारी ले गया, जहां से डॉक्टरों के कहने पर सुयश हॉस्पटल, कोटा, रायपुर में लेजाकर भर्ती कराया है । उसका भाई आई.सी.यू. में बेहोश है, ईलाज चल रहा है ।
3- प्रार्थी द्वारा की गई उक्त रिपार्ट के आधार पर थाना कुम्हारी पुलिस के द्वारा भा,द,संहिता की धारा-294, 506(बी) एवं 323/34 के अंतर्गत अपराध क्रमांक 55/2017 पंजीबद्ध कर, प्रकरण विवेचना में लिया गया । आरोपियां की पतासाजी कर उन्हें गिरफ्तार किया जाकर उनका मेमारेण्डम कथन लेखबद्ध किया गया तथा उनके मेमोरेण्डम कथन के आधार पर उनके द्वारा पेश करने पर घटना के समय रविभूषण का मारने में प्रयुक्त हॉकी स्टिक, बेल्ट व डण्डा जप्त किया गया । घटना स्थल का मौका नक्शा बनाया गया । आहत का आयी चोटें हॉकी स्टिक, बेल्ट व डण्डा से आ सकने व उसे पहुंचायी गई चोटों की प्रकृति के सम्बंध में डॉक्टर से क्वेरी की गई । गवाहों के कथन लेखबद्ध किये गये, जिसमें उन्होंने आरापीगण द्वारा प्रार्थी से शराब पीने के लिये पैसे मांगते हुये मॉं, बहन की गाली-गलौज करने तथा आहत द्वारा शराब पीने के लिये पैसे देने से मना करने पर मॉ, बहन की गाली- गलौज करते हुये जान से मारने की धमकी देकर मारपीट करने का कथन किया । तत्पश्चात् विवेचना पूर्ण कर अभियाग-पत्र न्यायिक मजिस्ट्रेट प्रथम श्रेणी (कु.रूपल अग्रवाल), भिलाई-3 के न्यायालय में प्रस्तुत किया गया, जा दाण्डिक प्रकरण क्रमांक 331/2017 के रूप में पंजीबद्ध हुआ तथा अपराध अनन्यतः सत्र न्यायालय द्वारा विचारणीय होने से उपार्पण आदेश दिनांक 27-07-2017 के अनुसार उपार्पित किया गया, जो सत्र प्रकरण क्रमांक-150/2017 के रूप में पंजीबद्ध होकर विधिवत् निराकरण हेतु अन्तरण पर इस न्यायालय को प्राप्त हुआ ।




4- तत्कालीन पीठासीन अधिकारी द्वारा अभियुक्तगण के विरुद्ध भारतीय दण्ड संहिता की धारा-148, 294, 506(बी) एवं 329 सहपठित धारा-34 का आराप विरचित किया जाकर, पढकर सुनाये व समझाये जाने पर अभियुक्तगण ने आरोप अस्वीकार कर, विचारण किये जाने का निवेदन किया । अभियाजन साक्षियों के कथनां के उपरान्त धारा 313 दण्ड प्रक्रिया संहिता के अंतर्गत प्रश्नावली के रूप में अभियुक्तण का परीक्षण कराया गया । धारा-233 दण्ड प्रक्रिया संहिता के उपबन्धां के अनुसार प्रतिरक्षा में प्रवेश कराये जाने पर अभियुक्तगण ने अभियाजन साक्षियां के कथनों को झूठा फंसाने का कथन करते हुए प्रतिरक्षा में किसी भी साक्षी का परीक्षण नहीं कराना व्यक्त किया ।
5- अभियोजन की ओर से अपने पक्ष-समर्थन में साक्षी विनाद कुमार सिंह (अ.सा-1), रविभूषण सिंह (अ.सा-2), डॉ0राजीव साहू (अ.सा-3), मनोज सिंह (असा-4), जी.एन.चौधरी (अ.सा-5) एवं मीलूराम कंवर (अ.सा-6) का कथन कराया गया है ।
6- प्रकरण के निराकरण के लिये विचारणीय बिंदु यह है कि :-
1- क्या अभियुक्तगण ने आपस में मिलकर सामान्य उद्देश्य के अग्रसरण में हॉकी स्टिक, डण्डा, बेल्ट आदि वस्तुओं से सज्जित होकर जमाव कर, बलवा किया ?
2- क्या अभियुक्तगण ने सामान्य उद्देश्य के अग्रसरण में रविभूषण सिंह को मॉं, बहन की गंदी-गंदी व अश्लील गाली-गलौज कर प्रार्थी व अन्य सुनने वालों को क्षोभ कारित किया ?
3- क्या अभियुक्तगण ने रविभूषण सिंह को जान से मारने की धमकी देकर आपराधिक अभित्रास कारित किया ?
4- क्या अभियुक्तगण ने एक साथ मिलकर सामान्य उद्देश्य के अग्रसरण में रविभूषण सिंह से शराब पीने के लिय पैसे मांगकर, पैसे देने हेतु मजबूर करने के लिये उद्यापन करते हुये हॉकी स्टिक, लाठी, डण्डा, बेल्ट एवं हाथ-मुक्का से मारकर स्वेच्छया घोर उपहति कारित किया ?
।। विचारणीय बिंदु क्रमांक-1 से 4 पर सकारण निष्कर्ष ।।
7- उक्त विचारणीय बिंदु को प्रमाणित करने हेतु अभियाजन की ओर से प्रस्तुत साक्षी विनोद कुमार सिंह (अ.सा-1) ने अपने साक्ष्य में आरापीगण रोशन, छोटू उर्फ पुरूषात्तम, सेतुराम यादव, फंदी उर्फ छोटू को नाम और चेहरे से तथा अन्य आरोपियां को चेहरे से पहचानना कहा है । घटना के सम्बंध में साक्षी का कथन है कि घटना दिनांक को होली के दिन यह अपने परिवार के साथ अटल आवास के दूसरे तल में खड़ा था और आरोपीगण नीचे भूतल में गाली-गलौज कर रहे थे । आरोपीगण का इसके भाई रविभूषण सिंह ने गाली देने से मना किया था, तब आरोपीगण ने इसके भाई से कहा था कि तू हमको मना करने वाला कौन है, और ऐसा करते हुये उसके भाई के साथ डण्डा एवं स्टिक से मारपीट किये थे । आरोपीगण इसके भाई को मारपीट करते हुये खींचकर नीचे भूतल में ले गये थे और अत्यधिक मारपीट किये थे, तब इसका भाई नीचे गिर गया था । आरापीगण ने इसके भाई के उपर पानी डालकर देखा, जब उन्हें काई हलचल नहीं दिखायी दी, तब आरोपीगण उसे छोड़कर चले गये थे । यह अपने भाई का पहले कृष्णा हॉस्पिटल, कुम्हारी चौक लेकर गया था, फिर डॉक्टरां की सलाह पर सुयश अस्पताल, काटा, रायपुर लेजाकर ईलाज कराया था । इसका भाई 24 घण्टे आई.सी.यू. में भर्ती था । घटना की रिपोर्ट इसके भाई मनाज सिंह ने थाना कुम्हारी, दुर्ग में दर्ज करायी थी । देहाती नॉलिसी प्रदर्श पी-1 पर साक्षी ने अ से अ भाग पर अपना हस्ताक्षर होना कहा है ।
8- प्रतिपरीक्षण में इस साक्षी ने अपने पुलिस बयान में अपने परिवार के साथ अटल आवास के दूसरे तल में खड़े होने, आरापीगण द्वारा भूतल में गाली- गलौज करने, आरोपीगण द्वारा इसके भाई को मारपीट करते हुये भूतल में ले जाने और अत्यधिक मारपीट करने और पानी डालकर देखने तथा हलचल नहीं होने पर छोड़कर चले जाने की बात बता देना कहा है । अपने पुलिस बयान में इस बात का उल्लेख नहीं होने के सम्बंध में जानकारी नहीं होना कहा है । इस प्रकार साक्षी द्वारा उपरोक्त तथ्यों को न्यायालय में बढ़ाचढ़ाकर बताया गया है । आगे प्रतिपरीक्षण में साक्षी ने यह स्वीकार किया है कि पुलिस ने किसी भी आरापी की पहचान नहीं कराया था । यह स्वीकार किया है कि देहाती नॉलिसी प्रदर्श पी-1 में सेतुराम यादव एवं अन्य के विरुद्ध रिपार्ट लिखाया था, शेष आरापियों का नाम नहीं बताया था। स्वतः कहता है कि उस समय उनका नाम इसे नहीं पता था । आगे साक्षी बताता है कि इसके घर के पास दुकान वाला डागेश ने आरापीगण का नाम बताया था । यह अस्वीकार किया है कि यह घटना के समय मौजूद नहीं था और घटना को घटित हाते अपनी ऑंख से नहीं देखा है । यह स्वीकार किया है कि कथित घटना के समय यह अपने भाई का बीच-बचाव नहीं किया था ।
9- इस साक्षी ने यह भी स्वीकार किया है कि उनके घर घटनास्थल से सुयश अस्पताल, रायपुर जाते समय बीच में कुम्हारी पुलिस थाना पड़ता है, लेकिन ये लाग थाना नहीं गये थे । यह स्वीकार किया है कि घटनास्थल घनी आबादी का क्षेत्र है, जहां आसपास के घरां में लाग निवास करते हैं, लेकिन किसी ने भी बीच-बचाव नहीं किया था । यह स्वीकार किया है कि रिपोर्ट लिखाते समय लाठी, हॉकी स्टिक आदि की बात नहीं बताया था । कंडिका-16 में साक्षी ने कथन किया है कि यह, मनोज सिंह और रविभूषण एक ही माता-पिता की सन्तान हैं और एक साथ निवास करते हैं । यह अस्वीकार किया है कि जिस मकान में खड़े हाना बताया है, वहां यह नहीं रहता है । यह स्वीकार किया है कि घटना होली के त्यौहार के दिन की है और शाम 6.30-7.00 बजे की है, लेकिन यह अस्वीकार किया है कि लोगां के चेहरे में र ंग-गुलाल होने तथा सूर्यास्त होने से अंधेरा होने के कारण किसी को नहीं पहचान पाया था । कंडिका-20 में साक्षी ने स्वीकार किया है कि प्रदर्श पी-1 की देहाती नॉलिसी लिखाते समय इसका रविभूषण से बातचीत नहीं हो पाया था । यह अस्वीकार किया है कि जिस वाहन से इसके भाई का अस्पताल ले गये थे, उस वाहन से इसके भाई का एक्सीडेण्ट हुआ था । यह अस्वीकार किया है कि घटना दिनांक को इसका भाई शराब पीया हुआ था ।
10- साक्षी रविभूषण सिंह (अ.सा-2) प्रकरण में आहत है । इस साक्षी ने आरोपीगण का चेहरे से पहचानना व्यक्त किया है, नाम बताने में असमर्थतता व्यक्त किया है । घटना के सम्बंध में साक्षी का कथन है कि होली के दिन संध्या 5.00-5. 30 बजे आरापीगण और उनके साथ अन्य लोग हुड़दंग कर रहे थे तथा मोहल्ले- वासियों को ललकारकर अश्लील गालियां दे रहे थे । इसने आरोपीगण को घर से दूर जाने का निवेदन किया, तब आरापीगण मारपीट पर उतारू हा गये और एक के बाद एक इसे मारने लगे, जिससे इसे गम्भीर चोटे  आयी और यह मूर्छित हा गया । जब होश आया, तब यह सुयश अस्पताल में था और आई.सी.यी. में भर्ती था । पुलिस ने घटनास्थल का नक्शा प्रदर्श पी-2 इसके बताये अनुसार तैयार किया था, जिस पर अ से अ भाग पर इसके हस्ताक्षर हैं । साक्षी ने पुलिस को प्रदर्श पी-3 का अपना पुलिस बयान देना स्वीकार किया है ।
11- प्रतिपरीक्षण में इस साक्षी ने अपने पुलिस बयान में यह बता देना कहा है कि आरोपीगण संध्या 5.30 बजे हुड़द ंग कर रहे थे और मोहल्लेवासियों को ललकार रहे थे तथा अश्लील गालियां दे रहे थे । इसके द्वारा आरापीगण को दूर जाने का निवेदन करने पर वे मारपीट पर उतारू होकर इससे मारपीट किये, जिससे गम्भीर चोट आया और मूर्छित हो गया था । उक्त बात पुलिस के बयान में न होने के सम्बंध में साक्षी ने जानकारी नहीं हाना कहा है । कंडिका-6 में साक्षी ने स्वीकार किया है कि घटना से पहले आरोपीगण का नाम नहीं जानता था । घटना के समय यह अकेला था और इसके नजदीक में कोई नहीं था । बेहोश होने के पूर्व घटना के सम्बंध में इसका किसी व्यक्ति से बातचीत नहीं हुआ था । यह भी स्वीकार किया है कि यह साक्ष्य दिनांक का भी आरोपीगण का नाम नहीं जानता है और इसने पुलिस को बयान देते समय किसी आरापी का नाम नहीं बताया था, अगर पुलिस वालां ने लिखा होगा, तो अपने मन से लिख लिया होगा । इसने पुलिस का यह भी नही बताया था कि घटना को किसने देखा है ।
12- आगे प्रतिपरीक्षण में साक्षी ने स्वीकार किया है कि घटना दिनांक को यह भी शराब पीया हुआ था । घटनास्थल घनी आबादी क्षेत्र है, जहां आसपास के लाग निवास करते हैं । इसने किसी भी व्यक्ति को घर के बाहर नहीं देखा था । इसका भाई विनोद, इसके माता-पिता एक साथ निवास करते हैं । यह स्वीकार किया है कि घटना के समय इसे बचाने इसके भाई विनाद तथा इसके माता-पिता नहीं आये थे । यह भी स्वीकार किया है कि कथित घटना दिनांक को आरोपीगण एवं अन्य लोगां के साथ जो वाद-विवाद होना बता रहा है, उसका मुख्य कारण आरोपीगण एवं अन्य लोगों के द्वारा अश्लील गालियां देना था, इसके अलावा अन्य किसी बात का लेकर वाद-विवाद नहीं हुआ था । इसने अपने पुलिस बयान में यह नहीं बताया था कि कौन सा आरापी लाठी और अन्य हथियार रखा था, स्वतः कहा कि कुछ लोगां ने हॉकी स्टिक रखा था । यह अस्वीकार किया है कि घटना दिनांक को शराब पीकर वाहन चलाते समय गिरने से इसे चोट आयी थी, इसी कारण इसके परिजनों ने सुयश अस्पताल में भर्ती हाते समय रोड एक्सीडेण्ट से चोट लगना बताया था । अन्य सुझावां का इस साक्षी ने अस्वीकार किया है ।




13- साक्षी मनोज सिंह (अ.सा-4) आहत का भाई है, इसने आरापीगण में से चार-पांच लोगां को चेहरे से पहचानना कहा है, नाम बताने में असमर्थता व्यक्त किया है । घटना के सम्बंध में इसने भी कथन किया है कि घटना दिनांक को हाउसिंग बोर्ड कॉलानी, कुम्हारी स्थित मकान एल.आई.जी. ।-269 में शाम 6.00-6.30 बजे आराम कर रहा था, तभी इसे मोबाईल पर सूचना प्राप्त हुई कि इसके भाई की मृत्यु हो गई है । जब यह कृष्णा हॉस्पिटल, कुम्हारी पहुंचा, तब अस्पताल में इसके परिजन रो रहे थे और डॉक्टर ने बताया दिया था कि इसके भाई रविभूषण की मृत्यु हा गई है, तब यह अपनी ऑटा में रविभूषण का लिटाकर सुयश हॉस्पिटल, रायपुर ले गया था, जहां 8-9 दिनों तक भर्ती रखकर ईलाज किया था । 
14- आगे साक्षी का कथन है कि इसने अपने भाई से घटना के विषय में जानकारी मांगी थी, लेकिन उसने किसी भी आरोपी का नाम नहीं बताया था । थाना कुम्हारी की पुलिस ने इसके सामने आरापीगण के पेश करने पर एक हॉकी एवं एक बेल्ट की जप्ती की थी । यह बताने में साक्षी असफल रहा कि किस आरोपी से हॉकी और किस आरोपी से बेल्ट जप्त किया गया है । जप्ती पत्रक प्रदर्श पी-6 एवं प्रदर्श पी-7 पर साक्षी ने अ से अ भाग पर अपना हस्ताक्षर स्वीकार किया है । प्रतिपरीक्षण में इस साक्षी का कथन है कि घटना के समय इसका भाई विनोद कुमार इसके साथ एल.आई.जी. ।/269, कुम्हारी के मकान में रहता था । इसने अपनी आंखां से अपने भाई रविभूषण के साथ होती घटना का नहीं देखा है । 
15- डॉ0राजीव साहू (अ.सा-3) न्यूरोसर्जन के द्वारा आहत का मुलाहिजा किया गया है । इस साक्षी का कथन है कि यह वर्ष 2011 से सुयश हॉस्पिटल, रायपुर में विजिटिंग न्यूरोसर्जन के पद पर पदस्थ हैं । दिनांक 13-03-2017 को रविभूषण का ईलाज के लिये लाया गया था, परिजनों ने बताया था कि मरीज को दो-तीन लोगां के द्वारा लड़ाई के दौरान चोट आयी थी । इनके द्वारा जांच करने पर पाया गया कि मरीज होश में था, उसका जी.सी.एस.स्कोर (मरीज का न्यूरोलॉजिकल स्थिति) 13/15 था, जो सामान्य से कम था, नॉर्मल व्यक्ति का जी.सी.एस.स्कार 15/15 होता है । परीक्षण में मरीज के चेहरे के दाहिने तरफ 3/2 सें.मी. छिला हुआ चोट का निशान मौजूद था, सिर के सी.टी.स्केन करने पर पता चला कि मरीज के बांये पैराईटा टेम्पारल स्केल्प में सूजन था । इनके मतानुसार मरीज को आयी चोट गम्भीर प्रकृति की थी । उनके द्वारा दिया गया मेडिकल रिपार्ट प्रदर्श पी-4 पर अ से अ भाग पर इनके हस्ताक्षर हैं । 
16- आगे साक्षी का कथन है कि दिनांक 13-05-2017 को थाना कुम्हारी द्वारा प्रस्तुत दो सीलबंद पैकेट में एक हॉकी स्टिक, जिसकी लम्बाई 36 इंच थी एवं एक डण्डा, जिसकी लम्बाई 33 इंच थी, की जांच कर, रिपोर्ट दिया गया था। इनके रिपोर्ट के अनुसार डण्डा एवं हॉकी स्टिक से आहत को आयी चोटें आ सकती हैं । क्वेरी रिपोर्ट प्रदर्श पी-5 पर अ से अ भाग पर इसके हस्ताक्षर हैं । प्रतिपरीक्षण में स्वीकार किया है कि आहत दिनांक 13-03-2017 को उपचार हेतु भर्ती हुआ था और मुलाहिजा रिपार्ट दिनांक 16-03-2017 को तैयार किया गया है । यह स्वीकार किया है कि प्रारम्भिक उपचार इनके द्वारा नहीं किया गया है, प्रारम्भिक उपचार करने वाला डॉक्टर पूछकर इस बात का उल्लेख करता है कि आहत का चोट कैसे आयी थी । यह स्वीकार किया है कि मरीज का सी.टी.स्केन परीक्षण इनके निर्देश पर किया गया है । सी.टी.स्केन रिपोर्ट में मरीज का शराब पीया होना तथा रोड एक्सीडेण्ट लिखा है, स्वतः कहा कि रिपार्ट पी.जी.श्रीधर द्वारा तैयार किया गया है, इसके बारे में वही बता सकते हैं । कंडिका-11 में साक्षी ने स्वीकार किया है कि शराब पीकर वाहन चलाते समय गिरकर किसी कठार वस्तु से टकरा जाने पर इस प्रकार की चोट आ सकती है । 
17- अ.सा-6 मीलूराम कंवर का साक्ष्य है कि थाना कुम्हारी में उप-निरीक्षक के पद पर पदस्थ रहने के दौरान उसने दिनांक 04-04-2017 का आरोपी सेतराम धु्रव उर्फ सेतू को प्रदर्श पी-21 के गिरफ्तारी पत्रक के अनुसार गिरफ्तार किया था। आरोपी सेतराम धु्रव उर्फ सेतू का अपनी अभिरक्षा में लेकर उसके बताये अनुसार गवाहों की उपस्थिति में मेमारेण्डम कथन प्रदर्श पी-23 लेखबद्ध किया था और उसके मेमारेण्डम कथन के आधार पर आरापी द्वारा निकालकर पेश करने पर उसने लकड़ी से बना हुआ हॉकी का स्टिक गवाहां की उपस्थिति में प्रदर्श पी-24 के जप्ती पत्रक के अनुसार जप्त किया था । 
18- प्रतिपरीक्षण में इस साक्षी ने स्वीकार किया है कि देहाती नॉलिसी प्रदर्श पी-1 में आरोपी का नाम सेतुराम यादव एवं अन्य लिखा हुआ है । यह भी स्वीकार किया है कि जिस व्यक्ति का दिनांक 04-07-2017 को हिरासत में लिया गया है, वह सेतुराम यादव नहीं है, बल्कि सेतुराम धु्रव है । साक्षी स्वतः कहता है कि सेतुराम धु्रव ने स्वयं को मामले का आरोपी बताते हुये सरेण्डर किया था । यह स्वीकार किया है कि समर्पण के पूर्व आरोपी ने इसके सामने अपराध स्वीकार नहीं किया था । यह भी स्वीकार किया है कि आहत तथा किसी भी साक्षी ने आरापी सेतराम यादव के हाथ में हॉकी स्टिक हाने का कथन नहीं किया है । यह अस्वीकार किया है कि सेतराम धु्रव से कोई जप्ती नहीं किया गया है । 
19- अ.सा-5 जी.एन.चौधरी का कथन है कि थाना कुम्हारी में सहायक उप-निरीक्षक के पद पर पदस्थ रहने के दौरान दिनांक 14-03-2017 का सुयश अस्पताल, रायपुर से प्राप्त सूचना के आधार पर प्रार्थी विनाद कुमार सिंह के बताये अनुसार उसने देहाती नॉलिसी प्रदर्श पी-1 तथा देहाती नॉलिसी के आधार पर उसी दिनांक को प्रदर्श पी-8 के अनुसार अपराध पंजीबद्ध किया था । दिनांक 29-05- 2017 का रविभूषण की उपस्थिति में उसके बताये अनुसार घटनास्थल का मौका नक्शा प्रदर्श पी-2 तैयार किया था और घटनास्थल का लाल स्याही से चिन्हांकित किया था । सुयश हॉस्पिटल, रायपुर में आहत रविभूषण के किये जा रहे उपचार एवं उसके आयी चोटां के सम्बंध में जानकारी प्राप्त करने हेतु ज्ञापन प्रेषित किया गया था। विवेचना के क्रम में उसने आरोपी ताराचंद पटेल द्वारा पेश करने पर गवाह मदन सिंह एवं मनोज सिंह की उपस्थिति में प्रदर्श पी-6 के जप्ती पत्र के अनुसार बांस का एक डण्डा तथा आरापी रोशन यादव द्वारा पेश करने पर इन्ही गवाहों के समक्ष उसने एक बेल्ट प्रदर्श पी-7 के जप्ती पत्र के अनुसार जप्त किया था । इसने आरापी पुरूषोत्तम उर्फ छोटू यादव, रोशन यादव, मुकेश पटेल, ताराचंद पटेल, मुकेश साहू एवं प्रताप पटेल को गवाहों की उपस्थिति में गिरफ्तार कर गिरफ्तारी की सूचना उनके परिजनों को दिया था । 
20- इस साक्षी ने आगे यह भी कथन किया है कि आहत रविभूषण का कथन लेने हेतु उसने चिकित्सा अधिकारी, सुयश अस्पताल काटा, रायपुर से अनुमति प्राप्त करने के लिये प्रदर्श पी-17 का ज्ञापन लेखबद्ध किया था तथा आहत का आयी चोटों की प्रकृति जानने के लिये मुख्य चिकित्सा अधिकारी का क्वेरी आवेदन प्रदर्श पी-18 एवं घटना में प्रयुक्त डण्डा, हॉकी स्टिक से आहत को आयी चोटां के विषय में जानकारी प्राप्त करने के लिये प्रदर्श पी-19 के अनुसार क्वेरी आवेदन सुयश हॉस्पिटल, रायपुर प्रेषित किया था । उसने प्रार्थी विनोद कुमार सिंह, आहत रविभूषण सिंह, गवाह रमौती, देवी सिंह एवं मनोज सिंह के बताये अनुसार उनके कथन लेखबद्ध किया था । 
21- प्रतिपरीक्षण में इस साक्षी ने कथन किया है कि घटना की जानकारी पहली बार दिनांक 14-03-2017 को थाने के मोहर्रिर से मिली थी । यह स्वीकार किया है कि अस्पताल के भर्ती कागजात में रविभूषण का भर्ती कराने का कारण एल्काहलिक पेसेन्ट तथा रोड ट्रेफिक एक्सीडेण्ट होना बताया गया था । यह भी स्वीकार किया है कि देहाती नॉलिसी में प्रार्थी विनोद कुमार सिंह ने घटना को स्वय देखना नहीं बताया था । विनाद कुमार, घटनास्थल अटल आवास के पास का निवासी नहीं है । देहाती नॉलिसी में रविभूषण ने किस आरोपी का गाली देने से मना किया था और किस व्यक्ति ने जान से मारने की धमकी दी थी, इसका स्पष्ट उल्लेख नहीं है । यह स्वीकार किया है कि प्रकरण में सेतराम यादव नाम का व्यक्ति गिरफ्तार करना नहीं पाया गया है, इसने मामले के आरापी सेतराम धु्रव का शिनाख्ती कार्यवाही नहीं कराया है । यह भी स्वीकार किया है कि किसी भी आरापी की पहचान भी नहीं करायी है । 




22- आगे प्रतिपरीक्षण की कंडिका-16 में साक्षी ने स्वीकार किया है कि आहत रविभूषण का बयान दिनांक 31-03-2017 का दर्ज किया है । आहत एवं किसी भी साक्षी ने आरोपीगण का नाम बताते समय उसके पिता का नाम, उम्र एवं निवास के सम्बंध में कोई जानकारी नहीं दिया था । यह स्वीकार किया है कि आहत रविभूषण द्वारा इस बात की जानकारी नहीं दी गई थी कि उसे शराब पीने के लिये पैसे किस व्यक्ति के द्वारा मांगा गया था । यह भी स्वीकार किया है कि आहत एवं अन्य व्यक्तियो ं ने यह नहीं बताया है कि किस व्यक्ति के मारने पर चोट आया था । इस साक्षी ने इस बात को भी स्वीकार किया है कि साक्षी विनोद सिंह के द्वारा देहाती नॉलिसी एवं पुलिस बयान में स्वयं के अटल आवास के दूसरे तल में खड़े होने और आरोपीगण द्वारा नीचे भूतल में गाली-गलौज करने तथा इसके भाई को मारपीट करते हुये खींचकर नीचे भूतल में ले जाने वाली आदि बात नहीं बताई थी । इस बात की जानकारी नहीं होना कहा है कि विनाद कुमार को आरापीगण का नाम राकेश के माध्यम से पता चला था । 
 23- इस साक्षी ने गवाह मनोज सिंह के द्वारा न्यायालय में अतिरिक्त रूप से कथनों को विस्तारित करते हुये बताये गये तथ्यां का पुलिस बयान में नहीं बताने की बात भी स्वीकार किया है । यह स्वीकार किया है कि प्रदर्श पी-9 के दस्तावेज में थाना प्रभारी, सरस्वती नगर, रायपुर की सील लगी हुई है और उसी सील के ऊपर थाना प्रभारी, कुम्हारी, जिला दुर्ग की सील लगी है । प्रदर्श पी-9 का दस्तावेज दिनांक 13-03-2017 को तैयार किया गया है और दिनांक 13-03-2017 का पुलिस थाना कुम्हारी में इस घटना के सम्बंध में कोई अपराध पंजीबद्ध नहीं हुआ था । कंडिका-25 में साक्षी ने स्वीकार किया है कि इनके द्वारा आहत रविभूषण सिंह का कथन लेने हेतु अनुमति बावत् आवेदन-पत्र दिनांक 14-03-2017 को दिया गया था और प्रदर्श पी-17 में चिकित्सक द्वारा मरीज बयान दे सकता है, अनुमति दी जाती है, लिखकर सीलमुद्रा से चिन्हांकित किया गया है । यह स्वीकार किया है कि आहत का बयान दिनांक 21-03-2017 को दर्ज किया गया है, दिनांक 14-03-2017 का अनुमति मिलने के बाद भी बयान दर्ज नहीं किया गया है । 
24- अभियोजन की ओर से प्रस्तुत उक्त साक्षियां के परिप्रेक्ष्य में बचाव-पक्ष की ओर से यह तर्क किया गया है कि मामले में अभियोजन द्वारा प्रस्तुत तथ्य सन्देहास्पद हैं । साक्षी विनोद सिंह (अ.सा-1), जिसके द्वारा देहाती नॉलिसी दर्ज करायी गई है, वह मौके पर उपस्थित नहीं था, अतः घटना के सम्बंध में उक्त साक्षी का कथन विश्वास योग्य नहीं है । आहत को आयी चोटें आरोपीगण द्वारा की गई मारपीट से कारित हाना प्रमाणित नहीं है, बल्कि आहत को अस्पताल में भर्ती कराते समय रोड एक्सीडेण्ट से चोट कारित होने की बात बतायी गई थी, जो अभियोजन के मामले का सन्देहास्पद बनाता है । मामले में घटना, अटल आवास की है, जहां सभी घरों में लोग निवास करते हैं, किन्तु आहत एवं उसके परिवार के सदस्यों के अतिरिक्त आसपास के किसी भी व्यक्ति को साक्षी के रूप में प्रस्तुत नहीं किया गया है, जिससे मामले के साक्षियां के कथनों की विश्वसनीयता प्रभावित होती है । अभियोजन के साक्ष्य विश्वसनीय नहीं हैं, अतः आरोपीगण की दोषसिद्धि के लिये उक्त साक्ष्य ग्राह्य नहीं है, अतः आरोपीगण दोषमुक्ति के अधिकारी हैं । 
25- जबकि अभियोजन की आेर से यह तर्क किया गया है कि मामले के आहत सहित प्रत्यक्षदर्शी साक्षियां ने घटना का समर्थन किया है । आहत को गम्भीर उपहति कारित होना, चिकित्सीय साक्ष्य से प्रमाणित हुआ है, अतः आरापीगण के विरुद्ध आरोप प्रमाणित होते हैं । 
26- विचार किया गया । मामले में अभियाजन के द्वारा प्रस्तुत कहानी के अनुसार घटना दिनांक का आरोपीगण के द्वारा आहत रविभूषण सिंह के साथ शराब पीने के लिये पैसा मांगा गया और आहत द्वारा मना करने पर उन्हो ंने मॉं, बहन की गाली देकर, जान से मारने की धमकी देकर हॉकी स्टिक, डण्डा, बेल्ट और हाथ- मुक्का से मारपीट किया था, जिससे आहत नीचे गिरकर बेहोश हो गया था । यह घटना दिनांक 13-03-2017 को शाम लगभग 7.00 बजे की बतायी गई है । साक्षी विनोद सिंह, जिसके द्वारा देहाती नॉलिसी दर्ज करायी गई है, उसने देहाती नॉलिसी में शराब के लिये पैसे मांगकर मारपीट करने के तथ्य का हवाला नहीं दिया है, साथ ही एकमात्र आरोपी के रूप में सेतराम यादव को नामजद किया है और उसके साथ अन्य लाग शामिल होना बताया है । अन्य आरापीगण का नाम, साक्षी ने दुकानदार डागेश के माध्यम से पता चलना बताया है, अर्थात् मामले में डागेश भी प्रत्यक्षदर्शी साक्षी था, जिसका परीक्षण नहीं कराया गया है । साक्षी विनोद के अनुसार मामले में रिपोर्ट दर्ज कराने से पहले आहत रविभूषण ने उसे अन्य आरापीगण के बारे में कुछ नहीं बताया था । स्वय ं रविभूषण ने अपने साक्ष्य में आरोपीगण को नाम से नहीं जानना कहा है, अतः देहाती नॉलिसी एवं साक्षी के पुलिस बयान में आरोपीगण के नाम का उल्लेख किस आधार पर आया है, यह स्पष्ट नहीं है । यहां तक कि आरोपी सेतराम यादव के रूप में देहाती नॉलिसी में एक व्यक्ति का आरापित किया गया है, किन्तु सेतराम यादव के नाम के किसी व्यक्ति का मामले में अभियाजित नहीं किया गया है, बल्कि सेतराम धु्रव नामक व्यक्ति का अभियोजित किया गया है, जो मामले में स्वयं न्यायालय के समक्ष समर्पण किया है । यहा ं पर, जबकि आरोपी के नामजद रिपोर्ट में दर्ज नाम एवं अभिरक्षा में लिये गये आरोपी के नाम में भिन्नता है, उस परिस्थिति में पहचान कार्यवाही कराया जाना आवश्यक था, जो मामले में नहींं कराया गया है, जो मामले को प्रभावित करता है । 
27- साक्षीगण ने अपने कथन में व्यक्त किया है कि सभी आरोपीगण ने आहत के साथ मारपीट किया था, किन्तु यह आश्चर्यजनक तथ्य है कि मामले में सात व्यक्ति आरोपित हैं, सभी के द्वारा हॉकी, डण्डा एवं बेल्ट से मारपीट करना बताया गया है, इसके बाद भी आहत के सिर पर मात्र एक चोट के अलावा अन्य किसी प्रकार के चोट का उल्लेख, चिकित्सक साक्षी के द्वारा नहीं किया गया है । अतः उक्त तथ्य इस बात को असम्भावित करते हैं कि सभी आरापीगण के द्वारा मारपीट किया गया था । 
28- जहां तक आहत को आयी चोट की गम्भीरता एवं प्रकृति का प्रश्न है, मामले में घटना की प्रथम बार रिपोर्ट, देहाती नॉलिसी प्रदर्श पी-1 के आधार पर दर्ज की गई है, जा दिनांक 14-03-2017 को 16.50 बजे अभिलिखित किया गया है, जबकि आहत को दिनांक 13-03-2017 को सुयश अस्पताल में भर्ती होना बताया गया है । मुलाहिजा आवेदन प्रदर्श पी-4 के अनुसार दिनांक 13-03-2017 का ही आहत का मुलाहिजा आवेदन भरकर पेश किया गया था, किन्तु उक्त दिनांक तक थाना कुम्हारी में कोई रिपोर्ट दर्ज नहीं हुई थी । यदि मुलाहिजा रिपोर्ट थाना कुम्हारी द्वारा भरा गया है, तो यह मामले के दर्ज हाने से पहले ही मुलाहिजा करा लिये जाने की स्थिति को दर्शित करता है । यह भी उल्लेखनीय है कि चिकित्सा अधिकारी द्वारा मुलाहिजा रिपोर्ट दिनांक 16-03-2017 को प्रदान किया गया है, अर्थात् घटना के चौथे दिन मुलाहिजा रिपोर्ट तैयार किया गया है । मुलाहिजा रिपोर्ट के अनुसार आहत के बांये पैराईटल टेम्पोरल स्केल्प में स्वेलिंग था, जिसे चिकित्सा अधिकारी डॉ.राजीव साहू ने गम्भीर बताया है, किन्तु स्केल्प में स्वेलिंग के अलावा अन्य किसी प्रकार की गम्भीर अथवा घातक परिस्थिति सी.टी.स्केन में प्रकट नहीं हाती है तथा मात्र सूजन, जो किसी प्रकार से जटिल नहीं था, वह चोट धारा-320 भा.दं.संहिता के अधीन परिभाषित गम्भीर प्रकृति के चोट की परिभाषा में नहीं आता है । 
29- इसके अलावा आहत लगातार 20 दिनों तक तीव्र पीड़ा से पीड़ित रहा अथवा 20 दिनों तक उपचार के अधीन रहा, ऐसा भी साक्ष्य नहीं है, अतः उक्त परिस्थितियां में आहत का आयी चोट को गम्भीर प्रकृति की चोट होना, नहीं माना जा सकता है । यद्यपि चिकित्सक साक्षी ने आहत की चोट का गम्भीर कहा है, किन्तु जैसा कि न्याय दृष्टान्त हंसराज उर्फ हंसू शंकर गोंड ़ विरुद्ध महाराष्ट्र राज्य, 2001(भाग-2) एम.पी.वीकली नाट्स, नोट नंबर 147 (सुप्रीम कोर्ट) में ठहराया गया है कि चिकित्सीय साक्ष्य केवल राय है, जिस पर निर्णय आधारित नहीं हो सकता है । अनिल राय विरुद्ध बिहार राज्य, 2001(7) एस.सी.सी. 318 में ठहराया गया है कि अभियोजन साक्षी के मौखिक कथन और चिकित्सक की राय, न्यायालय द्वारा जब विचार में ली जाती है, तो मौखिक साक्ष्य का अधिमान्यता दी जाती है । चिकित्सक की राय, सत्य से अधिक परिकल्पना आधारित हाती है । अतः उपराक्त परिस्थितियों में आहत को आयी चोट का गम्भीर प्रकृति की चोट होना प्रमाणित नहीं हुआ है । 
30- मामले में अभियाजन की कहानी के अनुरूप तथ्यों का किसी भी साक्षी ने समर्थित नहीं किया है । किसी भी साक्षी ने आरापीगण के द्वारा शराब पीने के लिये पैसे मांगने तथा आहत द्वारा पैसे नहीं देने पर मारपीट कर, उपहति कारित करने का कथन नहीं किया है, बल्कि न्यायालय में नयी परिस्थिति को प्रकट किया है कि आरोपीगण के द्वारा कॉलानी के सामने लोगों को गाली-गलौज कर ललकार रहे थे और अश्लील गालियां दे रहे थे । इस प्रकार अभियाजन के मामले से भिन्न परिस्थिति उत्पन्न होती है । किसी भी साक्षी ने यह स्पष्ट कथन नहीं किया है कि आरोपीगण ने किस प्रकार की अश्लील गालियां उच्चारित की, जो सुनने में बुरा लगा, साथ ही ऐसा भी साक्ष्य नहीं है कि आरोपीगण ने जान से मारने की धमकी दिया, जिससे वास्तव में भय कारित हुआ था । अतः विचारणीय बिंदु क्रमांक-2, 3 एवं 4 के सम्बंध में विधिक साक्ष्य का अभाव है । 
31- जहां तक आरापीगण के द्वारा घातक आयुध से सज्जित होकर बल एवं हिंसा का प्रयाग कर, बलवा कारित करने का प्रश्न है, इस बिंदु पर किसी भी साक्षी ने ऐसा कथन नहीं किया है कि आरोपीगण उक्त हॉकी स्टिक, डण्डा, बेल्ट आदि से लैस हाकर मौके पर आये थे और गाली-गलौज कर रहे थे, अतः आरापीगण के द्वारा सामान्य उद्देश्य के तहत् बलवा कारित करने के लिये सुसज्जित होने के सम्बंध में साक्ष्य नहीं है । अभियोजन के प्रकरण से ही यह प्रकट होता है कि शराब पीने के लिये ही पैसे की मांग की गई और नहीं देने पर गाली-गलौज कर, मारपीट किया गया, अर्थात् आहत से बलपूर्वक पैसे मांगने के लिये पूर्व की तैयारी के साथ आरोपीगण की मौके पर उपस्थिति साबित नहीं होती है । घटना दिनांक को होली का त्यौहार था, उस दिन लोगां का आपस में समूह बनाकर रहने मात्र से यह नहीं कहा जा सकता है कि वे किसी अवैध उद्देश्य के लिये एकत्र हुये थे, साथ ही यह तथ्य इसलिये भी विश्वसनीय नहीं है कि सभी आरापीगण के द्वारा यदि पहले से ही गाली-गलौज किया जा रहा था और साक्षी विनाद, जो कथित रूप से पहली मंजिल पर से खड़े होकर देख रहा था, वह विवाद होने के बाद भी अपने भाई का बचाने के लिये नहीं जाता है ।
32- इसी प्रकार साक्षी रविभूषण ने अपने साक्ष्य में यह स्पष्ट स्वीकार किया है कि उसके भाई अथवा माता-पिता या मोहल्ले के कोई लाग बीच-बचाव के लिये नहीं आये थे । यदि सभी आरोपीगण के द्वारा सामान्य उद्देश्य के तहत् आरोपी से हॉकी स्टिक, डण्डा एवं बेल्ट से मारपीट किया गया था तथा आहत बेहाश हो गया था, इसके बाद भी आहत के सिर में मात्र एक चोट की उपस्थिति, सभी आरोपीगण के द्वारा मारपीट करने की सम्भावना का समाप्त कर देती है और चूंकि मामले में यह स्पष्ट साक्ष्य नहीं है कि किस आरापी ने उक्त एकमात्र चोट कारित किया था । उक्त एक चोट के लिये सभी आरोपीगण को उत्तरदायी नहीं ठहराया जा सकता है, क्योंकि मामले में सामान्य उद्देश्य के तत्व प्रमाणित नहीं हुये हैं । 




33- मामले में अभियाजन के द्वारा प्रस्तुत उपराक्त साक्षियों के विवेचना से न्यायालय यह पाती है कि अभियोजन का मामला विश्वसनीय रूप से ठोस विधिक साक्ष्य से प्रमाणित नहीं है, अतः आरोपीगण के विरुद्ध विचाराधीन आरोपों का प्रमाणित करने में विश्वसनीय साक्ष्य के अभाव में आरापीगण की दाषसिद्धि नहीं ठहरायी जा सकती है । अतः आरोपीगण का भा.दं.संहिता की धारा-148, 294, 506(बी) एवं 329 सहपठित धारा-149 के आरापां से दोषमुक्त किया जाता है । 
34- अभियुक्तगण के जमानत व मुचलके, माननीय अपीलीय न्यायालय में अपील प्रस्तुत होने की स्थिति में उपस्थिति सुनिश्चित करने हेतु धारा 437(क) दण्ड प्रक्रिया संहिता के प्रावधान के तहत् निर्णय दिनांक से आगामी 06 माह तक प्रभावशील रहेंगे। 
35- अभियुक्तगण पुरूषात्तम उर्फ छाटू यादव, मुकेश पटेल, ताराचंद पटेल, प्रताप पटेल एवं मुकेश साहू दिनांक 22-03-2017 से दिनांक 28-03-2017 तक (कुल 07 दिन), अभियुक्त सेतराम धु्रव उर्फ सेतु दिनांक 04-04-2017 से दिनांक 11-04-2017 तक (कुल 08 दिन) एवं अभियुक्त रोशन यादव दिनांक 29-05-2017 से दिनांक 31-05-2017 तक (कुल 03 दिन) अभिरक्षा में रहे हैं, अतः अभियुक्तगण के द्वारा बितायी गई अभिरक्षा अवधि के सम्बंध में धारा-428 दं.प्र.संहिता के तहत् प्रमाण-पत्र, निर्णय के साथ संलग्न किया जावे । 
36- प्रकरण में जप्तशुदा डण्डा, बेल्ट व हॉक स्टिक अपील अवधि पश्चात्, अपील न होने पर नष्ट किया जावे । अपील होने की दशा में माननीय अपीलीय न्यायालय के निर्देशानुसार सम्पत्तियों का निराकरण किया जावे ।
दुर्ग,                                                                                                                        सही/-

दिनांक : 30 मई, 2018                                                                               (अजीत कुमार राजभानू)
                                                                                                            प्रथम अतिरिक्त सत्र न्यायाधीश
                                                                                                                          दुर्ग (छ.ग.)

Thursday, 16 November 2017

हेलीकाप्टर खरीदी का दस्तावेज कोर्ट में जमा कराए छत्तीसगढ़ सरकार

 
छत्तीसगढ़ सरकार द्वारा अगस्ता वेस्टलैंड हेलिकॉप्टरों की खरीद पर सर्वोच्च न्यायालय के न्यायमूर्ति आदर्श कुमार गोयल और यू.यू. ललित की पीठ ने राज्य सरकार को एक हफ्ते के भीतर हेलीकॉप्टरों की खरीदी के मूल दस्तावेज प्रस्तुत करने को कहा है।
यह याचिका वकील प्रशांत भूषण के द्वारा लगाया गया था जिसमे यह आरोप लगाया गया है कि रिश्वत का भुगतान किया गया था।
याचिका में कहा गया है कि मुख्यमंत्री रमन सिंह के बेटे अभिषेक सिंह भी विवाद से जुड़े हुए हैं, वे हेलीकॉप्टर की खरीद के छह महीने बाद शेल कंपनी बनाई थी। याचिका में कहा गया है कि यह स्पष्ट हो गया है कि हेलीकाप्टरों की खरीदी में अवैध रूप से कमीशन का भुगतान किया गया था। भूषण ने कहा था कि यह एक संयोग नहीं है कि कथित रूप से ब्रिटिश वर्जिन द्वीप समूह के टैक्स हेवन्स में बैंक खाता खोला था, जहां से राज्य द्वारा हेलिकॉप्टर खरीदा गया था।
यह ध्यान दिया जाना चाहिए कि पिछले साल सितंबर में न्यायमूर्ति दीपक मिश्रा की अध्यक्षता वाली तत्कालीन पीठ ने पीआईएल पर केंद्र की प्रतिक्रिया मांगी थी। सीबीआई पहले ही अगस्ता वेस्टलैंड से संबंधित मामलों की जांच कर रही है।

Tuesday, 14 November 2017

मोबाइल में आधार लिंक : एक और याचिका

 
कल सुप्रीम कोर्ट में सामाजिक कार्यकर्ता तहसीन पूनावाला की मोबाइल नंबर और बैंक खातों को आधार नंबर से लिंक करने के अनिवार्य नियम को सुप्रीम कोर्ट में चुनौती देने वाली याचिका पर सुनवाई करते हुए जस्टिस ए.के.सिकरी की बेंच ने इसे संविधान पीठ भेज दिया। मोबाइल कंपनियों और बैंकों द्वारा दबाव बनाए जाने पर अंतरिम रोक लगाने की मांग पहले भी कुछ याचिकाओं में कई गई थी। इस पर केंद्र की ओर से एजी के.के.वेणुगोपाल ने बताया था कि मोबाइल नंबर को लिंक करने के लिए 6 फ़रवरी 2018 और पुराने बैंक एकाउंट को लिंक करने के लिए अंतिम तिथि 31 दिसम्बर है। इसी बात पर कोर्ट ने कहा कि अभी अंतरिम रोक लगाने की कोई आवश्यकता नही है।




आधार को चुनौती देने वाली कल्याणी मेनन, मैथ्यू थॉमस व अन्य की याचिकाओं पर नवंबर के आखिरी हफ्ते में पांच जजों की संविधान पीठ सुनवाई करेगी। इन याचिका में कहा गया है कि ये नियम संविधान में अनुच्छेद 14, 19 और 21 के तहत दिए मौलिक अधिकारों को खतरे में डालते हैं।

पीड़ारहित मौत की की कोई बराबरी नहीं है – चीफ जस्टिस दीपक मिश्रा

 
सुप्रीम कोर्ट में वकील ऋषि मल्होत्रा द्वारा दाखिल याचिका में कहा गया है कि फांसी की जगह मौत की सज़ा के लिए किसी दूसरे विकल्प को अपनाया जाना चाहिए क्योकि फांसी से मौत में 40 मिनट लगते हैं जो बर्बर तरीका है। उन्होंने अपने याचिका के समर्थन में पूर्व न्याय निर्णयों को प्रस्तुत किया है।
ईनमे ज्ञान कौर बनाम पंजाब के केश में सुप्रीम कोर्ट ने अपने फैसले में कहा था कि जीवन जीने के मौलिक अधिकारों में सम्मान से मरने का भी अधिकार है। अर्थात मरने की प्रक्रिया भी सम्मानजनक होनी चाहिए।




दीना बनाम भारत संघ वाले एक और मामले में सुप्रीम कोर्ट ने कहा कि मौत की सजा का तरीका ऐसा हो जिससे मौत जल्दी हो। यह भी कि तरीका आसान होना चाहिए ताकि इससे कैदी की मार्मिकता और ना बढ़े। यह तरीका इस प्रकार होना चाहिए जिससे जल्दी मौत हो और इसमें अंग-भंग ना हो।
याचिककर्ता ने मांग की कि फांसी पर लटकाए रखने वाले प्रावधान दंड प्रक्रिया संहिता की धारा 354 (5) को संविधान के अनुच्छेद 21 के परिपेक्ष में असंवैधानिक करार दिया जाए और इसे ज्ञान कौर जजमेंट के विपरीत माना जाए। इसी के साथ सम्मानजनक तरीके से मौत के अधिकार को अनुच्छेद 21 के तहत मौलिक अधिकार का दर्जा दिया जाए।




सुनवाई के दौरान केंद्र सरकार की ओर से पिंकी आनंद ने चीफ जस्टिस दीपक मिश्रा की बेंच को कहा कि इस मुद्दे पर सरकार को कुछ और वक्त चाहिए। सुप्रीम कोर्ट के चीफ जस्टिस दीपक मिश्रा, जस्टिस ए. एम. खानवेलकर और जस्टिस डी.वाई. चंद्रचूड की बेंच ने केंद्र सरकार को पिछले सप्ताह नोटिस जारी कर पूछा कि मौत की सजा में फांसी के अलावा कोई अन्य तरीका भी हो सकता है क्या ?
फांसी की सजा का कोई विकल्प हो सकता है क्या इस प्रश्न पर कोर्ट ने कहा है कि विधायिका सजाए मौत के मामले में फांसी के अलावा कोई दूसरा तरीका भी तलाशे। जस्टिस मिश्रा ने कहा कि यह स्थापित विश्वास है कि हमारे संविधान की प्रवृत्ति दयालु है। ऐसे में वर्तमान के विज्ञान के माध्यम से मौत की दूसरी पद्धति पर भी विचार किया जाना चाहिए। यहां हम आपको बता दें कि सुप्रीम कोर्ट ने स्पष्ट किया कि हम मौत की सजा पर बहस नहीं कर रहे हैं।



योजनाओं से करदाताओं के धन की बर्बादी न करे सरकार

 
हजारों करोड़ रुपये खर्च करने के बाद भी कल्याणकारी योजनाओं का सही क्रियान्वयन नहीं होने पर बुधवार को उच्चतम न्यायालय के न्यायमूर्ति मदन बी लोकूर और न्यायमूर्ति दीपक गुप्ता की पीठ ने शहरों में रहनेवाले बेघरों से संबंधित याचिका पर सुनवाई करते हुए केन्द्र की पैरवी कर रहे एडिशन सालिसीटर जनरल आत्माराम नाडकर्णी को कहा कि आप अच्छी योजनायें लेकर आते हैं किन्तु उन पर अमल नहीं कर सकते तो ऐसे योजनाओं को बनाते ही क्यों हैं। कोर्ट ने आगे यह भी कहा कि केन्द्र यह नहीं कह सकता कि उसने राज्यों को धन उपलब्ध करा दिया है और इसके आगे राज्य जानें। केन्द्र सरकार हजारों करोड़ रुपये योजनाओं में खर्च कर रही हैं जिसका सदुपयोग दूसरे महत्वपूर्ण कार्यो के लिये भी किया जा सकता है। यह स्पष्टतया करदाताओं के धन की बर्बादी है जो क्षुब्ध करने वाला है।
सुप्रीम कोर्ट में सुनवाई के दौरान वकील प्रशांत भूषण ने अपने दलील में कहा कि उत्तर प्रदेश सरकार बेघरों के लिये घर उपलब्ध कराने की जगह गायों के लिये गौशालाओं की चिंता कर रही है तो उत्तरदाता के वकील ने आपत्ति करते हुए कहा कि इसमें राजनीति मत घुसेडिये।




Tuesday, 22 August 2017

Shayara Bano versus Union of India and others (Writ Petition (C) No. 118 of 2016)

 
IN THE SUPREME COURT OF INDIA
Original Civil Jurisdiction
Writ Petition (C) No. 118 of 2016
Shayara Bano                                                                                       … Petitioner
versus
Union of India and others                                                                     … Respondents
with
Suo Motu Writ (C) No. 2 of 2015
In Re: Muslim Women’s Quest For Equality
versus
Jamiat Ulma-I-Hind
Writ Petition(C) No. 288 of 2016
Aafreen Rehman                                                                                       … Petitioner
versus
Union of India and others                                                                     … Respondents
Writ Petition(C) No. 327 of 2016
Gulshan Parveen                                                                                       … Petitioner
versus
Union of India and others                                                                     … Respondents
Writ Petition(C) No. 665 of 2016
Ishrat Jahan                                                                                             … Petitioner
versus
Union of India and others                                                                     … Respondents
Writ Petition(C) No. 43 of 2017
Atiya Sabri                                                                                              … Petitioner
versus
Union of India and others                                                                     … Respondents
J U D G M E N T
Jagdish Singh Khehar, CJI.

Index


https://drive.google.com/file/d/0B3F2_7fedsTeSHBBWXNFeTZVSGc/view?usp=sharing




1. Part-1 The petitioner’s marital discord, and the petitioner’s prayers 1- 10
2. Part-2 The practiced modes of ‘talaq’ amongst Muslims 11- 16
3. Part-3 The Holy Quran – with reference to ‘talaq’ 17- 21
4. Part-4 Legislation in India, in the field of Muslim ‘personal law’ 22- 27
5. Part-5 Abrogation of the practice of ‘talaq-e-biddat’ by legislation, the world over, in Islamic, as well as, non-Islamic States 28- 29
A. Laws of Arab States (i) – (xiii)
B. Laws of Southeast Asian States (i) – (iii)
C. Laws of Sub-continental States (i) – (ii)
6. Part-6 Judicial pronouncements, on the subject of ‘talaq-e-biddat’ 30 - 34
7. Part-7 The petitioner’s and the interveners’ contentions: 35 – 78
8. Part-8 The rebuttal of the petitioners’ contentions 79 - 111
9. Part-9 Consideration of the rival contentions, and our conclusions 112- 114
I. Does the judgment of the Privy Council in the Rashid Ahmad case, upholding ‘talaq-e-biddat’,
require a relook? 115-120
II. Has ‘talaq-e-biddat’, which is concededly sinful, sanction of law? 121-127
III. Is the practice of ‘talaq-e-biddat’, approved/disapproved by “hadiths”? 128-139
IV. Is the practice of ‘talaq-e-biddat’, a matter of faith for Muslims? If yes, whether it is a
constituent of their ‘personal law’? 140-145
V. Did the Muslim Personal Law (Shariat) Application Act, 1937 confer statutory status
to the subjects regulated by the said legislation? 146-157
VI. Does ‘talaq-e-biddat’, violate the parameters expressed in Article 25 of the Constitution?
158-165
VII. Constitutional morality and ‘talaq-e-biddat’. 166-174
VIII. Reforms to ‘personal law’ in India. 175-182
IX. Impact of international conventions and declarations on ‘talaq-e-biddat’. 183-189
X. Conclusions emerging out of the above 190-190
consideration
10. Part-10 The declaration 191-201

Part-1.
The petitioner’s marital discord, and the petitioner’s prayers:
1. The petitioner-Shayara Bano, has approached this Court, for
assailing the divorce pronounced by her husband – Rizwan Ahmad on
10.10.2015, wherein he affirmed “…in the presence of witnesses saying that
I gave ‘talak, talak, talak’, hence like this I divorce from you from my wife.
From this date there is no relation of husband and wife. From today I am
‘haraam’, and I have become ‘naamharram’. In future you are free for using
your life …”. The aforesaid divorce was pronounced before Mohammed
Yaseen (son of Abdul Majeed) and Ayaaz Ahmad (son of Ityaz Hussain) – the
two witnesses. The petitioner has sought a declaration, that the ‘talaq-ebiddat’
pronounced by her husband on 10.10.2015 be declared as void ab
initio. It is also her contention, that such a divorce which abruptly,
unilaterally and irrevocably terminates the ties of matrimony, purportedly
under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937
(hereinafter referred to as, the Shariat Act), be declared unconstitutional.
During the course of hearing, it was submitted, that the ‘talaq-e-biddat’
(-triple talaq), pronounced by her husband is not valid, as it is not a part of
‘Shariat’ (Muslim ‘personal law’). It is also the petitioner’s case, that divorce
of the instant nature, cannot be treated as “rule of decision” under the
Shariat Act. It was also submitted, that the practice of ‘talaq-e-biddat’ is
violative of the fundamental rights guaranteed to citizens in India, under
Articles 14, 15 and 21 of the Constitution. It is also the petitioner’s case,
that the practice of ‘talaq-e-biddat’ cannot be protected under the rights
granted to religious denominations (-or any sections thereof) under Articles
25(1), 26(b) and 29 of the Constitution. It was submitted, that the practice
of ‘talaq-e-biddat’ is denounced internationally, and further, a large number
of Muslim theocratic countries, have forbidden the practice of ‘talaq-ebiddat’,
and as such, the same cannot be considered sacrosanctal to the
tenets of the Muslim religion.
2. The counter affidavit filed by respondent no.5 – the petitioner’s
husband – Rizwan Ahmad, discloses, that the ‘nikah’ (marriage) between the
petitioner and the respondent was solemnized on 11.04.2001, as per
‘Shariat’, at Allahabad. It was submitted, that the petitioner – Shayara
Bano, performed her matrimonial duties intermittently, coming and leaving
the matrimonial home from time to time. The matrimonial relationship
between the parties resulted in the births of two children, a son –
Mohammed Irfan (presently about 13 years old) studying in the 7th
standard, and a daughter – Umaira Naaz (presently about 11 years old)
studying in the 4th standard, both at Allahabad.
3. It is the case of the respondent–husband, that the petitioner-wife,
left her matrimonial home on 9.4.2015 in the company of her father – Iqbal
Ahmad and maternal uncle – Raees Ahmed, as well as children –
Mohammed Irfan and Umaira Naaz, to live in her parental home. The
respondent claims, that he continued to visit the petitioner, for giving her
maintenance, and for enquiring about her well being. When the husband
met the wife at her parental home in May and June 2015, she refused to
accompany him, and therefore, refused to return to the matrimonial home.
On 03.07.2015, Rizwan Ahmad, asked the father of Shayara Bano to send
her back to her matrimonial home. He was informed by her father, after a
few days, that the petitioner was not inclined to live with the respondent.
4. On 07.07.2015 the father of the petitioner, brought the two children
– Mohammed Irfan and Umaira Naaz to Allahabad. The husband submits,
that both the children have thereafter been in his care and custody, at
Allahabad. It is the assertion of the husband, that the petitioner’s father
had given him the impression, that the petitioner would be inclined to
return to Allahabad, consequent upon the husband’s care and custody of
both children, at the matrimonial home.
5. It is claimed by the respondent-husband, that he made another
attempt to bring back the petitioner-wife from her parental home on
09.08.2015, but Shayara Bano refused to accompany him. It is submitted,
that Rizwan Ahmad was opposed in the above endeavour, both by the
petitioner’s father and her maternal uncle.
6. Finding himself in the above predicament, Rizwan Ahmad
approached the Court of the Principal Judge, Family Court at Allahabad,
Uttar Pradesh, by preferring Matrimonial Case No.1144 of 2015 with a
prayer for restitution of conjugal rights. The petitioner-Shayara Bano,
preferred Transfer Petition (C) No. 1796 of 2015, under Section 25 of the
Code of Civil Procedure, 1908, read with Order XXXVI-B of the Supreme
Court Rules, 1966, for the transfer of Matrimonial Case No.1144 of 2015,
filed by the respondent-husband (seeking restitution of conjugal rights)
pending at Allahabad, Uttar Pradesh, to the Principal Judge, Family Court,
Kashipur, Uttarakhand. In the above transfer petition, the wife inter alia
asserted as under:
“2.3 The Petitioner who hails from Kashipur, Uttarakhand is
unemployed and her father is a government employee. The only source
of income is the Petitioner’s father who has a low income and despite this
the Petitioner during the time of marriage had made arrangements
beyond their capacity. But soon after the marriage the Respondent
husband started demanding for additional dowry and made
unreasonable demands for a car and cash.
2.4 The Petitioner who rightfully denied the demands of the Respondent
was tortured and physically abused by the Respondent and his family.
She was often beaten and kept hungry in a closed room for days. The
family of the Respondent administered her with medicines that caused
her memory to fade. Due to the medicines she remained unconscious for
long hours.
xxx xxx xxx
2.6 On 09.04.2015, the Respondent attempted to kill the Petitioner by
administering medicines. These medicines on inspection by a doctor on
a later date were revealed to cause loss of mental balance after regular
consumption. The Respondent brought the Petitioner to Moradabad in a
critical near-death condition with the intention of abandoning her if his
dowry demands were not fulfilled.
2.7. Thereafter on 10.04.2015 the Respondent called the parents of the
Petitioner to Moradabad to take their daughter. The parents of the
Petitioner requested him to come to Kashipur to meet and settle the
issue. He refused to go to Kashipur and said that they should come and
take their daughter or fulfil his demands for more dowry. He demanded
Rs.5,00,000/- (Rupees Five Lakh Only).
2.8. Due to the unreasonable demands and the torturous behaviour of
the Respondent husband, the Petitioner’s parents came to Moradabad to
take her and she was forced to stay with her parents after 10.04.2015.
xxx xxx xxx
2.13 The Respondent has filed for restitution despite the fact that he
himself had asked the Petitioner wife’s father to either fulfil his dowry
demands or to take the Petitioner back to her maternal home and in
pursuance of the same had drugged the Petitioner and had left her in
Moradabad.”
7. It is the case of the respondent-Rizwan Ahmad, that in view of the
above averments of the petitioner-Shayara Bano, he felt that his wife was
not ready for reconciliation, and therefore, he withdrew the suit (-for
restitution of conjugal rights), preferred by him at Allahabad, and divorced
the petitioner-Shayara Bano, by serving upon her a ‘talaq-nama’ (deed of
divorce) dated 10.10.2015. The text of the ‘talak-nama’, is reproduced
below:
“Deed of Divorce
Dated 10.10.2015
Madam,
Shayra Bano D/o Iqbal Ahmad.
Be it clear that I Rizwan Ahmed married with you without any dowry to
spend a peaceful and happy marital life. After marriage you came in my
marital tie. From the relation between you and me two issues namely
Irfan Ahmad aged about 13 years and Kumari Humaira Naz @ Muskan
aged about 11 years were born who are receiving education living under
my guardianship. With a great sorrow it is being written that you, just
after 6 months of marriage, with your unreasonable and against Sharia
acts started to pressurize me to live separately from my parents. I, in
order to keep you happy and as per your wish started to live at a rented
house at Mohalla Ghausnagar and while working as a clerk under a
builder tried my level best to spend peaceful marital life with you and
children. However, you, in an unreasonable manner and against Shriah
continued to create problem and quarrel in house on regular basis.
When you were asked the reason in a very affectionate manner about two
years ago, you had put a condition that now when your other relatives
are not with you in such situation come with me to my parents’ house
and live further life there. I being a person from a self-respecting family
refused to live as ‘son in law living at in-laws house’. Then you, under
the influence of your parents, continued to fake various mental and
physical pains and continued to behave life a mental patient. When tried
to know the reason then you after much difficulty told that you had med
with a serious accident before marriage. I for the sake of my children
and you tolerated that. I became despondent from your persistent
demand of living at your parental house and your being of stubborn
nature, your giving threat of implicating in false case and threat of
inflicting injury to yourself and of consuming poison and implicating me
in false case on that count given on daily basis and complained about
the same to your paternal uncle but your father replied that whenever
you do such acts sleeping pills be given to you. I found this very baffling,
upon asking your father told that since the time before your marriage
you had been under treatment for mental ailment. I ignored such a big
incident and the information received about you. Resultantly you
became audacious in your behavior. When reported all these things to
your father, your father told me that this is the time of children’s
holidays you be sent to your parents’ house with children. You take
them back after the atmosphere is changed and summer vacations are
over. Acting on the words of your father I left you at your parents’ place
along with children and while going, you took away gold jewelry given by
me including a gold neck set of two Tolas, gold bangles of one and a half
Tola, two gold rings of half Tola and cash Rs.15,000/-. I continued to
visit you enquiring your wellbeing and giving you expenses from time to
time. That in the month of May and June when I tried to bring you then
you gave excuses and pleas. I continued to make repeated attempts
between May to July to bring you back but ultimately on 03.07.2015 you
clearly refused to return and on 07.07.2015 you father brought both the
children at Allahabad Railway Station and left them there informing me
and gave threat on phone that either you will come here and live or shall
perform the role of father and mother of both the children. In this regard
when I enquired from you then you also refused to return in clear words
and said to the extent that you raise the children and forget me or
separate from me to bring another mother for the children. On this also I
could not satisfy myself, whereupon I filed a suit for bringing you back.
After receiving notice, out of the blues you threatened me on phone that I
will soon file a case and will tell you how a son in law is kept at the inlaws
house. Being fed up with your unreasonable conduct and against
Sharaih acts I found it better to separate from you, therefore, I on
8.10.2015 applied for dismissal of the suit for bringing you back and now
I, in my full senses and in the presence of marginal witnesses, release
you from my marriage in the light of Shariah through tripel talaq by
uttering ‘I give talaq’, ‘I give talaq’, ‘I give talaq’. From today the relation
of husband and wife forever ends between you and me. After today you
are unlawful for me and I have become unlawful for you. You are free to
spend your life the way you want.
Note: So far is the question of your dower (Mehr) and expenses of
waiting period (iddat) that I am paying through demand draft no.096976
dated 06.10.2015 drawn at Allahabad Bank, Karaili, Allahabad Branch,
which comprises a sum of Rs.10,151 towards payment of dower and
Rs.5,500/- towards the expenses of waiting period which I am sending
along with this written deed of divorce, you kindly take paid to accept the
same.
Dated 10.10.2015
Witnesses:-
1. Mohd. Yaseen, s/o Abdul Majid, R/o J.K. Colony, Ghaus Nagar,
Karaili, Allahabad;
2. Ayaz Ahmed S/o Imtiyaz Hussain R/o G.T.B. Nagar, Karaili Scheme,
Allahabad
Only
Sd/ Hindi Rizwan Ahmed
(Rizwan Ahmed)
S/o Iqbal Ahmed
Ghaus Nagar, Karaili, Allahabad”
8. Based on the above, the case of the respondent-husband is, that he
had pronounced ‘talaq’ in consonance with the prevalent and valid mode of
dissolution of Muslim marriages. It was submitted, that the pronouncement
of divorce by him, fulfils all the requirements of a valid divorce, under the
Hanafi sect of Sunni Muslims, and is in consonance with ‘Shariat’ (Muslim
‘personal law’).
9. It is also the submission of the respondent-husband, that the
present writ petition filed by the petitioner-wife under Article 32 of the
Constitution of India, is not maintainable, as the questions raised in the
petition are not justiciable under Article 32 of the Constitution.
10. Keeping in view the factual aspect in the present case, as also, the
complicated questions that arise for consideration in this case (and, in the
other connected cases), at the very outset, it was decided to limit the instant
consideration, to ‘talaq-e-biddat’ – triple talaq. Other questions raised in
the connected writ petitions, such as, polygamy and ‘halala’ (-and other
allied matters), would be dealt with separately. The determination of the
present controversy, may however, coincidentally render an answer even to
the connected issues.
Part-2.
The practiced modes of ‘talaq’ amongst Muslims:
11. Since the issue under consideration is the dissolution of marriage
by ‘talaq’, under the Islamic law of divorce, it is imperative, to understand
the concept of ‘talaq’. In this behalf, it is relevant to mention, that under
the Islamic law, divorce is classified into three categories. Talaq understood
simply, is a means of divorce, at the instance of the husband. ‘Khula’, is
another mode of divorce, this divorce is at the instance of the wife. The
third category of divorce is ‘mubaraat’ – divorce by mutual consent.
12. ‘Talaq’, namely, divorce at the instance of the husband, is also of
three kinds – ‘talaq-e-ahsan’, ‘talaq-e-hasan’ and ‘talaq-e-biddat’. The
petitioner’s contention before this Court is, that ‘talaq-e-ahsan’, and ‘talaqe-hasan’
are both approved by the ‘Quran’ and ‘hadith’. ‘Talaq-e-ahsan’, is
considered as the ‘most reasonable’ form of divorce, whereas, ‘talaq-ehasan’
is also considered as ‘reasonable’. It was submitted, that ‘talaq-ebiddat’
is neither recognized by the ‘Quran’ nor by ‘hadith’, and as such, is
to be considered as sacrosanctal to Muslim religion. The controversy which
has arisen for consideration before this Court, is with referenc to ‘talaq-ebiddat’.

13. It is necessary for the determination of the present controversy, to
understand the parameters, and the nature of the different kinds of ‘talaq’.
‘Talaq-e-ahsan’ is a single pronouncement of ‘talaq’ by the husband,
followed by a period of abstinence. The period of abstinence is described as
‘iddat’. The duration of the ‘iddat’ is ninety days or three menstrual cycles
(in case, where the wife is menstruating). Alternatively, the period of ‘iddat’
is of three lunar months (in case, the wife is not menstruating). If the
couple resumes cohabitation or intimacy, within the period of ‘iddat’, the
pronouncement of divorce is treated as having been revoked. Therefore,
‘talaq-e-ahsan’ is revocable. Conversely, if there is no resumption of
cohabitation or intimacy, during the period of ‘iddat’, then the divorce
becomes final and irrevocable, after the expiry of the ‘iddat’ period. It is
considered irrevocable because, the couple is forbidden to resume marital
relationship thereafter, unless they contract a fresh ‘nikah’ (-marriage), with
a fresh ‘mahr’. ‘Mahr’ is a mandatory payment, in the form of money or
possessions, paid or promised to be paid, by the groom or by the groom’s
father, to the bride, at the time of marriage, which legally becomes her
property. However, on the third pronouncement of such a ‘talaq’, the
couple cannot remarry, unless the wife first marries someone else, and only
after her marriage with other person has been dissolved (either through
‘talaq’ - divorce, or death), can the couple remarry. Amongst Muslims,
‘talaq-e-ahsan’ is regarded as – ‘the most proper’ form of divorce.
14. ‘Talaq-e-hasan’ is pronounced in the same manner, as ‘talaq-eahsan’.
Herein, in place of a single pronouncement, there are three
successive pronouncements. After the first pronouncement of divorce, if
there is resumption of cohabitation within a period of one month, the
pronouncement of divorce is treated as having been revoked. The same
procedure is mandated to be followed, after the expiry of the first month
(during which marital ties have not been resumed). ‘Talaq’ is pronounced
again. After the second pronouncement of ‘talaq’, if there is resumption of
cohabitation within a period of one month, the pronouncement of divorce is
treated as having been revoked. It is significant to note, that the first and
the second pronouncements may be revoked by the husband. If he does so,
either expressly or by resuming conjugal relations, ‘talaq’ pronounced by
the husband becomes ineffective, as if no ‘talaq’ had ever been expressed. If
the third ‘talaq’ is pronounced, it becomes irrevocable. Therefore, if no
revocation is made after the first and the second declaration, and the
husband makes the third pronouncement, in the third ‘tuhr’ (period of
purity), as soon as the third declaration is made, the ‘talaq’ becomes
irrevocable, and the marriage stands dissolved, whereafter, the wife has to
observe the required ‘iddat’ (the period after divorce, during which a woman
cannot remarry. Its purpose is to ensure, that the male parent of any
offspring is clearly identified). And after the third ‘iddat’, the husband and
wife cannot remarry, unless the wife first marries someone else, and only
after her marriage with another person has been dissolved (either through
divorce or death), can the couple remarry. The distinction between ‘talaq-eashan’
and ‘talaq-e-hasan’ is, that in the former there is a single
pronouncement of ‘talaq’ followed by abstinence during the period of ‘iddat’,
whereas, in the latter there are three pronouncements of ‘talaq’,
interspersed with abstinence. As against ‘talaq-e-ahsan’, which is regarded
as ‘the most proper’ form of divorce, Muslims regard ‘talaq-e-hasan’ only as
‘the proper form of divorce’.
15. The third kind of ‘talaq’ is – ‘talaq-e-biddat’. This is effected by one
definitive pronouncement of ‘talaq’ such as, “I talaq you irrevocably” or
three simultaneous pronouncements, like “talaq, talaq, talaq”, uttered at
the same time, simultaneously. In ‘talaq-e-biddat’, divorce is effective
forthwith. The instant talaq, unlike the other two categories of ‘talaq’ is
irrevocable at the very moment it is pronounced. Even amongst Muslims
‘talaq-e-biddat’, is considered irregular.
16. According to the petitioner, there is no mention of ‘talaq-e-biddat’ in
the Quran. It was however acknowledged, that the practice of ‘talaq-ebiddat’
can be traced to the second century, after the advent of Islam. It
was submitted, that ‘talaq-e-biddat’ is recognized only by a few Sunni
schools. Most prominently, by the Hanafi sect of Sunni Muslims. It was
however emphasized, that even those schools that recognized ‘talaq-ebiddat’
described it, “as a sinful form of divorce”. It is acknowledged, that
this form of divorce, has been described as “bad in theology, but good in
law”. We have recorded the instant position at this juncture, because
learned counsel for the rival parties, uniformly acknowledge the same.
Part-3.
The Holy Quran – with reference to ‘talaq’:
17. Muslims believe that the Quran was revealed by God to the Prophet
Muhammad over a period of about 23 years, beginning from 22.12.609,
when Muhammad was 40 years old. The revelation continued upto the year
632 – the year of his death. Shortly after Muhammad’s death, the Quran
was completed by his companions, who had either written it down, or had
memorized parts of it. These compilations had differences of perception.
Therefore, Caliph Usman - the third, in the line of caliphs recorded a
standard version of the Quran, now known as Usman’s codex. This codex is
generally treated, as the original rendering of the Quran.
18. During the course of hearing, references to the Quran were made
from ‘The Holy Quran: Text Translation and Commentary’ by Abdullah
Yusuf Ali, (published by Kitab Bhawan, New Delhi, 14th edition, 2016).
Learned counsel representing the rival parties commended, that the text
and translation in this book, being the most reliable, could safely be relied
upon. The text and the inferences are therefore drawn from the above
publication.
(i) The Quran is divided into ‘suras’ (chapters). Each ‘sura’ contains
‘verses’, which are arranged in sections. Since our determination is limited
to the validity of ‘talaq-e-biddat’, within the framework of the Muslim
‘personal law’ – ‘Shariat’, we shall only make a reference to such ‘verses’
from the Quran, as would be relevant for our above determination. In this
behalf, reference may first be made to ‘verses’ 222 and 223 contained in
‘section’ 28 of ‘sura’ II. The same are reproduced below:
“222. They ask thee
Concerning women’s courses.
Say : They are
A hurt and a pollution :
So keep away from women
In their courses, and do not
Approach them until
They are clean.
But when they have
Purified themselves,
Ye may approach them
In any manner, time, or place
Ordained for you by God.
For God loves those
Who turn to Him constantly
And he loves those
Who keep themselves pure and clean.
223.Your wives are
As a tilth unto you ;
So approach your tilth
When or how ye will ;
But do some good act
For your souls beforehand ;
And fear God,
And know that ye are
To meet Him (in the Hereafter),
And give (these) good tidlings
To those who believe.”
The above ‘verses’ have been extracted by us for the reason, that the Quran
mandates respectability at the hands of men – towards women. ‘Verse’ 222
has been interpreted to mean, that matters of physical cleanliness and
purity should be looked at, not only from a man’s point of view, but also
from the woman’s point of view. The ‘verse’ mandates, that if there is
danger of hurt to the woman, she should have every consideration. The
Quran records, that the action, of men towards women are often worse. It
mandates, that the same should be better with reference to the woman’s
health, both mental and spiritual. ‘Verse’ 223 postulates, that sex is as
solemn, as any other aspect of life. It is compared to a husband-man’s tilth,
to illustratively depict, that in the same manner as a husband-man sows
his fields, in order to reap a harvest, by choosing his own time and mode of
cultivation, by ensuring that he does not sow out of season, or cultivate in a
manner which will injure or exhaust the soil. So also, in the relationship
towards a wife, ‘verse’ 223 exalts the husband, to be wise and considerate
towards her, and treat her in such manner as will neither injure nor
exhaust her. ‘Verses’ 222 and 223 exhort the husband, to extend every kind
of mutual consideration, as is required towards a wife.
(ii) Reference is also necessary to ‘verses’ 224 to 228 contained in
section 28 of ‘sura’ II of the Quran. The same are extracted below:
“224. And make not
God’s (name) an excuse
In your oaths against
Doing good, or acting rightly,
Or making peace
Between persons;
For God is one
Who heareth and knoweth
All things.
225. God will not
Call you to account
For thoughtlessness
In your oaths,
But for the intention
In your hearts;
And He is
Oft-forgiving
Most Forbearing.
226. For those who take
An oath for abstention
From their wives,
A waiting for four months
Is ordained;
If then they return,
God is Oft-forgiving,
Most Merciful.
227. But if their intention
Is firm for divorce,
God heareth
And knoweth all things.
228. Divorced women
Shall wait concerning themselves
For three monthly periods.
Nor is it lawful for them
To hide what God
Hath created in their wombs,
If they have faith
In God and the Last Day.
And their husbands
Have the better right
To take them back
In that period, if
They wish for reconciliation.
And women shall have rights
Similar to the rights
Against them, according
To what is equitable;
But men have a degree
(Of advantage) over them
And God is Exalted in Power
Wise.”
‘Verse’ 224, has a reference to many special kinds of oaths practised
amongst Arabs. Some of the oaths even related to matters concerning sex.
These oaths caused misunderstanding, alienation, division or separation
between husbands and wives. ‘Verses’ 224 to 227 are pointed references to
such oaths. Through ‘verse’ 224, the Quran ordains in general terms, that
no one should make an oath – in the name of God, as an excuse for not
doing the right thing, or for refraining from doing something which will
bring people together. The text relied upon suggests, that ‘verses’ 225 to
227 should be read together with ‘verse’ 224. ‘Verse’ 224 is general and
leads up to the next three ‘verses’. These ‘verses’ are in the context of
existing customs, which were very unfair to married women. Illustratively,
it was sought to be explained, that in a fit of anger or caprice, sometimes a
husband would take an oath – in the name of God, not to approach his wife.
This act of the husband, it was sought to be explained, deprives the wife of
her conjugal rights, and yet, keeps her tied to the husand indefinitely,
inasmuch as, she has no right to remarry. Even if this act of the husband,
was protested by the wife, the explanation provided is, that the husband
was bound – by the oath in the name of God. Through the above verses, the
Quran disapproves thoughtless oaths, and at the same time, insists on a
proper solemn and conscious/purposeful oath, being scrupulously
observed. The above ‘verses’ caution husbands to understand, that an
oath in the name of God was not a valid excuse – since God looks at
intention, and not mere thoughtless words. It is in these circumstances,
that ‘verses’ 226 and 227 postulate, that the husband and wife in a difficult
relationship, are allowed a period of four months, to determine whether an
adjustment is possible. Even though reconciliation is recommended, but if
the couple is against reconciliation, the Quran ordains, that it is unfair to
keep the wife tied to her husband indefinitely. The Quran accordingly
suggests, that in such a situation, divorce is the only fair and equitable
course. All the same it is recognized, that divorce is the most hateful
action, in the sight of the God.
(iii) ‘Verses’ 229 to 231 contained in ‘section’ 29 of ‘sura’ II, and ‘verses’
232 and 233 included in ‘section’ 30 of ‘sura’ II, as also ‘verse’ 237
contained in ‘section’ 31 in ‘sura’ II, are relevant on the issue of divorce.
The same are extracted below:
“229. A divorce is only
Permissible twice: after that,
The parties should either hold
Together on equitable terms,
Or separate with kindness.
It is not lawful for you,
(Men), to take back
Any of your gifts (from your wives),
Except when both parties
Fear that they would be
Unable to keep the limits
Ordained by God.
If ye (judges) do indeed
Fear that they would be
Unable to keep the limits
Ordained by God,
There is no blame on either
Of them if she give
Something for her freedom.
These are the limits
Ordained by God;
So do not transgress them
If any do transgress
The limits ordained by God,
Such persons wrong
(Themselves as well as others)
230.So if a husband
Divorces his wife (irrevocably),
He cannot, after that,
Re-marry her until
After she has married
Another husband and
He has divorced her.
In that case there is
No blame on either of them
If they re-unite, provided
They feel that they
Can keep the limits
Ordained by God.
Such are the limits
Ordained by God,
Which He makes plain
To those who understand.
231.When ye divorce
Women, and they fulfil
The term of their (‘Iddat’)
Either taken them back
On equitable terms
Or set them free
On equitable terms;
But do not take them back
To injure them, (or) to take
Undue advantage;
If any one does that,
He wrongs his own soul.
Do not treat God’s Signs
As a jest,
But solemnly rehearse
God’s favours on you,
And the fact that He
Send down to you
The Book
And Wisdom,
For your instruction.
And fear God,
And know that God
Is well acquainted
With all things.”

A perusal of the aforesaid ‘verses’ reveals, that divorce for the reason of
mutual incompatibility is allowed. There is however a recorded word of
caution – that the parties could act in haste and then repent, and thereafter
again reunite, and yet again, separate. To prevent erratic and fitful
repeated separations and reunions, a limit of two divorces is prescribed. In
other words, reconciliation after two divorces is allowed. After the second
divorce, the parties must definitely make up their mind, either to dissolve
their ties permanently, or to live together honourably, in mutual love and
forbearance – to hold together on equitable terms. However, if separation is
inevitable even on reunion after the second divorce, easy reunion is not
permitted. The husband and wife are forbidden from casting aspersions on
one another. They are mandated to recognize, what is right and
honourable, on a collective consideration of all circumstances. After the
divorce, a husband cannot seek the return of gifts or properties, he may
have given to his wife. Such retention by the wife is permitted, only in
recognition that the wife is economically weaker. An exception has been
carved out in the second part of ‘verse’ 229, that in situations where the
freedom of the wife could suffer on account of the husband refusing to
dissolve the marriage, and perhaps, also treat her with cruelty. It is
permissible for the wife, in such a situation, to extend some material
consideration to the husband. Separation of this kind, at the instance of
the wife, is called ‘khula’. ‘Verse’ 230 is in continuation of the first part of
‘verse’ 229. The instant ‘verse’ recognizes the permissibility of reunion after
two divorces. When divorce is pronounced for the third time, between the
same parties, it becomes irreversible, until the woman marries some other
man and he divorces her (or is otherwise released from the matrimonial tie,
on account of his death). The Quranic expectation in ‘verse’ 230, requires
the husband to restrain himself, from dissolving the matrimonial tie, on a
sudden gust of temper or anger. ‘Verse’ 231 provides, that a man who takes
back his wife after two divorces, must not put pressure on her, to prejudice
her rights in any way. Remarriage must only be on equitable terms,
whereupon, the husband and wife are expected to lead a clean and
honourable life, respecting each other’s personalities. The Quranic message
is, that the husband should either take back the wife on equitable terms, or
should set her free with kindness.
(iv) The ‘verses’ referred to above need to be understood along with
‘verses’ 232 and 233, contained in ‘section’ 20 of ‘sura’ II, of the Quran. The
above two ‘verses’ are extracted below:
“232. When ye divorce
Women, and they fulfil
The term of their (‘Iddat’),
Do not prevent them
From marrying
Their (former) husbands,
If they mutually agree
On equitable terms.
This instruction
Is for all amongst you,
Who believe in God
And the Last Day.
That is (the course Making for) more virtue
And purity amongst you,
And God knows,
And ye know not.
233. The mothers shall give suck
To their offspring
For two whole years,
If the father desires
To complete the term.
But he shall bear the cost
Of their food and clothing
On equitable terms.
No soul shall have
A burden laid on it
Greater than it can bear.
No mother shall be
Treated unfairly
On account of his child,
An heir shall be chargeable
In the same way.
If they both decide
On weaning,
By mutual consent,
And after due consultation,
There is no blame on them.
If ye decide
On a foster-mother
For your offspring,
There is no blame on you,
Provided ye pay (the mother)
What ye offered,
On equitable terms.
But fear God and know
That God sees well
What ye do.”
A perusal of the above ‘verses’ reveals, that the termination of the contract
of marriage, is treated as a serious matter for family and social life. And as
such, every lawful advice, which can bring back those who had lived
together earlier, provided there is mutual love and they can live with each
other on honourable terms, is commended. After following the above
parameters, the Quran ordains, that it is not right for outsiders to prevent
the reunion of the husband and wife. ‘Verse’ 233 is in the midst of the
regulations on divorce. It applies primarily to cases of divorce, where some
definite rule is necessary, as the father and mother would not, on account
of divorce, probably be on good terms, and the interest of children must be
safeguarded. Since the language of ‘verse’ 233 is general, the edict
contained therein is interpreted, as applying equally to the father and
mother, inasmuch as, each must fulfil his or her part, in the fostering of
children.
(v) The last relevant ‘verse’ in ‘sura’ II of the Quran, is contained in
‘section’ 31, namely, ‘verse’ 237. The same is reproduced below:
“237. And if ye divorce them
Before consummation,
But after the fixation
Of a dower for them,
Then the half of the dower
(Is due to them), unless
They remit it
Or (the man’s half) is remitted
By him in whose hands
Is the marriage tie;
And the remission
(Of the man’s half)
Is the nearest to righteousness.
And do not forget
Liberality between yourselves.
For God sees well
All that ye do.”
In case of divorce before consummation of marriage, it is recognized, that
only half the dower fixed needed to be refunded to the wife. It is however
open to the wife, to remit the half due to her. And likewise, it is open to the
husband to remit the half which he is entitled to deduct (and thus pay the
whole dower amount).
19. Reference is also necessary to ‘verses’ 34 and 35, contained in
‘section’ 6, as well as, ‘verse’ 128 contained in ‘section’ 19, of ‘sura’ IV. All
the above verses are extracted below:
“34. Men are the protectors
And maintainers of women,
Because God has given
The one more (strength)
Than the other, and because
They support them
From their means.
Therefore the righteous women
Are devoutly obedient, and guard
In (the husband’s) absence
What God would have them
guard.
As to those women
On whose part ye fear
Disloyalty and ill-conduct,
Admonish them (first),
(Next), refuse to share their beds,
(And last) beat them (lightly);
But if they return to obedience,
Seek not against them
Means (of annoyance):
For God is Most High,
Great (above you all).
35. If ye fear a breach
Between them twain,
Appoint (two) arbiters,
One from his family,
And the other from hers;
If they wish for peace,
God will cause
Their reconciliation:
For God hath full knowledge,
And is acquainted
With all things.”
Section 19, Sura IV
“128.If a wife fears
Cruelty or desertion
On her husband’s part,
There is no blame on them,
If they arrange
An amicable settlement
Between themselves;
And such settlement is best;
Even though men’s souls
Are swayed by greed.
But if ye do good
And practice self-restraint
God is well-acquainted
With all that ye do.”
The Quran declares men as protectors, and casts a duty on them to
maintain their women. In order to be entitled to the husband’s support, the
Quran ordains the women to be righteous, and to be devoutly obedient to
the husband, even in his absence. ‘Verse’ 34, extends to the husband the
right to admonish his wife who is either disloyal, or ill-conducts herself.
Such admonition can be by refusing to share her bed, and as a last resort,
even to beat her lightly. Thereafter, if the woman does not return to
obedience, the husband is advised not to use means of annoyance against
her. ‘Verse’ 35, sets out the course of settlement of family disputes. It
postulates the appointment of two arbitrators – one representing the family
of the husband, and the other the family of the wife. The arbitrators are
mandated to explore the possibility of reconciliation. In case reconciliation
is not possible, dissolution is advised, without publicity or mud-throwing or
by resorting to trickery or deception. ‘Verse’ 128 provides for divorce at the
instance of the wife – ‘khula’. It provides for a situation where, the wife
fears cruelty or desertion on her husband’s part. In such a situation, her
desire to seek an amicable settlement, cannot be treated as an aspersion on
her. The couple must then settle to separate, on most amicable terms. The
husband is cautioned not to be greedy. He is required to protect the wife’s
economic interest. In case of disputation between the couple, for economic
reasons, the Quran ordains, that sanctity of the marriage itself, is far
greater than any economic interest, and accordingly suggests, that if
separation can be prevented by providing some economic consideration to
the wife, it is better for the husband to make such a concession, than to
endanger the future of the wife and children.
20. The last relevant ‘verses’ – 1 and 2, are contained in ‘section’ 1 of
‘sura’ – LXV. The same are reproduced below:
“1. Prophet! When ye
Do divorce women,
Divorce them at their
Prescribed periods,
And count (accurately)
Their prescribed periods:
And fear God your Lord:
And turn them not out
Of their houses, nor shall
They (themselves) leave,
Except in case they are
Guilty of some open lewdness,
Those are limits
Set by God: and any
Who transgresses the limits
Of God, does verily
Wrong his (own) soul:
Thou knowest not if
Perchance God will
Bring about thereafter
Some new situation.
2. Thus when they fulfil
Their term appointed,
Either take them back
On equitable terms
Or part with them
On equitable terms;
And take for witness
Two persons from among you,
Endued with justice,
And establish the evidence
(As) before God. Such
Is the admonition given
To him who believes
In God and the Last Day.
And for those who fear
God, He (ever) prepares
A way out,”
‘Verse’ 1 above, it may be noticed, has reference to the Prophet Muhammad
himself. It is addressed in his capacity as teacher and representative of the
community. It endorses the view, that of all things permitted, divorce is the
most hateful in the sight of the God. Even though, the ‘verse’ provides for
divorce, it proscribes the husband from turning out his wife/wives from his
house. It also forbids the wife/wives, to leave the house of their husband,
except when they are guilty. Those who transgress the above limitation, are
cautioned, that they are committing wrong to their own souls.
Reconciliation is suggested, whenever it is possible. It is recommended at
every stage. The first serious difference between the spouses is first to be
submitted to a family counsel, on which both sides are to be represented.
The ‘verse’ requires the divorce to be pronounced, only after the period of
prohibitory waiting. ‘Dower’ has to be paid, and due provisions have to be
made, by the husband, for many things on equitable terms. On each
aspect, there is to be consideration. Reconciliation is recommended till the
last moment. The message contained in ‘verse’ 2 is, that everything should
be done fairly, and all interests should be safeguarded. It is ordained, that
the parties should remember, that such matters affect the most intimate
aspect of their lives, and therefore, have a bearing even in the spiritual
kingdom. It is therefore, that the ‘verses’ extracted above, impress on the
parties, to fear God, and ensure that their determination is just and true.
21. The understanding of the ‘verses’ of the Quran, is imperative in this
case, because the petitioner and those supporting the petitoner’s case
contend inter alia, that ‘talaq-e-biddat’, is not in conformity with the
unambiguous edicts of the Quran, and therefore, cannot be considered as
valid constituents of Muslim ‘personal law’.
Part-4.
Legislation in India, in the field of Muslim ‘personal law’:
22. It would be relevant to record, that ‘personal law’ dealing with the
affairs of those professing the Muslim religion, was also regulated by
custom or usage. It was also regulated by ‘Shariat’ – the Muslim ‘personal
law’. The status of Muslim women under customs and usages adopted by
Muslims, were considered to be oppressive towards women. Prior to the
independence of India, Muslim women organisations condemned customary
law, as it adversely affected their rights, under the ‘Shariat’. Muslim women
claimed, that the Muslim ‘personal law’ be made applicable to them. It is
therefore, that the Muslim Personal Law (Sharait) Application Act, 1937
(hereinafter referred to, as the Shariat Act), was passed. It is essential to
understand, the background which resulted in the enactment of the Shariat
Act. The same is recorded in the statement of objects and reasons, which is
reproduced below:
“For several years past it has been the cherished desire of the Muslims of
British India that Customary Law should in no case take the place of
Muslim Personal Law. The matter has been repeatedly agitated in the
press as well as on the platform. The Jamiat-ul-Ulema-i-Hind, the
greatest Moslem religious body has supported the demand and invited
the attention of all concerned to the urgent necessity of introducing a
measure to this effect. Customary Law is a misnomer inasmuch as it has
not any sound basis to stand upon and is very much liable to frequent
changes and cannot be expected to attain at any time in the future that
certainty and definiteness which must be the characteristic of all laws.
The status of Muslim women under the so-called Customary Law is
simply disgraceful. All the Muslim Women Organisations have therefore
condemned the Customary Law as it adversely affects their rights. They
demand that the Muslim Personal Law (Shariat) should be made
applicable to them. The introduction of Muslim Personal Law will
automatically raise them to the position to which they are naturally
entitled. In addition to this present measure, if enacted, would have very
salutary effect on society because it would ensure certainty and
definiteness in the mutual rights and obligations of the public. Muslim
Personal Law (Shariat) exists in the form of a veritable code and is too
well known to admit of any doubt or to entail any great labour in the
shape of research, which is the chief feature of Customary Law.”
23. Sections 2, 3 and 5 of the Shariat Act are relevant and are extracted
hereunder:
“2. Application of personal law to Muslims.- Notwithstanding any
customs or usage to the contrary, in all questions (save questions
relating to agricultural land) regarding intestate succession, special
property of females, including personal property inherited or obtained
under contract or gift or any other provision of Personal Law, marriage,
dissolution of marriage, including talaq, ila, zihar, lian, khula and
mubaraat, maintenance, dower, guardianship, gifts, trusts and trust
properties, and wakfs (other than charities and charitable institutions
and charitable and religious endowments) the rule of decision in cases
where the parties are Muslims shall be the Muslim Personal Law
(Shariat).”
3. Power to make a declaration.- (1) Any person who satisfies the
prescribed authority-
(a) that he is a Muslim, and
(b) that he is competent to contract within the meaning of section 11 of
the Contract Act, 1872 (9 of 1872), and
(c) that he is a resident of the territories to which this Act extends,
may by declaration in the prescribed form and filed before the prescribed
authority declare that he desires to obtain the benefit of the provisions of
this section, and thereafter the provisions of section 2 shall apply to the
declarant and all his minor children and their descendants as if in
addition to the matters enumerated therein adoption, wills and legacies
were also specified.
(2) Where the prescribed authority refuses to accept a declaration under
sub-section (1), the person desiring to make the same may appeal to
such officer as the Government may, by general or special order, appoint
in this behalf, and such officer may, if he is satisfied that the appellant is
entitled to make the declaration, order the prescribed authority to accept
the same.
xxx xxx xxx
5. Dissolution of marriage by Court in certain circumstances.-The
District Judge may, on petition made by a Muslim married woman,
dissolve a marriage on any ground recognized by Muslim Personal Law
(Shariat).”
A close examination of Section 2, extracted above, leaves no room for any
doubt, that custom and usage, as it existed amongst Muslims, were sought
to be expressly done away with, to the extent the same were contrary to
Muslim ‘personal law’. Section 2 also mandated, that Muslim ‘personal law’
(Shariat) would be exclusively adopted as “… the rule of decision …” in
matters of intestate succession, special property of females, including all
questions pertaining to “… personal property inherited or obtained under
contract or gift or any other provision of ‘personal law’, marriage,
dissolution of marriage, including talaq, ila, zihar, lian, khula and
mubaraat, maintenance, dower, gifts, trusts and trust properties, and wakfs
…”. Section 3 added to the above list, “… adoption, wills and legacies …”,
subject to the declaration expressed in Section 3.
24. It is relevant to highlight herein, that under Section 5 of the Shariat
Act provided, that a Muslim woman could seek dissolution of her marriage,
on the grounds recognized under the Muslim ‘personal law’. It would also
be relevant to highlight, that Section 5 of the Shariat Act was deleted, and
replaced by the Dissolution of Muslim Marriages Act, 1939.
25. In the above context, it would be relevant to mention, that there was
no provision in the Hanafi Code, of Muslim law for a married Muslim
woman, to seek dissolution of marriage, as of right. Accordingly, Hanafi
jurists had laid down, that in cases in which the application of Hanafi law
caused hardship, it was permissible to apply the principles of the Maliki,
Shafii or Hanbali law. This position was duly noticed in the introduction to
the 1939 Act, as well as, in the statement of its objects and reasons. Be
that as it may, the alternatives suggested by the Hanafi jurists were not
being applied by courts. Accordingly, in order to crystalise the grounds of
dissolution of marriage, by a Muslim woman, the 1939 Act, was enacted.
The statement of objects and reasons of the above enactment is relevant,
and is accordingly extracted hereunder:
“There is no proviso in the Hanafi Code of Muslim Law enabling a
married Muslim woman to obtain a decree from the Court dissolving her
marriage in case the husband neglects to maintain her, makes her life
miserable by deserting or persistently maltreating her or absconds
leaving her unprovided for and under certain other circumstances.
The absence of such a provision has entailed unspeakable misery to
innumerable Muslim women in British India. The Hanafi Jurists
however, have clearly laid down that in cases in which the application of
Hanafi Law causes hardship, it is permissible to apply the provisions of
the “Maliki, Shafii or Hambali Law”.
Acting on this principle the Ulemas have issued fatwas to the effect that
in cases enumerated in clause 3, Part A of this Bill (now see section 2 of
the Act), a married Muslim woman may obtain a decree dissolving her
marriage. A lucid exposition of this principle can be found in the book
called “Heelatun Najeza” published by Maulana Ashraf Ali Sahib who has
made an exhaustive study of the provisions of Maliki Law which under
the circumstances prevailing in India may be applied to such cases. This
has been approved by a large number of Ulemas who have put their seals
of approval on the book.
As the Courts are sure to hesitate to apply the Maliki Law to the case of a
Muslim woman, legislation recognizing and enforcing the above
mentioned principle is called for in order to relieve the sufferings of
countless Muslim women.
One more point remains in connection with the dissolution of marriages.
It is this. The Courts in British India have held in a number of cases
that the apostasy of a married Muslim woman ipso facto dissolves her
marriage. This view has been repeatedly challenged at the bar, but the
Courts continue to stick to precedents created by rulings based on an
erroneous view of the Muslim Law. The Ulemas have issued Fatwas
supporting non-dissolution of marriage by reason of wife’s apostasy. The
Muslim community has, again and again, given expression to its
supreme dissatisfaction with the view held by the Courts. Any number
of articles have been appearing in the press demanding legislation to
rectify the mistake committed by the Courts; hence clause 5 (now see
section 4) is proposed to be incorporated in this Bill.
Thus, by this Bill the whole Law relating to dissolution of marriages is
brought at one place and consolidated in the hope that it would supply a
very long felt want of the Muslim Community in India”.
26. The Dissolution of Muslim Marriages Act, 1939 provided, the
grounds on which a Muslim woman, could seek dissolution of marriage.
Section 2 of the enactment is reproduced below:
“2. Grounds for decree for dissolution of marriage.—A woman married
under Muslim law shall be entitled to obtain a decree for the dissolution
of her marriage on any one or more of the following grounds, namely:—
(i) that the whereabouts of the husband have not been known for a
period of four years;
(ii) that the husband has neglected or has failed to provide for her
maintenance for a period of two years;
(iii) that the husband has been sentenced to imprisonment for a period of
seven years or upwards;
(iv) that the husband has failed to perform, without reasonable cause, his
marital obligations for a period of three years;
(v) that the husband was impotent at the time of the marriage and
continues to be so;
(vi) that the husband has been insane for a period of two years or is
suffering from leprosy or virulent venereal disease;
(vii) that she, having been given in marriage by her father or other
guardian before she attained the age of fifteen years, repudiated the
marriage before attaining the age of eighteen years:
Provided that the marriage has not been consummated;
(viii) that the husband treats her with cruelty, that is to say,—
(a) habitually assaults her or makes her life miserable by cruelty of
conduct even if such conduct does not amount to physical ill-treatment,
or
(b) associates with women of evil repute or leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her exercising her legal rights
over it, or
(e) obstructs her in the observance of her religious profession or practice,
or
(f) if he has more wives than one, does not treat her equitably in
accordance with the injunctions of the Quran;
(ix) on any other ground which is recognised as valid for the dissolution
of marriages under Muslim law:
Provided that—
(a) no decree shall be passed on ground (iii) until the sentence has
become final;
(b) a decree passed on ground (i) shall not take effect for a period of six
months from the date of such decree, and if the husband appears either
in person or through an authorised agent within that period and satisfies
the Court that he is prepared to perform his conjugal duties, the Court
shall set aside the said decree; and
(c) before passing a decree on ground (v) the Court shall, on application
by the husband, make an order requiring the husband to satisfy the
Court within a period of one year from the date of such order that he has
ceased to be impotent, and if the husband so satisfies the Court within
such period, no decree shall be passed on the said ground.”
27. We may record here, that the Dissolution of Muslim Marriages Act,
1939, is irrelevant for the present controversy on account of the fact, that
the issue in hand does not pertain to the dissolution of marriage at the
behest of a Muslim wife (but pertains to the dissolution of marriage, at the
behest of a Muslim husband). The provisions of the instant enactment are
relevant, to understand the submissions advanced by learned counsel,
representing the petitioners, as also the respondents, based on their
individual perspectives.
Part-5.
Abrogation of the practice of ‘talaq-e-biddat’ by legislation, the world over, in
Islamic, as well as, non-Islamic States:
28. ‘Muslim Law in India and Abroad’, by Tahir Mahmood and Saif
Mahmood (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2012 edition),
records the following position about the abrogation of the practice of ‘talaqe-biddat’
as a means of divorce, through statutory enactments, the world
over. The countries which have abolished ‘talaq-e-biddat’ have been divided
into Arab States, Southeast Asian States, and Subcontinental States. We
have maintained the above classifications, in order to establish their factual
positions. Firstly, to demonstrate that the practice was prevalent across the
globe in States having sizeable Muslim populations. And secondly, that the
practice has been done away with, by way of legislation, in the countries
referred to below.
A. Laws of Arab States
(i) Algeria: Is a theocratic State, which declares Islam to be its official
religion. Muslims of the Sunni sect constitute its majority. On the issue in
hand, it has enacted the following legislation:
Code of Family Law 1984
Law No.84-11 of 1984 as amended in 2005
“Article 49. Divorce cannot be established except by a judgment of the
court, preceded by an attempt at reconciliation for a period not exceeding
three months.”
(ii) Egypt: Is a secular State. Muslims of the Sunni sect constitute its
majority. On the issue in hand, it has enacted the following legislation:
Law of Personal Status 1929
Law 25 of 1929 as amended by Law 100 of 1985
“Article 1. A Talaq pronounced under the effect of intoxication or
compulsion shall not be effective.
Article 2. A conditional Talaq which is not meant to take effect
immediately shall have no effect if it is used as an inducement to do
some act or to abstain from it.
Article 3. A Talaq accompanied by a number, expressly or impliedly, shall
not be effective except as a single revocable divorce.
Article 4. Symbolic expressions of talaq, i.e., words which may or may
not bear the implication of a divorce, shall not effect a divorce unless the
husband actually intended it.”
(iii) Iraq: Is a theocratic State, which declares Islam to be its official religion.
The majority of Iraq’s Muslims is Shias. On the issue in hand, it has
enacted the following legislation:
Code of Personal Status 1959
Law 188 of 1959 as amended by Law 90 of 1987
“Article 35. No divorce shall be effective when pronounced by the
persons mentioned below:
(a) one who is intoxicated, insane or imbecile, under duress, or not in
his senses due to anger, sudden calamity, old age or sickness;
(b) a person in death-sickness or in a condition which in all probabilities
is fatal and of which he actually dies, survived by his wife.”
xxx xxx xxx
Article 37. (1) Where a Talaq is coupled with a number, express or
implied, not more than one divorce shall take place.
(2) If a woman is divorced thrice on three separate occasions by her
husband, no revocation or remarriage would be permissible after that.
xxx xxx xxx
Article 39. (1) When a person intends to divorce his wife, he shall
institute a suit in the Court of Personal Status requesting that it be
effected and that an order be issued therefor. If a person cannot so
approach the court, registration of the divorce in the court during the
period of Iddat shall be binding on him.
(2) The certificate of marriage shall remain valid till it is cancelled by the
court.”
(iv) Jordan: Is a secular State. Muslims of the Sunni sect constitute its
majority. On the issue in hand, it has enacted the following legislation:
Code of Personal Status 1976
Law 61 of 1976
“Article 88. (1) Talaq shall not be effective if pronounced under
intoxication, bewilderment, compulsion, mental disorder, depression or
effect of sleep.
(2) ‘Bewildered’ is one who has lost senses due to anger or provocation,
etc., and cannot understand what he is saying.
xxx xxx xxx
Article 90. A divorce coupled with a number, expressly or impliedly, as
also a divorce repeated in the same sitting, will not take effect except as a
single divorce.
xxx xxx xxx
Article 94. Every divorce shall be revocable except the final third, one
before consummation and one with consideration.
xxx xxx xxx
Article 98. Where an irrevocable Talaq was pronounced once or twice,
renewal of marriage with the consent of parties is not prohibited.”
(v) Kuwait: Is a theocratic State, which declares Islam to be the official
religion. Muslims of the Sunni sect constitute its majority. On the issue in
hand, it has the following legislation in place:
Code of Personal Status 1984
Law 51 of 1984
“Article 102. Talaq may be effected by major and sane men acting by
their free will and understanding the implications of their action.
Therefore Talaq shall not take effect if the husband is mentally
handicapped, imbecile, under coercion, mistake, intoxication, fear or
high anger affecting his speech and action.
xxx xxx xxx
Article 109. If a Talaq is pronounced with a number (two, three) by
words, signs or writing, only one Talaq shall take effect.”
(vi) Lebanon: Is a secular State. Muslims constitute its majority, which is
estimated to be 54% (27% Shia, and 27% Sunni). On the issue in hand, it
has enacted the following legislation:
Family Rights Law 1962
Law of 16 July 1962
“Article 104. A divorce by a drunk person shall have no effect.
Article 105. A divorce pronounced under coercion shall have no effect.”
(vii) Libya: Is a theocratic State, which declares Islam to be its official
religion. Muslims of the Sunni sect constitute its majority. On the issue in
hand, it has enacted the following legislation:
Family Law 1984
Law 10 of 1984 as amended by Law 15 of 1984
“Article 28. Divorce is termination of the marriage bond. No divorce will
become effective in any case except by a decree of a competent court and
subject to the provision of Article 30.
Article 29. Divorce is of two kinds – revocable and irrevocable. Revocable
divorce does not terminate the marriage till the expiry of Iddat.
Irrevocable divorce terminates the marriage forthwith.
Article 30. All divorces shall be revocable except a third-time divorce, one
before consummation of marriage, one for a consideration, and those
specified in this law to be irrevocable.
Article 31. A divorce shall be effective only if pronounced in clear words
showing intention to dissolve the marriage. Symbolic or metaphorical
expression will not dissolve the marriage.
Article 32. A divorce pronounced by a minor or insane person, or if
pronounced under coercion, or with no clear intention to dissolve the
marriage, shall have no legal effect.
Article 33. (1) A divorce meant to be effect on some action or omission of
the wife shall have no legal effect.
(2) A divorce given with a view to binding the wife to an oath or restrain
her from doing something shall have no legal effect.
(3) A divorce to which a number is attached, by express words or a
gesture, shall effect only a single revocable divorce, except when it is
pronounced for the third time.
xxx xxx xxx
Article 35. The marriage may be dissolved by mutual consent of the
parties. Such a divorce must be registered with the court. If the parties
cannot agree on the terms of such a divorce, they shall approach the
court and it will appoint arbitrators to settle the matter or reconcile
them.
xxx xxx xxx
Article 47. A divorce must be pronounced in a court and in the presence
of the other party or his or her representative. The court shall before
giving effect to a divorce exhaust all possibilities of reconciliation.”
(viii) Morocco: Is a theocratic State, which declares Islam to be its official
religion. Muslims of the Sunni sect constitute its majority. On the issue in
hand, it has enacted the following legislation:
Code of Personal Status 2004
Law 70.03 of 2004
“Article 79. Whoever divorces his wife by Talaq must petition the court
for permission to register it with the Public Notaries of the area where the
matrimonial home is situate, or where the wife resides, or where the
marriage took place.
Article 80. The petition will mention the identity of spouses, their
professions, addresses, number of children, if any, with their age, health
condition and educational status. It must be supported by a copy of the
marriage agreement and a document stating the husband’s social status
and financial obligations.
Article 81. The court shall summon the spouses and attempt
reconciliation. If the husband deliberately abstains, this will be deemed
to be withdrawal of the petition. If the wife abstains, the court will notify
her that if she does not present herself the petition may be decided in her
absence. If the husband has fraudulently given a wrong address for the
wife, he may be prosecuted at her instance.
Article 82. The court will hear the parties and their witnesses in camera
and take all possible steps to reconcile them, including appointment of
arbitrators or a family reconciliation council, and if there are children
such efforts shall be exhausted within thirty days. If reconciliation takes
place, a report will be filed with the court.
Article 83. If reconciliation attempts fail, the court shall fix an amount to
be deposited by the husband in the court within thirty days towards
payment of the wife’s post-divorce dues and maintenance of children.
xxx xxx xxx
Article 90. No divorce is permissible for a person who is not in his senses
or is under coercion or provocation.
xxx xxx xxx
Article 92. Multiple expressions of divorce, oral or written, shall have the
effect of a single divorce only.
xxx xxx xxx
Article 123. Every divorce pronounced by the husband shall be
revocable, except a third-time divorce, divorce before consummation of
marriage, divorce by mutual consent, and divorce by Khula or Talaq-eTafweez.

(ix) Sudan: Is a theocratic State, which declares Islam to be its official
religion. Muslims of the Sunni sect constitute its majority. On the issue in
hand, it has the following legislation in place:
Law on Talaq 1935
Judicial Proclamation No.4 of 1935
“Article 1. A divorce uttered in a state of intoxication or under duress
shall be invalid and ineffective.
Article 2. A contingent divorce which is not meant to be effective
immediately and is used as an inducement or threat shall have not
effect.
Article 3. A formula of divorce coupled with a number, expressly or
impliedly, shall effect only one divorce.
Article 4. Metaphorical expressions used for a divorce shall have the
effect of dissolving the marriage only if the husband actually meant a
divorce.”
(x) Syria: Is a secular State. Muslims of the Sunni sect constitute its
majority. On the issue in hand, it has enacted the following legislation:
Code of Personal Status 1953
Law 59 of 1953 as amended by Law 34 of 1975
“Article 89. No divorce shall take place when the man is drunk, out of his
senses, or under duress. A person is out of his senses when due to
anger, etc. he does not appreciate what he says.
Article 90. A conditional divorce shall have no effect if not actually
intended and used only as an inducement to do or abstain from doing
something or as an oath or persuasion.
xxx xxx xxx
Article 92. If a divorce is coupled with a number, expressly or impliedly,
not more than one divorce shall take place.
xxx xxx xxx
Article 94. Every divorce shall be revocable except a third-time divorce,
one before consummation, a divorce with a consideration, and a divorce
stated in this Code to be irrevocable.
xxx xxx xxx
Article 117. Where a person divorces his wife the court may, if satisfied
that he has arbitrarily done so without any reasonable cause and that as
a result of the divorce the wife shall suffer damage and become destitute,
give a decision, with due regard to the husband’s financial condition and
the amount of wife’s suffering, that he should pay her compensation not
exceeding three years’ maintenance, in addition to maintenance payable
during the period of Iddat. It may be directed to be paid either in a lump
sum or in instalments as the circumstances of a case may require.
(xi) Tunisia: Is a theocratic State, which declares Islam to be its official
religion. Muslims of the Sunni sect constitute its majority. On the issue in
hand, it has enacted the following legislation:
Code of Personal Status 1956
Law 13-8 of 1956 as amended by Law 7 of 1981
“Article 31.(1) A decree of divorce shall be given: (i) with the mutual
consent of the parties; or (ii) at the instance of either party on the ground
of injury; or (iii) if the husband insists on divorce or the wife demands it.
The party causing material or mental injury by the fact of divorce under
clauses (ii) and (iii) shall be directed to indemnify the aggrieved spouse.
(2) As regards the woman to be indemnified for material injury in terms
of money, the same shall be paid to her after the expiry of Iddat and may
be in the form of retention of the matrimonial home. This indemnity will
be subject to revision, increase or decrease in accordance with the
changes in the circumstances of the divorced wife until she is alive or
until she changes her marital status by marrying again. If the former
husband dies, this indemnity will be a charge on his estate and will have
to be met by his heirs if they consent to it and will be decided by the
court if they disagree. They may pay her in a lump sum within one year
from the former husband’s death the indemnity claimable by her.
Article 32 (1) No divorce shall be decreed except after the court has made
an overall inquiry into the causes of rift and failed to effect reconciliation.
(2) Where no reconciliation is possible the court shall provide, even if not
asked to, for all important matters relating to the residence of the
spouses, maintenance and custody of children and meeting the children,
except when the parties specifically agree to forgo all or any of these
rights. The court shall fix the maintenance on the basis of all those facts
which it comes to know while attempting reconciliation. All important
matters shall be provided for in the decree, which shall be nonappealable
but can be reviewed for making additional provisions.
(3) The court of first instance shall pass orders in the matters of divorce
and all concerning matters including the compensation money to which
the divorced wife may be entitled after the expiry of Iddat. The portions
of the decree relating to custody, maintenance, compensation, residence
and right to visit children shall be executed immediately.”
(xii) United Arab Emirates: Is a theocratic State, as the Federal Constitution
declares Islam to be the official religion. The Constitution also provides for
freedom of religion, in accordance with established customs. Muslims of
the Shia sect constitute its majority. On the issue in hand, it has the
following legislation in place:
Law of Personal Status 2005
Federal Law No.28 of 2005
“Article 140(1). If a husband divorces his wife after consummation of a
valid marriage by his unilateral action and without any move for divorce
from her side, she will be entitled to compensation besides maintenance
for Iddat. The amount of compensation will be decided with due regard
to the means of the husband and the hardship suffered by the wife, but
it shall not exceed the amount of one year’s maintenance payable in law
to a woman of her status.
(2) The Kazi may decree the compensation, to be paid as a lump sum or
in instalments, according to the husband’s ability to pay.”

(xiii) Yemen: Is a theocratic State, which declares Islam to be the official
religion. Muslims of the Sunni sect constitute its majority. On the issue in
hand, it has the following legislation in place:
Decree on Personal Status 1992
Decree 20 of 1992
“Article 61. A divorce shall not be effective if pronounced by a man who is
drunk, or has lost his senses, or has no power of discernment, if this is
shown by his condition and action.
xxx xxx xxx
Article 64. A divorce to which a number is attached, whatever be the
number, will effect only a single revocable divorce.
Article 65. The words saying that if the wife did or failed to do something
she will stand divorced will not effect a divorce.
Article 66. The words that if an oath or vow is broken it will effect a
divorce will not dissolve the marriage even if the said oath or vow is
broken.
Article 67. A divorce can be revoked by the husband during the Iddat
period. After the expiry of Iddat, a direct remarriage between them will
be lawful.
xxx xxx xxx
Article 71. If a man arbitrarily divorces his wife without any reasonable
ground and it causes hardship to her, the court may grant her
compensation payable by the husband not exceeding maintenance for
one year in accordance with her status. The court may decide if the
compensation will be paid as a lump sum or in instalments.”
B. Laws of Southeast Asian States
(i) Indonesia: The Constitution of Indonesia guarantees freedom of religion
among Indonesians. However, the Government recognizes only six official
religions – Islam, Protestantism, Catholicism, Hinduism, Buddhism, and
Confucianism. Muslims of the Sunni sect constitute its majority. On the
issue in hand, it has the following legislation in place:
(a) Law of Marriage 1974
Law 1 of 1974
“Article 38. A divorce shall be effected only in the court and the court
shall not permit a divorce before attempting reconciliation between the
parties. Divorce shall be permissible only for sufficient reasons
indicating breakdown of marriage.
xxx xxx xxx
Article 41. In the event of a divorce both the parents shall continue to be
responsible for the maintenance of their children. As regards custody of
children, in case of a dispute between them the court shall take a
decision. Expenses of maintenance and education shall be primarily the
father’s liability, but if he is unable to discharge this liability the court
may transfer it to the mother. The court may also direct the former
husband to pay alimony to the divorced wife.”
(b) Marriage Regulations 1975
Regulation 9 of 1975
“Article 14. A man married under Islamic law wanting to divorce his wife
shall by a letter notify his intention to the District Court seeking
proceedings for that purpose.
Article 15. On receiving a letter the court shall, within thirty days,
summon the parties and gather from them all relevant facts.
Article 16. If the court is satisfied of the existence of any of the grounds
mentioned in Article 19 below and is convinced that no reconciliation
between the parties is possible it will allow a divorce.
Article 17. Immediately after allowing a divorce as laid down in Article 16
above the court shall issue a certificate of divorce and send it to the
Registrar for registration of the divorce.
xxx xxx xxx
Article 19. A divorce may be allowed on the petition of either party if the
other party:
(a) has committed adultery or become addict to alcohol, drugs, gambling
or another serious vice;
(b) has deserted the aggrieved party for two years or more without any
legal ground and against the said party’s will;
(c) has been imprisoned for at least five years;
(d) has treated the aggrieved party with cruelty of an injurious nature;
(e) has been suffering from a physical deformity affecting conjugal duties,
or where relations between the spouses have become too much strained
making reconciliation impossible.”
(ii) Malaysia: Under the Constitution of Malaysia, Islam is the official
religion of the country, but other religions are permitted to be practiced in
peace and harmony. Muslims of the Sunni sect constitute its majority. On
the issue in hand, it has the following legislation in place:
Islamic Family Law Act 1984
Act 304 of 1984
“Article 47. (1) A husband or a wife who desires a divorce shall present
an application for divorce to the court in the prescribed form
accompanied by a statutory declaration containing (a) particulars of the
marriage and the name, ages and sex of the children, if any, of the
marriage; (b) particulars of the facts giving the court jurisdiction under
Section 45; (c) particulars of any previous matrimonial proceedings
between the parties, including the place of the proceedings; (d) a
statement as to the reasons for desiring divorce; (e) a statement as to
whether any, and if so, what steps have been taken to effect
reconciliation; (f) the terms of any agreement regarding maintenance and
habitation of the wife and the children of the marriage, if any, and the
division of any assets acquired through the joint effort of the parties, if
any, or where no such agreement has been reached, the applicant’s
proposals regarding those matters; and (g) particulars of the order
sought.
(2) Upon receiving an application for divorce, the court shall cause
summons to be served on the other party together with a copy of the
application and the statutory declaration made by the applicant, and the
summons shall direct the other party to appear before the court so as to
enable it to inquire whether or not the other party consents to the
divorce.
(3) If the other party consents to the divorce and the court is satisfied
after due inquiry and investigation that the marriage has irretrievably
broken down, the court shall advise the husband to pronounce one Talaq
before the court.
(4) The court shall record the fact of the pronouncement of one Talaq and
shall send a certified copy of the record to the appropriate Registrar and
to the Chief Registrar for registration.
(5) Where the other party does not consent to the divorce or it appears to
the court that there is reasonable possibility of a reconciliation between
the parties, the court shall as soon as possible appoint a Conciliatory
Committee consisting of a religious officer as Chairman and two other
persons, one to act for the husband and the other for the wife, and refer
the case to the Committee.
(6) In appointing the two persons under sub-section (5) the court shall,
where possible, give preference to close relatives of the parties having
knowledge of the circumstances of the case.
(7) The court may give directions to the Conciliatory Committee as to the
conduct of the conciliation and it shall conduct it in accordance with
such directions.
(8) If the Committee is unable to agree or if the court is not satisfied with
its conduct of the conciliation, the court may remove the Committee and
appoint another Committee in its place.
(9) The Committee shall endeavour to effect reconciliation within a period
of six months from the date of its being constituted or such further
period as may be allowed by the court.
(10) The Committee shall require the attendance of the parties and shall
give each of them an opportunity of being heard and may hear such
other persons and make such inquiries as it thinks fit and may, if it
considers it necessary, adjourn its proceedings from time to time.
(11) If the Conciliatory Committee is unable to effect reconciliation and is
unable to persuade the parties to resume their conjugal relationship, it
shall issue a certificate to that effect and may append to the certificate
such recommendations as it thinks fit regarding maintenance and
custody of the minor children of the marriage, if any, regarding division
of property and other matters related to the marriage.
(12) No advocate and solicitor shall appear or act for any party in any
proceeding before a Conciliatory Committee and no party shall be
represented by any person other than a member of his or her family
without the leave of the Conciliatory Committee.
(13) Where the Committee reports to the court that reconciliation has
been effected and the parties have resumed their conjugal relationship,
the court shall dismiss the application for divorce.
(14) Where the Committee submits to the court a certificate that it is
unable to effect reconciliation and to persuade the parties to resume the
conjugal relationship, the court shall advise the husband to pronounce
one Talaq before the court, and where the court is unable to procure the
presence of the husband before the court to pronounce one Talaq, or
where the husband refuses to pronounce one Talaq, the court shall refer
the case to the Hakams [arbitrators] for action according to section 48.
(15) The requirement of sub-section (5) as to reference to a Conciliatory
Committee shall not apply in any case (a) where the applicant alleges
that he or she has been deserted by an does not know the whereabouts
of the other party; (b) where the other party is residing outside West
Malaysia and it is unlikely that he or she will be within the jurisdiction of
the court within six months after the date of the application; (c) where
the other party is imprisoned for a term of three years or more; (d) where
the applicant alleges that the other party is suffering from incurable
mental illness; or (e) where the court is satisfied that there are
exceptional circumstances which make reference to a Conciliatory
Committee impracticable.
(16) Save as provided in sub-section (17), a Talaq pronounced by the
husband or an order made by the court shall not be effective until the
expiry of the Iddat.
(17) If the wife is pregnant at the time the Talaq is pronounced or the
order is made, the Talaq or the order shall not be effective until the
pregnancy ends.”
(iii) Philippines: Is a secular State. Christians constitute its majority. On
the issue in hand, it has the following legislation in place:
Code of Muslim Personal Law 1977
Decree No.1083 of 1977
“Article 46. (1) A divorce by Talaq may be effected by the husband in a
single repudiation of his wife during her Tuhr [non-menstrual period]
within which he has totally abstained from carnal relations with her.
(2) Any number of repudiations made during one Tuhr [non-menstrual
period] shall constitute only one repudiation and shall become
irrevocable after the expiration of the prescribed Iddat.
(3) A husband who repudiates his wife, either for the first or second time,
shall have the right to take her back within the Iddat period by
resumption of cohabitation without need of a new contract of marriage.
Should he fail to do so, the repudiation shall become irrevocable.
xxx xxx xxx
Article 85. Within seven days after the revocation of a divorce the
husband shall, with the wife’s consent, send a statement thereof to the
Circuit Registrar in whose records the divorce was previously entered.
xxx xxx xxx
Article 161. (1) A Muslim male who has pronounced a Talaq shall,
without delay, file with the Clerk of the Sharia Circuit Court of the place
where his family resides a written notice of such fact and the
circumstances attending thereto, after having served a copy to the wife
concerned. The Talaq pronounced shall not become irrevocable until
after the expiration of the prescribed Iddat.
(2) Within seven days from receipt of notice the Clerk of the Court shall
require each of the parties to nominate a representative. The
representatives shall be appointed by the court to constitute, with the
Clerk of the Court as Chairman, an Agama [religious scholars]
Arbitration Council which shall try and submit to the court a report on
the result of arbitration on the basis of which, and such other evidence
as may be allowed, the court will pass an order.
(3) The provisions of this Article will be observed if the wife exercises
right to Talaq-e-Tafweez.
xxx xxx xxx
Article 183. A person who fails to comply with the requirements of Article
85, 161 and 162 of this Code shall be penalized by imprisonment or a
fine of two hundred to two thousand Pesos, or both.”
C. Laws of Sub-continental States
(i) Pakistan & Bangladesh: Are both theocratic States, wherein Islam is the
official religion. In both countries Muslims of the Sunni sect constitute the
majority. On the issue in hand, it has the following legislation in place:
Muslim Family Laws Ordinance 1961
Ordinance VIII of 1961 amended in Bangladesh by Ordinance 114 of
1985
(Bangladesh changes noted below relevant provisions)
“Section 7. (1) Any man who wishes to divorce his wife shall, as soon as
may be after the pronouncement of Talaq in any form whatsoever, give
the Chairman a notice in writing of his having done so, and shall supply
a copy thereof to the wife.
(2) Whoever contravenes the provision of sub-section (1) shall be
punishable with simple imprisonment for a term which may extend to
one year, or with fine which may extend to five thousand rupees, or with
both.
[Bangladesh: ten thousand taka]
(3) Save as provided in sub-section (5), a Talaq unless revoked earlier,
expressly or otherwise, shall not be effective until the expiration of ninety
days from the day on which notice under subsection (1) is delivered to
the Chairman.
(4) Within thirty days of the receipt of notice under sub-section (1) the
Chairman shall constitute an Arbitration Council for the purpose of
bringing about reconciliation between the parties, and the Arbitration
council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time Talaq is pronounced, Talaq shall
not be effective until the period mentioned in sub-section (3) or of
pregnancy, whichever is later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by
Talaq effective under this section from re-marrying the same husband
without any intervening marriage with a third person, unless such
termination is for the third time so effective.”
(ii) Sri Lanka: Is a secular State. Buddhists constitute its majority. On the
issue in hand, it has the following legislation in place:
Muslim Marriage and Divorce Act 1951
Act 6 of 1951 as amended by Act 40 of 2006
“Section 17 (4) Save as otherwise hereinafter expressly provided, every
marriage contracted between Muslims after the commencement of this
Act shall be registered, as hereinafter provided, immediately upon the
conclusion of the Nikah ceremony connected therewith.
(5) In the case of each such marriage, the duty of causing it to be
registered is hereby imposed upon the following persons concerned in the
marriage; (a) the bridegroom, (b) the guardian of the bride, and (c) the
person who conducted the Nikah ceremony connected with the marriage.
Section 27. Where a husband desires to divorce his wife the procedure
laid down in Schedule II shall be followed.”
(2) Where a wife desires to effect a divorce from her husband on any
ground not referred to in sub-section (1), being a divorce of any
description permitted to a wife by the Muslim law governing the sect to
which the parties belong, the procedure laid down in the Schedule III
shall be followed so far as the nature of the divorce claimed in each case
renders it possible or necessary to follow that procedure.
29. ‘Talaq-e-biddat’ is effective, the very moment it is pronounced. It is
irrevocable when it is pronounced.
Part-6.
Judicial pronouncements, on the subject of ‘talaq-e-biddat’:
30. Rashid Ahmad v. Anisa Khatun1.
(i) The facts: The primary issue that came to be adjudicated in the above
case, pertained to the validity of ‘talaq-e-biddat’ pronounced by Ghiyas-uddin,
a Sunni Mohomedan of the Hanafi school, to his wife Anisa Khatun –
respondent no.1. The marriage of the respondent with Ghiyas-ud-din had
taken place on 28.08.1905. Ghiyas-ud-din divorced her on or about
13.09.1905. Ghiyas-ud-din pronounced triple talaq, in the presence of
witnesses, though in the absence of his wife – Anisa Khatun. Respondent
no.1 – Anisa Khatun received Rs.1,000 in payment of ‘dower’ on the same
day, which was confirmed by a registered receipt. Thereafter, Ghiyas-uddin
executed a ‘talaqnama’ (decree of divorce) dated 17.09.1905, which

1
AIR 1932 PC 25
narrates the divorce. The ‘talaqnama’ is alleged to have been given to Anisa
Khatun – respondent no.1.
(ii) The challenge: Anisa Khatun – respondent no.1, challenged the
validity of the divorce, firstly, for the reason, that she was not present at the
time of pronouncement of divorce. And secondly, that even after the
aforestated pronouncement, cohabitation had continued and subsisted for a
further period of fifteen years, i.e., till the death of Ghiyas-ud-din. In the
interregnum, five children were born to Ghiyas-ud-din and Anisa Khatun.
According to Anisa Khatun, Ghiyas-ud-din continued to treat Anisa Khatun
– respondent no.1, as his wife, and the children born to her, as his
legitimate children. It was also the case of respondent no.1, that the
payment of Rs.1,000, was a payment of prompt dower, and as such, not
payment in continuation of the ‘talaq-e-biddat’, pronounced by Ghiyas-uddin.

(iii) The consideration: While considering the validity of the ‘talaq-e-biddat’
pronounced on 13.09.1905, and the legitimacy of the children born to Anisa
Khatun, the Privy Council held as under:
“15. Their Lordships are of opinion that the pronouncement of the triple
talak by Ghiyas-ud-din constituted an immediately effective divorce, and,
while they are satisfied that the High Court were not justified in such a
conclusion on the evidence in the present case, they are of opinion that
the validity and effectiveness of the divorce would not be affected by
Ghiyas-ud-din’s mental intention that it should not be a genuine divorce,
as such a view is contrary to all authority. A talak actually pronounced
under compulsion or in jest is valid and effective: Baillie’s Digest, 2nd
edn., p. 208; Ameer Ali's Mohammedan Law, 3rd edn., vol. ii, p. 518;
Hamilton's Hedaya, vol. i, p. 211.
16. The respondents sought to found on the admitted fact that for about
fifteen years after the divorce Ghiyas-ud-din treated Anisa Fatima as his
wife and his children as legitimate, and on certain admissions of their
status said to have been made by appellant No. 1 and respondent pro
48
forma No. 10, who are brothers of Ghiyas-ud-din, but once the divorce is
held proved such facts could not undo its effect or confer such a status
on the respondents.
17. While admitting that, upon divorce by the triple talak, Ghiyas-ud-din
could not lawfully remarry Anisa Fatima until she had married another
and the latter had divorced her or died, the respondents maintained that
the acknowledgment of their legitimacy by Ghiyas-ud-din, subsequent to
the divorce, raised the presumption that Anisa Fatima had in the interval
married another, who had died or divorced her, and that Ghiyas-ud-din
had married her again, and that it was for the appellants to displace that
presumption. In support of this contention, they founded on certain dicta
in the judgment of this Board in Habibur Rahman Chowdhury v. Altaf Ali
Chowdhury L.R. 48 I.A. 114. Their Lordships find it difficult to regard
this contention as a serious one, for these dicta directly negative it. The
passage relied on, which related to indirect proof of Mahomedan
marriage by acknowledgment of a son as a legitimate son is as follows: “It
must not be impossible upon the face of it, i.e., it must not be made
when the ages are such that it is impossible in nature for the
acknowledgor to be the father of the acknowledgee, or when the mother
spoken to in an acknowledgment, being the wife of another, or within
prohibited degrees of the acknowledgor, it would be apparent that the
issue would be the issue of adultery or incest. The acknowledgment may
be repudiated by the acknowledgee. But if none of these objections occur,
then the acknowledgment has more than evidential value. It raises a
presumption of marriage – a presumption which may be taken advantage
of either by a wife-claimant or a son-claimant. Being, however, a
presumption of fact, and not juris et de jure, it is, like every other
presumption of fact capable of being set aside by contrary proof.
18. The legal bar to re-marriage created by the divorce in the present
case would equally prevent the raising of the presumption. If the
respondents had proved the removal of that bar by proving the marriage
of Anisa Fatima to another after the divorce and the death of the latter or
his divorce of her prior to the birth of the children and their
acknowledgment as legitimate, the respondents might then have had the
benefit of the presumption, but not otherwise.
19. Their Lordships are, therefore, of opinion that the appeal should be
allowed, that the decree of the High Court should be reversed, and that
the decree of the Subordinate Judge should be restored, the appellants
to have the costs of his appeal and their costs in the High Court. Their
Lordships will humbly advise His Majesty accordingly.”
(iv) The conclusion: The Privy Council, upheld as valid, ‘talaq-e-biddat’ –
triple talaq, pronounced by the husband, in the absence and without the
knowledge of the wife, even though the husband and wife continued to
cohabit for 15 long years thereafter, wherefrom 5 offsprings were born to
them
31. Jiauddin Ahmed v. Anwara Begum2, (Single Judge judgment,
authored by Baharul Islam, J., as he then was).
(i) The facts: The respondent – Anwara Begum had petitioned for
maintenance, under Section 125 of the Code of Criminal Procedure. Her
contention was, that she had lived with her husband for about 9 months,
after her marriage. During that period, her marriage was consummated.
Anwara Begum alleged, that after the above period, her husband began to
torture her, and even used to beat her. It was therefore, that she was
compelled to leave his company, and start living with her father, who was
a day labourer. Maintenance was duly granted, by the First Class
Magistrate, Tinsukia. Her husband, the petitioner – Jiauddin Ahmed,
contested the respondent’s claim for maintenance, before the Gauhati
High Court, on the ground that he had divorced her, by pronouncing
divorce by adopting the procedure of ‘talaq-e-biddat’.
(iii) The challenge: It is in the above circumstances, that the validity of
‘talaq-e-biddat’, and the wife’s entitlement to maintenance came to be
considered by the Guahati High Court, which examined the validity of the
concept of ‘talaq-e-biddat’.
(iv) The consideration: (a) The High Court placed reliance on ‘verses’ 128
to 130, contained in ‘section’ 19, of ‘sura’ IV, and ‘verses’ 229 to 232,
contained in ‘sections’ 29 and 30 of ‘sura’ II, and thereupon, referred to
the commentary on the above verses by scholars (Abdullah Yusuf Ali and

2
(1981) 1 Gau.L.R. 358
Maulana Mohammad Ali) and the views of jurists (Ameer Ali and Fyzee),
with pointed reference to ‘talaq’, which was narrated as under:
“Islam tried to maintain the married state as far as possible, especially
where children are concerned, but it is against the restriction of the
liberty of men and women in such vitally important matters as love and
family life. It will check hasty action as far as possible and leave the door
to reconciliation open at many stages. Even after divorce a suggestion of
reconciliation is made, subject to certain precautions against thoughtless
action. A period of waiting (Iddat) for three monthly courses is
prescribed, in order to see if the marriage conditionally dissolved is likely
to result in issue. But this is not necessary where the divorced woman is
a virgin. It is definitely declared that women and men shall have similar
rights against each other.
Yusuf Ali has further observed:
"Where divorce for mutual incompatibility is allowed, there is danger that
the parties might act hastily, then repent, and again wish to separate. To
prevent such capricious action repeatedly, a limit is prescribed. Two
divorces (with a reconciliation between) are allowed. After that the
parties must unitedly make up their minds, either to dissolve their union
permanently, or to live honourable lives together in mutual love and forbearance
to 'hold together on equitable terms, 'neither party worrying the
other nor grumbling nor evading the duties and responsibilities of
marriage''.
Yusuf Ali proceeds:
"All the prohibitions and limits prescribed here are in the interests of
good and honourable lives for both sides, and in the interests of a clean
and honourable social life, without public or private scandals..."
* * * *
"Two divorces followed by re-union are permissible; the third time the
divorce becomes irrevocable, until the woman marries some other man
and he divorces her. This is to set an almost impossible condition. The
lesson is: if a man loves a woman he should not allow a sudden gust of
temper or anger to induce him to take hasty action...
If the man takes back his wife after two divorces, he must do so only on
equitable terms, i.e. he must not put pressure on the woman to prejudice
her rights in any way, and they must live clean and honourable lives,
respecting each other's personalities..."
The learned Commentator further observes :
"The termination of a marriage bond is a most serious matter for family
and social life. An every lawful device is approved which can equitably
bring back those who have lived together, provided only there is mutual
love and they can live on honourable terms with each other. If these
conditions are fulfilled, it is no right for outsiders to prevent or hinder reunion.
They may be swayed by property or other considerations."
(b) The High Court also placed reliance on ‘verse’ 35 contained in
‘section’ 6, of ‘sura’ IV, and again referred to the commentary on the above
‘verse’ (by Abdullah Yusuf Ali), who had interpreted the same as under:
"An excellent plan for settling family disputes, without too much
publicity or mud-throwing, or resort to the chicaneries of the law. The
Latin countries recognise this plan in their legal system. It is a pity that
Muslims do not resort to it universally, as they should. The arbiters from
each family would know the idiosyncrasies of both parties, and would be
able, with God's help, effect a real reconciliation."
Maulana Mohammad Ali has commented on the above verse thus:
"This verse lays down the procedure to be adopted when a case for
divorce arises. It is not for the husband to put away his wife; it is the
business of the judge to decide the case. Nor should the divorce case be
made too public. The Judge is required to appoint two arbitrators, one
belonging to the wife's family and the other to the husband's. These two
arbitrators will find out the facts but their objective must be to effect a
reconciliation between the parties. If all hopes of reconciliation fail, a
divorce is allowed. But the final decision rests with the judge who is
legally entitled to pronounce a divorce. Cases were decided in accordance
with the directions contained in this verse in the early days of Islam.”
The same learned author commenting on the above verse (IV: 35) in his
the Religion of Islam has observed:
"From what has been said above, it is clear that not only must there be a
good cause for divorce, but that all means to effect reconciliation must
have been exhausted before resort is had to this extreme measure. The
impression that a Muslim husband may put away his wife at his mere
caprice, is a grave distortion of the Islamic institution of divorce."
Fyzee denounces talaq as "absurd and unjust". Abdur Rahim says:
"I may remark that the interpretation of the law of divorce by the jurists,
specially of the Hanafi School, is one flagrant instance where because of
literal adherence to mere words and a certain tendency towards
subtleties they have reached a result in direct antagonism to the
admitted policy of the law on the subject."
12. Mohammad Ali has observed:-
"Divorce is thus discouraged:
'If you hate them (i.e. your wives) it may be that you dislike a thing while
Allah has placed abundant good in it." Remedies are also suggested to
avoid divorce so long as possible:
"And if you fear a breach between the two (i.e. the husband and the wife),
then appoint a judge from his people and a judge from her people; if they
both desire agreement, Allah will effect harmony between them.
It was due to such teachings of the Holy Quran that the Holy Prophet
declared divorce to be the most hateful of all things permitted....The
mentality of the Muslim is to face the difficulties of the married life along
with its comforts and to avoid disturbing the disruption of the family
relations as long as possible, turning to divorce only as a last resort."
The learned author has further observed:
"The principle of divorce spoken of in the Holy Quran and which in fact
includes to a greater or less extent all causes, is the decision no longer to
live together as husband and wife. In fact, marriage itself is nothing but
an agreement to live together as husband and wife and when either of
the parties finds him or herself unable to agree to such a life, divorce
must follow. It is not, of course, meant that every disagreement between
them would lead to divorce; it is only the disagreement to live any more
as husband and wife...”
He then refers to the condition laid down in Sura IV verse 35.
The learned author proceeds:
"The 'shiqaq' or breach of the marriage agreement may also arise from
the conduct of either party; for instance, if either of them misconducts
himself or herself, or either of them is consistently cruel to the other, or,
as may sometimes happen there is incompatibility of temperament to
such an extent that they cannot live together in marital agreement.
The 'shiqaq' in these cases is more express, but still it will depend upon
the parties whether they can pull on or not. Divorce must always follow
when one of the parties finds it impossible to continue the marriage
agreement and is compelled to break it off. At first sight it may look like
giving too much latitude to the parties to allow them to end the marriage
contract thus, even if there is no reason except incompatibility of
temperament, but this much is certain that if there is such disagreement
that the husband and the wife cannot pull together, it is better for
themselves, for their offspring and for society in general that they should
be separated than that they should be compelled to live together. No
home is worth the name wherein instead of peace there is wrangling; and
marriage is meaningless if there is no spark of love left between the
husband and the wife. It is an error to suppose that such latitude tends
to destroy the stability of marriage, because marriage is entered into as a
permanent and sacred relation based on love between a man and a
woman, and divorce is only a remedy when marriage fails to fulfill its
object.''
With regard to the husband's right of pronouncing divorce the learned
author has found;
"Though the Holy Quran speaks of the divorce being pronounced by the
husband, yet a limitation is placed upon the exercise of this right."
He then refers to the procedure laid down in Sura IV Verse 35 quoted
above, and says :
"It will be seen that in all disputes between the husband and the wife,
which it is feared will lead to a breach, two judges are to be appointed
from the respective people of the two parties. These judges are required
first to try to reconcile the parties to each other, failing which divorce is
to be effected. Therefore, though it is the husband who pronounces the
divorce, he is as much bound by the decision of the judges, as is the
wife. This shows that the husband cannot repudiate the marriage at will.
The case must first be referred to two judges and their decision is
binding......The Holy Prophet is reported to have interfered and
disallowed a divorce pronounced by a husband, restoring the marital
relations (Bu. 68: 2). It was no doubt matter of procedure, but it shows
that the authority constituted by law has the right to interfere in matters
of divorce."
The learned author has further observed:
"Divorce may be given orally, or in writing, but it must take place in the
presence of witnesses.”
(iv) The conclusion: Based on the Quranic verses referred to above, the
High Court concluded as under:
“13. A perusal of the Quranic verses quoted above and the commentaries
thereon by well-recognized Scholars of great eminence like Mahammad
Ali and Yusuf Ali and the pronouncements of great jurists like Ameer Ali
and Fyzee completely rule out the observation of Macnaghten that "there
is no occasion for any particular cause for divorce, and mere whim is
sufficient", and the observation of Batchelor, J. (ILR 30 Bom. 537) that
"the whimsical and capricious divorce by the husband is good in law,
though bad in theology". These observations have been based on the
concept that women were chattal belonging to men, which the Holy
Quran does not brook. Costello, J. In 59 Calcutta 833 has not, with
respect, laid down the correct law of talaq. In my view the correct law of
talaq as ordained by the Holy Quran is that talaq must be for a
reasonable cause and be preceded by attempts at reconciliation between
the husband and the wife by two arbiters-one from the wife's family the
other from the husband's. If the attempts fail, talaq may be effected.
xxx xxx xxx
16. In the instant case the petitioner merely alleged in his written
statement before the Magistrate that he had pronounced talaq to the
opposite party; but he did not examine himself, nor has he adduced any
evidence worth the name to prove 'talaq'. There is no proof of talaq, or its
registration. Registration of marriage and divorce under the Assam
Muslim Marriages and Divorces Registration Act, 1935 is voluntary, and
unilateral. Mere registration of divorce (or marriage) even if proved, will
not render valid divorce which is otherwise invalid under Muslim Law.”
A perusal of the conclusion recorded by the High Court, through the
above observations, leaves no room for any doubt, that the ‘talaq-e-biddat’
pronounced by the husband without reasonable cause, and without being
preceded by attempts of reconciliation, and without the involvement of
arbitrators with due representation on behalf of the husband and wife,
would not lead to a valid divorce. The High Court also concluded, that the
petitioner – Jiauddin Ahmed, had mainly alleged that he had pronounced
talaq, but had not established the factum of divorce by adducing any
cogent evidence. Having concluded, that the marriage between the parties
was subsisting, the High Court upheld the order awarding maintenance to
the wife – Anwara Begum.
32. Must. Rukia Khatun v. Abdul Khalique Laskar3, (Division Bench
judgment, authored by Baharul Islam, CJ., as he then was).
(i) The facts: Rukia Khatun was married to Abdul Khalique Laskar. The
couple lived together for about 3 months, after their marriage. During
that period, the marriage was consummated. Rukia Khatun alleged, that
after the above period, her husband abandoned and neglected her. She
was allegedly not provided with any maintenance, and as such, had been
living in penury, for a period of about 3 months, before she moved an
application for grant of maintenance. The petitioner’s application for
maintenance filed under Section 125 of the Code of Criminal Procedure,
was rejected by the Sub-Divisional Judicial Magistrate, Hailakandi. She
challenged the order rejecting her claim of maintenance, before the
Gauhati High Court. The respondent-husband – Abdul Khalique Laskar,
contested the claim for maintenance by asserting, that even though he
had married the petitioner, but he had divorced her on 12.4.1972 by way
of ‘talaq-e-biddat’, and had thereafter even executed a talaknama. The
husband also asserted, that he had paid dower to the petitioner. The

3
(1981) 1 Gau. L.R. 375
claim of the petitioner-wife for maintenance was declined on the ground,
that she had been divorced by the respondent-husband.
(ii) The challenge: It is in the above circumstances, that the validity of
the divorce pronounced by the respondent-husband, by way of ‘talaq-ebiddat’,
and the wife’s entitlement to maintenance, came up for
consideration.
(iii) The consideration: The Gauhati High Court recorded the following
observations in respect of the validity of ‘talaq’ pronounced by the
respondent-husband, on 12.4.1972.
“7. The first point to be decided, therefore, is whether the opposite party
divorced the Petitioner. The equivalent of the word 'divorce' is 'talaq' in
Muslim Law. What is valid 'talaq' in Muslim law was considered by one of
us (Baharul Islam, J. as he then was) sitting singly in Criminal Revision
No. 199/77 (supra). The word 'talaq' carries the literal significance of
'freeing' or 'the undoing of knot'. 'Talaq' means divorce of a woman by her
husband. Under the Muslim law marriage is a civil contract. Yet the
rights and responsibilities consequent upon it are of such importance to
the welfare of the society that a high degree of sanctity is attached to it.
But in spite of the sacredness of the character of the marriagetic, Islam
recognizes the necessity in exceptional circumstances of keeping the way
open for its dissolution.
There has been a good deal of misconception of the institution of 'talaq'
under the Muslim law. From the Holy Quran and the Hadis, it appears
that though divorce was permitted, yet the right could be exercised only
under exceptional circumstances. The Holy Prophet is reported to have
said: "Never did Allah allow anything more hateful to Him than “divorce.”
According to a report of Ibn Umar, the Prophet said: "With Allah the most
detestable of all things permitted is divorce". (See the Religion of Islam by
Maulana Muhammed Ali at page 671).
In the case of Ahmed Kasim Molla v. Khatun Bibi reported in ILR Cal
833, which has so long been regarded as a leading case on the law of
divorce, Justice Costello held:
“Upon that point (divorce), there are a number of authorities and I have
carefully considered this point as dealt with in the very early authorities
to see whether I am in agreement with the mere recent decisions of the
Courts. I regret that I have to come to the conclusion that at the law
stands at present, any Mohamedan may divorce his wife at his mere
whim and caprice.”
56
Following Macnaghten, J. who held: "there is no occasion for any
particular cause for divorce, and mere whim is sufficient,'' and Batchelor,
J, in case of Sarabai v. Babiabai (ILR 30 Bombay 537) Costello, J. held:—
“It is good in law, though bad in theology.”
Ameer Ali, in his Treatise on Mahomedan Law has observed:
“The Prophet pronounced talaq to be a most destable thing before the
Almighty God of all permitted things.
If 'talaq' is given without any reason it is stupidity and ingratitude to
God.”
The learned Author in the same book has also observed
“The author of the Multeka (Ibrohim Halebi) is more concise. He says-
‘The law gives to the man primarily the power of dissolving the marriage,
if the wife, by her indocility or her bad character, renders the married life
unhappy; but in the absence of serious reasons, no Musalman can
justify a divorce either in the eyes of the religion or the law. If he
abandons his wife or put her away from simple caprice, he draws, upon
himself the divine anger, for 'the curse of God', said the Prophet, 'rests on
him who repudiates his wife capriciously.”
In ILR Madras 22, a Division Bench of the Madras High Court, consisting
of Munro and Abdur Rahim, JJ., held:
“No doubt an arbitrary or unreasonable exercise of the right to dissolve
the marriage is strongly condemned in the Quran and in the reported
saying of the Prophet (Hadith) and is treated as a spiritual offence. But
the impropriety of the husband's conduct would in no way affect the legal
validity of a divorce duly effected by the husband.”
What Munro and Abdur Rahmim, JJ. in ILR 30 Madras 22 precisely held
was that impropriety of the husband's conduct would in no way affect
the legal validity of a divorce duly effected by the husband. The emphasis
was that a talaq would be valid only if it is effected in accordance with
the Muslim Law.
In ILR 5, Rangoon 18, their Lordships of the Privy Council observed:
“According to that law (the Muslim Law), a husband can effect a divorce
whenever he desires.”
But the Privy Council has not said that the divorce need not be duly
effected or that procedure enjoined by the Quran need not be followed.
8. It is needless to say that Holy Quran is the primary source and is the
weightiest authority on any subject under the Muslim Law. The Single
Judge in Criminal Revision No. 199/77 in his judgment quoted the
relevant verses of the Quran, to deal with divorce. We need not refer to all
the Verses. It will be sufficient if we refer to only one of them, which is
Sura IV verse 35. It reads:
“If ye fear a breach
Between them twain,
Appoint two arbiters
One from his family,
And the other from hers;
If they wish for peace,
God will cause
Their reconciliation:
For God hath full knowledge,
And is acquainted
With all things.”
From the verse quoted above, it appears that there is a condition
precedent which must be complied with before the talaq is effected. The
condition precedent if when the relationship between the husband and
the wife is strained and the husband intends to give 'talaq' to his wife he
must chose an arbiter from his side and the wife an arbiter from her
side, and the arbiters must attempt at reconciliation, with a time gap so
that the passions of the parties may call down and reconciliation may be
possible. If ultimately conciliation is not possible, the husband will be
entitled to give 'talaq'. The 'talaq' must be for good cause and must not
be at the mere desire, sweet will, whim and caprice of the husband. It
must not be secret.
Maulana Mohammad Ali, an eminent Muslim jurist, in his Religion of
Islam, after referring to, and considering, the relevant verses on the
subject has observed:
From what has been said above, it is clear that not only must there be a
good cause for divorce, but that all means to effect reconciliation must
have been exhausted before resort is had to this extreme measure. The
impression that a Muslim husband may put away his wife at his mere
caprice, is a grave distortion of the Islamic institution of divorce.”
The learned Jurist also has observed:
“Divorce must always follow when one of the parties finds it impossible to
continue the marriage agreement and is compelled to break it off.”
9. Costello, J. in ILR 59 Calcutta 833 (supra) considered the judgments
of Munro and Abdur Rahim, JJ. in ILR 33 Mad. 22 (supra) and of the
Privy Council in ILR 5, Rangoon 18, (supra) but he preferred the opinions
of Machaghten and Batchalor, JJ. in ILR 30 Bombay 537 (supra). The
reason perhaps is, as observed by Krishna Ayer, J. (now of the Supreme
Court) in the case of A. Yusuf Rowther v. Sowramma, reported in AIR
1971 Kerala 261:
“Marginal distortions are inevitable when the Judicial Committee in
Downing Street has to interpret Manu and Muhammad of India and
Arabia. The soul of a Culture law is largely the formalised and
enforceable expression of a community's culture norms-cannot be fully
understood by alien minds.”
10. Krishna Ayer, J., in AIR 1971 Kerala 261 (supra) has further
observed:
“The view that the Muslim husband enjoys an arbitrary, unilateral power
to inflict instant divorce does not accord with Islamic injunctions...
Indeed, a deeper study of the subject disclosed a surprisingly rational,
realistic and modern law of divorce.... …..”
The learned Judge has further observed:
“It is a popular fallacy that a Muslim male enjoys, under the Quranic
law, Unbridled Authority to liquidate the marriage. The whole Quran
58
expressly forbids a man to seek pretexts for divorcing his wife, so long as
she remains faithful and obedient to him, 'if they (namely, women) obey
you, then do not seek a way against them' (Quran IV: 34)”
(iv) The conclusion: Based on the above consideration above, the High
Court recorded the following conclusion:
“11. In our opinion the correct law of 'talaq' as ordained by Holy Quran
is: (i) that 'talaq' must be for a reasonable cause; and (ii) that it must be
preceded by an attempt at reconciliation between the husband and wife
by two arbiters, one chosen by the wife from her family and the other by
the husband from his. If their attempts fail, 'talaq' may be effected. In our
opinion the Single Judge has correctly laid down the law in Criminal
Revision No. 199/77 (supra), and, with respect the Calcutta High Court
in ILR 59 Calcutta 833 and the Bombay High Court in ILR 30 Bombay
537 have not laid down the correct law.”
A perusal of the consideration extracted above, when examined closely,
reveals that the High Court listed the following essential ingredients of a
valid ‘talaq’ under Muslim law. Firstly, ‘talaq’ has to be based on good
cause, and must not be at the mere desire, sweet will, whim and caprice
of the husband. Secondly, it must not be secret. Thirdly, between the
pronouncement and finality, there must be a time gap, so that the
passions of the parties may calm down, and reconciliation may be
possible. Fourthly, there has to be a process of arbitration (as a means of
reconciliation), wherein the arbitrators are representatives of both the
husband and the wife. If the above ingredients do not exist, ‘talaq’ – divorce
would be invalid. For the reason, that the ‘talaq-e-biddat’ – triple talaq
pronounced by the respondent-husband – Abdul Khalique Laskar, did not
satisfy all the ingredients for a valid divorce, the High Court concluded that
the marriage was subsisting, and accordingly held the wife to be entitled to
maintenance.
59
33. Masroor Ahmed v. State (NCT of Delhi)4, (Single Bench judgment,
authored by Badar Durrez Ahmed, J., as he then was).
(i) The facts: Aisha Anjum was married to the petitioner – Masroor Ahmed,
on 02.04.2004. The marriage was duly consummated and a daughter was
born to the couple (-on 22.10.2005). It was alleged by the wife – Aisha
Anjum, that the husband’s family threw her out of her matrimonial home
(-on 08.04.2005), on account of non-fulfilment of dowry demands. While
the wife – Aisha Anjum was at her maternal home, the husband – Masroor
Ahmed filed a case for restitution of conjugal rights (-on 23.03.2006), before
the Senior Civil Judge, Delhi. During the course of the above proceedings,
the wife returned to the matrimonial home, to the company of her husband
(-on 13.04.2006), whereupon, marital cohabitation was restored. Once
again there was discord between the couple, and Masroor Ahmed
pronounced ‘talaq-e-biddat’, on 28.08.2006. The wife – Aisha Anjum
alleged, that she later came to know that her husband – Masroor Ahmed,
had divorced her by exercising his right of ‘talaq-e-biddat’, in the presence
of the brothers of Aisha Anjum, in October 2006. And that, the husband
had lied to the Court, (and to her, as well) when he had sought her
restitution, from the Court, by making out as if the marriage was still
subsisting. It was her claim, that she would not have agreed to conjugal
relations with him, had she known of the divorce. And therefore, her
consent to have conjugal relations with Masroor Ahmed, was based on
fraud committed by him, on her – Aisha Anjum. She therefore accused
Masroor Ahmed, for having committed the offence under Section 376 of the

4
2008 (103) DRJ 137
60
Indian Penal Code, i.e., the offence of rape. She also claimed maintenance
from her husband, under Section 125 of the Criminal Procedure Code.
During the pendency of the above proceedings, the parties arrived at an
amicable settlement on 1.9.2007.
(ii) The challenge: The position expressed by the High Court in
paragraph 12 of the judgment, crystalises the challenge. Paragraph 12, is
reproduced below:
“12. Several questions impinging upon muslim law concepts arise for
consideration. They are:-
(1) What is the legality and effect of a triple talaq?
(2) Does a talaq given in anger result in dissolution of marriage?
(3) What is the effect of non-communication of the talaq to the wife?
(4) Was the purported talaq of October 2005 valid?
(5) What is the effect of the second nikah of 19.4.2006?”
(iii) The consideration: While considering the legality and effect of ‘talaq-ebiddat’,
the High Court recorded the following consideration:
“Sanctity and effect of Talaq-e-bidaat or triple talaq.
24. There is no difficulty with ahsan talaq or hasan talaq. Both have legal
recognition under all fiqh schools, sunni or shia. The difficulty lies with
triple talaq which is classed as bidaat (an innovation). Generally
speaking, the shia schools do not recognise triple talaq as bringing
about a valid divorce1. There is, however, difference of opinion even
within the sunni schools as to whether the triple talaq should be treated
as three talaqs, irrevocably bringing to an end the marital relationship or
as one rajai (revocable) talaq2, operating in much the same way as an
ahsan talaq.”

1 With regard to triple talaq, Fyzee comments: Such a talaq is lawful, although sinful, in Hanafi law; but
in Ithna 'Ashari and the Fatimid laws it is not permissible. p. 154. Ameer Ali notes: The Shiahs and the
Malikis do not recognise the validity of the talak-ul-bid'at, whilst the Hanafi and the Shaf'eis agree in
holding that a divorce is effective, if pronounced in the bid'at form, though in its commission the man
incurs a sin. p. 435. These statements may not be accurate as to the views of Malikis and Shaf'eis, but it
is universally recognized that the above-mentioned Shi'a schools do not find triple talaq to be a valid
form of divorce.
2 Classical Hanafi law, especially as it is practiced in India, seems to take the opinion that triple talaq is
sinful yet effective as an irrevocable divorce. See, e.g., Mulla p. 261-62; The Hedaya, p. 72-73, 83. On
61
(iv) The conclusion: Based3 on4 the5 consideration recorded above, the High
Court arrived at the following conclusions:
“26. It is accepted by all schools of law that talaq-e-bidaat is sinful6. Yet
some schools regard it as valid. Courts in India have also held it to be

the other hand, Ameer Ali suggests that a triple talaq can be revoked within the iddat period. p. 436.
Maulana 'Umar Ahmad ‘Usmani, in The Quran, Women and Modern Society, by Asghar Ali Engineer,
New Dawn: New Delhi (2005), states that Muhammad ibn Muqatil, a Hanafi jurist, gave evidence
indicating that Imam Abu Hanifa developed a second opinion that a triple talaq constitutes one talaq and
that it can therefore be revoked within the iddat period. Maulana ‘Umar Ahmad ‘Usmani quotes from
Fath al-Bari by Hafiz Ibn Jahar al-Asqalani, who states that many eminent jurists have held the opinion
that three talaqs pronounced in one sitting constitute only one talaq. Maulana Wahiduddin Khan, in
Concerning Divorce, Goodword Books: New Delhi (2003), p. 29, says that in the case of a man who was
'emotionally overwrought' when pronouncing talaq three times, “His three utterances of the word talaq
may be taken as an expression of the intensity of his emotions and thus the equivalent of only one such
utterance”. He further gives the example of a Hadith recorded by Imam Abu Dawud in which Rukana ibn
Abu Yazid said talaq to his wife three times in one sitting, and then regretted his action. When he told the
Prophet Muhammad (peace be upon him) how he had divorced his wife, the Prophet (pbuh) observed,
“All three count as only one. If you want, you may revoke it.” p. 28-29 (original Hadith found in Musnad
Ahmad ibn Hanbal). There is also a Hadith reported by Abdullah ibn Abbas that in the Prophet's (pbuh)
lifetime, during the caliphate of Abu Bakr, and during the first two years of Umar ibn al-Khattab's
caliphate, triple talaq was counted as one talaq only, but that Umar then made triple talaq binding upon
his people so that they learned the consequences of their hasty actions. Sahih Muslim 3491. Maulana
Wahiduddin Khan observes this rule was of a “temporary nature” and was specific to the people of the
time, and that the 'ijma of the Companions on Umar's decision was also temporary, as 'ijma cannot
override the system of divorce prescribed in the Quran. p. 30, 32. He notes that the Shariah is eternal, but
that a Muslim ruler can make exceptions in special circumstances and can ensure that women affected by
such a ruling are fully compensated. p. 30-31. He concludes that scholars today cannot justify enforcing
triple talaq by citing Umar's ruling because they do not have the powers of a Caliph as Umar had. p. 32.
It seems that modern Indian Hanafi scholars have taken this opinion as well: the Compendium of Islamic
Laws, 2001, Part II, Section 24, states the following: “If a person pronouncing talaq says that he intended
only a single talaq and repeated the words of talaq only to put emphasis and these words were not meant
to pronounce more than one talaq, his statement on oath will be accepted”. Translated by Mahmood.
(Also see: The Muslim Law of India, 3rd ed., Tahir Mahmood, Lexis Nexis Butterworths: New Delhi
(2002),p.107, where the learned author noted: “In India there has been no legislation in this regard, but
the muftis of the time now agree that if a man pronounces the so-called 'triple talaq' but later swears that
he did not mean it, his declaration may be given the effect of a single talaq revocable during iddat and, if
not so revoked, leaving room for a fresh nikah thereafter with the wife's consent”). Such a view is,
perhaps, based upon an application of the following legal maxim of Islamic law - Al-umuru bimaqasidiha:
Acts are judged by the intention behind them.
Sheikh Sayyed Sabiq in Fiqh As-Sunnah states on the subject of triple talak that although the majority
opinion is that triple talak will count as three divorces, other scholars such as Ibn Taymiyyah and Ibn alQayyim,
as well as Companions like 'Ata', Tawuus, Ibn Dinar, 'Ali ibn Abi Talib, Ibn Mas'ud, 'AbdurRahman
ibn 'Awf, Az-Zubayr, were of the opinion that it counts as only one pronouncement of divorce.
He then says, “This latter view is believed to be the most correct.” Some go as far as to argue that there
is ijma 'that triple talak counts as three talaks. However, according to the requirements for ijma '(in the
Hanafi madhab), 'no opinion to the contrary should have been expressed on the question by any of the
Companions, or by other Mujtahids before the formation of the Ijma',” and “none of the Mujtahids taking
part in the decision should have afterwards changed his opinion.” Abdur Rahim, p. 145. Here, the first
condition is certainly not met, and the second is arguably not met. Finally, many Muslim countries,
including Algeria, Egypt, Jordan, Morocco, Sudan, Syria, and Yemen, have implemented laws that
uphold the notion that a triple talak counts as only one talak. Personal Law in Islamic Countries, Tahir
Mahmood, Academy of Law and Religion: New Delhi (1987).
3
4
5
6 See supra, fn 25 & 26, for the opinion of the Hanafi madhab that triple talaq is sinful.
62
valid. The expression - bad in theology but valid in law - is often used in
this context. The fact remains that it is considered to be sinful. It was
deprecated by prophet Muhammad7. It is definitely not recommended or
even approved by any school. It is not even considered to be a valid
divorce by shia schools. There are views even amongst the sunni schools
that the triple talaq pronounced in one go would not be regarded as three
talaqs but only as one. Judicial notice can be taken of the fact that the
harsh abruptness of triple talaq has brought about extreme misery to the
divorced women and even to the men who are left with no chance to
undo the wrong or any scope to bring about a reconciliation. It is an
innovation which may have served a purpose at a particular point of time
in history8 but, if it is rooted out such a move would not be contrary to
any basic tenet of Islam or the Quran or any ruling of the Prophet
Muhammad.
27. In this background, I would hold that a triple talaq (talaq-e-bidaat),
even for sunni muslims be regarded as one revocable talaq. This would
enable the husband to have time to think and to have ample opportunity
to revoke the same during the iddat period. All this while, family
members of the spouses could make sincere efforts at bringing about a
reconciliation. Moreover, even if the iddat period expires and the talaq
can no longer be revoked as a consequence of it, the estranged couple
still has an opportunity to re-enter matrimony by contracting a fresh
nikah on fresh terms of mahr etc.”
A perusal of the conclusions recorded by the High Court would reveal, that
triple talaq pronounced at the same time, is to be treated as a single
pronouncement of divorce. And therefore, for severing matrimonial ties
finally, the husband would have to complete the prescribed procedure, and
thereafter, the parties would be treated as divorced.

7 Once the Prophet (pbuh) was informed about a man who had pronounced three divorces at one time. He got up in
anger, saying, “Is sport being made of the Book of Allah while I am (yet) among you?” Reported by an-Nasai'i.
8
The exact Hadith is as follows: “Abdullah ibn Abbas reported that the pronouncement of three divorces during the
lifetime of Allah's Messenger (pbuh) and that of Abu Bakr and two years of the caliphate of Umar was treated as
one. But Umar ibn al-Khattab said, “Verily the people have begun to hasten in the matter in which they are required
to observe respite. So if we had imposed this upon them, [it would have deterred them from doing so!] and he
imposed it upon them.” Sahih Muslim 3491.
34.1 234 Nazeer v. Shemeema5, (Single Bench judgment, authored by A.
Muhamed Mustaque, J.).
(i) The facts: Through the above judgment, the High Court disposed of a
number of writ petitions, including three writ petitions, wherein husbands
had terminated their matrimonial alliance with their spouses, by
pronouncing ‘talaq-e-biddat’ – triple talaq. Their matrimonial relationship
having come to an end, one or the other or both (-this position is unclear,
from the judgment) spouses approached the passport authorities, to delete
the name of their former spouse, from their respective passports. The
passport authorities declined to accept their request, as the same was
based on private actions of the parties, which were only supported by
unauthenticated ‘talaq-namas’ (deeds of divorce). The stance adopted by
the passport authorities was, that in the absence of a formal decree of
divorce, the name of the spouse could not be deleted. By passing interim
directions, the High Court ordered the passport authorities, to correct the
spouse details (as were sought), based on the admission of the
corresponding spouse, that their matrimonial alliance had been dissolved.
(ii) The challenge: Even though the authenticity and/or the legality of
‘talaq-e-biddat’, did not arise for consideration before the High Court, it
noticed “….Though the issue related to triple talaq does not directly crop up
in these writ petitions calling upon this Court to decide the validity of triple
talaq, this Court cannot ignore while granting a relief based on admission,
the fact that direction of this Court would result in greater or lesser extent
of injustice if it remains oblivious to the repercussions of the repudiation of

1 2
3
4
5
2017 (1) KLT 300
64
marriage by volition of individual…..”. The High Court therefore, embarked
on the exercise of examining the validity of ‘talaq-e-biddat’.
(iii) The consideration: The High Court took into consideration texts by
renowned scholars, as for instance, from “Sharia” by Wael B. Hallaq,
“Sharia Law, An Introduction” by Mohammad Hashim Kamali, “Qur’an: The
Living Truth” by Basheer Ahmad Mohyidin, “Muslim Law in India And
Abroad” by Dr. Tahir Mahmood, “The Lawful and the Prohibited in Islam” by
Sheikh Yusuf al-Qaradawi, from the Urdu book “Hikmatul Islam” by
Moulana Wahidul Khan. The High Court also took into consideration
Quranic verses (all of which have been, extracted above). The High Court
even took note of the two judgments of the Gauhati High Court (referred to
above), besides other High Court judgments, and thereupon, observed as
under:
“12. This case only symptomize the harsh realities encountered by
women belonging to Muslim community, especially of the lower strata. It
is a reminder to the court unless the plight of sufferers is alleviated in a
larger scheme through legislation by the State, justice will be a distant
dream deflecting the promise of justice by the State "equality before the
law". The State is constitutionally bound and committed to respect the
promise of dignity and equality before law and it cannot shirk its
responsibility by remaining mute spectator of the malady suffered by
Muslim women in the name of religion and their inexorable quest for
justice broke all the covenants of the divine law they professed to
denigrate the believer and faithful. Therefore, the remainder of the
judgment is a posit to the State and contribution for settlement of the
'legal vex' which remains unconcluded more than four decades after this
court's reminder in Mohamed Haneefas' case (supra).
13. The State is constitutionally obliged to maintain coherent order in the
society, foundation of which is laid by the family. Thus sustenance or
purity of the marriage will lay a strong foundation for the society, without
which there would be neither civilisation nor progress. My endeavour in
this judgment would have been over with the laying of correct principles
related to triple talaq in Qur'anic perspective to declare the law and to
decide the matter. However, I find the dilemma in this context is not a
65
singular problem arisen demanding a resolution of the dispute between
the litigants by way of adjudication. But rather it require a State
intervention by way of legislation to regulate triple talaq in India.
Therefore, settlement of law relating to talaq is necessary and further
discussion is to be treated as an allude for the State to consider for
possible reforms of divorce Law of Muslim in this Country. The empirical
research placed herein justifies such course of action to remind the State
for action. It is to be noted, had the Muslim in India been governed by
the true Islamic law, Penal law would have acted as deliverance to
sufferings of Muslim women in India to deter arbitrary talaq in violation
of Qur'anic injunction.
xxx xxx xxx
15. This takes me to the question why the State is so hesitant to reforms.
It appears from public debate that resistance is from a small section of
Ulemas (scholars within the society) on the ground that Sharia is
immutable and any interference would amount to negation of freedom of
religion guaranteed under the Constitution. I find this dilemma of Ulema
is on a conjecture of repugnancy of divine law and secular law. The State
also appears as reluctant on an assumption that reforms of religious
practice would offend religious freedom guaranteed under the
Constitution of India. This leads me to discuss on facets of Islamic law. I
also find it equally important to discuss about the reforms of personal
law relating to triple talaq within the constitutional polity, as the
ultimately value of its legality has to be tested under the freedom of
religious practices.”
(iv) The conclusion: In the background of the above consideration, the High
Court held as under:
“The W.P.(C) 37436 of 2003 is filed by the husband alleging that the
triple talaq pronounced by him is not valid in accordance with Islamic
law. Therefore, proceedings initiated before the Magistrate under Section
3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and
consequent order will have to be set aside. This case depicts the misuse
of triple talaq, wife appears to have accepted the talaq and moved the
Magistrate court on a folly created by husband. There are innumerable
cases as revealed from the empirical data referred in the research in
which neither party are aware of the procedure of talaq according to the
personal law. This Court under Article 226 of the Constitution of India is
not expected to go into the disputed questions of fact. The entire exercise
in this judgment is to alert the State that justice has become elusive to
the Muslim woman and the remedy thereof lies in codification of law of
divorce. This court cannot grant any relief to the writ petitioner as the
true application of the law to be considered in a given facts is upon the
Court trying the matter. It is for the subordinate court to decide whether
there was application of Islamic law in effecting divorce by triple talaq.
Therefore, declining jurisdiction, this writ petition is dismissed.
66
W.P.(C) Nos. 25318 & 26373 of 2015 and 11438 of 2016
In these Writ Petitions question of validity of triple talaq does not arise.
However this question was considered in larger perspective for the
reason that if court grant any relief based on admission of the parties as
to the repudiation of marriage by triple talaaq, that would amount to
recognition of a triple talaq effected not in accordance with law, as this
court has no mechanism to find out the manner in which talaq is
effected. The Court cannot become a party to a proceedings to recognise
an ineffective divorce in the guise of directions being given to passport
authorities to accept the divorce. The legal effect of such divorce has to
be probed by a fact finding authority in accordance with the true Islamic
law. Stamp of approval being given by the court by ordering passport
authority to accept divorce effected not in accordance with the law, will
create an impression that court transgressed its limits while directing a
public authority to honour an act which was done not in accordance
with law. Though in these Writ Petitions, considering the urgency of the
matters, this court granted interim order directing the passport
authorities to act upon the request of the petitioners. Considering the
large number of similar reliefs sought before this court in various Writ
Petitions, this court is of the view that the issue can be resolved only
through a larger remedy of codification of law in the light of the
discussion as above. In the light of interim order, these Writ Petitions are
disposed of.
Conclusion:
Courts interpret law and evolve justice on such interpretation of law. It is
in the domain of the legislature to make law. Justice has become elusive
for Muslim women in India not because of the religion they profess, but
on account of lack of legal formalism resulting in immunity from law.
Law required to be aligned with justice. The search for solution to this
predicament lies in the hands of the law makers. It is for the law makers
to correlate law and social phenomena relating to divorce through the
process of legislation to advance justice in institutionalized form. It is
imperative that to advance justice, law must be formulated without any
repugnance to the religious freedom guaranteed under the Constitution
of India. It is for the State to consider the formulation of codified law to
govern the matter. Therefore, I conclude by drawing attention of those
who resist any form of reform of the divorce law of Muslim community in
India to the following verses of Holy Quran. (Chapter 47:2)
"And those who believe and do good works and believe in that which is
revealed unto Muhammad - and it is the truth from their Lord-He riddeth
them of their ill deeds and improveth their state."
"Thus we display the revelations for people who have sense" (Chapter
30:28)
The Registry shall forward the copy of this judgment to Union Law
Ministry and Law Commission of India.”
67
A perusal of the conclusions drawn by the High Court reveals, that the
practice of ‘talaq-e-biddat’, was deprecated by the Court. The Court
however called upon the legislature, to codify the law on the issue, as would
result in the advancement of justice, as a matter of institutional form.
Part-7.
The petitioner’s and the interveners’ contentions:
35. On behalf of the petitioner, besides the petitioner herself,
submissions were initiated by Mr. Amit Singh Chadha, Senior Advocate. He
invited this Court’s attention to the legislative history in the field of Muslim
‘personal law’ (-for details, refer to Part-4 – Legislation in India, in the field
of Muslim ‘personal law’). It was submitted, that all fundamental rights
contained in Part III of the Constitution were justiciable. It was therefore
pointed out, that the petitioner’s cause before this Court, was akin to such
rights as were considered justiciable. The practice of ‘talaq-e-biddat’,
according to learned counsel, permitted a male spouse an unqualified right,
to severe the matrimonial tie. It was pointed out, that the right to divorce a
wife, by way of triple talaq, could be exercised without the disclosure of any
reason, and in fact, even in the absence of reasons. It was submitted, that
a female spouse had no say in the matter, inasmuch as, ‘talaq-e-biddat’
could be pronounced in the absence of the wife, and even without her
knowledge. It was submitted, that divorce pronounced by way of triple talaq
was final and binding, between the parties. These actions, according to
learned counsel, vested an arbitrary right in the husband, and as such,
violated the equality clause enshrined in Article 14 of the Constitution. It
68
was submitted, that the Constitution postulates through the above article,
equality before the law and equal protection of the laws. This right,
according to learned counsel, was clearly denied to the female spouse in the
matter of pronouncement of divorce by the husband by adopting the
procedure of ‘talaq-e-biddat’. Further more, it was submitted, the
Constitution postulates through Article 15, a clear restraint on
discrimination, on the ground of sex. It was submitted, that ‘talaq-e-biddat’
violated the aforesaid fundamental right, which postulates equality between
men and women. Learned counsel relied on the decisions of this Court in
Kesavananda Bharati v. State of Kerala6, and Minerva Mills Ltd. v. Union of
India7 to contend, that it was the duty of courts to intervene in case of
violation of any individual’s fundamental right, and to render justice. It was
also submitted, that the rights of the female partner in a matrimonial
alliance amongst Muslims, had resulted in severe gender discrimination,
which amounted to violating their human rights under Article 21 of the
Constitution. Learned counsel accordingly sought intervention, for grave
injustice practiced against Muslim wives.
36. Mr. Amit Singh Chadha, learned senior counsel, then placed
reliance on the Jiauddin Ahmed2, and the Rukia Khatun3 cases (-for
details, refer to Part-6 – Judicial pronouncements, on the subject of ‘talaqe-biddat’).
Based on the above judgments, it was submitted, that courts
of this country had not found favour with the practice of triple talaq, in
the manner prevalent in India. It was contended, that ‘talaq-e-biddat’

6
(1973) 4 SCC 225
7
(1980) 3 SCC 625
69
should not be confused with the profession, practice and propagation of
Islam. It was pointed out, that ‘talaq-e-biddat’ was not sacrosanctal to the
profession of the Muslim religion. It was accordingly submitted, that this
Court had an indefeasible right, to intervene and render justice. In order
to press his claim based on constitutional morality, wherein the
petitioners were claiming not only gender equality, but also the
progression of their matrimonial life with dignity, learned senior counsel
placed reliance on Manoj Narula v. Union of India8, wherein this Court
observed as under:
“The Constitution of India is a living instrument with capabilities of
enormous dynamism. It is a Constitution made for a progressive society.
Working of such a Constitution depends upon the prevalent atmosphere
and conditions. Dr Ambedkar had, throughout the debate, felt that the
Constitution can live and grow on the bedrock of constitutional morality.
Speaking on the same, he said:
“Constitutional morality is not a natural sentiment. It has to be
cultivated. We must realise that our people have yet to learn it.
Democracy in India is only a top-dressing on an Indian soil, which is
essentially undemocratic.”
[Constituent Assembly Debates, 1948, Vol. VII, 38.]
The principle of constitutional morality basically means to bow down to
the norms of the Constitution and not to act in a manner which would
become violative of the rule of law or reflectible of action in an arbitrary
manner. It actually works at the fulcrum and guides as a laser beam in
institution building. The traditions and conventions have to grow to
sustain the value of such a morality. The democratic values survive and
become successful where the people at large and the persons in charge of
the institution are strictly guided by the constitutional parameters
without paving the path of deviancy and reflecting in action the primary
concern to maintain institutional integrity and the requisite
constitutional restraints. Commitment to the Constitution is a facet of
constitutional morality…”
In continuation with the instant submission, it was also the contention of
learned senior counsel, that Articles 25, 26 and 29 of the Constitution, did

8
(2014) 9 SCC 1
70
not in any manner, impair the jurisdiction of this Court, to set right the
apparent breach of constitutional morality. In this behalf, the Court’s
attention was invited to the fact, that Article 25 itself postulates, that the
freedoms contemplated thereunder, were subject to the overriding principles
enshrined in Part III – Fundamental Rights, of the Constitution. This
position, it was submitted, was affirmed through judgments rendered by
this Court in John Vallamattom v. Union of India9, Javed v. State of
Haryana10, and Khursheed Ahmad Khan v. State of Uttar Pradesh11.
37. Learned senior counsel also drew our attention to the fact, that a
number of countries had, by way of express legislations, done away with the
practice of ‘talaq-e-biddat’. It was submitted, that even when talaq was
pronounced thrice simultaneously, the same has, by legislation, been
treated as a single pronouncement, in a number of countries, including
countries which have declared Islam as their official State religion. It was
accordingly contended, that had ‘talaq-e-biddat’ been an essential part of
religion, i.e., if it constituted a core belief, on which Muslim religion was
founded, it could not have been interfered with, by such legislative
intervention. It was accordingly suggested, that this Court should have no
difficulty whatsoever in remedying the cause with which the petitioners had
approached this Court, as the same was not only violative of the
fundamental rights enshrined in the Constitution, but was also in
contravention of the principle of constitutional morality emerging therefrom.

9
(2003) 6 SCC 611
10 (2003) 8 SCC 369
11 (2015) 8 SCC 439
71
38. Last of all, it was contended, that it is nobody’s case before this
Court, that ‘talaq-e-biddat’ is a part of an edict flowing out of the Quran. It
was submitted, that triple talaq is not recognized by many schools of Islam.
According to learned counsel, all concerned acknowledge, that ‘talaq-ebiddat’
has all along been treated irregular, patriarchal and even sinful. It
was pointed out, that it is accepted by all schools – even of Sunni Muslims,
that ‘talaq-e-biddat’ is “bad in theology but good in law”. In addition, it was
pointed out, that even the Union of India had affirmed before this Court, the
position expressed above. In such situation, it was prayed, that this Court
being a constitutional court, was obliged to perform its constitutional
responsibility under Article 32 of the Constitution, as a protector, enforcer,
and guardian of citizens’ rights under Articles 14, 15 and 21 of the
Constitution. It was submitted, that in discharge of the above constitutional
obligation, this Court ought to strike down, the practice of ‘talaq-e-biddat’,
as violative of the fundamental rights and constitutional morality
contemplated by the provisions of the Constitution. It was commended,
that the instant practice of ‘talaq-e-biddat’ should be done away with, in the
same manner as the practice of ‘Sati’, ‘Devadasi’ and ‘Polygamy’, which were
components of Hindu religion, and faith. Learned counsel concluded his
submissions by quoting from the Constitutional Law of India, by H.M.
Seervai (fourth edition, Volume 2, published by N.M. Tripathi Private Ltd.,
Bombay), wherein in clause 12.60, at page 1281, the author has expressed
the following view:
“12.60 I am aware that the enforcement of laws which are violated is the
duty of Govt., and in a number of recent cases that duty has not been
72
discharged. Again, in the last instance, blatant violation of religious
freedom by the arbitrary action of religious heads has to be dealt with
firmly by our highest Court. This duty has resolutely discharged by our
High Courts and the Privy Council before our Constitution. No greater
service can be done to our country than by the Sup. Ct. and the High
Courts discharging that duty resolutely, disregarding popular clamour
and disregarding personal predilections. I am not unaware of the
present political and judicial climate. But I would like to conclude with
the words of very great man “never despair”, for when evil reaches a
particular point, the antidote of that evil is near at hand.”
39. Mr. Anand Grover, Senior Advocate, represented Zakia Soman –
respondent no.10. Respondent no.10 was added as a party respondent on
29.6.2016, on the strength of an interlocutory application filed by her.
Learned senior advocate, in the first instance, invited our attention to the
various kinds of ‘talaq’ practiced amongst Muslims (-for details, refer to
Part-2 – The practiced modes of ‘talaq’ amongst Muslims). It was
submitted, that ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ were approved by the
Quran and the ‘hadith’. It was submitted, that ‘talaq-e-biddat’ is neither
recognized by the Quran, nor approved by the ‘hadith’. With reference to
‘talaq-e-biddat’, it was asserted, that the same was contrary to Quranic
prescriptions. It was submitted, that the practice of ‘talaq-e-biddat’ was
traceable to the second century, after the advent of Islam. It was asserted,
that ‘talaq-e-biddat’ is recognized only by a few Sunni schools, including the
Hanafi school. In this behalf, it was also brought to our notice, that most of
the Muslims in India belonged to the Hanafi school of Sunni Muslims. It
was submitted, that even the Hanafi school acknowledges, that ‘talaq-ebiddat’
is a sinful form of divorce, but seeks to justify it on the ground that
though bad in theology, it is good in law. In India ‘talaq-e-biddat’, according
to learned counsel, gained validity based on the acceptance of the same by
73
the British courts, prior to independence. It was submitted, that the
judgments rendered by the British courts were finally crystallized, in the
authoritative pronouncement by the Privy Council in the Rashid Ahmad
case1. It was pointed out, that thereafter, ‘talaq-e-biddat’ has been
consistently practised in India.
40. The first contention advanced at the hands of learned senior
counsel was, that after the adoption of the Constitution, various High
Courts in India had the occasion to consider the validity of ‘talaq-e-biddat’,
exercised by Muslim men to divorce their wives. And all the High Courts
(which had the occasion to deal with the issue) unanimously arrived at the
conclusion, that the same could not muster support either from the Quran
or the ‘hadith’. In this behalf, the Court’s attention was drawn to the
various judgments of High Courts including the High Court of Gauhati in
the Jiauddin Ahmed case2 – by a Single Bench, and by the same High
Court in the Rukia Khatun case3 – by a Division Bench. By the Delhi
High Court in the Masroor Ahmed case4 – by a Single Bench, and finally
by the Kerala High Court in the Nazeer case5 – by a Single Bench (-for
details, refer to Part-6 – Judicial pronouncements, on the subject of ‘talaqe-biddat’).
It was submitted, that the High Courts were fully justified in
their opinions and their conclusions. It was pointed out, that despite the
aforesaid judgments, Muslim husbands continued to divorce their wives
by ‘talaq-e-biddat’, and therefore, an authoritative pronouncement on the
matter was required to be delivered, by this Court. Based on the
decisions relied upon, it was submitted, that a Muslim husband, could
74
not enjoy arbitrary or unilateral power to proclaim a divorce, as the same
does not accord with Islamic traditions. It was also contended, that the
proclamation of talaq must be for a demonstrated reasonable cause, and
must proceed by an attempt at reconciliation by two arbiters (one each,
from the side of the rival parties). In order to affirm the aforesaid position,
learned counsel placed reliance on Shamim Ara v. State of U.P.12, to
assert, that this Court approved the judgments referred to above. It was
accordingly asserted, that this Court has already recognized, the Quranic
position as recorded in verses 128 to 130 of ‘sura’ IV and verses 229-232
of ‘sura’ II, and also, ‘verse’ 35 of ‘sura’ IV. These verses, according to
learned senior counsel, declare the true Quranic position on the subject of
divorce (-for details, refer to Part-3 – The Holy Quran – with reference to
‘talaq’). Learned counsel heavily relied on the decision rendered by the
Delhi High Court in the Masroor Ahmed case4, and by the Kerala High
Court in the Nazeer case5 to bring home his contention, that ‘talaq-ebiddat’
was wholly unjustified and could not be recognized as a valid
means of divorce in the Muslim community. It was the vehement
submission of learned counsel, that the legal position being canvassed on
behalf of the petitioners, clearly emerged from the judgments referred to
above, and should be treated as the foundation, for adoption and
declaration by this Court. It was therefore prayed, that triple talaq as was
being practiced in India, be declared unsustainable in law.

12 (2002) 7 SCC 518
75
41. It was also contended by learned senior counsel, that the settled
principles applicable in all common law jurisdictions including India was
that courts do not test the constitutionality of laws and procedures, if the
issue arising between the parties can be decided on other grounds. It was
submitted, that only when the relief being sought, cannot be granted
without going into the constitutionality of the law, only then courts need to
enter the thicket of its constitutional validity. Learned counsel invited the
Court’s attention, to the judgment of this Court in State of Bihar v. Rai
Bahadur Hurdut Roy Moti Lal Jute Mills13, wherein this Court refused to
test the constitutional validity of certain provisions, by holding as under:
“7. On behalf of the appellant Mr Lal Narain Sinha has contended that
the High Court was in error in holding that the proviso to Section 14A
violates either Article 20(1) or Article 31(2) of the Constitution. He has
addressed us at length in support of his case that neither of the two
articles is violated by the impuged proviso. On the other hand, the
learned Solicitor-General has sought to support the findings of the High
Court on the said two constitutional points; and he has pressed before
us as a preliminary point his argument that on a fair and reasonable
construction, the proviso cannot be applied to the case of the first
respondent. We would, therefore, first deal with this preliminary point. In
cases where the vires of statutory provisions are challenged on
constitutional grounds, it is essential that the material facts should first
be clarified and ascertained with a view to determine whether the
impugned statutory provisions are attracted; if they are, the
constitutional challenge to their validity must be examined and decided.
If, however, the facts admitted or proved do not attract the impugned
provisions there is no occasion to decide the issue about the vires of the
said provisions. Any decision on the said question would in such a case
be purely academic. Courts are and should be reluctant to decide
constitutional points merely as matters of academic importance.
xxx xxx xxx
19. In view of this conclusion it is unnecessary to consider the objections
raised by the first respondent against the validity of the proviso on the
ground that it contravenes Articles 20(1) and 31(2) of the
Constitution..…”

13 AIR 1960 SC 378
76
In the context of ‘personal law’, it was submitted, that in Shabnam Hashmi
v. Union of India14, the Court had recently refused to examine the
constitutional validity of ‘personal laws’, when the issue could be plainly
decided on the interpretation of the concerned statute. It was therefore
contended, that through a purely interpretative exercise, this Court should
declare ‘talaq-e-biddat’ as illegal, ineffective and having no force in law, in
the same manner as the Gauhati High Court and the Delhi High Court,
have previously so held. It was submitted, that the same declaration be
given by this Court, by an interpretation of ‘personal law’, as would
incorporate the ingredients of the permissible and acceptable modes of talaq
into ‘talaq-e-biddat’.
42. In the present determination, learned senior counsel submitted,
that it would be essential to recognize the existence of distortions in the
‘hadiths’. It was pointed out, that it was by now well settled, that there
were various degrees of reliability and/or authenticity of different ‘hadiths’
(reference in this behalf was made to – Principles of Mohomedan Law by Sir
Dinshaw Fardunji Mulla, LexisNexis, Butterworths Wadhwa, Nagpur, 20th
edition). It was the contention of learned senior counsel, that the All India
Muslim Personal Law Board (hereinafter referred to as, the AIMPLB), had
relied on ‘hadiths’, that were far removed from the time of the Prophet. It
was submitted, that they were therefore far less credible and authentic, and
also distorted and unreliable, as against the ‘hadiths’ taken into
consideration in the judgments rendered by the High Courts (-for details,

14 (2014) 4 SCC 1
77
refer to Part-6 – Judicial pronouncements, on the subject of ‘talaq-ebiddat’).
It was pointed out, that the AIMPLB had relied upon a later
‘hadith’ (that is, Sunan Bayhaqi 7/547). It was pointed out, that when
compared to the ‘hadith’ of Bhukahri (published by Darussalam, Saudi
Arabia), the ‘hadith’ relied upon by the AIMPLB appeared to be a clear
distortion. It was also submitted, that the ‘hadith’ relied upon by the
AIMPLB, was not found in the Al Bukhari Hadiths, and as such, it would be
inappropriate to place reliance on the same. As against the submissions
advanced on behalf of AIMPLB, it was pointed out (in rejoinder), that Sahih
Muslims believe, that during the Prophet’s time, and that of the First Caliph
Abu Baqhr and the Second Caliph Umar, pronouncements of ‘talaq’ by three
consecutive utterances were treated as one. Reference in this behalf was
made to “Sahih Muslim” compiled by Al-Hafiz Zakiuddin Abdul-Azim AlMundhiri,
and published by Darussalam. Learned senior counsel also
invited this Court’s attention to “The lawful and the prohibited in Islam” by
Al-Halal Wal Haram Fil Islam (edition – August 2009), which was of
Egyptian origin. It was pointed out, that Egypt was primarily a Sunni
Hanafi nation. It was submitted, that the text of the above publication,
clearly showed, that the practice of instant talaq was described sinful, and
was to be abhorred. Reference was also made to “Woman in Islamic
Shariah” by Maulana Wahiduddin Khan (published by Goodword Books,
reprinted in 2014), wherein it is opined, that triple talaq pronounced on a
singular occasion, would be treated as a single pronouncement of talaq, in
terms of the ‘hadith’ of Imam Abu Dawud in Fath al-bari 9/27. It was
78
submitted, that the views of the above author, were also relied upon by the
Delhi High Court in the Masroor Ahmed case4. Reference was also made to
“Marriage and family life in Islam” by Prof. (Dr.) A. Rahman (Adam
Publishers and Distributors, New Delhi, 2013 edition), wherein by placing
reliance on a Hanafi Muslim scholar, it was expressed that triple talaq was
not in consonance with Quranic verses. Reliance was also placed on “Imam
Abu Hanifa – Life and Work” by Allamah Shiblinu’mani’s of Azamgarh, who
founded the Shibli College in the 19th century. It was submitted, that Abu
Hanifa himself ruled, that it was forbidden to give three divorces at the
same time, and whoever did so was a sinner. Based on the aforestated
submissions, it was the pointed contention of learned senior counsel, that
there was no credibility in the position adopted by the AIMPLB, in its
pleadings to demonstrate the validity of the practice of ‘talaq-e-biddat’.
43. Based on the above submissions, it was contended, that the
judgment rendered by the Privy Council in the Rashid Ahmad case1 with
reference to the validity of ‘talaq-e-biddat’ needed to be overruled. Since
‘talaq-e-biddat’ cannot be traced to the Quran, and since the Prophet
himself deprecated it, and since ‘talaq-e-biddat’ was considered sinful by all
schools of Sunni Muslims, and as invalid by all the Shia Muslim schools, it
could not be treated to be a part of Muslim ‘personal law’. It was asserted,
that triple talaq was not in tune with the prevailing social conditions, as
Muslim women were vociferously protesting against the practice. Learned
senior counsel solicited, that this Court in order to resolve the present
dispute, declare that the pronouncement of triple talaq by a Muslim
79
husband, in order to divorce his wife, would be treated as a single
pronouncement of talaq, and would have to follow the procedure of ‘talaq-eahsan’
(or, ‘talaq-e-hasan’) in accordance with the Quran, so as to conclude
a binding dissolution of marriage by way of ‘talaq’, in terms of Muslim
‘personal law’.
44. Ms. Indira Jaising, Senior Advocate, was the third counsel to
represent the cause of the petitioners. She entered appearance on behalf of
respondent no.7 – Centre for Study of Society and Secularism, which came
to be added as a party respondent vide an order dated 29.6.2016. It was the
contention of learned senior counsel, that the term ‘personal laws’ had not
been defined in the Constitution, although there was reference to the same
in entry 5 of the Concurrent List of the Seventh Schedule. Learned counsel
referred to Article 372 of the Constitution which mandates, that all laws in
force, in the territory of India immediately before the commencement of the
Constitution, “shall” continue in force until altered or repealed or amended
by a competent legislature (or other competent authority). It was submitted,
that on personal issues, Muslims were governed by the Muslim ‘personal
law’ – Shariat. It was contended, that even before, the commencement of the
Constitution, the Muslim Personal Law (Shariat) Application Act, 1937
enforced Muslim ‘personal law’, and as such, the Muslim ‘personal law’
should be considered as a “law in force”, within the meaning of Article
13(3)(b). It was pointed out, that the instant position made the legal
position separate and distinct from what ordinarily falls in the realm of
‘personal law’. It was also highlighted, that a reading of entry 5 in the
80
Concurrent List of the Seventh Schedule, leaves no room for any doubt, that
‘personal law’ necessarily has to have nexus, to issues such as marriage
and divorce, infants and minors, adoptions, wills, intestacy and succession,
joint family property and partition, etc. It was contented, that ‘personal law’
could therefore conveniently be described as family law, namely, disputes
relating to issues concerning the family. It was pointed out, that such family
law disputes, were ordinarily adjudicated upon by the Family Courts, set up
under the Family Courts Act, 1984. The matters which arise for
consideration before the Family Courts are disputes of marriage (namely,
restitution of conjugal rights, or judicial separation, or dissolution of
marriage), and the like. Based on the above backdrop, it was submitted,
that it could be safely accepted that ‘personal law’ deals with family laws
and law of succession such as marriage, divorce, child custody, inheritance,
etc.
45. Based on the foundation recorded in the preceding paragraph, it
was submitted, that the question in the present controversy was, whether
“rule of decision” (the term used in Section 2, of the Shariat Act) could be
challenged, on the ground that the same was violative of the fundamental
rights postulated in Part III of the Constitution? It was the pointed
contention of learned counsel, that no “rule of decision” can be violative of
Part III of the Constitution. It was acknowledged (we would say – fairly),
that ‘personal law’ which pertained to disputes between the family and
private individuals (wherein the State has no role), cannot be subject to a
challenge, on the ground of being violative of the fundamental rights
81
enshrined in Part III of the Constitution. It was submitted, that insofar as
Muslim ‘personal law’ is concerned, it could no longer be treated as
‘personal law’, because it had been statutorily declared as “rule of decision”
by Section 2 of the Shariat Act. It was therefore asserted, that all questions
pertaining to Muslims, ‘personal law’ having been described as “rule of
decision” could no longer be treated as private matters between parties, nor
can they be treated as matters of mere ‘personal law’. It was therefore
contended, that consequent upon the inclusion/subject of the question of
“…dissolution of marriage, including talaq, ila, zihar, lian, khula and
mubaraat,…”, amongst Muslims in the statute book, the same did not
remain a private matter between the parties. And as such, all
questions/matters, falling within the scope of Section 2 aforementioned,
were liable to be considered as matters of ‘public law’. Learned senior
counsel therefore asserted, that no one could contest the legitimacy of a
challenge to ‘public law’ on the ground of being violative of the provisions of
the Constitution. In support of the aforesaid foundational premise, learned
senior counsel placed reliance on Charu Khurana v. Union of India15, to
contend that ‘talaq-e-biddat’ should be considered as arbitrary and
discriminatory, under Articles 14 and 15, in the same manner as the rule
prohibiting women make-up artists and hair dressers from becoming
members of registered make-up artists and hair dressers association, was
so declared. It was also pointed out, that discrimination based on sex was
opposed to gender justice, which position was clearly applicable to the

15 (2015) 1 SCC 192
82
controversy in hand. Insofar as the instant aspect of the matter is
concerned, learned counsel placed reliance on the following observations
recorded in the above judgment:
“46. These bye-laws have been certified by the Registrar of Trade Unions
in exercise of the statutory power. Clause 4, as is demonstrable, violates
Section 21 of the Act, for the Act has not made any distinction between
men and women. Had it made a bald distinction it would have been
indubitably unconstitutional. The legislature, by way of amendment in
Section 21-A, has only fixed the age. It is clear to us that the clause,
apart from violating the statutory command, also violates the
constitutional mandate which postulates that there cannot be any
discrimination on the ground of sex. Such discrimination in the access of
employment and to be considered for the employment unless some
justifiable riders are attached to it, cannot withstand scrutiny. When the
access or entry is denied, Article 21 which deals with livelihood is
offended. It also works against the fundamental human rights. Such
kind of debarment creates a concavity in her capacity to earn her
livelihood.
xxx xxx xxx
50. From the aforesaid enunciation of law, the signification of right to
livelihood gets clearly spelt out. A clause in the bye-laws of a trade
union, which calls itself an Association, which is accepted by the
statutory authority, cannot play foul of Article 21.”
46. Learned senior counsel, thereupon attempted to express the same
position, through a different reasoning. It is necessary to recall, that the
question posed for consideration is, whether this Court should accept “rule
of decision” under Section 2 of the Shariat Act – as “laws in force” within the
meaning of Article 13 of the Constitution, and thereby, test the validity
thereof, on the touchstone of the fundamental rights enshrined in Part III of
the Constitution? It was the fervent contention of learned senior counsel,
that all questions falling for consideration within the meaning of the term
“rule of decision” had necessarily to be treated as “laws in force”. Thus, it
was submitted, that such laws were to be in consonance with the provisions
of Part III – Fundamental Rights, of the Constitution. Insofar as the
83
challenge to the constitutional validity of ‘talaq-e-biddat’ is concerned,
learned senior counsel, adopted the submissions advanced by other learned
counsel.
47. Learned senior counsel, then placed reliance on the Universal
Declaration of Human Rights adopted by the United Nations General
Assembly on 10.12.1948, to contend that the preamble thereof recognised
the inherent dignity of the entire human family, as equal and inalienable.
It was submitted, that the charter provides for equal rights to men and
women. It was submitted, that Article 1 thereof provides, that all human
beings were born free and equal, in dignity and rights. Referring to Article
2, it was submitted, that there could be no distinction/discrimination on
the basis inter alia of sex and/or religion. It was submitted, that it was this
Court’s responsibility to widen, and not to narrow, the right of equality
contained in the aforestated Declaration. The Court’s attention was also
drawn to the International Convention on Economic, Social and Cultural
Rights (ICESCR), which provided for elimination of all forms of
discrimination against women. The instant convention was adopted by the
United Nations General Assembly on 10.04.1979. It was submitted, that
the International Convention bill of rights for women, was instituted on
3.9.1981, and had been ratified by 189 States. It was pointed out, that
India had also endorsed the same. It was submitted, that Article 1 thereof
defines “discrimination”, as discrimination against women on the basis of
sex. Referring to Article 2, it was submitted, that all State parties who
ratified the above convention, condemned discrimination against women in
84
all its forms, and agreed to eliminate discrimination against women by
following the principle of equality amongst men and women, in their
national Constitutions, as well as, other legislations. It was submitted, that
Article 2 of the convention mandates, that all States would take all steps to
eliminate discrimination against women – by any person, organisation or
enterprise. It was submitted, that insofar as the present controversy is
concerned, the provisions of the above declarations and conventions can be
relied upon, to test the validity of ‘talaq-e-biddat’, by treating it as “rule of
decision” and for that matter, as law in force (on the touchstone of Articles
14, 15 and 21 of the Constitution). It was further submitted, that in any
case, the practice of ‘talaq-e-biddat’, clearly violated the norms adopted by
the declaration, and conventions.
48. It was acknowledged, by learned senior counsel, that India
recognises a plural legal system, wherein different religious communities
are permitted to be governed by different ‘personal laws’, applicable to them.
It was submitted, that there could be no dispute, that different religious
communities can have different laws, but the laws of each religious
community must meet the test of constitutional validity and/or
constitutional morality, inasmuch as, they cannot be violative of Articles 14
and 15 of the Constitution. Viewed in the above context, it was submitted,
that even though matters of faith and belief are protected by Article 25 of
the Constitution, yet law relating to marriage and divorce were matters of
faith and belief, were also liable to be tested on grounds of public order,
morality and health, as well as, on the touchstone of the other provisions of
85
Part III of the Constitution. Therefore, on a plain reading of Article 25,
according to learned senior counsel, the right to freedom of conscience was
subject to public order, morality, health, and the other provisions contained
in Part III of the Constitution. And as such, according to learned counsel,
the said rights must be so interpreted, that no ‘personal law’ negates any of
the postulated conditions contained in Article 25 of the Constitution itself.
It was submitted, that Articles 14 and 15 of the Constitution were not
subject to any restrictions, including any restriction under Article 25 or 26
of the Constitution. It was contended, that the cardinal principle of
interpretation of the Constitution was, that all provisions of the
Constitution must be harmoniously construed, so that there remained no
conflict between them. It was therefore submitted, that Articles 14 and 15
on the one hand, and Articles 25 and 26 on the other, must be
harmoniously construed with each other, to prevent discrimination against
women, in a manner as would give effect to equality, irrespective of gender.
It was contended, that it was totally irrelevant whether ‘personal law’ was
founded on custom or religion, or was codified or uncodified, if it is law and
“rule of decision”, it can be challenged under Part III of the Constitution.
49. Learned senior counsel, also expressed a personal view on the
matter, namely, that divorce altered the status of married women, which
can leave her destitute. It was asserted, that for all other communities in
India, divorce could only be obtained from a judicial forum. And, a
judgment and decree of divorce, was a decision in rem, which alters the legal
status of the concerned person, as against the whole world. It was
86
submitted, that for all other communities in India, divorce was not a matter
between the private parties, to be settled on their own. Nor could any
‘fatwa’ be issued, recognising unilateral ‘talaq’. It was submitted, that for
one party alone, the right to annul a marriage, by a unilateral private ‘talaq’,
was clearly against public policy, and required to be declared as
impermissible in law, and even unconstitutional. In this behalf, it was
contended, that no person’s status could be adversely altered so as to suffer
civil consequences (for the concerned person – the wife in this case) by a
private declaration. It was submitted, that annulment of the matrimonial
bond was essentially a judicial function, which must be exercised by a
judicial forum. Any divorce granted by way of a private action, could not be
considered as legally sustainable in law. And for the instant additional
reason, it was submitted, that unilateral talaq in the nature of talaq-ebiddat,
whereby, a Muslim woman’s status was associated with adverse civil
consequences, on the unilateral determination of the male spouse, by way
of a private declaration, must be considered (-and therefore, be held) as
clearly unsustainable in law.
50. Mr. Salman Khurshid, Senior Advocate, appearing as an intervener,
submitted, that for searching a solution to a conflict, or for the resolution of
a concern under Islamic law, reference had first to be made to the Quran.
The availability of an answer to the disagreement, from the text of the
Quran, has to be treated as a final pronouncement on the issue. When
there is no clear guidance from the Quran, reference must be made to the
traditions of the Prophet Muhammad – ‘sunna’, as recorded in the ‘hadiths’.
87
If no guidance is available on the issue, even from the ‘hadiths’, reference
must then be made to the general consensus of opinion – ‘ijma’. If a
resolution to the dispute is found in ‘ijma’, it should be considered as a final
view on the conflicting issue, under Islamic law. It was submitted, that the
precaution that needed to be adopted while referring to ‘hadiths’ or ‘ijma’
was, that neither of the two can derogate from the position depicted in the
Quran.
51. Learned senior counsel, then invited our attention to different kinds
of ‘talaq’, including ‘ila’, ‘zihar’, ‘khula’ and ‘mubaarat’. It was emphasised,
that the concept of ‘talaq-e-biddat’ (also described as irregular talaq), was
based on the limit of three talaqs available to a man, namely, that a man
can divorce the same wife (woman) three times in his life time. The first two
are revocable within the period of ‘iddat’, whereas, the third talaq was
irrevocable. Learned senior counsel, then invited the Court’s attention to
verses from the Quran (-for details, refer to Part-3 – The Holy Quran, with
reference to ‘talaq’). However, during the course of his submissions, learned
senior counsel emphasized the fact, that mere repetition of divorce thrice in
one sitting, would not result in a final severance of the matrimonial
relationship between spouses. In order to support his above contention,
reliance was placed on the following traditions, from Sunna Muslim:
“i. [3652] 1 – (1471) It was narrated from Ibn ‘Umar that he divorced his
wife while she was menstruating, at the time of the Messenger of Allah
‘Umar bin Al-Khattâb asked the Messenger of Allah about that and the
Messenger of Allah said to him: “Tell him to take her back, then wait
until she has become pure, then menstruated again, then become pure
again. Then if he wishes he may keep her, or if he wishes he may divorce
her before he has intercourse with her. That is the ‘Iddah (prescribed
periods) for which Allah has enjoined the divorce of women.”
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ii. [3673] 15 – (1472) It was narrated that Ibn ‘Abbâs said: “During the
time of the Messenger of Allah it, Abü Bakr and the first two years of
‘Umar’s Khjlâfah, a threefold divorce (giving divorce thrice in one sitting)
was counted as one. Then ‘Umar bin Al-Khattâb said : ‘People have
become hasty in a matter in which they should take their time. I am
thinking of holding them to it.’ So he made it binding upon them.”
iii. [3674] 16 – (…) Ibn Tawüs narrated from his father that Abü AsSahbâ’
said to Ibn ‘Abbâs: “Do you know that the threefold divorce was
regarded as one at the time of the Messenger of Allah iW and Abü Bakr,
and for three years of ‘Umar’s leadership? “He said: “Yes”.
iv. [3675] 17 – (…) It was narrated from Tawüs that AN As-Sahbâ’ said to
Ibn ‘Abbâs: “Tell us of something interesting that you know. Wasn’t the
threefold divorce counted as one at the time of the Messenger of Allah
and Abü Bakr?” He said: “That was so, then at the time of ‘Umar the
people began to issue divorces frequently, so he made it binding upon
them.
v. “Mahmud-b, Labeed reported that the Messenger of Allah was
informed about a man who gave three divorces at a time to his wife.
Then he got up enraged and said, ‘Are you playing with the Book of Allah
who is great and glorious while I am still amongst you? So much so that
a man got up and said; shall I not kill him.”
vi. According to an Hadith quoted by M. Mohammed Ali in Manual of
Hadeth p. 2861 from Masnad of Imam Ahmad bin Hanbul 1:34, the
procedure during the time of Prophet and the caliphate of Abu Bakr, and
the first two years of Hazrat Umar was that divorce uttered thrice was
considered as one divorce. The Umar said, “people had made haste in a
matter in which that was moderation for them, so we may make it take
effect with regard to them. So he made it take effect to them.” The Holy
Quran is however very clear on the point that such a divorce must be
deemed to be a single divorce.
vii. There is another tradition reported by Rokanah-b. Abu Yazid that
he gave his wife Sahalmash an irrevocable divorce, and he conveyed it to
the Messenger of Allah and said: by Allah, I have not intended but one
divorce. Then messenger of Allah asked Have you not intended but one
(divorce)? Rokana said: By Allah, I did not intend but one divorce. The
Messenger of Allah then returned her back to him. Afterwards he
divorced her for second time at the time of Hadrat Omar and third time
at the time of Hadrat Osman.
viii. The Quranic philosophy of divorce is further buttressed by the
Hadith of the Prophet wherein he warned, ‘of all things which have been
permitted, divorce is the most hated by Allah’. The Prophet told his
people: “Al-Talaqu indallah-I abghad al-mubahat”, meaning “Divorce is
most detestable in the sight of God; abstain from it.”
ix. [2005] 43 – (867) It was narrated that Jâbir bin ‘Abdullâh said:
“When the Messenger of Allah delivered a Khutbah, his eyes would turn
red, his voice would become loud, and his anger would increase, until it
was as if he was warning of an attacking army, saying: ‘The enemy will
attack in the morning or in the evening.’ He said: ‘The Hour and I have
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been sent like these two,’ and he held his index finger and middle finger
up together. And he would say: ‘The best of speech is the Book of Allah,
the best of guidance is the guidance of Muhammad, and the worst of
matters are those which are newly-invented, and every innovation is a
going astray.’ Then he would say: ‘I am closer to every believer than his
own self. Whoever leaves behind wealth, it is for his family; whoever
leaves behind a debt or dependants, then the responsibility of paying it
off and of caring for them rests upon me.
x. [2006] 44 – (…) Jâbir bin ‘Abdullâh said: “In the Khutbah of the
Prophet on Friday, he would praise Allah, then he would say other
things, raising his voice…” a similar Hadith (as no.2005).
xi. [4796] 59 – (1852) It was narrated that Ziyâd bin ‘Ilâqah said: “I heard
‘Arfajah say: ‘I heard the Messenger of Allah say: “There will be Fitnah
and innovations. Whoever wants to divide this Ummah when it is
united, strike him with the sword, no matter who he is.”
xii. [4797] (…) A similar report (as no.2796) was narrated from ‘Arfajah
from the Prophet, except that in their Hadith it says: “…kill him”.”
Based on the above, it was submitted, that in terms of the clear message in
the Quran, the acts and sayings of the Prophet Muhammad are to be
obeyed. Therefore, when the aforementioned ‘hadiths’ are available stating
in clear terms, that the Prophet Muhammad, considered the
pronouncement of three divorces in one sitting as one, that should be given
due expression. It was the contention of learned senior counsel, that it is
reported, that when once news was brought to the Prophet Muhammad,
that one of his disciples had divorced his wife, by pronouncing three talaqs
at one and the same time, the Prophet Muhammad stood up in anger and
declared that the man was making a plaything of the words of God, and
made him take back his wife. The instance, which is supported by
authentic support through available text, according to learned senior
counsel, was sufficient by itself, to dispose of the present controversy.
52. It was also submitted, that even if one examines the deeds of the
Prophet Muhammad’s companions, it was quite clear from the ‘hadiths’,
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that the same were followed during Caliph Abu Bakr’s time, and also during
the first two years of Caliph Umar. But thereafter, only to meet an
exigency, Caliph Umar started accepting the practice of pronouncing three
divorces in one sitting, as final and irrevocable. Insofar as the instant
aspect of the matter is concerned, learned senior counsel narrated the
following background:
“(a) Caliph Umar, finding that the checks imposed by the Prophet on the
facility of repudiation interfered with the indulgence of their caprice,
endeavoured to find an escape from the strictness of the law, and found
in the pliability of the jurists a loophole to effect their purpose.
(b) When the Arabs conquered Syria, Egypt, Perisa, etc. they found
women there much better in appearance as compared to Arabian women
and hence they wanted to marry them. But the Egyptian and Syrian
women insisted that in order to marry them, they should divorce their
existing wives instantaneously, by pronouncing three divorces in one
sitting.
(c) The condition was readily acceptable to the Arabs, because they knew
that in Islam divorce was permissible only twice in two separate period of
tuhr and its repetition in one sitting was considered un-Islamic, void and
not effective. In this way, they could not only marry these women, but
also retain their existing wives. This fact was reported to the second
Caliph Hazrat Umar.
(d) The Caliph Umar then, in order to prevent misuse of the religion by
the unscrupulous husbands decreed, that even repetition of the word
talaq, talaq, talaq at one sitting, would dissolve the marriage irrevocably.
It was, however, a mere administrative measure of Caliph Umar, to meet
an emergency situation, and not to make it a legally binding precedent
permanently.”
53. It was also the contention of learned senior counsel, that Hanafi
jurists who considered three pronouncements at one sitting, as amounting
to a final divorce explained, that in those days people did not actually mean
three divorces but meant only one divorce, and other two pronouncements
were meant merely to emphasise the first pronouncement. But in the
contemporary era, three pronouncements were made with the intention to
effect three separate and distinct declarations, and hence, they were not to
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be counted as a singular announcement. This interpretation of the Hanafi
jurists, it was submitted, was generally not acceptable, as it went against
the very spirit of the Quran, as well as, the ‘hadith’ which enjoin, that in
case of breach between husband and wife, it should be referred to the
arbitration, and failing an amicable settlement, a divorce was permissible,
subject to a period of waiting or ‘idaat’, during which a reconciliation was
also to be attempted, and if successful, the husband could take back his
wife. The main idea in the procedure for divorce, as laid down by Islam, it
was submitted, was to give the parties an opportunity for repproachment. If
three pronouncements are treated as a ‘mughallazah’ – divorce, then no
opportunity is available to the spouses, to retrieve a decision taken in haste.
The rule of ‘talaq-e-biddat’, it was pointed out, was introduced long after the
time of the Prophet. It was submitted, that it renders the measures
provided for in the Quran against hasty action ineffective, and thereby
deprives people of a chance to change their minds, to retrieve their mistakes
and retain their wives.
54. Based on the above submissions, it was contended, that though
matters of religion have periodically come before courts in India, and the
issues have been decided in the context of Articles 25 and 26 of the
Constitution. Raising concerns over issues of empowerment of all citizens
and gender justice, it was submitted, had increased the demand on courts
to respond to new challenges. The present slew of cases, it was pointed out,
was a part of that trend. It was submitted, that the Supreme Court could
not refuse to engage itself, on the ground that the issues involved have
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political overtones or motives, and also because, they might pertain to a
narrow constitutional permissibility. It was contended, that to refuse an
invitation to examine broader issues such as whether ‘personal laws’ were
part of ‘laws in force’ under Article 13, and therefore, subject to judicial
review, or whether a uniform civil code should be enforced, would not be
appropriate. It was submitted, if the immediate concern about triple talaq
could be addressed, by endorsing a more acceptable alternate
interpretation, based on a pluralistic reading of the sources of Islam, i.e., by
taking a holistic view of the Quran and the ‘hadith’ as indicated by various
schools of thought (not just the Hanafi school), it would be sufficient for the
purpose of ensuring justice to the petitioners, and others similarly
positioned as them.
55. In support of his above submissions, learned senior counsel placed
reliance on legislative changes with reference to ‘talaq-e-biddat’ all over the
world (-for details, refer to Part-5 – Abrogation of the practice of ‘talaq-ebiddat’
by legislation, the world over, in Islamic, as well as, non-Islamic
States). Reliance was also placed on judicial pronouncements, rendered by
different High Courts with reference to ‘talaq-e-biddat’ (-for details, refer to
Part-6 – Judicial pronouncements, on the subject of ‘talaq-e-biddat’), so as
to conclude, that triple talaq pronounced at the same time should be
treated as a single pronouncement of divorce, and thereafter, for severing
matrimonial ties, the husband would have to complete the prescribed
procedure provided for ‘talaq-e-ahsan’/‘talaq-e-hasan’, and only thereafter,
the parties would be treated as divorced.
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56. While advancing his aforesaid contention, there was also a note of
caution expressed by learned senior counsel. It was pointed out, that it was
not the role of a court, to interpret Muslim ‘personal law’ – Shariat. It was
asserted, that under Muslim ‘personal law’, the religious head – the Imam
would be called upon, to decipher the teachings of the Quran and the
‘hadiths’ in case of a conflict. And thereupon, the Imam had the
responsibility to resolve issues of conflict, not on the basis of his own views,
but by reading the verses, namely, the Quran and the ‘hadiths’, and to
determine therefrom, the correct interpretation. It was submitted, that the
role of a court, not being a body well versed in the intricacies of faith, would
not extend to an interpretation of either the Quran or the ‘hadiths’, and
therefore, ‘talaq-e-biddat’ should also be interpreted on the touchstone of
reasonableness, in tune with the prevailing societal outlook.
57. Ms. Nitya Ramakrishna, Advocate, appeared on behalf of
respondent no.11 (in Writ Petition (C) No.118 of 2016) - Dr. Noorjehan Safia
Niaz, who was impleaded as such, by an order dated 29.6.2016. It was
submitted by learned counsel, that ‘talaq-e-biddat’ was a mode of divorce
that operated instantaneously. It was contended, that the practice of ‘talaqe-biddat’,
was absolutely invalid even in terms of Muslim ‘personal law’ –
‘Shariat’. It was submitted, that it was not required of this Court to strike
down the practice of ‘talaq-e-biddat’, it was submitted, that it would suffice
if this Court merely upholds the order passed by the Delhi High Court in
the Masroor Ahmed case4, by giving a meaningful interpretation to ‘talaq-e-
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biddat’, which would be in consonance with the verses of the Quran and the
relevant ‘hadiths’.
58. It was also asserted by learned counsel, that Islam from its very
inception recognized rights of women, which were not available to women of
other communities. It was pointed out, that the right of divorce was
conferred on Muslim women, far before this right was conferred on women
belonging to other communities. It was asserted, that even in the 7th
century, Islam granted women the right of divorce and remarriage. The
aforesaid legal right, according to learned counsel, was recognized by the
British, when it promulgated the Shariat Act in 1937. It was submitted,
that through the above legislation all customs and usages contrary to the
Muslim ‘personal law’ – ‘Shariat’, were unequivocally annulled. It was
therefore contended, that while evaluating the validity of ‘talaq-e-biddat’,
this Court should be conscious of the fact, that the Muslim ‘personal law’ –
‘Shariat’, was a forward looking code of conduct, regulating various features
in the lives of those who professed the Muslim religion.
59. It was also submitted, that the Quran did not recognize ‘talaq-ebiddat’.
It was pointed out, that the Prophet Muhammad considered only
two forms of divorce to be valid, namely, ‘talaq-e-ahsan’ and ‘talaq-e-hasan’.
Despite there being numerous schools of Muslim jurisprudence, only two
schools recognized ‘talaq-e-biddat’ as a mode of divorce. It was submitted,
that none of the Shia schools recognized triple talaq, as a valid process of
divorce between spouses. Insofar as ‘talaq-e-biddat’ is concerned, it was
asserted, that the Quran does not approve instantaneous talaq. During the
95
process of initiation of divorce and its finalization, it is necessarily to have a
time lag and a timeline. It cannot be instantaneous. It was pointed out,
that the time lag is the period of ‘iddat’ for determining whether the wife is
pregnant or not, i.e., for ascertaining the wife’s purity. But the time line, is
for adopting arbitration, to probe the possibility of reconciliation. ‘Talaq-ebiddat’,
according to learned counsel, was a subsequent improvisation, that
had crept into the Hanafi school of Sunnis. It was asserted, that the British
judges prior to independence, made a huge blunder by upholding ‘talaq-ebiddat’
– triple talaq. Learned counsel placed reliance on a number of
judgments rendered by different High Courts, culminating in the recent
judgments of three High Courts (-for details, refer to Part-6 – Judicial
pronouncements, on the subject of ‘talaq-e-biddat’).
60. Based on the above, it was asserted, that ‘talaq-e-biddat’ could not
be considered as a valid mode for severing matrimonial ties under the
Muslim ‘personal law’ – ‘Shariat’. In view of the above submissions, and on
a reiteration of the submissions advanced by learned counsel who had
entered appearance prior to her, it was submitted, that the clear
preponderance of judicial opinion after independence of India has been, that
Muslim ‘personal law’, does not approve ‘talaq-e-biddat’, and therefore, in
terms of the Muslim ‘personal law’, this Court should declare ‘talaq-ebiddat’,
as unacceptable in law, and should also declare it as
unconstitutional.
61. Dr. Rajan Chandra and Mr. Arif Mohd. Khan, Advocates, appeared
on behalf of the Muslim Women Personal Law Board. It was their
96
contention, that it has been acknowledged by all concerned, including the
AIMPLB, that ‘talaq-e-biddat’ was derogatory to the dignity of women, and
that, it breaches the concept of gender equality. It was submitted, that the
above position could easily be remedied through judicial intervention. In
this behalf, our attention was drawn to Article 13 of the Constitution, which
mandates, that all laws in force in the territory of India (immediately before
the commencement of the Constitution), as were inconsistent with the
Fundamental Rights contained in Part III of the Constitution, were to the
extent of such inconsistency, to be treated as void. The above declaration,
it was pointed out, had to be expressed through legislation, by the
Parliament, and in case the Parliament was reluctant in bringing out such a
legislation (-presumably, for political considerations), it was the bounden
duty of this Court, to declare such existing laws which were derogatory to
the dignity of women, and which violated the concept of gender equality, as
void, on account of their being in conflict with the fundamental rights
contained in Part III of the Constitution. Both learned counsel, invited our
attention to the legislative march of events commencing from the enactment
of the Shariat Act in 1937, by the British rulers of India, who took upon
themselves, extreme cudgels to initiate the grant of appropriate rights to
women. As also, the enactment of the Dissolution of Muslim Marriages Act,
1939 (again during the British regime), whereby, Muslim women were
conferred with a right to divorce their husbands, on eight distinct grounds.
It was submitted, that the protection of Muslim women’s rights, which
needed to have continued even after independence, had remained stagnant,
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resulting in insurmountable sufferings to the Muslim women, specially in
comparison with women of other faiths. One of the grounds of such
suffering, it was pointed out, was surely ‘talaq-e-biddat’ – triple talaq, which
has been a matter of substantial furore and outcry at the hands of Muslim
women. During the course of hearing, our attention was drawn to
fundamentals of Islam from the Quran (-for details, refer to Part-3 – The
Holy Quran – with reference to ‘talaq’), and ‘hadiths’. Views of Imams on
‘fiqh’ and ‘hadith’ and other relevant texts were referred to (as were also
relied upon by learned counsel who appeared before them – and have been
duly referred to above), to contend that triple talaq had never been accepted
as a valid means of divorce, even under the Muslim ‘personal law’. Adopting
the submissions of learned counsel, who had already assisted this Court on
behalf of the petitioners, it was submitted, that this Court should declare
‘talaq-e-biddat’, as unconstitutional and violative of Articles 14 and 15 of
the Constitution.
62. The learned Attorney General for India – Mr. Mukul Rohatgi
commenced his submissions by contending, that in this case, this Court
has been called upon to determine, whether the practice of ‘talaq-e-biddat’
was compatible with contemporary constitutional morality and the
principles of gender equality and gender equity guaranteed under the
Constitution. In the context of the above debate, it was submitted, that the
pivotal issue that needed to be answered was, whether under a secular
Constitution, Muslim women could be discriminated against, merely by
virtue of their religious identity. And/or whether Muslim women, could be
98
relegated to a status significantly more vulnerable than their counterparts
who professed other faiths - Hindu, Christian, Zoroastrian, Buddhist, Sikh,
Jain, etc.. In other words, the fundamental question for determination by
this Court, according to learned Attorney General was, whether in a secular
democracy, religion can be a reason to deny equal status and dignity, to
Muslim women.
63. In the above context, it was pointed out, that the fundamental right
to equality guaranteed under Article 14 of the Constitution, manifested
within its fold, equality of status. Gender equality, gender equity and
gender justice, it was submitted, were values intrinsically entwined in the
guarantee of equality, under Article 14. The conferment of a social status
based on patriarchal values, or a social status based on the mercy of the
men-folk, it was contended, were absolutely incompatible with the letter
and spirit of Articles 14 and 15 of the Constitution. The rights of a Muslim
woman to human dignity, social esteem and self-worth, it was submitted,
were vital facets of a woman’s right to life with dignity, under Article 21 of
the Constitution. It was submitted, that gender justice was a constitutional
goal of overwhelming importance and magnitude, without accomplishing the
same, half of the country’s citizenry, would not be able to enjoy to the fullest
- their rights, status and opportunities. Reference was also made to clause
(e) of Article 51-A of the Constitution, which is extracted below:
“(e) to promote harmony and the spirit of common brotherhood amongst
all the people of India transcending religious, linguistic and regional or
sectional diversities; to renounce practices derogatory to the dignity of
women;”
99
It was accordingly asserted, that Muslim women could not be subjected to
arbitrary and unilateral whims of their husbands, as in the case of divorce
by triple talaq amongst Shia Muslims belonging to the Hanafi school.
64. It was submitted, that gender equality and the dignity of women,
were non-negotiable. These rights were necessary, not only to realize the
aspirations of every individual woman, who is an equal citizen of this
country, but also, for the larger well being of society and the progress of the
nation, one half of which is made up by women. It was submitted, that
women deserved to be equal participants in the development and
advancement of the world’s largest democracy, and any practice which
denudes the status of an inhabitant of India, merely by virtue of the religion
he/she happens to profess, must be considered as an impediment to that
larger goal. In this behalf, reliance was placed on C. Masilamani Mudaliar
v. Idol of Sri Swaminathaswami Thirukoil16, wherein a 3-Judge Bench of
this Court observed as under:
“15. It is seen that if after the Constitution came into force, the right to
equality and dignity of person enshrined in the Preamble of the
Constitution, Fundamental Rights and Directive Principles which are a
trinity intended to remove discrimination or disability on grounds only of
social status or gender, removed the pre-existing impediments that stood
in the way of female or weaker segments of the society. In S.R.
Bommai v. Union of India [(1994) 3 SCC 1] this Court held that the
Preamble is part of the basic structure of the Constitution. Handicaps
should be removed only under rule of law to enliven the trinity of justice,
equality and liberty with dignity of person. The basic structure permeates
equality of status and opportunity. The personal laws conferring inferior
status on women is anathema to equality. Personal laws are derived not
from the Constitution but from the religious scriptures. The laws thus
derived must be consistent with the Constitution lest they become void
under Article 13 if they violate fundamental rights. Right to equality is a
fundamental right….

16 (1996) 8 SCC 525
100
16. The General Assembly of the United Nations adopted a declaration on
4-12-1986 on “The Development of the Right to Development” in which
India played a crusading role for its adoption and ratified the same. Its
preamble recognises that all human rights and fundamental freedoms
are indivisible and interdependent. All Nation States are concerned at the
existence of serious obstacles to development and complete fulfilment of
human beings, denial of civil, political, economic, social and cultural
rights. In order to promote development, equal attention should be given
to the implementation, promotion and protection of civil, political,
economic, social and political rights.
17. Article 1(1) assures right to development an inalienable human right,
by virtue of which every person and all people are entitled to participate
in, contribute to, and enjoy economic, social, cultural and political
development in which all human rights and fundamental freedoms can
be fully realised. Article 6(1) obligates the State to observance of all
human rights and fundamental freedoms for all without any
discrimination as to race, sex, language or religion. Sub-article (2)
enjoins that … equal attention and urgent consideration should be given
to implement, promotion and protection of civil, political, economic,
social and political rights. Sub-article (3) thereof enjoins that:
“State should take steps to eliminate obstacle to development,
resulting from failure to observe civil and political rights as well as
economic, social and economic rights. Article 8 casts duty on the State to
undertake, … necessary measures for the realisation of right to
development and ensure, inter alia, equality of opportunity for all in their
access to basic resources … and distribution of income.”
Effective measures should be undertaken to ensure that women have an
active role in the development process. Appropriate economic and social
reforms should be carried out with a view to eradicate all social injustice.
18. Human rights are derived from the dignity and worth inherent in the
human person. Human rights and fundamental freedom have been
reiterated by the Universal Declaration of Human Rights. Democracy,
development and respect for human rights and fundamental freedoms
are interdependent and have mutual reinforcement. The human rights
for women, including girl child are, therefore, inalienable, integral and
indivisible part of universal human rights. The full development of
personality and fundamental freedoms and equal participation by women
in political, social, economic and cultural life are concomitants for
national development, social and family stability and growth, culturally,
socially and economically. All forms of discrimination on grounds of
gender is violative of fundamental freedoms and human rights.”
Reference was also made to Anuj Garg v. Hotel Association of India17,
wherein it was submitted, that this Court had emphasized on the value of

17 (2008) 3 SCC 1
101
gender equality, and the need to discard patriarchal mindset. For arriving
at the above conclusion, it was submitted, that this Court had relied upon
international jurisprudence, to strike down a law which debarred women
from employment on the pretext that the object of the law was, to afford
them protection. The Court held that “it is for the court to review that the
majoritarian impulses rooted in moralistic tradition do not impinge upon
individual autonomy (of the women)”. The Court also quoted from a
judgment of the U.S. Supreme Court where discrimination was rationalized
“by an attitude of ‘romantic paternalism’ which, in practical effect, put
women, not on a pedestal, but in a cage…”. Reference was also made to
Vishaka v. State of Rajasthan18, wherein, in the context of protection of
women against sexual harassment at the workplace, this Court underlined
the right of women to a life with dignity. Additionally, our attention was
drawn to the Charu Khurana case15, wherein it was concluded, that the
“sustenance of gender justice is the cultivated achievement of intrinsic
human rights and that there cannot be any discrimination solely on the
ground of gender.” The learned Attorney General also cited, Githa
Hariharan v. Reserve Bank of India19, wherein this Court had the occasion
to interpret the provisions of the Hindu Minority and Guardianship Act,
1956. It was submitted, that this Court in the above judgment emphasized
the necessity to take measures to bring domestic law in line with
international conventions, so as to eradicate discrimination of all forms,
against women. It was submitted, that Articles 14, 15 and 21 consituted an

18 (1997) 6 SCC 241
19 (1999) 2 SCC 228
102
inseparable part of the basic structure of the Constitution. These values –
the right to equality, non-discrimination and the right to live life with
dignity, it was emphasized, formed the bedrock of the Constitution. Gender
equality and dignity for women, it was pointed out, was an inalienable and
inseparable part of the basic structure of the Constitution. Since women
transcend all social barriers, it was submitted, that the most fundamental
facet of equality under the Constitution was gender equality, and gender
equity.
65. The learned Attorney General also pointed out, that a large number
of Islamic theocratic countries and countries with overwhelmingly large
Muslim populations, had undertaken significant reforms including the
practice of triple talaq. These societies had accepted reform, as being
consistent with the practice of Islam (-for details, refer to Part-5 –
Abrogation of the practice of ‘talaq-e-biddat’ by legislation, the world over, in
Islamic, as well as, non-Islamic States). The paradox was that, Muslim
women in India, were more vulnerable in their social status as against
women even in predominantly Islamic States, even though India is a secular
country. It was submitted, that the position of Indian Muslim women was
much worst, than Muslim women who live in theocratic societies, or
countries where Islam is the State religion. It was contended, that the
impugned practice was repugnant to the guarantee of secularism, which it
was pointed out, was an essential feature of the Constitution. Perpetuation
of regressive or unjust practices in the name of religion, it was submitted,
was anathema to a secular Constitution, which guarantees non-
103
discrimination on grounds of religion. It was also submitted, that in the
context of gender equality and gender equity, the larger goal of the State
was, to strive towards the establishment of a social democracy, where each
one was equal to all others. Reference in this behalf was made to the
closing speech on the draft Constitution on 25th November, 1949, of Dr.
Ambedkar who had stated: “What we must do is not to be attained with
mere political democracy; we must make out political democracy and a
social democracy as well. Political democracy cannot last unless there lies
on the base of it a social democracy.” A social democracy has been
described as “A way of life which recognizes liberty, equality and fraternity
as principles of life”. It was therefore submitted, that in order to achieve
social democracy, and in order to provide social and economic justice
(envisaged in the preamble), namely, goals articulated in the fundamental
rights and directive principles, and in particular, Articles 14, 15, 16, 21, 38,
39 and 46, had to be given effect to. In the instant context, the learned
Attorney General placed reliance on Valsamma Paul v. Cochin University20,
and drew the Court’s attention to the following:
“16.The Constitution seeks to establish secular socialist democratic
republic in which every citizen has equality of status and of opportunity,
to promote among the people dignity of the individual, unity and integrity
of the nation transcending them from caste, sectional, religious barriers
fostering fraternity among them in an integrated Bharat. The emphasis,
therefore, is on a citizen to improve excellence and equal status and
dignity of person. With the advancement of human rights and
constitutional philosophy of social and economic democracy in a
democratic polity to all the citizens on equal footing, secularism has been
held to be one of the basic features of the Constitution (Vide: S.R.
Bommai v. Union of India, (1994) 3 SCC 1 and egalitarian social order is
its foundation. Unless free mobility of the people is allowed transcending

20 (1996) 3 SCC 545
104
sectional, caste, religious or regional barriers, establishment of secular
socialist order becomes difficult. In State of Karnataka v. Appu Balu
Ingale & Ors., AIR (1993) SC 1126 this Court has held in paragraph 34
that judiciary acts as a bastion of the freedom and of the rights of the
people. The Judges are participants in the living stream of national life,
steering the law between the dangers of rigidity and formlessness in the
seemless web of life. Judge must be a jurist endowed with the legislator's
wisdom, historian's search for truth, prophet's vision, capacity to
respond to the needs of the present, resilience to cope with the demands
of the future to decide objectively, disengaging himself/herself from every
personal influence or predilections. The Judges should adapt purposive
interpretation of the dynamic concepts under the Constitution and the
act with its interpretive armoury to articulate the felt necessities of the
time. Social legislation is not a document for fastidious dialects but
means of ordering the life of the people. To construe law one must enter
into its spirit, its setting and history. Law should be capable to expand
freedom of the people and the legal order can weigh with utmost equal
care to provide the underpinning of the highly inequitable social order.
Judicial review must be exercised with insight into social values to
supplement the changing social needs. The existing social inequalities or
imbalances are required to be removed readjusting the social order
through rule of law.…”
The learned Attorney General then submitted, that in paragraph 20 of the
Valsamma Paul case20, it was noted, that various Hindu practices which
were not in tune with the times, had been done away with, in the interest of
promoting equality and fraternity. In paragraph 21 of the above judgment,
this Court had emphasized the need to divorce religion from ‘personal law’.
And in paragraph 22, a mention was made about the need to foster a
national identity, which would not deny pluralism of Indian culture, but
would rather preserve it. Relevant extracts of the aforesaid judgment relied
upon during the course of hearing, are reproduced herein below:
“21. The Constitution through its Preamble, Fundamental Rights and
Directive Principles created secular State based on the principle of
equality and non-discrimination striking a balance between the rights of
the individuals and the duty and commitment of the State to establish
an egalitarian social order. Dr. K.M. Munshi contended on the floor of
the Constituent Assembly that "we want to divorce religion from personal
law, from what may be called social relations, or from the rights of
105
parties as regards inheritance or succession. What have these things got
to do with religion, I fail to understand? We are in a stage where we must
unify and consolidate the nation by every means without interfering with
religious practices. If, however, in the past, religious practices have been
so construed as to cover the whole field of life, we have reached a point
when we must put our foot down and say that these matters are not
religion, they are purely matters for secular legislation. Religion must be
restricted to spheres which legitimately appertain to religion, and the rest
of life must be regulated, unified and modified in such a manner that we
may evolve, as early as possible, a strong and consolidated nation" (Vide:
Constituent Assembly Debates, Vol. VII 356-8).
22. In the onward march of establishing an egalitarian secular social
order based on equality and dignity of person, Article 15(1) prohibits
discrimination on grounds of religion or caste identities so as to foster
national identity which does not deny pluralism of Indian culture but
rather to preserve it. Indian culture is a product or blend of several
strains or elements derived from various sources, in spite of
inconsequential variety of forms and types. There is unity of spirit
informing Indian culture throughout the ages. It is this underlying unity
which is one of the most remarkable everlasting and enduring feature of
Indian culture that fosters unity in diversity among different populace.
This generates and fosters cordial spirit and toleration that make
possible the unity and continuity of Indian traditions. Therefore, it would
be the endeavour of everyone to develop several identities which
constantly interact and overlap, and prove a meeting point for all
members of different religious communities, castes, sections, subsections
and regions to promote rational approach to life and society and
would establish a national composite and cosmopolitan culture and way
of life.”
66. It was also asserted, that patriarchal values and traditional notions
about the role of women in society, were an impediment to the goal for
achieving social democracy. In this behalf it was contended, that gender
inequity impacts not only women, but had a ripple effect on the rest of the
community, preventing it from shaking out of backwardness and partaking
to the full, liberties guaranteed under the Constitution. Citizens from all
communities, it was submitted, had the right to the enjoyment of all the
constitutional guarantees, and if some sections of society were held back, it
was likely to hold back the community at large, resulting in a lopsided
106
development, with pockets of social backwardness. According to the learned
Attorney General, this kind of lopsided development was not in the larger
interest of the integrity and development of the nation. It was submitted,
that secularism, equality and fraternity being the overarching guiding
principles of all communities, must be given effect to. This would move the
entire citizenry forward, guaranteeing to women equal rights, and at the
same time, preserving diversity and plurality.
67. It was the emphatic assertion of the learned Attorney General, that
freedom of religion was subservient to fundamental rights. It was
contended in this behalf, that the words employed in Article 25(1) of the
Constitution, which conferred the right to practice, preach and propagate
religion were “subject to the provisions of this Part”, which meant that the
above rights are subject to Articles 14 and 15, which guarantee equality and
non-discrimination. In other words, under India’s secular Constitution, the
right to freedom of religion was subject to, and in that sense, subservient to
other fundamental rights – such as the right to equality, the right to nondiscrimination,
and the right to life with dignity. In this behalf reference
was made to Sri Venkataramana Devaru v. State of Mysore21. In this
judgment, it was submitted, that this Court considered the meaning of the
phrase “subject to the provisions of this Part” in Article 25(1) to conclude,
that the other provisions of the Part would “prevail over” and would “control
the right conferred” by Article 25(1).

21 1958 SCR 895
107
68. In the above context it was also submitted, that the freedom of
religion, expressed in Article 25 of the Constitution was, not confined to the
male gender. Article 25 is extracted below:
“25. Freedom of conscience and free profession, practice and propagation
of religion. – (1) Subject to public order, morality and health and to the
other provisions of this Part, all persons are equally entitled to freedom of
conscience and the right freely to profess, practise and propagate
religion.
(2) Nothing in this article shall affect the operation of any existing law or
prevent the State from making any law –
(a) regulating or restricting any economic, financial, political or other
secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of
Hindus.
Explanation I.- The wearing and carrying of kirpans shall be deemed to
be included in the profession of the Sikh religion.
Explanation II.- In sub-clause (b) of clause reference to Hindus shall be
construed as including a reference to persons professing the Sikh, Jaina
or Buddhist religion, and the reference to Hindu religious institutions
shall be construed accordingly.”
It was highlighted, that it was also necessary to note, that Article 25(1)
provides that “all” persons were “equally” entitled to the freedom of
conscience, and the right to profess, practice and propagate religion. This,
according to the learned Attorney General, should be understood to mean,
that the rights conferred by this article were equally available to women,
and were not confined to men alone. Therefore, it was contended, that any
patriarchal or one sided interpretation of religion (or a practice of religion),
ought not to be countenanced.
69. It was emphasised by the learned Attorney General, that it was
necessary to draw a line between religion per se, and religious practices. It
was submitted, that the latter were not protected under Article 25.
108
“Religion”, according to the learned Attorney General, has been explained by
this Court in A.S. Narayana Deekshitulu v. State of A.P.
22, as under :
“86. A religion undoubtedly has its basis in a system of beliefs and
doctrine which are regarded by those who profess religion to be
conducive to their spiritual well-being. A religion is not merely an
opinion, doctrine or belief. It has outward expression in acts as well. It
is not every aspect of religion that has been safeguarded by Articles 25
and 26 nor has the Constitution provided that every religious activity
cannot be interfered with. Religion, therefore, cannot be construed in
the context of Articles 25 and 26 in its strict and etymological sense.
Every religion must believe in a conscience and ethical and moral
precepts. Therefore, whatever binds a man to his own conscience and
whatever moral or ethical principles regulate the lives of men believing in
that theistic, conscience or religious belief that alone can constitute
religion as understood in the Constitution which fosters feeling of
brotherhood, amity, fraternity and equality of all persons which find their
foothold in secular aspect of the Constitution. Secular activities and
aspects do not constitute religion which brings under its own cloak every
human activity. There is nothing which a man can do, whether in the
way of wearing clothes or food or drink, which is not considered a
religious activity. Every mundane or human activity was not intended to
be protected by the Constitution under the guise of religion. The
approach to construe the protection of religion or matters of religion or
religious practices guaranteed by Articles 25 and 26 must be viewed with
pragmatism since by the very nature of things, it would be extremely
difficult, if not impossible, to define the expression religion or matters of
religion or religious belief or practice.
87. In pluralistic society like India, as stated earlier, there are numerous
religious groups who practise diverse forms of worship or practise
religions, rituals, rites etc., even among Hindus, different denominants
and sects residing within the country or abroad profess different
religious faiths, beliefs, practices. They seek to identify religion with
what may in substance be mere facets of religion. It would, therefore, be
difficult to devise a definition of religion which would be regarded as
applicable to all religions or matters of religious practices. To one class
of persons a mere dogma or precept or a doctrine may be predominant in
the matter of religion; to others, rituals or ceremonies may be
predominant facets of religion; and to yet another class or persons a code
of conduct or a mode of life may constitute religion. Even to different
persons professing the same religious faith some of the facets or religion
may have varying significance. It may not be possible, therefore, to
devise a precise definition of universal application as to what is religion
and what are matters of religious belief or religious practice. That is far
from saying that it is not possible to state with reasonable certainty the

22 (1996) 9 SCC 548
109
limits within which the Constitution conferred a right to profess religion.
Therefore, the right to religion guaranteed under Article 25 or 26 is not
an absolute or unfettered right to propagating religion which is subject to
legislation by the State limiting or regulating any activity – economic,
financial, political or secular which are associated with religious belief,
faith, practice or custom. They are subject to reform on social welfare by
appropriate legislation by the State. Though religious practices and
performances of acts in pursuance of religious belief are as much a part
of religion as faith or belief in a particular doctrine, that by itself is not
conclusive or decisive. What are essential parts of religion or religious
belief or matters or religion and religious practice is essentially a
question of fact to be considered in the context in which the question has
arisen and the evidence – factual or legislative or historic – presented in
that context is required to be considered and a decision reached.”
In order to support the above view, the Court’s attention was also drawn to
the Javed case10, wherein this Court observed as under :
“49. In State of Bombay v. Narasu Appa Mali [AIR 1952 Bom 84:53 Cri
LJ 354] the constitutional validity of the Bombay Prevention of Hindu
Bigamous Marriages Act (25 of 1946) was challenged on the ground of
violation of Articles 14, 15 and 25 of the Constitution. A Division Bench,
consisting of Chief Justice Chagla and Justice Gajendragadkar (as His
Lordship then was), held:
“A sharp distinction must be drawn between religious faith and belief
and religious practices. What the State protects is religious faith and
belief. If religious practices run counter to public order, morality or
health or a policy of social welfare upon which the State has embarked,
then the religious practices must give way before the good of the people
of the State as a whole.”
50. Their Lordships quoted from American decisions that the laws are
made for the governance of actions, and while they cannot interfere with
mere religious beliefs and opinions, they may with practices. Their
Lordships found it difficult to accept the proposition that polygamy is an
integral part of Hindu religion though Hindu religion recognizes the
necessity of a son for religious efficacy and spiritual salvation. However,
proceeding on an assumption that polygamy is a recognized institution
according to Hindu religious practice, Their Lordships stated in no
uncertain terms:
“The right of the State to legislate on questions relating to marriage
cannot be disputed. Marriage is undoubtedly a social institution an
institution in which the State is vitally interested. Although there may
not be universal recognition of the fact, still a very large volume of
opinion in the world today admits that monogamy is a very desirable and
praiseworthy institution. If, therefore, the State of Bombay compels
Hindus to become monogamists, it is a measure of social reform, and if it
is a measure of social reform then the State is empowered to legislate
110
with regard to social reform under Article 25(2)(b) notwithstanding the
fact that it may interfere with the right of a citizen freely to profess,
practise and propagate religion.”
It was further submitted, that practices such as polygamy cannot be
described as being sanctioned by religion, inasmuch as, historically
polygamy prevailed across communities for several centuries, including the
ancient Greeks and Romans, Hindus, Jews and Zoroastrians. It was
pointed out, that polygamy had less to do with religion, and more to do with
social norms of that time. In the Quran as well, it was contended, it
appears that the prevalence (or perhaps, rampant practice) of polygamy in
pre-Islamic society, was sought to be regulated and restricted, so as to treat
women better than they were treated in pre-Islamic times. It was
submitted, that the practice of polygamy was a social practice rather than a
religious one, and therefore, would not be protected under Article 25. It was
sought to be explained, that ‘talaq-e-biddat’ was similarly a practice never
clearly recognized, nor was it seen with favour, and needed to be examined
in the background of the above narrated historic position.
70. In order to be able to seek interference, with reference to the issue
canvassed, and in order to surmount the legal object in advancing his
contentions, the learned Attorney General pointed out, that there was an
apparent misconstruction, which had led to the conclusions drawn by the
Bombay High Court, in State of Bombay v. Narasu Appa Mali23. It was
submitted, that ‘personal laws’ ought to be examined, in the light of the
overarching goal of gender justice, and dignity of women. The underlying

23 AIR 1952 Bom. 84
111
idea behind the preservation of ‘personal laws’ was, to safeguard the
plurality and diversity among the people of India. However, the sustenance
of such diverse identities, according to the learned Attorney General, cannot
be a pretext for denying women their rightful status and gender equality. It
was submitted, that ‘personal law’ was a part and parcel of “law” within the
meaning of Article 13. And therefore, any such law (‘personal law’) which
was inconsistent with fundamental rights, would have to be considered
void. It was further submitted, that the interpretation of the Bombay High
Court in the Narasu Appa Mali case23, to the effect that Article 13 of the
Constitution, would not cover ‘personal laws’ warranted reconsideration.
Firstly, it was contended, that a reading of the plain language adopted in
Article 13 would clearly establish that ‘personal law’, as well as customs
and usages, were covered within the scope of “law”. Article 13 reads as
under:
“13. Laws inconsistent with or in derogation of the fundamental rights.-
(1) All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent
with the provisions of this Part, shall, to the extent of such
inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of this
clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,-
(a) “law” includes any Ordinance, order, bye law, rule, regulation,
notification, custom or usage having in the territory of India the force of
law;
(b) “laws in force” includes laws passed or made by a Legislature or
other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then
in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this
Constitution made under article 368.”
112
It was submitted, that the meaning of “law” as defined in clauses (2) and (3)
of Article 13 is not exhaustive, and should be read as if it encompassed
within its scope, ‘personal law’ as well. It was submitted, that under clause
(2) of Article 246 of the Constitution, Parliament and State Legislatures had
the power to make laws, also on the subject enumerated in entry 5 of the
Concurrent List in the Seventh Schedule, pertaining to “Marriage and
divorce; infants and minors; adoption; wills; intestacy and succession; joint
family and partition; all matters in respect of which parties in judicial
proceedings were immediately before the commencement of this
Constitution subject to their personal law.” Since the subjects expressed in
entry 5 aforementioned, were relatable to ‘personal law’, therefore, ‘personal
law’, according to the learned Attorney General, was liable to include law
within the meaning of sub-clause (a) of clause (3) of Article 13 of the
Constitution. The observations of the Bombay High Court in the Narasu
Appa Mali case23, it was contended, were contrary to the plain language of
Article 13. Secondly, it was submitted, the plain language of Article 13(3)(a)
which defines “law” as including “any…custom or usage having in the
territory of India the force of law”, left no room for any doubt, on the issue.
It was pointed out, that the observations in the Narasu Appa Mali case23,
were in the nature of obiter, and could not be considered as the ratio of the
judgment. Further more, the said judgment, being a judgment of a High
Court, was not binding on this Court. Without prejudice to the above,
according to the learned Attorney General, the said practices under
challenge had been incorporated into the Muslim ‘personal law’ by the
113
Shariat Act. It was reasoned, that the Shariat Act, was clearly a “law in
force”, within the meaning of Article 13(3)(b). It was submitted, that the
petitioner has challenged Section 2 of the aforesaid Act, insofar as it
recognises and validates the practices of triple talaq or talaq-e-biddat (nikah
halala and polygamy). Therefore, even assuming (for the sake of argument),
that these practices do not constitute customs, the same were nonetheless
manifestly covered by Article 13.
71. It was acknowledged, that the legal position expressed in the
Narasu Appa Mali case23 had been affirmed by this Court, on various
occasions. Rather than recording the learned Attorney General’s
submissions in our words, we would extract the position acknowledged in
the written submissions filed on behalf of the Union of India, in this matter,
below:
“(e) Pertinently, despite this ruling that was later followed in Krishna
Singh v. Mathura Ahir, (1981) 3 SCC 689 and Maharshi Avdhesh v.
Union of India, (1994) Supp (1) SCC 713, the Supreme Court has actively
tested personal laws on the touchstone of fundamental rights in cases
such as Daniel Latifi v. Union of India, (2001) 7 SCC 740 (5-Judge
Bench), Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 (5-
Judge Bench), John Vallamatom v. Union of India, (2003) 6 SCC 611 (3-
Judge Bench) etc. Furher, in Masilamani Mudaliar v. Idol of Sri
Swaminathaswami Thirukoil, (1996) 8 SCC 525, …..”
However, reference was nevertheless made to the Masilamani Mudaliar
case16, wherein, it was submitted, that this Court had adopted a contrary
position to the Narasu Appa Mali case23 and had held, “But the right to
equality, removing handicaps and discrimination against a Hindu female by
reason of operation of existing law should be in conformity with the right to
equality enshrined in the Constitution and the personal law also needs to
114
be in conformity with the constitutional goal.” It was also asserted, that this
Court had further held, “Personal laws are derived not from the
Constitution but from the religious scriptures. The laws thus derived must
be consistent with the Constitution lest they become void under Article 13 if
they violate fundamental rights.” It is significant to note, that this case
concerned the inheritance rights of Hindu women. In view of the aforesaid,
it was submitted, that the observations in the Narasu Appa Mali case23, that
‘personal law’ was not covered under Article 13, was incorrect and not
binding upon this Court.
72. It was also contended, that the Constitution undoubtedly accords
guarantee of faith and belief to every citizen, but every practice of faith
could not be held to be an integral part of religion and belief. It was
therefore submitted, that every sustainable (and enforceable) religious
practice, must satisfy the overarching constitutional goal, of gender
equality, gender justice and dignity. It was asserted, that the practice of
‘talaq-e-biddat’, could not be regarded as a part of any “essential religious
practice”, and as such, could not be entitled to the protection of Article 25.
The test of what amounts to an essential religious practice, it was
submitted, was laid down in a catena of judgments including
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra
Thirtha Swamiar of Shirur Mutt24, wherein this Court held as under:
“20. The contention formulated in such broad terms cannot, we think, be
supported. In the first place, what constitutes the essential part of a
religion is primarily to be ascertained with reference to the doctrines of
that religion itself. If the tenets of any religious sect of the Hindus

24 AIR 1954 SC 282
115
prescribe that offerings of food should be given to the idol at particular
hours of the day, that periodical ceremonies should be performed in a
certain way at certain periods of the year or that there should be daily
recital of sacred texts or oblations to the sacred fire, all these would be
regarded as parts of religion and the mere fact that they involve
expenditure of money or employment of priests and servants or the use
of marketable commodities would not make them secular activities
partaking of a commercial or economic character; all of them are
religious practices and should be regarded as matters of religion within
the meaning of Article 26(b). What Article 25(2)(a) contemplates is not
regulation by the State of religious practices as such, the freedom of
which is guaranteed by the Constitution except when they run counter to
public order, health and morality but regulation of activities which are
economic, commercial or political in their character though they are
associated with religious practices. We may refer in this connection to a
few American and Australian cases, all of which arose out of the
activities of persons connected with the religious association known as
“Jehova's Witnesses”. This association of persons loosely organised
throughout Australia, U.S.A. and other countries regard the literal
interpretation of the Bible as fundamental to proper religious beliefs.
This belief in the supreme authority of the Bible colours many of their
political ideas. They refuse to take oath of allegiance to the king or other
constituted human authority and even to show respect to the national
flag, and they decry all wars between nations and all kinds of war
activities. In 1941 a company of “Jehova's Witnesses” incorporated in
Australia commenced proclaiming and teaching matters which were
prejudicial to war activities and the defence of the Commonwealth and
steps were taken against them under the National Security Regulations
of the State. The legality of the action of the Government was questioned
by means of a writ petition before the High Court and the High Court
held that the action of the Government was justified and that Section
116, which guaranteed freedom of religion under the Australian
Constitution, was not in any way infringed by the National Security
Regulations (Vide Adelaide Company v. Commonwealth, 67 CLR 116,
127). These were undoubtedly political activities though arising out of
religious belief entertained by a particular community. In such cases, as
Chief Justice Latham pointed out, the provision for protection of religion
was not an absolute protection to be interpreted and applied
independently of other provisions of the Constitution. These privileges
must be reconciled with the right of the State to employ the sovereign
power to ensure peace, security and orderly living without which
constitutional guarantee of civil liberty would be a mockery.”
116
Reference was then made to Ratilal v. State of Bombay25, wherein it was
observed as under:
“13. Religious practices or performances of acts in pursuance of religious
belief are as much a part of religion as faith or belief in particular
doctrines. Thus if the tenets of the Jain or the Parsi religion lay down
that certain rites and ceremonies are to be performed at certain times
and in a particular manner, it cannot be said that these are secular
activities partaking of commercial or economic character simply because
they involve expenditure of money or employment of priests or the use of
marketable commodities. No outside authority has any right to say that
these are not essential parts of religion and it is not open to the secular
authority of the State to restrict or prohibit them in any manner they like
under the guise of administering the trust estate. Of course, the scale of
expenses to be incurred in connection with these religious observances
may be and is a matter of administration of property belonging to
religious institutions; and if the expenses on these heads are likely to
deplete the endowed properties or affect the stability of the institution,
proper control can certainly be exercised by State agencies as the law
provides. We may refer in this connection to the observation of Davar, J.
in the case of Jamshed ji v. Soonabai [33 Bom 122] and although they
were made in a case where the question was whether the bequest of
property by a Parsi testator for the purpose of perpetual celebration of
ceremonies like Muktad baj, Vyezashni, etc., which are sanctioned by the
Zoroastrian religion were valid charitable gifts, the observations, we
think, are quite appropriate for our present purpose. “If this is the belief
of the community” thus observed the learned Judge, “and it is proved
undoubtedly to be the belief of the Zoroastrian community,—a secular
Judge is bound to accept that belief—it is not for him to sit in judgment
on that belief, he has no right to interfere with the conscience of a donor
who makes a gift in favour of what he believes to be the advancement of
his religion and the welfare of his community or mankind”. These
observations do, in our opinion, afford an indication of the measure of
protection that is given by Article 26(b) of our Constitution.”
Our attention was also drawn to Qureshi v. State of Bihar
26, wherein this
Court held as under:
“13. Coming now to the arguments as to the violation of the petitioners'
fundamental rights, it will be convenient to take up first the complaint
founded on Article 25(1). That article runs as follows:

25 AIR 1954 SC 388
26 AIR 1958 SC 731
117
“Subject to public order, morality and health and to the other provisions
of this Part, all persons are equally entitled to freedom of conscience and
the right freely to profess, practice and propagate religion.”
After referring to the provisions of clause (2) which lays down certain
exceptions which are not material for our present purpose this Court
has, in Ratilal Panachand Gandhi v. The State of Bombay [(1954) SCR
1055, 1062-1063] explained the meaning and scope of this article thus:
“Thus, subject to the restrictions which this article imposes, every person
has a fundamental right under our Constitution not merely to entertain
such religious belief as may be approved of by his judgment or
conscience but to exhibit his belief and section also violates the
fundamental rights of the petitioners ideas in such overt acts as are
enjoined or sanctioned by his religion and further to propagate his
religious views for the edification of others. It is immaterial also whether
the propagation is made by a person in his individual capacity or on
behalf of any church or institution. The free exercise of religion by which
is meant the performance of outward acts in pursuance of religious
belief, is, as stated above, subject to State regulation imposed to secure
order, public health and morals of the people.”
What then, we inquire, are the materials placed before us to substantiate
the claim that the sacrifice of a cow is enjoined or sanctioned by Islam?
The materials before us are extremely meagre and it is surprising that on
a matter of this description the allegations in the petition should be so
vague. In the Bihar Petition No. 58 of 1956 are set out the following bald
allegations:
“That the petitioners further respectfully submit that the said impugned
guaranteed under Article 25 of the Constitution in-as-much as on the
occasion of their Bakr Id Day, it is the religious practice of the
petitioners' community to sacrifice a cow on the said occasion. The poor
members of the community usually sacrifice one cow for every 7
members whereas it would require one sheep or one goat for each
member which would entail considerably more expense. As a result of
the total ban imposed by the impugned section the petitioners would not
even be allowed to make the said sacrifice which is a practice and
custom in their religion, enjoined upon them by the Holy Quran, and
practised by all Muslims from time immemorial and recognised as such
in India.”
The allegations in the other petitions are similar. These are met by an
equally bald denial in paragraph 21 of the affidavit in opposition. No
affidavit has been filed by any person specially competent to expound the
relevant tenets of Islam. No reference is made in the petition to any
particular Surah of the Holy Quran which, in terms, requires the
sacrifice of a cow. All that was placed before us during the argument
were Surah XXII, Verses 28 and 33, and Surah CVIII. What the Holy
book enjoins is that people should pray unto the Lord and make
sacrifice. We have no affidavit before us by any Maulana explaining the
implications of those verses or throwing any light on this problem. We,
118
however, find it laid down in Hamilton's translation of Hedaya Book XLIII
at p. 592 that it is the duty of every free Mussulman, arrived at the age of
maturity, to offer a sacrifice on the Yd Kirban, or festival of the sacrifice,
provided he be then possessed of Nisab and be not a traveller. The
sacrifice established for one person is a goat and that for seven a cow or
a camel. It is therefore, optional for a Muslim to sacrifice a goat for one
person or a cow or a camel for seven persons. It does not appear to be
obligatory that a person must sacrifice a cow. The very fact of an option
seems to run counter to the notion of an obligatory duty. It is, however,
pointed out that a person with six other members of his family may
afford to sacrifice a cow but may not be able to afford to sacrifice seven
goats. So there may be an economic compulsion although there is no
religious compulsion. It is also pointed out that from time immemorial
the Indian Mussalmans have been sacrificing cows and this practice, if
not enjoined, is certainly sanctioned by their religion and it amounts to
their practice of religion protected by Article 25. While the petitioners
claim that the sacrifice of a cow is essential, the State denies the
obligatory nature of the religious practice. The fact, emphasised by the
respondents, cannot be disputed, namely, that many Mussalmans do not
sacrifice a cow on the Bakr Id Day. It is part of the known history of
India that the Moghul Emperor Babar saw the wisdom of prohibiting the
slaughter of cows as and by way of religious sacrifice and directed his
son Humayun to follow this example. Similarly Emperors Akbar,
Jehangir, and Ahmad Shah, it is said, prohibited cow slaughter. Nawab
Hyder Ali of Mysore made cow slaughter an offence punishable with the
cutting of the hands of the offenders. Three of the members of the
Gosamvardhan Enquiry Committee set up by the Uttar Pradesh
Government in 1953 were Muslims and concurred in the unanimous
recommendation for total ban on slaughter of cows. We have, however,
no material on the record before us which will enable us to say, in the
face of the foregoing facts, that the sacrifice of a cow on that day is an
obligatory overt act for a Mussalman to exhibit his religious belief and
idea. In the premises, it is not possible for us to uphold this claim of the
petitioners.”
Learned Attorney General also cited, State of Gujarat v. Mirzapur Moti
Kureshi Kassab Jamat27, and placed reliance on the following observations:
“22. In State of W.B. v. Ashutosh Lahiri [(1995) 1 SCC 189] this Court
has noted that sacrifice of any animal by Muslims for the religious
purpose on BakrI'd does not include slaughtering of cows as the only
way of carrying out that sacrifice. Slaughtering of cows on BakrI'd is
neither essential to nor necessarily required as part of the religious
ceremony. An optional religious practice is not covered by Article 25(1).
On the contrary, it is common knowledge that the cow and its progeny

27 (2005) 8 SCC 534
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i.e. bull, bullocks and calves are worshipped by Hindus on specified days
during Diwali and other festivals like Makar Sankranti and Gopashtmi. A
good number of temples are to be found where the statue of “Nandi” or
“Bull” is regularly worshipped. However, we do not propose to delve
further into the question as we must state, in all fairness to the learned
counsel for the parties, that no one has tried to build any argument
either in defence or in opposition to the judgment appealed against by
placing reliance on religion or Article 25 of the Constitution.”
Finally, our attention was invited to Sardar Syedna Taher Saifuddin Saheb
v. State of Bombay28, wherein it was observed as under:
“60. But very different considerations arise when one has to deal with
legislation which is claimed to be merely a measure “providing for social
welfare and reform”. To start with, it has to be admitted that this phrase
is, as contrasted with the second portion of Article 25(2)(b), far from
precise and is flexible in its content. In this connection it has to be borne
in mind that limitations imposed on religious practices on the ground of
public order, morality or health have already been saved by the opening
words of Article 25(1) and the saving would cover beliefs and practices
even though considered essential or vital by those professing the religion.
I consider that in the context in which the phrase occurs, it is intended
to save the validity only of those laws which do not invade the basic and
essential practices of religion which are guaranteed by the operative
portion of Article 25(1) for two reasons: (1) To read the saving as covering
even the basic essential practices of religion, would in effect nullify and
render meaningless the entire guarantee of religious freedom — a
freedom not merely to profess, but to practice religion, for very few pieces
of legislation for abrogating religious practices could fail to be subsumed
under the caption of “a provision for social welfare or reform”. (2) If the
phrase just quoted was intended to have such a wide operation as
cutting at even the essentials guaranteed by Article 25(1), there would
have been no need for the special provision as to “throwing open of
Hindu religious institutions” to all classes and sections of Hindus since
the legislation contemplated by this provision would be par excellence
one of social reform.”
73. It was pointed out, that in the counter-affidavit dated August 2016,
filed on behalf of the Muslim Personal Law Board, i.e., respondent no.3 to
this petition, the practices of triple talaq (as well as, ‘nikah halala’ and
polygamy) have been referred to as “undesirable”. It was accordingly

28 AIR 1962 SC 853
120
submitted, that no “undesirable” practice can be conferred the status of an
“essential practice”, much less one that forms the substratum of the
concerned religion.
74. It was asserted on behalf of the Union of India, that the Indian State
was obligated to adhere to the principles enshrined in international
covenants, to which it is a party. India being a founding member of the
United Nations, is bound by its Charter, which embodies the first ever
international agreement to proclaiming gender equality, as a human right in
its preamble, and reaffirming faith in fundamental human rights, through
the dignity of the human person, by guaranteeing equal rights to men and
women. It was submitted, that significantly, the United Nations Commission
on the Status of Women, first met in February, 1947, with 15 member
States – all represented by women, including India (represented through
Shareefah Hamid Ali). During its very first session, the Commission
declared its guiding principles, including the pledge to raise the status of
women, irrespective of nationality, race, language or religion, to the same
level as men, in all fields of human enterprise, and to eliminate all
discrimination against women in the provisions of statutory law, in legal
maxims or rules, or in interpretation of customary law. (United Nations
Commission on the Status of Women, First Session, E/281/Rev.1, February
25, 1947). It was submitted, that the Universal Declaration of Human
Rights, 1948, the International Covenant of Economic, Social and Cultural
Rights, 1966 and the International Covenant of Social and Political Rights,
1966, emphasized on equality between men and women. The other relevant
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international instruments on women which were brought to our notice,
included the Convention on the Political Rights of Women (1952),
Declaration on the Protection of Women and Children in Emergency and
Armed Conflict (1974), Inter-American Convention for the Prevention,
Punishment and Elimination of Violence against Women (1955), Universal
Declaration on Democracy (1997), and the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against
Women (1999). It was submitted by the learned Attorney General, that the
Government of India ratified the Vienna Declaration and the Convention on
the Elimination of all forms of Discrimination Against Women (CEDAW) on
19-6-1993. The preamble of CEDAW reiterates, that discrimination against
women violated the principles of equality of rights and respect for human
dignity. And that, such inequality was an obstacle to the participation on
equal terms with men in the political, social, economic and cultural life of
their country. It was emphasized that such inequality, also hampered the
growth of the personality from society and family, and made it more difficult
for the full development of potentialities of women, in the service of their
countries and of humanity. Article 1 of the CEDAW, it was pointed out,
defines discrimination against women, while Article 2(b) enjoins the State
parties to pursue elimination of discrimination against women, by adopting
“appropriate legislative and other measures including sanctions where
appropriate, prohibiting all discriminations against women”. Clause (c) of
Article 2 enjoins the ratifying States, to ensure legal protection of the rights
of women, and Article 3 of the CEDAW enjoins the States to take all
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appropriate measures to ensure full development and advancement of
women, for the purpose of guaranteeing to them, the exercise and
enjoyment of human rights and fundamental freedoms on the basis of
equality with men. It was further submitted on behalf of the Union of India,
that the equality principles were reaffirmed in the Second World Conference
on Human Rights, held at Vienna in June 1993, as also, in the Fourth
World Conference on Women, held at Beijing in 1995. It was pointed out,
that India was a party to this convention and other declarations, and was
committed to actualize them. It was asserted, that in the 1993 Conference,
gender-based violence and all categories of sexual harassment and
exploitation, were condemned.
75. Last of all, the Attorney General pointed out, the prevailing
international trend all around the world, wherein the practice of divorce
through ‘talaq-e-biddat’, has been statutorily done away with (-for details,
refer to Part-5 – Abrogation of the practice of ‘talaq-e-biddat’ by legislation,
the world over, in Islamic, as well as, non-Islamic States). On the basis of
the submissions noticed above, it was contended, that it was extremely
significant to note, that a large number of Muslim countries, or countries
with a large Muslim populations such as, Pakistan, Bangladesh,
Afghanistan, Morocco, Tunisia, Turkey, Indonesia, Egypt, Iran and Sri
Lanka had undertaken significant reforms and had regulated divorce law. It
was pointed out, that legislation in Pakistan requires a man to obtain the
permission of an Arbitration Council. Practices in Bangladesh, it was
pointed out, were similar to those in Pakistan. Tunisia and Turkey, it was
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submitted, also do not recognize extra-judicial divorce, of the nature of
‘talaq-e-biddat’. In Afghanistan, divorce where three pronouncements are
made in one sitting, is considered to be invalid. In Morocco and Indonesia,
divorce proceedings take place in a secular court, procedures of mediation
and reconciliation are encouraged, and men and women are considered
equal in matters of family and divorce. In Indonesia, divorce is a judicial
process, where those marrying under Islamic Law, can approach the
Religious Court for a divorce, while others can approach District Courts for
the same. In Iran and Sri Lanka, divorce can be granted by a Qazi and/or a
court, only after reconciliation efforts have failed. It was submitted, that
even Islamic theocratic States, have undergone reform in this area of the
law, and therefore, in a secular republic like India, there is no reason to
deny women, the rights available all across the Muslim world. The fact that
Muslim countries have undergone extensive reform, it was submitted, also
establishes that the practice in question is not an essential religious
practice.
76. In the circumstance aforesaid, it was submitted, that the practice of
‘talaq-e-biddat’ cannot be protected under Article 25(1) of the Constitution.
Furthermore, since Article 25(1) is subject to Part III of the Constitution, as
such, it was liable to be in consonance with, and not violative of the rights
conferred through Articles 14, 15 and 21 of the Constitution. Since the
practice of ‘talaq-e-biddat’ clearly violates the fundamental rights expressed
in the above Articles, it was submitted, that it be declared as
unconstitutional.
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77. It is also necessary for us to recount an interesting incident that
occurred during the course of hearing. The learned Attorney General
having assisted this Court in the manner recounted above, was emphatic
that the other procedures available to Muslim men for obtaining divorce,
such as, ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ were also liable to be declared
as unconstitutional, for the same reasons as have been expressed with
reference to ‘talaq-e-biddat’. In this behalf, the contention advanced was,
that just as ‘talaq-e-biddat’, ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ were based
on the unilateral will of the husband, neither of these forms of divorce
required the availability of a reasonable cause with the husband to divorce
his wife, and neither of these needed the knowledge and/or notice of the
wife, and in neither of these procedures the knowledge and/or consent of
the wife was required. And as such, the other two so-called approved
procedures of divorce (‘talaq-e-ahsan’ and ‘talaq-e-hasan’) available to
Muslim men, it was submitted, were equally arbitrary and unreasonable, as
the practice of ‘talaq-e-biddat’. It was pointed out, that submissions during
the course of hearing were confined by the Union of India, to the validity of
‘talaq-e-biddat’ merely because this Court, at the commencement of
hearing, had informed the parties, that the present hearing would be limited
to the examination of the prayer made by the petitioners and the
interveners on the validity of ‘talaq-e-biddat’. It was contended, that the
challenge to ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ would follow immediately
after this Court had rendered its pronouncement with reference to ‘talaq-ebiddat’.
We have referred to the incident, and considered the necessity to
125
record it, because of the response of the learned Attorney General to a query
raised by the Bench. One of us (U.U. Lalit, J.), enquired from the learned
Attorney General, that if all the three procedures referred to above, as were
available to Muslim men to divorce their wives, were set aside as
unconstitutional, Muslim men would be rendered remediless in matters of
divorce? The learned Attorney General answered the querry in the
affirmative. But assured the Court, that the Parliament would enact a
legislation within no time, laying down grounds on which Muslim men could
divorce their wives. We have accordingly recorded the above episode,
because it has relevance to the outcome of the present matter.
78. Mr. Tushar Mehta, learned Additional Solicitor General of India,
endorsed all the submissions and arguments, advanced by the learned
Attorney General. On each aspect of the matter, the learned Additional
Solicitor General, independently supported the legal propositions canvassed
on behalf of the Union of India.
Part-8.
The rebuttal of the petitioners’ contentions:
79. The submissions advanced on behalf of the petitioners, were first of
all sought to be repudiated by the AIMPLB – respondent no.8 (hereinafter
referred to as the AIMPLB). Mr. Kapil Sibal, Senior Advocate, and a number
of other learned counsel represented the AIMPLB. In order to lay down the
foundation to the submissions sought to be canvassed on behalf of the
respondents, it was asserted, that ceremonies performed at the time of birth
of an individual, are in consonance with the religious norms of the family to
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which the child is born. And thereafter, in continuation each stage of life
during the entire progression of life, is punctuated by ceremonies. It was
pointed out, that even the act of adoption of a child, in some other family,
has religious ceremonies. In the absence of such religious rituals, adoption
is not valid. It was submitted, that religious observances manifest an
important fundamental position, in the life of every individual. Such
religious observances, according to learned counsel, include the manner in
which members of a community were required to dress. Insofar as the
Muslim women are concerned, reference was made to ‘burqa’ or ‘hijab’ worn
by women, whereby women veil themselves, from the gaze of strangers. All
these observances, are matters of faith, of those professing the religion. It
was asserted, that those who profess the Muslim religion, follow the edicts
expressed in the Quran. It was submitted, that matrimony, is like any
other stage in an individual’s life. It has to be performed, in consonance
with the ceremonies relating thereto. So also, if a married couple decides to
part ways, by way of divorce. It was pointed out, that express religious
ceremonies are observed even on an individual’s death. It was submitted,
that all issues including custody and guardianship of children,
maintenance, dower, gifts and such like issues, were matters guided by the
faith of the people, associated to their religion. How property has to be
distributed, upon divorce and/or at the time of death, is also governed by
faith. It was submitted, that questions of inheritance and succession, were
likewise dealt with in consonance with the edicts of the individual’s religion.
All these issues, it was submitted, were matters of religious faith.
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80. It was pointed out, that the personal affairs referred to in the
foregoing paragraph, fall in the realm of ‘personal law’. This assertion, was
sought to be demonstrated, by placing reliance on the definition of the term
‘personal law’ in Blacks Law Dictionary (10th edition, 2014), as follows:
“The law that governs a person’s family matters, regardless of where the
person goes. In common law systems, personal law refers to the law of
the person’s domicile. In civil-law systems, it refers to the law of the
individual’s nationality (and so is sometimes called lex patriae).”
Reference was also made to the definition of the term ‘personal law’ in
‘Conflict of Laws 188’ (7th edition, 1974) by R.H. Graveson, who defined the
term as under:
“The idea of the personal law is based on the conception of man as a
social being, so that those transactions of his daily life which affect him
most closely in a personal sense, such as marriage, divorce, legitimacy,
many kinds of capacity, and succession, may be governed universally by
that system of law deemed most suitable and adequate for the purpose
…”
Based on the cumulative definition of the term ‘personal law’, it was
submitted, that the evolution of the matters of faith relating to religious
practices, must necessarily be judged in the context of practices adopted by
the concerned community, with reference to each individual aspect of
‘personal law’. It was conceded, on behalf of the AIMPLB, that ‘personal
laws’ were per se subservient to legislation, and as such, ‘personal laws’
were liable to be considered as mandatory, with reference to numerous
aspects of an individual’s life, only in the absence of legislation.
81. Even though it was acknowledged, that legislation on an issue
would override ‘personal law’ on the matter, it was pointed out, that in the
absence of legislation ‘personal laws’ in the Indian context, could not be
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assailed on the basis of their being in conflict with any of the provisions
contained in Part III of the Constitution – the Fundamental Rights. It was
submitted, that in the absence of statutory law, religious practices and
faith, constituted the individual’s (belonging to a community) right to
profess the same. In order to substantiate his contention, that a challenge
to ‘personal law’ could not be raised on the anvil of Articles 14, 15 and 21 of
the Constitution, learned senior counsel, placed reliance on the Narasu
Appa Mali case23. Learned senior counsel, also placed reliance on Shri
Krishna Singh v. Mathura Ahir29, wherein this Court arrived at the
conclusion, that the rights of ‘sudras’ (the lowest amongst the four Hindu
castes – members of the workers caste), as were expressed by the Smriti
(-refers to a body of Hindu texts, traditionally recorded in writing) writers,
were invalid because they were in conflict with the fundamental rights
guaranteed under Part III of the Constitution. It was submitted, that both
the above judgments were considered by this Court in Ahmedabad Women
Action Group v. Union of India30, wherein, the legal position recorded in the
above judgments was confirmed. It was pointed out, that there was a clear
distinction between ‘law’ and ‘law in force’, thus far interpreted by this
Court with reference to Article 13 of the Constitution. It was asserted, that
read along with Article 372 – which mandates, that all laws in force in the
territory of India, immediately before the commencement of the
Constitution, would continue to remain in force, until altered, repealed or
amended by a competent legislature or other competent authority. It was

29 (1981) 3 SCC 689
30 (1997) 3 SCC 573
129
submitted, that to affect a change in ‘personal law’, it was imperative to
embark on legislation, as provided for through entry 5 of the Concurrent
List in the Seventh Schedule, which provides – “marriage and divorce;
infants and minors; adoption; wills, intestacy and succession; joint family
and partition; all matters in respect of which parties in judicial proceedings
were immediately before the commencement of this Constitution subject to
their personal law.” It was therefore urged, that ‘personal laws’ per se were
not subject to challenge, under any of the provisions contained in Part III of
the Constitution.
82. It was contended, that the expression ‘custom and usage’ in Article
13 of the Constitution, would not include faith of religious denominations,
embedded in their ‘personal law’. Insofar as the instant aspect of the matter
is concerned, reference was also made to Section 112 of the Government of
India Act, 1915, wherein a clear distinction was sought to be drawn
between ‘personal laws’ and ‘customs having force of law’. Section 112,
aforementioned is extracted hereunder:
“112. Law to be administered in cases of inheritance and succession. –
The high courts at Calcutta, Madras and Bombay, in the exercise of their
original jurisdiction in suits against inhabitants of Calcutta, Madras or
Bombay, as the case may be, shall, in maters of inheritance and
succession to lands, rents and goods, and in matters of contract and
dealing between party and party, when both parties are subject to the
same personal law or custom having the force of law, decide according to
that personal law or custom, and when the parties are subject to
different personal laws or customs having the force of law, decide
according to the law or custom to which the defendant is subject.”
It was pointed out, that in framing Article 13, the choice of the words
“custom and usage” and the exclusion of the expression “personal law”
needed to be taken due note of. It was submitted, that the Constituent
130
Assembly was aware of the use of the term ‘personal law’ (-which it
consciously used in entry 5 of the Concurrent List, in the Seventh Schedule)
and the term ‘customs and usages’, which the Constituent Assembly,
employed while framing Article 13 of the Constitution. It was pointed out,
that the above position was consciously highlighted by a Full Bench of the
Andhra Pradesh High Court in the Youth Welfare Federation case31. It was
submitted, that if the term ‘personal law’ was excluded from the definition
‘law in force’ deployed in Article 13, then matters of faith having a direct
relationship to some religious denomination (matters of ‘personal law’), do
not have to satisfy the rights enumerated in Articles 14, 15 and 21 of the
Constitution. In the above view of the matter, it was contended, that the
challenge raised on behalf of the petitioners on the basis of the provisions
contained in Part III – Fundamental Rights, needed to be summarily
rejected
83. Having presented the aforesaid overview of the constitutional
position Mr. Kapil Sibal, learned senior counsel, endeavoured to deal with
the concept of ‘talaq’ in ‘Shariat’ – Muslim ‘personal law’. Learned senior
counsel pointed out, that religious denominations in India with reference to
Islam were divided into two categories – the Sunnis, and the Shias. It was
pointed out, that Sunnis were again sub-divided into religious
denominations/schools. The four prominent Sunni schools being – Hanafi,
Malaki, Shafei and Hanbali. It was submitted, that a fifth
school/denomination had emerged later – Ahl-e-Hadith. It was pointed out,

31 (1996) ALT 1138(-Writ Petition No.9717 of 1983, decided on 9.10.1996)
131
that in India 90% of the Muslims amongst the Sunnis, belonged to the
Hanafi school. It was submitted, that Shia and the other denominations of
the Sunnis comprised a very small population of Muslims in India.
84. Learned counsel emphasized, that the three forms of talaq – ‘talaqe-ahsan’,
‘talaq-e-hasan’ and ‘talaq-e-biddat’ referred to by the petitioners,
during the course of hearing, were merely depicting the procedure which a
Muslim husband was required to follow, to divorce his wife. It was pointed
out, that none of these procedural forms, finds a reference in the Quran. It
was asserted, that none of these forms is depicted even in the ‘hadith’. It
was acknowledged, that ‘hadiths’ declared talaq by itself, as not a good
practice, and yet – recognized the factum of talaq, and its legal sanctity. It
was submitted, that talaq was accepted by all believers of Islam. It was
therefore contended, that it was absurd for the petitioners to have
submitted that the Quran alone, provided the details with reference to
which, and in the manner in which, talaq could be administered. It was
therefore asserted, that a close examination of the challenge raised by the
petitioners would reveal that talaq as a concept itself was not under
challenge at the hands of the petitioners. It was pointed out, that truthfully
the petitioners were merely assailing the course adopted by Muslim men, in
divorcing their wives through the ‘talaq-e-biddat’ procedure.
85. Learned counsel acknowledged the position adopted on behalf of the
petitioners, namely, that Islam represents (i) what is provided for in the
Quran, (ii) what was stated and practiced by the Prophet Muhammad from
time to time, and (iii) what was memorized and recorded in the ‘hadiths’
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which through centuries of generations, Muslim belief represents what the
Prophet Muhamad had said and practiced. It was asserted, that the aforestated
parameters represent Islamic law being practiced by Mulsims over
centuries, which had become part of the religious faith of various Muslim
denominations/schools. This ambit of recognized practices, according to
learned counsel, falls within the sphere of Muslim ‘personal law’ – ‘Shariat’.
86. Learned senior counsel then attempted to highlight various verses
from the Quran, to substantiate his contention. The same are set out
hereunder:
“i. Whatever ‘Allah has passed on to His Messenger from the people of
the towns is for Allah and for the Messenger, and for the kinsmen and
the orphans and the needy and the wayfarer, so that it may not circulate
only between the rich among you. And whatever the Messenger gives
you, take it, and whatever he forbids you from, abstain (from it). And
fear Allah. Indeed Allah is severe in punishment. (Quran, Al-Hashr
59:71)
ii. O you who believe, obey Allah and His Messenger, and do not turn
away from Him whn you listen (to him). (Quran, Al-Anfal 8:20)
iii. We did not send any Messenger but to be obeyed by the leave of Allah.
Had they, after having wronged themselves, come to you and sought
forgiveness from Allah, and had the Messenger prayed for their
forgiveness, they would certainly have found Allah Most-Relenting, VeryMerciful
(Quran, Al-Nisa 4:64)
iv. That is because they were hostile to Allah and His Messenger; and
whoever becomes hostile to Allah and His Messenger, then, Allah is
severe at punishment. (Quran, Al-Anfal 8:13)
v. It is not open for a believing man or a believing woman, once Allah and
His messenger have decided a thing, that they should have a choice
about their mattr; and whoever disobeys Allah and His messenger, he
indeed gets off the track, falling into an open error. (Quran, Al-Ahzab
33:36)
vi. Whoever breaks away with the Messenger after the right path has
become clear to him, and follows what is not the way of the believers, we
shall let him have what he chose, and We shall admit him to Jahannam,
which is an evil place to return. (Quran, Al-Nisa 4:115)”
In addition to the above, reference was also made to the Quran with respect
to triple talaq. The same are set out hereunder:
133
“i. Divorce is twice; then either to retain in all fairness, or to release
nicely. It is not lawful for you to take back anything from what you have
given them, unless both apprehend that they would not be able to
maintain the limits set by Allah. Now, if you apprehend that they would
not maintain the limits set by Allah, then, there is no sin or them in what
she gives up to secure her release. These are the limits set by Allah.
Therefore, do not exceed them. Whosoever exceeds the limits set by
Allah, then, those are the transgressors. (Quran, Al-Baqarah 2:229)
ii. Thereafter, if he divorces her, she shall no longer remain lawful for
him unless she marries a man other than him. Should he too divorce
her, then there is no sin on them in their returning to each other, if they
think they would maintain the limits set by Allah. These are the limits
set by Allah that He makes clear to a people who know (that Allah is
alone capable of setting these limits. (Quran, Al-Baqarah 2:229 and 230)
iii. When you have divorced women, and they have reached (the end of)
their waiting period, do not prevent them from marrying their husbands
when they mutually agree with fairness. Thus, the advice is given to
everyone of you who believes in Allah and in the Hereafter. This is more
pure and clean for you. Allah knows and you do not know. (Quran, AlBaqarah,
2:232)
iv. O Prophet, when you people divorce women, divorce them at a time
when the period of Iddah may start. And count the period of Iddah, and
fear Allah, your Lord. Do not expel them from their houses, nor should
they go out, unless they come up with a clearly shameless act. These are
the limits prescribed by Allah. And whoever exceeds the limits
prescribed by Allah wrongs his own self. You do not know (what will
happen in future); it may be that Allah brings about a new situation
thereafter. (Quran, Al-Talaq, 65:1)”
In order to demonstrate the complete picture, learned senior counsel invited
the Court’s attention to the statements attributed to the Prophet Mohamad
with reference to talaq which, according to learned counsel, would have a
bearing on the determination of the controversy in hand. The same are
extracted as under:
“i. Salmah bid Abi Salmah narrated to his father that when Hafs bin
Mughaira resorted to Triple Talaq, the Prophet (Pbuh) held it as valid. All
the three pronouncements were made with a single word so the Prophet
(Pubh) separated her from him irrevocably. And it didn’t reach to us that
the Prophet (Pubh) rebuked him for that (Daraqutni, Kitab Al-Talaq wa
Al-Khula wa Al-Aiyla,5/23, Hadith number:3992)
ii. Amas recpimts pm Muadh’s authority: “I heard the Prophet (Pbuh)
sying : O Muadh, whoever resorts to bidaa divorce, be it one, two or
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three. We will make his divorce effective. (Daraqutni, 5/81. Kitab alTalaq
wa Al-Khulawa aI-Aiyala, Hadith number: 4020)
iii. (When Abdullah Ibn Umar divorced his wife once while she was
having menses. The Prophet (Pbuh) asked him to retain his wife saying,
O Ibn e Umar, Allah Tabarak wa taala didn’t command like this: “You
acted against Sunnah. And sunnah is that you wait for Tuhar then
divorce at every purity period. He said so Prophet (Pbuh) Ordered me so
I retained her. Then he said to me: When she becomes pure divorce at
that time or keep (her) So Abdullah ibn Umar asked: “Had I resorted to
Triple Talaq then, could I retain her?” The Prophet (Pbuh) replied: “No,
she would be separated from you and such an ction oyour part would
have been a sin” (Sunan Bayhaqi, 7/547, Hadith number: 14955).
iv. Aishah Khathmiya was Hasan bin Ali’s wife. When Ali was killed and
Hasan bin Ali was made caliph. Hasan bin Ali visited her and she
congratulated him for the caliphate. Hasan bin Ali replied, “you have
expressed happiness over the killing of Ali. So you are divorced thrice”.
She covered herself with her cloth and said, “By Allah I did not mean
this”. She stayed until her iddat lapsed and she departed. Hasan bin Ali
sent her the remaining dower and a gift of twenty thousand dirhams.
When the messenger reached her and she saw the money she said “this
is a very small gift from the beloved from whom I have been separated”.
When the messenger informed Hasan bin Ali about this he broke into
tears saying, “Had I not heard from my father reporting from my
grandfather that the Prophet (Pbuh) said that whoever pronounced triple
talaaq upon his wife, she will not be permitted to him till the time she
marries a husband other than he, I would have taken her back. (AISunan
AI-Kubra Iil Bayhaqi, Hadith number: 14492)
v. Uwaymar Ajlani complained to the Prophet (Pbuh) that he had seen
his wife committing adultery. His wife denied this charge. In line with
the Quranic command, the Prophet (Pbuh) initiated “a proceeding for the
couple. Upon the completion of the process, Uwaymar said: “If I retain
her, I Will be taken as a liar”. So in the Prophet’s presence, and without
the Prophet’s command, he pronounced Triple Talaq. (Sahi al-Bukhari
Kitab al-Talaq, Hadith number: 5259)”
87. Having dealt with the verses from the Quran and the statements
attributed to the Prophet Muhammad, learned senior counsel invited the
Court’s attention to ‘hadiths’, in relation to talaq. The same are extracted
below:
“(i) Of all the things permitted by Allah, divorce is the most undesirable
act. (Sunan Abu Dawud, Bad Karahiya al-Talaq, Hadith no: 2178).
(ii) If a person who had pronounced Triple Talaq in one go was brought to
Caliph Umar he would put him to pain by beating and thereafter
separate the couple. (Musannaf ibn Abi Shaybah, Bab man kara an
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yatliq aI rajal imratahuu thalatha fi maqad wahadi wa ajaza dhalika
alayhi. Hadith number: 18089.
(iii) Alqama narrated from Abdullah that he was asked about a person
who pronounced hundred divorces to his wife. He said three made her
prohibited (to him) and ninety seven is transgression (Musannaf ibn Abi
Shayba, Kitab al-Talaq, bab fi al rajal yatlaqu imratahuu miata aw alfa.
Hadith number: 18098)
(iv) A man met another playful man in Medinah. He saidk, “Did you
divorce your wife? He said, “Yes”. He said, “How many thousand? (How
many? He replied: thousand). So he was presented before Umar. He
said so you have divorced your wife? He said I was playing. So he
mounted upon him with the whip and said out of these three will suffice
you. Another narrator reports Umar saying: “Triple Talaq will suffice
you” (Musannaf Abd al-Razzaq, Kitab al-talaq, Hadith number 11340).
(v) Abdullah Ibn Umar said: “Whoever resorts to Triple Talaq, he disobeys
his Lord and wife is alienated from him.” (Musannaf ibn Abi Shayba,
Kitab aI-Talaq, Hadith no: 18091).
(vi) Imran Ibn Hussain was asked about a person who divorced his wife
by Triple Talaq in single session. He said that the person had disobeyed
his Lord and his wife had become prohibited to him. (Musannaf Ibn Abi
Shayba, Hadith no: 18087)
(vii) If one tells his wife with whom he did not have conjugal relations:
Triple Talaq be upon you it will be effective. For he divorced her while
she was his wife. Same holds true for his wife with whom his marriage
was consummated.” (Al-Muhadhdhab, 4/305)
(viii) Chapter heading runs thus: “The sance of those who take the
Quranic statement: ‘Divorce can be pronounced twice, then either
honourable retention or kind release; to mean that Triple Talaq becomes
effective. (Bukhari, 3/402)”
88. Based on the factual position recorded in the previous three
paragraphs, it was submitted, that this Court should not attempt to
interpret the manner in which the believers of the faith had understood the
process for pronouncement of talaq. It was pointed out, that matters of
faith should best be left to be interpreted by the community itself, in the
manner in which its members understand their own religion. This,
according to learned counsel, was imperative in view of the absolute
contradictions which clearly emerge from a collective perusal of the
submissions advanced on behalf the petitioners, as also, those canvassed
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on behalf of the respondents. It was submitted, that different scholars have
applied different interpretations. It was also pointed out, that the
interpretations relied upon on behalf of the petitioners, were mostly of
scholars who did not belong to the Sunni faith, and were therefore
irrelevant, for the determination of the interpretation of the believers and
followers of the Hanafi school of Sunni Muslims. One of the scholars relied
upon, according to learned senior counsel, was a disciple of Mirza Ghulam
Ahmed (the founder of the Quadini school), who declared himself to be the
Prophet, after the demise of the Prophet Muhammad. It was pointed out,
that Quadini’s disciple was Mohammed Ali. And, the interpretations relied
upon by different High Courts (-for reference, see Part-6 – Judicial
pronouncements, on the subject of ‘talaq-e-biddat’), in recording their
conclusions, were based on views attributed to Mohammed Ali. It was
submitted, that Mohammed Ali is not recognized by all Muslims, and as
such, it would be a travesty of justice if his utterances were to be relied
upon and followed, contrary to the faith of Muslims (–especially Muslims
belonging to Hanafi school). Having expressed the aforesaid overview,
learned senior counsel highlighted from individual judgments of the High
Courts (-for details, refer to Part-6 – Judicial pronouncements, on the
subject of ‘talaq-e-biddat’) and pointed out, that the reliances on various
‘hadiths’ recorded therein were not appropriate in the background projected
above.
89. Having made the above submissions, learned senior counsel
attempted to pointedly approach the subject of ‘talaq-e-biddat’ – triple talaq.
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In this behalf it was reiterated, that talaq was in three forms – ‘talaq-eahsan’,
‘talaq-e-hasan’ and ‘talaq-e-biddat’. It was pointed out, that none of
these forms of talaq are referred to either in the Quran, or the ‘hadith’. It
was submitted, that the aforesaid three forms of talaq, have been so
categorized by Islamic scholars. It was pointed out, that what was common
in all the forms of talaq, was the finality thereof, in the matter of severance
of the matrimonial tie between the husband and wife. Another
commonness was also pointed out, namely, that ‘talaq-e-ahsan’, if not
revoked, attain finality; that ‘talaq-e-hasan’ if likewise not revoked, is
treated as final; and that ‘talaq-e-biddat’ – triple talaq at the time of its
pronouncement, is considered as final. It was submitted, that all
kinds/forms of talaq when administered three times became irrevocable.
Yet again, it was reiterated, that the petitioners before this Court were not
challenging the finality of talaq, they were merely challenging the procedure
adopted by the Muslim husbands while administering ‘talaq-e-biddat’,
which has the immediate consequences of finality.
90. In the context expressed in the preceding paragraph, it was sought
to be highlighted, that Imam Abu Hanifa did not himself record his own
understanding what the Prophet Muhammad had said. It was pointed out,
that he had two disciples – Abu Yusuf and Imam Mohammed. It was
submitted, that Imam Abu Yusuf in his book “Ikhtilaaf Abi Hanifah wabni
Abi Laila” (first edition, 1357) stated the following on the triple talaq:
“i. If the man said to his wife, “Your matter is in your hand:, she said, “I
have divorced myself three times”. Abu Haneefah (may Allah be pleased
with him) says: “If the husband intends three times, then it is three.”
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Reference was also made to the writings of Imam Abu Mohammed in his
book entitled “Al-Mautta” (first volume), wherein he asserted as under:
“i. Muhammad says: So we follow this that if she chooses her husband
then it will not be counted a divorce, and if she chooses herself then it is
accorfding to what her husband intended, if his intention is one hen it
will be counted one irrevocable (Baainah) divorce, and if his is three it
will be three divorces. This is the saying of Abu Hanifah.”
91. Reference was also made to writings with respect to ‘talaq-e-biddat’
by scholars of other schools. In this behalf, the Court’s attention was
invited to the following:
“(i) Most of the Ulema take the innovative divorce as effective (Baday alsanay,
fasl Hukum Talaq-al Bidaa, Kitab al-Talaq, 3/153).
(ii) What do you think about the effectiveness of pronouncing divorce
thrice upon one’s pregnant wife either in one go or in three different
sessions, Imam Malik replied in the affirmative. (AI-Mudawwana, 2/68)
(iii) The validity of triple talaq is also endorsed by all Ahl Al Sunnah
jurists. Allama Ibn Quda ma adds that: “This view is attributed to
Abdul/ah ibn Abbas. The same stance is shared by most of the
successors and later scholars.” (AI-Mughni Ii Ibn Qudama, 10/334)
(iv) The Book, Sunnah, and the consensus view of classical authorities is
that Triple Talaq is effective, even if pronounced in one go. The act in
itself is, however, a sin.” (Ahkam al-Quran Iil Jassas, 2/85)
(v) Imam Shafe’I (of Shafe’I School) has stated as follows in his book
entitled as Al-Umm (fifth volume):
If he says you are divorced absolutely, with the intention of triple divorce
then it will be considered triple divorce and if he intends one it will be
considered one divorce and if he says you are divorced with the intention
of three it will be considered three. (page 359)
(vi) Mauffaqud Din Abi Muhammed Abdillah Ben Ahmed Ben
Muhammed Ben Qudamah Al-Muqaddasi Al-Jammaili Al-Dimashqi AlSalihi
Al-Hanbali (of the Hanbali School) in his book entitled as AlMughni
(tenth volume) has stated as follows:
Ahmed said: If he says to wife: Divorce yourself, intending three, and she
has divorced herself thrice, it will be considered three, and if he has
intended one then it will considered one. (page 394)
(vii) Allama Ibn Qudama, a Hanbali jurist is of the view that if one
divorces thrice with a single utterance, this divorce will be effective and
she will be unlawful for him until she marries domeone else.
Consummation of marriage is immaterial. The validity of Triple Talaq is
also endorsed by all Ahl Al Sunnah juristics. Allama Ibn Qudamma adds
that: “This view is attributed to Abdullah ibn Abbas, Abu Huraira, Umar,
Abdullah ibn Umar, Abdullah ibn Amr ibn Aas, Abdullah ibn Masud, and
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Anas. The same stance is shared by most of the successors and later
scholars.”” (Al-Mughni li Ibn Qudama, 10,334)”.
92. Based on the ‘hadiths’ depicted in the foregoing, and in the
paragraphs preceding thereto, it was submitted, that for the Hanafi school
of Sunni Muslims ‘talaq-e-biddat’ – triple talaq was a part and parcel of
their ‘personal law’, namely, a part and parcel of their faith, which they had
followed generation after generation, over centuries. That being the
position, it was submitted, that ‘talaq-e-biddat’ should be treated as the
constitutionally protected fundamental right of Muslims, which could not be
interfered with on the touchstone of being violative of the fundamental
rights, enshrined in the Constitution – or for that matter, constitutional
morality propounded at the behest of the petitioners.
93. Learned senior counsel reiterated, that judicial intereference in the
matter of ‘personal law’ is not the proper course to be adopted for achieving
the prayers raised by the petitoners. Reference was made by a large
number of Muslim countries across the world (-for details, refer to Part-5 –
Abrogation of the practice of ‘talaq-e-biddat’ by legislation, the world over, in
Islamic, as well as, non-Islamic States), which had provided the necessary
succor by legislating on orthodox practices, which were not attuned to
present day social norms. It was submitted, that in all the countries in
which the practice of ‘talaq-e-biddat’ has been annulled or was being read
down, as a matter of interpretation, the legislatures of the respective
countries have interfered to bring in the said reform.
94. In order to fully express the ambit and scope of ‘personal law’, and
to demonstrate the contours of the freedom of conscience and free
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profession, practice and propagation of religion propounded in Article 25,
learned senior counsel placed reliance on the Constituent Assembly
debates. Interestingly reference was, first of all, made to Article 44 of the
Contitution, which is extracted below:
“44. Uniform civil code for the citizens.- The State shall endeavour to
secure for the citizens a uniform civil code throughout the territory of
India.”
It is necessary to notice, that during the Constituent Assembly debates, the
present Article 44 was numbered as draft Article 35. During the course of
the Constituent Assembly debates, amendments to draft Article 35 were
proposed by Mohamed Ismail Sahib, Naziruddin Ahmad, Mahboob Ali Beg,
Sahib Bahadur and Pocker Sahib Bahadur. Relevant extract of their
amendments and their explanations thereto are reproduced below:
“Mr. Mohamad Ismail Sahib (Madras: Muslim): Sir, I move that the
following proviso be added to article 35:
"Provided that any group, section or community of people shall not be
obliged to give up its own personal lawin case it has such a law."
The right of a group or a community of people to followand adhere to its
own personal law is among the fundamentalrights and this provision
should really be made amongst thestatutory and justiciable fundamental
rights. It is for thisreason that I along with other friends have given
amendmentsto certain other articles going previous to this which I will
move at the proper time.
Now the right to follow personal law is part of the wayof life of those
people who are following such laws; it ispart of their religion and part of
their culture. Ifanything is done affecting the personal laws, it will
betantamount to interference with the way of life of thosepeople who
have been observing these laws for generationsand ages. This secular
State which we are trying to createshould not do anything to interfere
with theway of life and religion of the people. The matter ofretaining
personal law is nothing new; we have precedents inEuropean countries.
Yugoslavia, for instance, that is, thekingdom of the Serbs, Croats and
Slovenes, is obliged undertreaty obligations to guarantee the rights of
minorities.The clause regarding rights of Mussulmans reads as follows:
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"The Serb, Croat and Slovene State agrees to grant tothe Mussulmans in
the matter of family law and personalstatus provisions suitable for
regulating these matters inaccordance with the Mussulman usage."
We find similar clauses in several other Europeanconstitutions also. But
these refer to minorities while myamendment refers not to the minorities
alone but to allpeople including the majority community, because it
says,"Any group, section or community of people shall not beobliged" etc.
Therefore it seeks to secure the rights of allpeople in regard to their
existing personal law.
Again this amendment does not seek to introduce anyinnovation or bring
in a new set of laws for the people, butonly wants the maintenance of the
personal law already existing among certain sections of people. Now why
do peoplewant a uniform civil code, as in article 35? Their ideaevidently
is to secure harmony through uniformity. But Imaintain that for that
purpose it is not necessary toregiment the civil law of the people
including the personallaw. Such regimentation will bring discontent and
harmonywill be affected. But if people are allowed to follow theirown
personal law there will be no discontent ordissatisfaction. Every section
of the people, being free tofollow its own personal law will not really come
in conflictwith others.
Mr. Naziruddin Ahmad: Sir, I beg to move:
"That to article 35, the following proviso be added, namely: -
Provided that the personal law of any community which has been
guaranteed by the statue shall not be changedexcept with the previous
approval of the community ascertained in such manner as the Union
Legislature maydetermine by law."
In moving this, I do not wish to confine my remarks tothe inconvenience
felt by the Muslim community alone. I would put it on a much broader
ground. In fact, eachcommunity, each religious community has certain
religious laws, certain civil laws inseparably connected withreligious
beliefs and practices. I believe that in framing a uniform draft code these
religious laws or semi-religious laws should be kept out of its way. There
are several reasons which underlie this amendment. One of them is that
perhaps it clashes with article 19 of the Draft Constitution. In article 19
it is provided that `subject to public order, morality and health and to
the other provisions of this Part, all persons are equally entitled to
freedom of conscience and the right freely to profess, practise and
propagate religion. In fact, this is so fundamental that the Drafting
Committee has very rightly introduced this in this place. Then in
clause(2) of the same article it has been further provided by way of
limitation of the right that `Nothing in this article shall affect the
operation of any existing law or preclude the State from making any law
regulating or restricting any economic, financial, political or other
secular activity which may be associated with religious practice'. I can
quite see that there may be many pernicious practices which may
accompany religious practices and they may be controlled. But there are
certain religious practices, certain religious laws which do not come
within the exception in clause (2), viz. financial, political or other secular
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activity which may be associated with religious practices. Having
guaranteed, and very rightly guaranteed the freedom of religious practice
and the freedom to propagate religion, I think the present article tries to
undo what has been given in article 19. I submit, Sir, that we must try to
prevent this anomaly. In article 19 we enacted a positive provision which
is justiciable and which any subject of a State irrespective of his caste
and community can take to a Court of law and seek enforcement. On the
other hand, by the article under reference we are giving the State some
amount of latitude which may enable into ignore the right conceded. And
this right is not justiciable. It recommends to the State certain things
and therefore it gives a right to the State. But then the subject has not
been given any right under this provision. Submit that the present article
is likely to encourage testate to break the guarantees given in article 19.
I submit, Sir, there are certain aspects of the Civil Procedure Code which
have already interfered with our personal laws and very rightly so. But
during the 175 years of British rule, they did not interfere with certain
fundamental personal laws. They have enacted the Registration Act, the
Limitation Act, the Civil Procedure Code, the Criminal Procedure Code,
the Penal Code, the Evidence Act, the Transfer of Property Act, the Sarda
Act and various other Acts. They have been imposed gradually as
occasion arose and they were intended to make the laws uniform
although they clash with the personal laws of particular community. But
take the case of marriage practice and the laws of inheritance. They have
never interfered with them. It will be difficult at this stage of our society
to ask the people to give up their ideas of marriage, which are associated
with religious institutions in many communities. The laws of inheritance
are also supposed to be the result of religious injunctions. I submit that
the interference with these matters should be gradual and must progress
with the advance of time. I have no doubt that a stage would come when
the civil law would be uniform. But then that time has not yet come. We
believe that the power that has been given to the State to make the Civil
Code uniform is in advance of the time. As it is, any State would be
justified under article 35 to interfere with the settled laws of the different
communities at once. For instance, there remarriage practices in various
communities. If we want to introduce a law that every marriage shall be
registered and if not it will not be valid, we can do so under article 35.
But would you invalidate a marriage which is valid under the existing
law and under the present religious beliefs and practices on the ground
that it has not been registered under any new law and thus bastardize
the children born?
This is only one instance of how interference can go too far. As I have
already submitted, the goal should be towards a uniform civil code but it
should be gradual and with the consent of the people concerned. I have
therefore in my amendment suggested that religious laws relating to
particular communities should not be affected except with their consent
to be ascertained in such manner as Parliament may decide by law.
Parliament may well decide to ascertain the consent of the community
through their representatives, and this could be secured by the
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representatives by their election speeches and pledges. In fact, this may
be made an article of faith in an election, and a vote on that could be
regarded as consent. These are matters of detail. I have attempted by my
amendment to leave it to the Central Legislature to decide how to
ascertain this consent. Submit, Sir, that this is not a matter of mere
idealism. It is a question of stern reality which we must not refuse to face
and I believe it will lead to a considerable amount of misunderstanding
and resentment amongst the various sections of the country. What the
British in 175 years failed to door was afraid to do, what the Muslims in
the course of 500 years refrained from doing, we should not give power to
testate to do all at once. I submit, Sir, that we should proceed not in
haste but with caution, with experience, with statesmanship and with
sympathy.
Mahbood Ali Baig Sahib Bahadur: Sir, I move that the following proviso
be added to article 35:
"Provided that nothing in this article shall affect the personal law of the
citizen."
My view of article 35 is that the words "Civil Code" do not cover the
strictly personal law of a citizen. The Civil Code covers laws of this kind:
laws of property, transfer of property, law of contract, law of evidence etc.
The law as observed by a particular religious community is not covered
by article 35. That is my view. Anyhow, in order to clarify the position
that article 35 does not affect the personal law of the citizen, I have given
notice of this amendment. Now, Sir, if for any reason the framers of this
article have got in their minds that the personal law of the citizen is also
covered by the expression "Civil Code", I wish to submit that they are
overlooking the very important fact of the personal law being so much
dear and near to certain religious communities. As far as the
Mussalmans are concerned, their laws of succession, inheritance,
marriage and divorce are completely dependent upon their religion.
Shri M. Ananthasayanam Ayyangar: It is a matter of contract.
Mahboob Ali Baig Sahib Bahadur: I know that Mr.Ananthasayanam
Ayyangar has always very queer ideas about the laws of other
communities. It is interpreted as contract, while the marriage amongst
the Hindus is a Samskara and that among Europeans it is a matter of
status. I know that very well, but this contract is enjoined on the
Mussalmans by the Quran and if it is not followed, marriage is not a
legal marriage at all. For 1350 years this law has been practised by
Muslims and recognised by all authorities in all states. If today Mr.
Ananthasayanam Ayyangar is going to say that some other method of
proving the marriage is going to be introduced, we refuse to abide by it
because it is not according to our religion. It is not according to the code
that is laid down for us for all times in this matter. Therefore, Sir, it is
not a matter to be treated so lightly. I know that in the case of some
other communities also, their personal law depends entirely upon their
religious tenets. If some communities have got their own way of dealing
with their religious tenets and practices, that cannot be imposed on a
community which insists that their religious tenets should be observed.
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B. Pocker Sahib Bahadur (Madras: Muslim): Mr. Vice-President, Sir, I
support the motion which has already been moved by Mr. Mohamed
Ismail Sahib to the effect that the following proviso be added to article
35: -
"Provide that any group, section or community of people shall not be
obliged to give up its own personal law in casein has such a law."
It is a very moderate and reasonable amendment to this article 35. Now I
would request the House to consider this amendment not from the point
of view of the Mussalman community alone, but from the point of view of
the various communities that exist in this country, following various
codes of law, with reference to inheritance, marriage, succession,
divorce, endowments and so many other matters. The House will not that
one of the reasons why the Britisher, having conquered this country, has
been able to carry on the administration of this country for the last 150
years and over was that he gave a guarantee of following their own
personal laws to each of the various communities in the country. That is
one of the secrets of success and the basis of the administration of
justice on which even the foreign rule was based. I ask, Sir, whether by
the freedom we have obtained for this country, are we going to give up
that freedom of conscience and that freedom of religious practices and
that freedom of following one's own personal law and try or aspire to
impose upon the whole country one code of civil law, whatever it may
mean, - which I say, as it is, may include even all branches of civil law,
namely, the law of marriage, law of inheritance, law of divorce and so
many other kindred matters?
In the first place, I would like to know the real intention with which this
clause has been introduced. If the words "Civil Code" are intended only
to apply to matters procedure like the Civil Procedure Code and such
other laws which are uniform so far as India is concerned at present
well, nobody has any objection to that, but the various civil Courts Acts
in the various provinces in this country have secured for each
community the right to follow their personal laws as regards marriage,
inheritance, divorce, etc. But if it is intended that the aspiration of the
State should be to override all these provisions and to have uniformity of
law to be imposed upon the whole people on these matters which are
dealt with by the Civil Courts Acts in the various provinces, well, I would
only say, Sir, that it is a tyrannous provision which ought not to be
tolerated; and let it not be taken that I am only voicing forth the feelings
of the Mussalmans. In saying this, I am voicing forth the feelings of ever
so many sections in this country who feel that it would be really
tyrannous to interfere with the religious practices, and with the religious
laws, by which they are governed now.
xxx xxx xxx
If such a body as this interferes with the religious rights and practices, it
will be tyrannous. These organisations have used a much stronger
language than I amusing, Sir. Therefore, I would request the Assembly
not to consider what I have said entirely as coming from the point of view
of the Muslim community. I know there are great differences in the law of
145
inheritance and various other matters between the various sections of
the Hindu community. Is this Assembly going to set aside all these
differences and make them uniform? By uniform, I ask, what do you
mean and which particular law, of which community are you going to
take as the standard? What have you got in your mind in enacting a
clause like this? There are the mitakshara and Dayabaga systems; there
are so many other systems followed by various other communities. What
is it that you are making the basis?
Is it open to us to do anything of this sort? By this one clause you are
revolutionising the whole country and the whole setup. There is no need
for it.
Sir, as already pointed out by one of my predecessors in speaking on this
motion, this is entirely antagonistic tithe provision made as regards
Fundamental Rights in article19. If it is antagonistic, what is the
purpose served by clause like this? Is it open to this Assembly to pass by
one stroke of the pen an article by which the whole country is
revolutionised? Is it intended? I do not know what the framers of this
article mean by this. On a matter of such grave importance, I am very
sorry to find that the framers or the draftsmen of this article have not
bestowed sufficiently serious attention to that. Whether it is copied from
anywhere or not, I do not know. Anyhow, if it is copied from anywhere, I
must condemn that provision even in that Constitution. It is very easy to
copy sections from other constitutions of countries where the
circumstances are entirely different. There are ever so many multitudes
of communities following various customs for centuries or thousands of
years. By one stroke of the pen you want to annul all that and make
them uniform. What is the purpose served? What is the purpose served
by this uniformity except to murder the consciences of the people and
make them feel that they are being trampled upon as regards their
religious rights and practices? Such a tyrannous measure ought not to
find a place in our Constitution. I submit, Sir, there are ever so many
sections of the Hindu community who are rebelling against this and who
voice forth their feelings in much stronger language than I am using. If
the framers of this article say that even the majority community is
uniform in support of this, I would challenge them to say so. It is not so.
Even assuming that the majority community is of this view, I say, it has
to be condemned and it ought not to be allowed, because, in a
democracy, as I take it, it is the duty of the majority to secure the sacred
rights of every minority. It is a misnomer to call it a democracy if the
majority rides rough-shod over the rights of the minorities. It is not
democracy at all; it is tyranny. Therefore, I would submit to you and all
the Members of this House to take very serious notice of this article; it is
not a light thing to be passed like this.
In this connection, Sir, I would submit that I have given notice of an
amendment to the Fundamental Right article also. This is only a
Directive Principle.”
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The above stated amendments proposed to draft Article 35 were opposed by
K.M. Munshi and Alladi Krishnaswami Ayyar. Relevant extracts of their
responses are reproduced below:
Shri K. M. Munshi (Bombay: General): Mr. Vice-President, I beg to
submit a few considerations. This particular clause which is now before
the House is not brought for discussion for the first time. It has been
discussed in several committees and at several places before it came to
the House. The ground that is now put forward against it is, firstly that it
infringes the Fundamental Right mentioned in article 19; and secondly,
it is tyrannous to the minority.
As regards article 19 the House accepted it and made it quite clear that-
"Nothing in this article shall affect the operation of any existing law or
preclude the State from making any law (a) regulating or restricting"-I am
omitting the unnecessary words-"or other secular activity which maybe
associated with religious practices; (b) for social welfare and reforms".
Therefore the House has already accepted the principle that if a religious
practice followed so far covers a secular activity or falls within the field of
social reform or social welfare, it would be open to Parliament to make
laws about it without infringing this Fundamental Right of a minority.
It must also be remembered that if this clause is not put in, it does not
mean that the Parliament in future would have no right to enact a Civil
Code. The only restriction touch a right would be article 19 and I have
already pointed out that article 19, accepted by the House unanimously,
permits legislation covering secular activities. The whole object of this
article is that as and when the Parliament thinks proper or rather when
the majority in the Parliament thinks proper an attempt may be made to
unify the personal law of the country.
A further argument has been advanced that the enactment of a Civil
Code would be tyrannical to minorities. Is it tyrannical? Nowhere in
advanced Muslim countries the personal law of each minority has been
recognised as so sacrosanct as to prevent the enactment of a Civil Code.
Take for instance Turkey or Egypt. No minority in these countries is
permitted to have such rights. But I go further. When the Shariat Act
was passed or when certain laws were passed in the Central Legislature
in the old regime, the Khojas and Cutchi Memons were highly
dissatisfied.
They then followed certain Hindu customs; for generations since they
became converts they had done so. They did not want to conform to the
Shariat; and yet by legislation of the Central Legislature certain Muslim
members who felt that Shariat law should be enforced upon the whole
community carried their point. The Khojas and Cutchi Memons most
unwillingly had to submit to it. Where were the rights of minority then?
When you want to consolidate a community, you have to take into
consideration the benefit which may accrue to the whole community and
motto the customs of a part of it. It is not therefore correct to say that
147
such an act is tyranny of the majority. If you will look at the countries in
Europe which have a Civil Code, everyone who goes there from any part
of the world and every minority, has to submit to the Civil Code. It is not
felt to be tyrannical to the minority. The point however is this, whether
we are going to consolidate and unify our personal law in such a way
that the way of life of the whole country may in course of time be unified
and secular. We want to divorce religion from personal law, from what
may be called social relations or from the rights of parties as regards
inheritance or succession. What have these things got to do with religion
I really fail to understand. Take for instance the Hindu Law Draft which
is before the Legislative Assembly. If one looks at Manu and
Yagnyavalkya and all the rest of them, I think most of the provisions of
the new Bill will run counter to their injunctions. But after all we are an
advancing society. We are in a stage where we must unify and
consolidate the nation by every means without interfering with religious
practices. If however the religious practices in the past have been so
construed as to cover the whole field of life, we have reached a point
when we must put our foot down and say that these matters are not
religion, they are purely matters for secular legislation. This is what is
emphasised by this article.
Now look at the disadvantages that you will perpetuate if there is no Civil
Code. Take for instance the Hindus. We have the law of Mayukha
applying in some parts of India; we have Mithakshara in others; and we
have the law-Dayabagha in Bengal. In this way even the Hindus
themselves have separate laws and most of our Provinces and States
have started making separate Hindu law for themselves. Are we going to
permit this piecemeal legislation on the ground that it affects the
personal law of the country? It is therefore not merely a question for
minorities but it also affects the majority.
I know there are many among Hindus who do not like a uniform Civil
Code, because they take the same view as the honourable Muslim
Members who spoke last. They feel that the personal law of inheritance,
succession etc. is really apart of their religion. If that were so, you can
never give, for instance, equality to women. But you have already passed
a Fundamental Right to that effect and you have an article here which
lays down that there should be no discrimination against sex. Look at
Hindu Law; you get any amount of discrimination against women; and if
that is part of Hindu religion or Hindu religious practice, you cannot
pass a single law which would elevate the position of Hindu women to
that of men. Therefore, there is no reason why there should not be a civil
code throughout the territory of India.
xxx xxx xxx
Shri Alladi Krishanaswami Ayyar (Madras: General): Mr. Vice-President,
after the very full exposition of my friend the Honourable Mr. Munshi, it
is not necessary to cover the whole ground. But it is as well to
understand whether there can be any real objection to the article as it
runs.
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"The State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India."
xxx xxx xxx
Now, my friend Mr. Pocker levelled an attack against the Drafting
Committee on the ground that they did not know their business. I should
like to know whether he has carefully read what happened even in the
British regime. You must know that the Muslim law covers the field of
contracts, the field of criminal law, the field of divorce law, the field of
marriage and every part of law as contained in the Muslim law. When the
British occupied this country, they said, we are going to introduce one
criminal law in this country which will be applicable to all citizens, be
they Englishmen, be they Hindus, be they Muslims. Did the Muslims
take exception, and did they revolt against the British for introducing a
single system of criminal law? Similarly we have the law of contracts
governing transactions between Muslims and Hindus, between Muslims
and Muslims. They are governed not by the law of the Koran but by the
Anglo-Indian jurisprudence, yet no exception was taken to that. Again,
there are various principles in the law of transfer which have been
borrowed from the English jurisprudence.
Therefore, when there is impact between two civilizations or between two
cultures, each culture must be influenced and influence the other
culture. If there is a determined opposition, or if there is strong
opposition by any section of the community, it would be unwise on the
part of the legislators of this country to attempt to ignore it. Today, even
without article 35, there is nothing to prevent the future Parliament of
India from passing such laws. Therefore, the idea is to have a uniform
civil code.
Now, again, there are Muslims and there are Hindus, there are Catholics,
there are Chistians, there are Jews, indifferent European countries. I
should like to know from Mr.Pocker whether different personal laws are
perpetuated in France, in Germany, in Italy and in all the continental
countries of Europe, or whether the laws of succession aren’t coordinated
and unified in the various States. He must have made a
detailed study of Muslim jurisprudence and found out whether in all
those countries, there is a single system of law or different systems of
law.
Leave alone people who are there. Today, even in regard to people in
other parts of the country, if they have property in the continent of
Europe where the German Civil Code or the French Civil Code obtains,
the people are governed by the law of the place in very many respects.
Therefore, it is incorrect to say that we are invading the domain of
religion. Under the Moslem law, unlike under Hindu law, marriage is
purely a civil contract. The idea of a sacrament does not enter into the
concept of marriage in Muslim jurisprudence though the incidence of the
contract may be governed by what is laid down in the Koran and by
theater jurists. Therefore, there is no question of religion being in danger.
Certainly no Parliament, no Legislature will be so unwise as to attempt
it, apart from the power of the Legislature to interfere with religious
149
tenets of peoples. After all the only community that is willing to adapt
itself to changing times seems to be the majority community in the
country. They are willing to take lessons from the minority and adapt
their Hindu Laws and take a leaf from the Muslims for the purpose of
reforming even the Hindu Law. Therefore, there is no force to the
objection that is put forward to article 35. The future Legislatures may
attempt a uniform Civil Code or they may not. The uniform Civil Code
will run into every aspect of Civil Law. In regard to contracts, procedure
and property uniformity is sought to be secured by their finding a place
in the Concurrent List. In respect of these matters the greatest
contribution of British jurisprudence has been to bring about a
uniformity in these matters. We only go a step further than the British
who ruled in this country. Why should you distrust much more a
national indigenous Government than a foreign Government which has
been ruling? Why should our Muslim friends have greater confidence,
greater faith in the British rule than in a democratic rule which will
certainly have regard to the religious tenets and beliefs of all people?
Therefore, for those reasons, I submit that the House may unanimously
pass this article which has been placed before the Members after due
consideration.”
Before the amendments were put to vote, Dr. B.R. Ambedker made the
following observations:
The Honourable Dr. B. R. Ambedkar: Sir, I am afraid I cannot accept the
amendments which have been moved to this article. In dealing with this
matter, I do not propose to touch on the merits of the question as to
whether this country should have a Civil Code or it should not. That is a
matter which I think has been dealt with sufficiently for the occasion by
my friend, Mr. Munshi, as well as by Shri Alladi Krishnaswami Ayyar.
When the amendments to certain fundamental rights are moved, it
would be possible for me to make a full statement on this subject, and I
therefore do not propose to deal with it here.
My friend, Mr. Hussain Imam, in rising to support the amendments,
asked whether it was possible and desirable to have a uniform Code of
laws for a country so vast as this is. Now I must confess that I was very
much surprised at that statement, for the simple reason that we have in
this country a uniform code of laws covering almost every aspect of
human relationship. We have a uniform and complete Criminal Code
operating throughout the country, which is contained in the Penal Code
and the Criminal Procedure Code. We have the Law of Transfer of
Property, which deals with property relations and which is operative
throughout the country. Then there are the Negotiable Instruments Acts:
and I can cite innumerable enactments which would prove that this
country has practically a Civil Code, uniform in its content and
applicable to the whole of the country. The only province the Civil Law
has not been able to invade so far is Marriage and Succession. It is this
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little corner which we have not been able to invade so far and it is the
intention of those who desire to have article 35 as part of the
Constitution to bring about that change. Therefore, the argument
whether we should attempt such a thing seems to me somewhat
misplaced for the simple reason that we have, as a matter of fact,
covered the whole lot of the field which is covered by a uniform Civil
Code in this country. It is therefore too late now to ask the question
whether we could do it. As I say, we have already done it.
Coming to the amendments, there are only two observations which I
would like to make. My first observation would be to state that members
who put forth these amendments say that the Muslim personal law, so
far as this country was concerned, was immutable and uniform through
the whole of India. Now I wish to challenge that statement. I think most
of my friends who have spoken on this amendment have quite forgotten
that up to 1935 the North-West Frontier Province was not subject to the
Shariat Law. It followed the Hindu Law in the matter of succession and
in other matters, so much so that it was in 1939 that the Central
Legislature had to come into the field and to abrogate the application of
the Hindu Law to the Muslims of the North-West Frontier Province and
to apply the Shariat Law to them. That is not all.
My honourable friends have forgotten, that, apart from the North-West
Frontier Province, up till 1937 in the rest of India, in various parts, such
as the United Provinces, the Central Provinces and Bombay, the Muslims
to a large extent were governed by the Hindu Law in the matter of
succession. In order to bring them on the plane of uniformity with regard
to the other Muslims who observed the Shariat Law, the Legislature had
to intervene in 1937 and to pass an enactment applying the Shariat Law
to the rest of India.
I am also informed by my friend, Shri Karunakara Menon, that in North
Malabar the Marumakkathayam Law applied to all-not only to Hindus
but also to Muslims. It is to be remembered that the Marumakkathayam
Law is a Matriarchal form of law and not a Partriarchal form of law.
The Mussulmans, therefore, in North Malabar were up to now following
the Marumakkathyam law. It is therefore no use making a categorical
statement that the Muslim law has been an immutable law which they
have been following from ancient times. That law as such was not
applicable in certain parts and it has been made applicable ten years
ago. Therefore if it was found necessary that for the purpose of evolving a
single civil code applicable to all citizens irrespective of their religion,
certain portions of the Hindus, law, not because they were contained in
Hindu law but because they were found to be the most suitable, were
incorporated into the new civil code projected by article 35, I am quite
certain that it would not be open to any Muslim to say that the framers
of the civil code had done great violence to the sentiments of the Muslim
community.
My second observation is to give them an assurance. I quite realise their
feelings in the matter, but I think they have read rather too much into
article 35, which merely proposes that the State shall endeavour to
151
secure a civil code for the citizens of the country. It does not say that
after the Code is framed the State shall enforce it upon all citizens merely
because they are citizens. It is perfectly possible that the future
parliament may make a provision byway of making a beginning that the
Code shall apply only to those who make a declaration that they are
prepared to be bound by it, so that in the initial stage the application of
the Code may be purely voluntary. Parliament may feel the ground by
some such method. This is not a novel method. It was adopted in the
Shariat Act of 1937 when it was applied to territories other than the
North-West Frontier Province. The law said that here is a Shariat law
which should be applied to Mussulmans who wanted that he should be
bound by the Shariat Act should go to an officer of the state, make a
declaration that he is willing to be bound by it, and after he has made
that declaration the law will bind him and his successors. It would be
perfectly possible for parliament to introduce a provision of that sort; so
that the fear which my friends have expressed here will be altogether
nullified. I therefore submit that there is no substance in these
amendments and I oppose them.”
When the matter was put to vote by the Vice President of the Constituent
Assembly, it was resolved as under:
“Mr. Vice-President: The question is:
"That the following proviso be added to article 35:
`Provided that any group, section or community or people shall not be
obliged to give up its own personal law in case it has such a law'."
The motion was negatived.”
Based on the Constituent Assembly debates with reference to draft Article
35, which was incorporated in the Constitution as Article 44 (extracted
above), it was submitted, that as expressed in Article 25(2)(b), so also the
debates of Article 44, the intent of the Constituent Assembly was to protect
‘personal laws’ of different communities by elevating their stature to that of
other fundamental rights, however with the rider, that the legislature was
competent to amend the same.
95. Sequentially, learned senior counsel invited our attention to the
Constituent Assembly debates with reference to Article 25 so as to bring
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home his contention, that the above article preserved to all their ‘personal
laws’ by elevating the same to the stature of a fundamental right. The
instant elevation, it was pointed out, was by incorporating Articles 25 and
26 as components of Part III – Fundamental Rights, of the Constitution. It
would be relevant to record, that Article 25 as it now exists, was debated as
draft Article 19 by the Constituent Assembly. It was pointed out, that only
one amendment proposed by Mohamed Ismail Sahib and its response by Pt.
Laxmikanta Mitra would bring home the proposition being canvassed,
namely, that ‘personal laws’ were inalienable rights of individuals and
permitted them to be governed in consonance with their faith. The
amendment proposed by Mohamed Ismail Sahib and his statement in that
behalf before the Constituent Assembly, as is relevant for the present
controversy, is being extracted hereunder:
“Mr. Mohamed Ismail Sahib: Thank you very much, Sir, forgiving me
another opportunity to put my views before the House on this very
important matter. I beg to move:
"That after clause (2) of article 19, the following new clause be added:
‘(3) Nothing in clause (2) of this article shall affect the right of any citizen
to follow the personal law of the group or the community to which he
belongs or professes to belong.'"
Sir, this provision which I am suggesting would only recognise the age
long right of the people to follow their own personal law, within the limits
of their families and communities. This does not affect in any way the
members of other communities. This does not encroach upon the rights
of the members of other communities to follow their own personal law. It
does not mean any sacrifice at all on the part of the members of any
other community. Sir, here what we are concerned with is only the
practice of the members of certain families coming under one
community. It is a family practice and in such cases as succession,
inheritance and disposal of properties by way of wakf and will, the
personal law operates. It is only with such matters that we are concerned
under personal law. In other matters, such as evidence, transfer of
property, contracts and in innumerable other questions of this sort, the
civil code will operate and will apply to every citizen of the land, to
153
whatever community he may belong. Therefore, this will not in any way
detract from the desirable amount of uniformity which the state may try
to bring about, in the matter of the civil law.
This practice of following personal law has been there amongst the
people for ages. What I want under this amendment is that that practice
should not be disturbed now and I want only the continuance of a
practice that has been going on among the people for ages past. On a
previous occasion Dr. Ambedkar spoke about certain enactments
concerning Muslim personal law, enactments relating to Wakf, Shariat
law and Muslim marriage law. Here there was no question of the
abrogation of the Muslim personal law at all. There was no revision at all
and in all those cases what was done was that the Muslim personal law
was elucidated and it was made clear that these laws shall apply to the
Muslims. They did not modify them at all. Therefore those enactments
and legislations cannot be cited now as matters of precedents for us to
do anything contravening the personal law of the people. Under this
amendment what I want the House to accept is that when we speak of
the State doing anything with reference to the secular aspect of religion,
the question of the personal law shall not be brought in and it shall not
be affected.
xxx xxx xxx
The question of professing, practising and propagating one’s faith is a
right which the human being had from the very beginning of time and
that has been recognised as an inalienable right of every human being,
not only in this land but the whole world over and I think that nothing
should be done to affect that right of man as a human being. That part of
the article as it stands is properly worded and it should stand as it is.
That is my view.
Another honourable Member spoke about the troubles that had arisen as
a result of the propagation of religion. I would say that the troubles were
not the result of the propagation of religion or the professing or
practicing of religion. They arose as a result of the misunderstanding of
religion. My point of view, and I say that that is the correct point of view,
is that if only people understand their respective religions aright and if
they practise them aright in the proper manner there would be no
trouble whatever; and because there was some trouble due to some
cause it does not stand to reason that the fundamental right of a human
being to practise and propagate his religion should be abrogated in any
way.”
The response of Pt. Laxmikanta Mitra is reproduced below:
“Pandit Lakshmi Kanta Mitra (West Bengal: General): Sir, I feel myself
called upon to put in a few words to explain the general implications of
this article so as to remove some of the misconceptions that have arisen
in the minds of some of my honourable Friends over it.
This article 19 of the Draft Constitution confers on all person the right to
profess, practise and propagate any religion they like but this right has
been circumscribed by certain conditions which the State would be free
to impose in the interests of public morality, public order and public
154
health and also in so far as the right conferred here does not conflict in
any way with the other provisions elaborated under this part of the
Constitution. Some of my Friends argued that this right ought not to be
permitted in this Draft Constitution for the simple reason that we have
declared time and again that this is going to be a secular State and as
such practice of religion should not be permitted as a fundamental right.
It has been further argued that by conferring the additional right to
propagate a particular faith or religion the door is opened for all manner
of troubles and conflicts which would eventually paralyse the normal life
of the State. I would say at once that this conception of a secular State is
wholly wrong. (By secular State, as I understand it, is meant that the
State is not going to make any discrimination whatsoever on the ground
of religion or community against any person professing any particular
form of religious faith. This means in essence that no particular religion
in the State will receive any State patronage whatsoever. The State is not
going to establish, patronise or endow any particular religion to the
exclusion of or in preference to others and that no citizen in the State
will have any preferential treatment or will be discriminated against
simply on the ground that he professed a particular form of religion. In
other words in the affairs of the State the professing of any particular
religion will not be taken into consideration at all.) This I consider to be
the essence of a secular state. At the same time we must be very careful
to see that this land of ours we do not deny to anybody the right not only
to profess or practise but also to propagate any particular religion. Mr.
Vice-President, this glorious land of ours is nothing if it does not stand
for lofty religious and spiritual concepts and ideals. India would not be
occupying any place of honour on this globe if she had not reached that
spiritual height which she did in her glorious past. Therefore I feel that
the Constitution has rightly provided for this not only as a right but also
as a fundamental right. In the exercise of this fundamental right every
community inhabiting this State professing any religion will have equal
right and equal facilities to do whatever it likes in accordance with its
religion provided it does not clash with the conditions laid down here.”
In addition to the above, it is only relevant to mention, that the amendment
proposed by Mohamed Ismail Sahib was negatived by the Constituent
Assembly.
96. While concluding his submissions Mr. Kapil Sibal, learned Senior
Advocate, focused his attention to the Muslim Personal Law (Shariat)
Application, 1937 and invited our attention to some of the debates which
had taken place when the Bill was presented before the Legislative
155
Assembly. Reference is only necessary to the statements made by H.M.
Abdullah and Abdul Qaiyum on the floor of the House. The same are
extracted hereunder:
“Mr H. M. Abdullah (West Central Punjab: Muhammadan): Sir, I beg to
move: "That the Bill to make provision for the application of the Moslem
Personal Law (Shariat) to Moslems in British India, as reported by the
Select Committee, be taken into consideration."
The object of the Bill, as the House is already aware, is to replace the
customary law by the Shari at law in certain matters where the parties to
a dispute are Muslims. By doing so, it also helps the weaker sex as it
enables women to succeed to the ancestral property and to claim
dissolution of marriage on certain grounds. After explaining the object of
the Bill briefly, it gives me great pleasure to say that the Bill has met
with a unanimous support from the Select Committee except in one or
two points. Objection has been taken to the words "or Law" in clause 2 of
the Bill by Messrs Mudie, Muhammad Azhar Ali and Sir Muhammad
Yarnin Khan in their minutes of dissent. As there is an amendment on
the agenda for the omission of these words, I shall deal with it when it is
moved. Meanwhile, I would confine my remarks to the modifications
suggested by the Select Committee. The main changes made by it are
two, one relating to the exclusion of the agricultural land from the
purview of the Bill, and the other concerning the amplification of the
word "divorce". As succession to agricultural land is an exclusively
provincial subject under the Government of India Act, 1935, it had,
much against my wish, to be excluded from the Bill. Having regard to the
different forms of dissolution of marriage recognised by the Shariat, it
was considered necessary to provide for all of them. In order to
implement the provisions in this respect, a new clause 3 has been
inserted in the Bill empowering the District Judge to grant dissolution of
marriage on petition of a married Muslim woman on certain grounds.
These changes have been introduced in the interest of the females who,
in such matters, are at present at the mercy of their husbands.
I am sure that these wholesome changes will be supported by the House.
In addition to the above, the Select Committee have made a few other
amendments which are fully explained in the report, and I need not take
the time of the House in dilating upon them. I hope that the Bill in its
present form will meet with the approval of the whole House.
Sir, I move.
Mr Deputy President (Mr Akhil Chandra Dattas): Motion moved: "That
the Bill to make provision for the application of the Moslem Personal Law
(Shariat) to Moslems in British India, as reported by the Select
Committee, be taken into consideration."
Mr Abdul Qaiyum (North-West Frontier Province: General): Sir, I am in
sympathy with the objects which this very useful Bill aims at. There is a
great awakening among the Muslim masses, and they are terribly
156
conscious of their wretched condition socially, politically and
economically. There is a desire in the 107 108 Appendix B community for
an advance in all these directions. The feelings of the Muslim community
have been expressed in public meetings throughout the length and
breadth of this country. This feeling, I have great pleasure in stating, is
not merely confined to males but it has spread to the females also, and
for the first time the Muslim women in India have given expression to
their strong feelings against the dead hand of customary law which has
reduced them into the position of chattels. Sir, these feelings have been
expressed by various organisations of Muslim women throughout India.
A representative body of Muslim Ulema like the Jamait-ulUlemai-Hind
has also expressed its sympathy with the objects of this Bill. Sir, there is
something in the word Shariat, -may be it is Arabic, - which gives a sort
of fright to some of my Honourable friends, but I think if they try to read
the Muhammadan Law on the point, especially on the point of
succession, they will realise that this Bill was long overdue and that it is
a step in the right direction. People have no idea of what terrible
conditions the Muslim women have had to endure in my own Province: I
can say that whenever a Muslim died, at least before the Frontier Shariat
Law was enacted in the North-West Frontier Province, his daughter, his
sister and his wife all used to be thrown into the street, and the
reversioner in the tenth degree would come round and collar all his
property. I think that the conscience of all those who believe in progress,
social, political and economic will revolt against such practice and once
people realise that this Bill is primarily intended to improve the status of
women and to confer upon them benefits which are lawfully their due
under the Muhammadan law, then they will gladly support this measure.
'Custom' is a very indefinite term. I know it as a lawyer that in my
Province whenever a question of custom used to crop up it used to
involve any amount of research work, lawyers used to indulge in
research work to find out cases, look up small books on customary law
and it was found that the custom varied from tribe to tribe, from village
to village and it has been held, by the High Court in our Province before
the Shariat Act came into force, that custom varied from one part of the
village to the other. The position was so uncertain that people had to
spend so much money on litigation that by the time litigation came to an
end the property for which people were fighting would disappear. It was
with a view to put an end to this uncertainty that people in the Frontier
Province pressed for an Act which was subsequently passed into law.
I have only one thing to say. Personally I want the Muslims in India in
matters affecting them to follow the personal law of the Muslims as far as
they can. I want them to move in this direction because it is a thing
which is going to help the Muslims and because the Muslims form a very
important minority community in this country- they are 80 millions - all
well-wishers of this country will agree with me that if it enhances the
states of Muslims, if it brings the much needed relief to the Muslim
women, it will be a good thing for the cause of the Indian nation.
Therefore, in our Province an Act was passed which goes much further
157
than this particular Bill which is now under discussion before this
House. It is a very well-known fact that under the new Government of
India Act, agricultural land and waqfs and religious trusts are provincial
subjects and that this Honourable House cannot legislate about matters
which are now on the provincial legislative list. The Act which we have in
the Frontier Province, Act VI of 1935, goes much further than this Bill
because it includes agricultural land and religious trusts. Therefore, I
have tabled an amendment that this particular Bill - though I heartily
agree with the principles of Appendix B 109 the Bill - when enacted into
law, should not be extended to our Province. If it is so extended, it would
mean that the people of the Frontier Province would be taking a step
backward and not forwards. It is well-known fact and it is laid down in
the Government of India Act, Section 107, that where a Federal Law
comes into conflict with a Provincial Law and even if the Federal Law has
been passed after the Provincial Law, then to that extent it over-rides the
Provincial law and the Provincial Law becomes null and void. Therefore,
my submission is that the intention with which I tabled my amendment
was not with any idea of opposing the object of this Bill, but my reason
for moving this amendment is that this Bill does not go as far as we wish
to go -at least in one Province, namely, the North-West Frontier Province.
I submit this is a measure which has been long overdue. I have known
cases where a widow who was enjoying life estate - and whose
reversioners were waiting for her death - did not die but happened to
have a very long life. There have been cases in the Northwest Frontier
Province where people have taken the law into their own hands and in
order to get the property they have murdered the widow. I can cite other
cases before this Honourable House. There have been cases which I have
come across in my legal and professional career where, when a man dies
leaving a wife who by customary law has to enjoy the property till her
death or remarriage, certain reversioners come forward and bring a suit
to declare that the widow had married one of the reversioners with a view
to proving that she was no longer a widow and with a view to terminate
her life estate. There have been numerous cases where families have
been ruined, murderers and stabbings have taken place because the
dead hand of customary law stood in the way of the reversioners who
were anxious to get what they could not get and in order to deprive the
poor widow, false cases have been tromped up that she had remarried.
There have been many other illegal tricks resorted to by people with a
view to get hold of the property. I submit, Sir, that the dead hand of
customary law must be removed. We are living in an age in which very
important changes are taking place. After all this customary law is a
thing of the past When many other things are going the way of all flesh,
when even systems of Government have to change, when even mighty
Empires have disappeared, when we see signs of softening even in the
hearts of the Government of India, when we have got popular Congress
Governments in seven Provinces - a thing which nobody would have
believed six months ago or one year ago. I submit that it is high time that
we got rid of this dead hand of custom. After all custom is a horrible
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thing as far as this particular matter is concerned, and by endorsing the
principles of this Bill we would be doing justice to millions of Indian
women who profess Muslim faith. I hope, Sir, the day is not far off when
other communities will also bring similar measures and when in India
women and men will be treated equally in the eyes of law in the matter of
property, political rights, social rights and in all other respects. I have,
therefore, great pleasure in supporting the principles of this Bill.”
Based on the aforesaid debates and the details expressed hereinabove (-for
details, refer to Part-4 – Legislation in India, in the field of Muslim ‘personal
law’), it was contended, that the main object of the legislation was not to
express the details of the Muslim ‘personal law’ – ‘Shariat’. The object was
merely to do away with customs and usages as were in conflict with Muslim
‘personal law’ – ‘Shariat’. It was therefore submitted, that it would not be
proper to hold, that by the Shariat Act, the legislature gave statutory status
to Muslim ‘personal law’ – ‘Shariat’. It would be necessary to understand
the above enactment, as statutorily abrogating customary practices and
usages, as were in conflict with the existing Muslim ‘personal law’ –
‘Shariat’. It was submitted, that the above enactment did not decide what
was, or was not, Muslim ‘personal law’ – ‘Shariat’. It would therefore be a
misnomer to consider that the Muslim Personal Law (Shariat) Application
Act, 1937, in any way, legislated on the above subject. It was pointed out,
that Muslim ‘personal law’ – ‘Shariat’ comprised of the declarations
contained in the Quran, or through ‘hadiths’, ‘ijmas’ and ‘qiyas’ (-for details,
refer to Part-2 – The practiced modes of ‘talaq’ amongst Muslims). It was
pointed out, that the articles of faith, as have been expressed on a variety of
subjects of Muslim ‘personal law’ – ‘Shariat’, have been in place ever since
they were declared by the Prophet Mohammed. Insofar as the practice of
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‘talaq-e-biddat’ is concerned, it was submitted, that it has been practised
amongst Muslims for the last 1400 years. It was submitted, that the same
is an accepted mode of divorce amongst Muslims. It was therefore urged,
that it was not for this Court to decide, whether the aforesaid practice was
just and equitable. The reason for this Court not to interfere with the same,
it was submitted was, that the same was a matter of faith, of a majority of
Muslims in this country, and this Court would be well advised to leave such
a practice of faith, to be determined in the manner as was considered fit by
those who were governed thereby. A belief, according to learned senior
counsel, which is practiced for 1400 years, is a matter of faith, and is
protected under Article 25 of the Constitution. Matters of belief and faith, it
was submitted, have been accepted to constitute the fundamental rights of
the followers of the concerned religion. Only such practices of faith,
permitted to be interfered with under Article 25(1), as are opposed to public
order, morality and health. It was pointed out, that in addition to the
above, a court could interfere only when articles of faith violated the
provisions of Part III – Fundamental Rights, of the Constitution. Insofar as
the reliance placed by the petitioners on Articles 14, 15 and 21 is
concerned, it was submitted, that Articles 14, 15 and 21 are obligations
cast on the State, and as such, were clearly inapplicable to matters of
‘personal law’, which cannot be attributed to State action.
97. While concluding his submissions, learned senior counsel also
affirmed, that he would file an affidavit on behalf of the AIMPLB. The
aforesaid affidavit was duly filed, which reads as under:
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“1. I am the Secretary of All India Muslim Personal Law Board which has
been arraigned as Respondent No.3 and as Respondent No.8 respectively
to the above-captioned Writ Petitions. I am conversant with the facts
and circumstances of the present case and I am competent to swear this
Affidavit.
2. I say and submit that the All India Muslim Personal Law Board will
issue an advisory through its Website, Publications and Social Media
Platforms and thereby advise the persons who perform ‘Nikah’ (marriage)
and request them to do the following:-
(a) At the time of performing ‘Nikah’ (Marriage), the person performing
the ‘Nikah’ will advise the Bridegroom/Man that in case of differences
leading to Talaq the Bridegroom/Man shall not pronounce three divorces
in one sitting since it is an undesirable practice in Shariat;
(b) That at the time of performing ‘Nikah’ (Marriage), the person
performing the ‘Nikah’ will advise both the Bridegroom/Man and the
Bride/Woman to incorporate a condition in the ‘Nikahnama’ to exclude
resorting to pronouncement of three divorces by her husband in one
sitting.
3. I say and submit that, in addition, the Board is placing on record, that
the Working Committee of the Board had earlier already passed certain
resolutions in the meeting held on 15th and 16th April, 2017 in relation to
Divorce (Talaq) in the Muslim community. Thereby it was resolved to
convey a code of conduct/guidelines to be followed in the matters of
divorce particularly emphasizing to avoid pronouncement of three
divorces in one sitting. A copy of the resolution dated April 16, 2017
alongwith the relevant Translation of Resolution Nos. 2, 3, 4 & 5 relating
to Talaq (Divorce) is enclosed herewith for the perusal of this Hon’ble
Court and marked as Annexure A-1 (Colly) [Page Nos.4 to 12] to the
present Affidavit.”
Based on the above affidavit, it was contended, that social reforms with
reference to ‘personal law’ must emerge from the concerned community
itself. It was reiterated, that no court should have any say in the matter of
reforms to ‘personal law’. It was submitted, that it was not within the
domain of judicial discretion to interfere with the matters of ‘personal law’
except on grounds depicted in Article 25(1) of the Constitution. It was
contended, that the practice of ‘talaq-e-biddat’ was not liable to be set aside,
on any of the above grounds.
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98. While supplementing the contentions noticed in the preceding
paragraph, it was submitted, that Article 25(2)(b) vested the power with the
legislature, to interfere with ‘personal law’ on the ground of social welfare
and reform. It was therefore contended, that the prayer made by the
petitioner and those supporting the petitioner’s case before this Court,
should be addressed to the members of the community who are competent
to amend the existing traditions, and alternatively to the legislature which is
empowered to legislatively abrogate the same, as a measure of social welfare
and reform. With the above observations, learned senior counsel prayed for
the rejection of the prayers made by the petitioners.
99. Mr. Raju Ramachandran, Senior Advocate, entered appearance on
behalf of Jamiat Ulema-i-Hind, i.e., respondent no.1 in Suo Motu Writ
Petition (Civil) No.2 of 2015 and respondent no.9 in Writ Petition (Civil)
No.118 of 2016. At the beginning of his submissions, learned senior
counsel stated, that he desired to endorse each one of the submissions
advanced before this Court by Mr. Kapil Sibal, Senior Advocate. We
therefore hereby record the aforesaid contention of learned senior counsel.
100. In addition to the above, it was submitted, that the cause raised by
the petitioner (and others) before this Court was clearly frivolous. It was
submitted, that under the Muslim ‘personal law’ – ‘Shariat’, parties at the
time of executing ‘nikahnama’ (marriage deed) are free to incorporate terms
and conditions, as may be considered suitable by them. It was submitted,
that it was open to the wife, at the time of executing ‘nikahnama’, to provide
therein, that her husband would not have the right to divorce her through a
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declaration in the nature of ‘talaq-e-biddat’. It was therefore submitted,
that it was clearly misconceived for the petitioner to approach this Court to
seek a declaration against the validity of ‘talaq-e-biddat’. Alternatively, it
was contended, that after the enactment of the Special Marriage Act, 1954,
all citizens of India whether male or female, irrespective of the faith they
professed, have the option to be governed by the provisions of the said Act,
instead of their own ‘personal law’. It was therefore contended, that
spouses belonging to a particular religious denomination, had the choice to
opt for a secular and non-religious law, namely, the Special Marriage Act,
1954, and such of the parties who accept the choice (even if they profess
the Muslim religion), would automatically escape from all religious
practices, including ‘talaq-e-biddat’. It was therefore contended, that such
of the couples who married in terms of their ‘personal law’, must be deemed
to have exercised their conscious option to be regulated by the ‘personal
law’, under which they were married. Having exercised the aforesaid
option, it was submitted, that it was not open to a Muslim couple to then
plead, against the practice of ‘talaq-e-biddat’. It was submitted, that when
parties consent to marry, their consent does not extend to the choice of the
person with reference to whom the consent is extended, but it also implicitly
extends to the law by which the matrimonial alliances are to be regulated.
If the consent is to marry in consonance with the ‘personal law’, then the
rigours of ‘personal law’ would regulate the procedure for dissolution of
marriage. And likewise, if the consent is to marry under the Special
Marriage Act, 1954, the consent is to be governed by the provisions of the
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aforesaid legislation. In such a situation, it was submitted, that a person,
who had consciously opted for the matrimonial alliance under ‘personal law’
cannot complain, that the ‘personal law’ was unfavourable or
discriminatory. It was submitted, that in the above view of the matter, the
very filing of the instant petition before this Court, and the support of the
petitioner’s cause by those who have been impleaded, or had appeared to
represent the petitioner’s cause, must be deemed to be wholly misconceived
in law.
101. The second submission advanced at the hands of the learned senior
counsel, was that the issues raised by the petitioner with reference to the
validity of ‘talaq-e-biddat’ – triple talaq were matters of legislative policy,
and could not (though learned counsel truly meant – ought not) be
interfered with through the judicial process. In this behalf, learned senior
counsel invited the Court’s attention to Maharshi Avadhesh v. Union of
India32, wherein the petitioner had approached this Court by filing a writ
petition under Article 32 of the Constitution, with the following prayers:
“(i) A writ of mandamus to the respondents to consider the question of
enacting a common civil code for all citizens of India.
(ii) To declare Muslim Women (Protection of Rights on Divorce) Act, 1986
as void being arbitrary and discriminatory and in violation of Articles 14
and 15 and Articles 44, 38 39 and 39-A of the Constitution of India.
(iii) To direct the respondents not to enact Shariat Act in respect of those
adversely affecting the dignity and rights of Muslim women and against
their protection.”
It was pointed out, that this Court dismissed the above writ petition by
observing, “these are all matters for legislature. The court cannot legislate
on these matters.”

32 (1994) Suppl. (1) SCC 713
164
102. Reliance was also placed on the Ahmedabad Women Action Group
case30. It was submitted that this Court considered the following issues
during the course of adjudication of the above matter.
“(i) Whether Muslim Personal Law which allows Polygamy is void as
offending Articles 14 and 15 of the Constitution.
(ii) Whether Muslim Personal Law which enables a Muslim male to give
unilateral Talaq to his wife without her consent and without resort to
judicial process of courts, is void as it offends Articles 13, 14 and 15 of
the Constitution.
(iii) Whether the mere fact that a Muslim husband takes more than one
wife is an act of cruelty.”
103. It was pointed out, that having heard the above matter, the same
was dismissed by recording the following observations in paragraph 4 of the
judgment:
“At the outset, we would like to state that these writ petitions do not
deserve disposal on merits inasmuch as the arguments advanced by the
learned Senior Advocate before us wholly involve issues of State policies
with which the Court will not ordinarily have any concern. Further, we
find that when similar attempts were made, of course by others, on
earlier occasions this Court held that the remedy lies somewhere else
and not by knocking at the doors of the courts.”
104. Having raised the two preliminary objections with reference to the
entertainment of the prayer made by the petitioner, learned counsel invited
the Court’s attention to abolition of the practice of ‘talaq-e-biddat’ in other
countries. It was submitted, that (-for details, refer to Part-5 – Abrogation
of the practice of ‘talaq-e-biddat’ by legislation, the world over, in Islamic, as
well as, non-Islamic States), the above contention was adopted both by the
petitioner, as well as, those who supported the petitioner’s cause, as also by
the Union of India, in order to contend, that the practice of ‘talaq-e-biddat’
has been done away with in other Islamic countries, as a matter of social
reform, on account of its being abhorrent, and also unilateral and arbitrary.
165
It was submitted, that the constitutional validity of ‘personal law’ in India,
cannot be tested on the basis of enacted legislations of other countries. At
this juncture, learned senior counsel desired us to notice, that the instant
submission had been advanced without prejudice to the contention being
canvassed by him, that the validity of ‘personal law’ cannot be tested at all,
with reference to the fundamental rights vested in individuals under Part III
of the Constitution, for the reason, that ‘personal law’ cannot be treated as
law within the meaning of Article 13 of the Constitution.
105. Mr. Raju Ramachandran, learned senior counsel, then endeavoured
to establish the validity of ‘talaq-e-biddat’ – triple talaq. It was submitted,
that out of the five schools of Sunni Muslims ‘talaq-e-biddat’ was considered
a valid form of divorce of four of the said schools. It was submitted, that the
above position was accepted by the Delhi High Court in the Masroor Ahmed
case4, wherein in paragraph 26, the High Court observed “…..It is accepted
by all schools of law that ‘talaq-e-biddat’ is sinful, yet some schools
regarded it as valid…..”. It has also been acknowledged by the High Courts
in different judgments rendered by them (-for details, refer to Part-6 –
Judicial pronouncements, on the subject of ‘talaq-e-biddat’). It was
accordingly sought to be inferred, that once it was established as a fact,
that certain schools of Shia Muslims believed ‘talaq-e-biddat’ to be a valid
form of divorce, the consequence that would follow would be, that
cohabitation amongst the spouses after the pronouncement of ‘talaq-ebiddat’
would be sinful, as per the injunction of the Quran, in ‘sura’ 2, Al
Baqara Ayah 230. The same is reproduced hereunder:
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“And if he has divorced her (for the third time), then she is not lawful to
him afterward until (after) she marries a husband other than him. And if
the latter husband divorces her (or dies), there is no blame upon the
woman and her former husband for returning to each other if they think
that they can keep (within)the limits of Allah. These are the limits of
Allah, which He makes clear to a people who know.”
It was pointed out, that the belief that after a husband has divorced his wife
by pronouncing talaq thrice, it had been interfered that the three
pronouncements should be treated as a singular pronouncement. It was
pointd out, that High Courts have no such jurisdiction as has been
exercised by them on the subject of ‘talaq-e-biddat’. It was accordingly
asserted, that the above action constituted the creation of inroads into
‘personal law’ of Muslims, which stood protected under Article 25 of the
Constitution. In this behalf, it was also submitted, that while deciding the
issue whether a belief or a practice constituted an integral part of religion,
this Court held, that the above question needed to be answered on the basis
of the views of the followers of the faith, and none else. In order to support
his above submission, learned senior counsel, placed reliance on the Sardar
Syedna Taher Saifuddin Saheb case28, wherein this Court observed as
under:
“The content of Articlles 25 and 26 of the Constitution came up for
consideration before this Court in the Commissioner, Hindu Religious
Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Matt; Mahant Jagannath Ramanuj Das v. The State of Orissa; Sri
Ventatamana Devaru v. The State of Mysore; Durgah Committee, Ajmer
v. Syed Hussain Ali and several other cases and the main principles
underlying these provisions have by these decisions been placed beyond
controversy. The first is that the protection of these articles is not
limited to matters of doctrine or belief they extend also to acts done in
pursuance of religion and therefore contain a guarantee for rituals and
observances, ceremonies and modes of worship which are integral parts
of religion. The second is that what constitutes an essential part of a
religious or religious practice has to be decided by the courts with
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reference to the doctrine of a particular religion and include practices
which are regarded by the community as a part of its religion”.
It was pointed out, that the above view of this Court had been affirmed by
this Court in N. Adithyan v. Travancore Devasom Board33, wherein in
paragraphs 9 and 16, it was observed as under:
“9. This Court, in Seshammal v. State of T.N., (1972) 2 SCC 11 again
reviewed the principles underlying the protection engrafted in Articles 25
and 26 in the context of a challenge made to abolition of hereditary right
of Archaka, and reiterated the position as hereunder : (SCC p.21, paras
13-14)
“13. This Court in Sardar Taher Saifuddin Saheb v. State of Bombay AIR
1962 SC 853 has summarized the position in law as follows (pp.531 and
532):
‘The content of Articles 25 and 26 of the Constitution came up for
consideration before this Court in Commr., Hindu Religious Endowments
v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, Mahant
Jagannath Ramanuj Das v. State of Orissa, Venkataramana Devaru v.
State of Mysore, Durgah Committee, Ajmer v. Syed Hussain Ali15 and
several other cases and the main principles underlying these provisions
have by these decisions been placed beyond controversy. The first is that
the protection of these articles is not limited to matters of doctrine or
belief they extend also to acts done in pursuance of religion and therefore
contain a guarantee for rituals and observances, ceremonies and modes
of worship which are integral parts of religion. The second is that what
constitutes an essential part of a religion or religious practice has to be
decided by the courts with reference to the doctrine of a particular
religion and include practices which are regarded by the community as a
part of its religion.’
14. Bearing these principles in mind, we have to approach the
controversy in the present case.”
16. It is now well settled that Article 25 secures to every person, subject
of course to public order, health and morality and other provisions of
Part III, including Article 17 freedom to entertain and exhibit by outward
acts as well as propagate and disseminate such religious belief according
to his judgment and conscience for the edification of others. The right of
the State to impose such restrictions as are desired or found necessary
on grounds of public order, health and morality is inbuilt in Articles 25
and 26 itself. Article 25(2)(b) ensures the right of the State to make a law
providing for social welfare and reform besides throwing open of Hindu
religious institutions of a public character to all classes and sections of
Hindus and any such rights of the Sate or of the communities or classes
of society were also considered to need due regulation in the process of

33 (2002) 8 SCC 106
168
harmonizing the various rights. The vision of the founding fathers of the
Constitution to liberate the society from blind and ritualistic adherence
to mere traditional superstitious beliefs sans reason or rational basis has
found expression in the form of Article 17. The legal position that the
protection under Articles 25 and 26 extends a guarantee for rituals and
observances, ceremonies and modes of worship which are integral parts
of religion and as to what really constitutes an essential part of religion
or religious practice has to be decided by the courts with reference to the
doctrine of a particular religion or practices regarded as parts of religion,
came to be equally firmly laid down.”
In continuation of the above submission, learned senior counsel also placed
reliance on Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v.
State of U.P.34, wherein this Court held as under:
“28…..All secular activities which may be associated with religion but
which do not relate or constitute an essential part of it may be amenable
to State regulations but what constitutes the essential part of religion
may be ascertained primarily from the doctrines of that religion itself
according to its tenets, historical background and change in evolved
process etc. The concept of essentiality is not itself a determinative
factor. It is one of the circumstances to be considered in adjudging
whether the particular matters of religion or religious practices or belief
are an integral part of the religion. It must be decided whether the
practices or matters are considered integral by the community itself.
Though not conclusive, this is also one of the facets to be noticed. The
practice in question is religious in character and whether it could be
regarded as an integral and essential part of the religion and if the court
finds upon evidence adduced before it that it is an integral or essential
part of the religion, Article 25 accords protection to it. …..”
It was the pointed contention of learned senior counsel, that the judgments
rendered by the High Courts on the subject of ‘talaq-e-biddat’ (-for details,
refer to Part-6 – Judicial pronouncements, on the subject of ‘talaq-ebiddat’),
were unsustainable in law, because the High Courts had
substituted their own views with reference to their understanding of ‘talaqe-biddat’.
It was also pointed out, that supplanting of the views of one of
the schools on the beliefs of the other four schools, of Sunni Muslims, with

34 (1997) 4 SCC 606
169
reference to ‘talaq-e-biddat’, was in clear breach of the understanding of
Muslims.
106. Learned senior counsel also disputed the reliance on International
Conventions by all those who had assisted this Court on behalf of the
petitioner. In this behalf, it was pointed out, that reliance on International
Conventions, particularly on CEDAW was wholly misplaced, since India had
expressed a clear reservation to the Conventions in order to support its
constitutional policy of non-interference in the personal affairs of any
community. In this behalf, while making a particular reference to CEDAW,
it was submitted, that the above declarations/reservations were first made
at the time of signing the aforesaid conventions and thereafter, even at the
time of ratification. In this behalf, it was pointed out, that the first
declaration was made by India in the following format:-
“i) With regard to articles 5(a) and 16(1) of the Convention on the
Elimination of All Forms of Discimination Against Women, the
Governmetn of the Republic of India declares that it shall abide by and
ensure these provisions in conformity with its policy of non-interefernece
in the personal affairs of any Community without its initiative and
consent."
In view of the clear stance adopted at the time of signing the Convention, as
also, at the time of its ratification, it was submitted, that there could be no
doubt, that India had itself committed that it would not interfere with
personal affairs of any community, without the initiative and consent of the
concerned community. It was submitted, that the aforesaid commitment
could not be ignored by the Union of India. While addressing this Court on
the issue under reference, it was submitted, that the position adopted by
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the Union of India, was in clear derogation of the stance adopted on behalf
of the India, as has been detailed above.
107. Learned senior counsel also seriously disputed the submissions
advanced at the hands of the petitioners based on repudiation of the
practice of ‘talaq-e-biddat’ in various secular countries with Muslims in the
majority, as also, theocratic States, through express legislation on the issue
(-for details, refer to Part-5 – Abrogation of the practice of ‘talaq-e-biddat’ by
legislation, the world over, in Islamic, as well as, non-Islamic States). In
this behalf, it was submitted, that ‘personal law’ of classes and sections of
the society and/or of religious denominations are sought to be protected by
the Constitution by raising them to the high position of fundamental rights.
It was accordingly asserted, that what was available to such classes and
sections of society, as also, to the religious denominations as a matter of
fundamental right under the Constitution, could not be negated, because
other countries had enacted legislations for such annulment. Further
more, it was submitted, that legislation is based on the collective will of the
residents of a particular country, and as such, the will of the residents of a
foreign country, cannot be thrust upon the will of the residents in India.
While adopting the position canvassed on behalf of learned senior counsel
who had preceded him, it was pointed out, that it was open to the
legislature in India, to likewise provide for such legislation, because entry 5
of the Concurrent List contained in the Seventh Schedule allows legislation
even with reference to matters governed by ‘personal law’. Additionally, it
was submitted, that provision in this behalf was available in Article 25(2)(b),
171
which provides that for espousing the cause of social welfare and reform it
was open to the legislature even to legislate on matters governed under
‘personal law’. It was therefore contended that all such submissions
advanced on behalf of the petitioners need to be ignored.
108. Mr. V. Giri, Senior Advocate, entered appearance on behalf of
Jamiat-ul-Ulama-i-Hind (represented by its General Secretary, 1 Bahadur
Shah Zafar Marg, New Delhi) – respondent no.7 in Suo Motu Writ Petition
(Civil) No.2 of 2015 and respondent no.6 in Writ Petition (Civil) No. 118 of
2016. It would be relevant to mention, at the outset, that learned senior
counsel endorsed the submissions advanced by Mr. Kapil Sibal and Mr.
Raju Ramachandra, Senior Advocates, who had assisted this Court before
him. Learned senior counsel focused his contentions, firstly to the
challenge raised to the validity of Section 2 of the Muslim Personal Law
(Shariat) Application Act, 1937, insofar as, it relates to ‘talaq-e-biddat’ on
the ground, that the same being unconstitutional, was unenforceable.
Learned senior counsel, in order to raise his challenge, first and foremost,
drew our attention to Sections 2 and 3 of the Muslim Personal Law (Shariat)
Application Act, 1937 (-for details, refer to Part-4 – Legislation in India, in
the field of Muslim ‘personal law’). It was submitted, that Section 2
aforesaid, commenced with a non obstante clause. It was pointed out, that
the aforesaid non obstante clause was referable only to amplify the
exclusion of such customs and usages, as were contrary to Muslim
‘personal law’ – ‘Shariat’. It was submitted, that reference was pointedly
made only to such customs and usages as were not in consonance with the
172
Muslim ‘personal law’ – ‘Shariat’. It was asserted, that the mandate of
Section 2 was aimed at making Muslim ‘personal law’ – ‘Shariat’ as “the rule
of decision”, even when customs and usages were to the contrary. It was
sought to be explained, that the Shariat Act neither defined nor expounded,
the parameters of the same, with reference to subjects to which Sections 2
and 3 were made applicable. It was therefore submitted, that the
enactment under reference did not introduce Muslim ‘personal law’ –
‘Shariat’, as the same was the law applicable to the Muslims even prior to
the enactment of the said legislation. In this behalf, it was pointed out, that
in different parts of the country customs and usages were being applied
even with reference to the Muslims overriding their ‘personal law’. In order
to substantiate the above contention learned senior counsel made a pointed
reference to the statement of objects and reasons of the above enactment,
which would reveal that Muslims of British India had persistently urged
that customary law and usages should not take the place of Muslim
‘personal law’ – ‘Shariat’. It was also pointed out, that the statement of
objects and reasons also highlight that his client, namely, Jamiat-ul-Ulemai-Hind
had supported the demand of the applicability of the Muslim
‘personal law’ – ‘Shariat’, for adjudication of disputes amonst Muslims, and
had urged, that custom and usage to the contrary, should not have an
overriding effect. It was pointed out, that this could be done only because
Muslim ‘personal law’ – ‘Shariat’ was in existence and was inapplicable to
the adjudication of disputes amongst Muslims, even prior to the above
enactment in 1937. Understood in the aforesaid manner, it was submitted,
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that Muslim ‘personal law’ as a body of law, was only perpetuated, by the
Shariat Act. It was submitted, that the Muslim ‘personal law’ had not been
subsumed by the statute nor had the 1937 Act codified the Muslim
‘personal law’. It was submitted, that the 1937 legislation was only
statutorily declared that the Muslim ‘personal law’, as a set of rules, would
govern the Muslims in India, and that, it would be the Muslim ‘personal law’
that would have an overriding effect over any custom or usage to the
contrary. It was therefore reiterated, that the legislature which enacted the
Muslim Personal Law (Shariat) Application Act, 1937, neither modified nor
amended even in a small measure, the Muslim ‘personal law’ applicable to
the Muslims in India, nor did the legislature while enacting the above
enactment, subsumed the Muslim ‘personal law’, and therefore, the
character of the Muslim ‘personal law’ did not undergo a change on account
of the enactment of the Muslim Personal Law (Shariat) Application Act,
1937. According to learned senior counsel, the Muslim ‘personal law’ did
not metamorphized into a statute, and as such, the rights and duties of
Muslims in India continued to be governed even after the enactment of the
Shariat Act, as before. It was pointed out, that the Shariat Act did not
substitute, nor did it provide for any different set of rights and obligations
other than those which were recognized and prevalent as Muslim ‘personal
law’ – ‘Shariat’. As such, it was contended, that it was wholly unjustified to
assume, that Muslim ‘personal law’ – ‘Shariat’ was given statutory effect,
through the Shariat Act. It was therefore submitted that a challenge to the
validity of Section 2 of the above enactment, so as to assail the validity of
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‘talaq-e-biddat’ as being contrary to the fundamental rights contained in
Part III of the Constitution, was an exercise in futility. Insofar as the
instant assertion is concerned, learned senior counsel advanced two
submissions – firstly, that Section 2 of the Muslim Personal Law (Shariat)
Application Act, 1937 did not by itself bring about any law providing for
rights and obligations to be asserted and discharged by the Muslims as a
community, for the simple reason, that it only reaffirmed the perpetuieties
of the Muslim ‘personal law’ – ‘Shariat’, and as such, the rights and
obligations of persons which were subjected to Muslim ‘personal law’ –
‘Shariat’, continued as they existed prior to the enactment of the Shariat
Act. And secondly, the Muslim ‘personal law’ – ‘Shariat’, was neither
transformed nor metamorphized by the Shariat Act, in the nature of
crystalised rules and regulations, and as such, even if Section 2 of the
Muslim Personal Law (Shariat) Application Act, 1937 was struck down, the
same would automatically revive the Muslim ‘personal law’ – ‘Shariat’, in
view of the mandate contained in Article 25 of the Constitution.
Accordingly, it was pointed out, that the parameters of challenge, as were
applicable to assail a statutory enactment, would not be applicable in the
matter of assailing the Muslim ‘personal law’ – ‘Shariat’. It was also the
contention of learned senior counsel, that under Article 25(1) of the
Constitution the right to freely profess, practice and propagate religion, was
a universal right, guaranteed to every person, to act in affirmation of his
own faith. It was submitted, that the above ambit was the core of the
secular nature of the Indian Constitution. It was accordingly pointed out,
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that the confines of the rights protected under Article 25(1), could be
assailed on limited grounds of public order, morality and health, and also if,
the provisions of Part III – Fundamental Rights, of the Constitution were
breached.
109. It was submitted, that a breach of the provisions contained in Part
III – Fundamental Rights under the Constitution, could only be invoked
with reference to a State action, as only State action has to conform to
Articles 14, 15 and 21. It was therefore submitted, that a facial subjugation
of the right under Article 25(1) to the other provisons of the Constitution
would be inapplicable in the case of ‘personal law’, that has no source to
any statute, or State action. It was submitted, that the Shariat Act affirms
the applicability of Muslim ‘personal law’ – ‘Shariat’ and perpetuates it by
virtue of Section 2 thereof. And therefore, it would not give the Muslim
‘personal law’ – ‘Shariat’ a statutory flavour.
110. It was also submitted, that Sunnis were a religious denomination
within the meaning of Article 25 of the Constitution, and therefore, were
subject to public policy, morality and health. Sunni Muslims, therefore had
a right inter alia to manage their own affairs in matters relating to religion.
It was pointed out, that it could not be gainsaid, that marriage and divorce
were matters of religion. Therefore, Sunnis as a religious denomination,
were entitled to manage their own affairs in matters of marriage and
divorce, which are in consonance with the Muslim ‘personal law’ – ‘Shariat’.
It was therefore submitted, that the provisions relating to marriage and
divorce, as were contained in the Muslim ‘personal law’ – ‘Shariat’, were
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entitled to be protected as a denominational right, under Article 25 of the
Constitution.
111. Mr. V. Shekhar, Mr. Somya Chakravarti, Senior Advocates, Mr.Ajit
Wagh, Ajmal Khan, Senior Advocate, Mr. V.K. Biju, Mr. Banerjee, Mr.
Ashwani Upadhyay, Mr.Vivek C. Solsha, Ms. Rukhsana, Ms. Farah Faiz,
Advocates also assisted the Court. Their assistance to the Court, was on
issues canvassed by other learned counsel who had appeared before them.
The submissions advanced by them, have already been recorded above. For
reasons of brevity, it is not necessary for us to record the same submission
once again, in the names of learned counsel referred to above. All that
needs to be mentioned is, that we have taken due notice of the nuances
pointed out, and their emphasis on different aspects of the controversy.
Part-9.
Consideration of the rival contentions, and our conclusions:
112. During the course of our consideration, we will endeavour to
examine a series of complicated issues. We will need to determine, the legal
sanctity of ‘talaq-e-biddat’ – triple talaq. This will enable us to ascertain,
whether the practice of talaq has a legislative sanction, because it is the
petitioner’s case, that it is so through express legislation (-the Muslim
Personal Law (Shariat) Application Act, 1937). But the stance adopted on
behalf of those contesting the petitioner’s claim is, that its stature is that of
‘personal law’, and on that account, the practice of ‘talaq-e-biddat’ has a
constitutional protection.
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113. Having concluded one way or the other, we will need to determine
whether divorce by way of ‘talaq-e-biddat’ – triple talaq, falls foul of Part III –
Fundamental Rights of the Constitution (this determination would be
subject to, the acceptance of the petitioner’s contention, that the practice
has statutory sanction). However, if We conclude to the contrary, namely,
that the ‘talaq-e-biddat’ – triple talaq, has the stature of ‘personal law’, We
will have to determine the binding effect of the practice, and whether it can
be interfered with on the judicial side by this Court. The instant course
would be necessary, in view of the mandate contained in Article 25 of the
Constitution, which has been relied upon by those who are opposing the
petitioner’s cause.
114. Even if we agree with the proposition that ‘talaq-e-biddat’ – triple
talaq constitutes the ‘personal law’ governing Muslims, on the issue of
divorce, this Court will still need to examine, whether the practice of ‘talaqe-biddat’
– triple talaq, violates the acceptable norms of “… public order,
morality and health and to the other provisions …” of Part III of the
Constitution (–for that, is the case set up by the petitioner). Even if the
conclusions after the debate travelling the course narrated in the foregoing
paragraph does not lead to any fruitful results for the petitioner’s cause, it
is their case, that the practice of ‘talaq-e-biddat’ being socially repulsive
should be declared as being violative of constitutional morality – a concept
invoked by this Court, according to the petitioner, to interfere with on the
ground that it would serve a cause in larger public interest. The petitioners’
cause, in the instant context is supported by the abrogation of the practice
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of ‘talaq-e-biddat’, the world over in countries with sizeable Muslim
populations including theocratic Islamic States. The following examination,
shall traverse the course recorded herein above.
I. Does the judgment of the Privy Council in the Rashid Ahmad case,
upholding ‘talaq-e-biddat’, require a relook?
115. It would not be necessary for this debate – about the validity of
‘talaq-e-biddat’ under the Muslim ‘personal law’ – ‘Shariat’, to be prolonged
or complicated, if the decision rendered by the Privy Council, in the Rashid
Ahmad case1 is to be considered as the final word on its validity, as also, on
the irrevocable nature of divorce, by way of ‘talaq-e-biddat’. The debate
would end forthwith. The aforesaid judgment was rendered by applying the
Muslim ‘personal law’. In the above judgment, ‘talaq-e-biddat’ was held as
valid and binding. The pronouncement in the Rashid Ahmad case1 is of
extreme significance, because Anisa Khatun – the erstwhile wife and her
former husband Ghyas-ud-din had continued to cohabit and live together
with her husband, for a period of fifteen years, after the pronouncement of
‘talaq-e-biddat’. During this post divorce cohabitation, five children were
born to Anisa Khatun, through Ghiyas-ud-din. And yet, the Privy Council
held, that the marital relationship between the parties had ceased forthwith,
on the pronouncement of ‘talaq-e-biddat’ – triple talaq. The Privy Council
also held, that the five children born to Anisa Khatun, could not be
considered as the legitimate children of Ghyas-ud-din, and his erstwhile
wife. The children born to Anisa Khatun after the parties stood divorced,
were therefore held as disentitled to inherit the property of Ghyas-ud-din.
The judgment in the Rashid Ahmad case1 was rendered in 1932. The
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asserted statutory status of Muslim ‘personal law’ (as has been canvassed
by the petitioners), emerged from the enactment of the Muslim Personal Law
(Shariat) Application Act, 1937. The ‘Shariat’ Act expressly provided, that
the Muslim ‘personal law’ – ‘Shariat’, would constitute “the rule of decision”,
in causes where the parties were Muslim. It is not in dispute, that besides
other subjects, consequent upon the enactment of the Shariat Act,
dissolution of marriage amongst Muslims, by way of ‘talaq’, would also have
to be in consonance with the Muslim ‘personal law’ – ‘Shariat’. As noticed
herein above, ‘talaq-e-biddat’ is one of the forms of dissolution of marriage
by ‘talaq’, amongst Muslims. According to the petitioners case, the issue
needed a fresh look, of the conferment of statutoty status to Muslim
‘personal law’ – ‘Shariat’. It was submitted, that after having acquired
statutory status, the questions and subjects (including ‘talaq-e-biddat’),
would have to be in conformity (-and not in conflict), with the provisions of
Part III – Fundamental Rights, of the Constitution. Needless to mention,
that all these are important legal questions, requiring examination.
116. In our considered view, the matter would most certainly also require
a fresh look, because various High Courts, having examined the practice of
divorce amongst Muslims, by way of ‘talaq-e-biddat’, have arrived at the
conclusion, that the judgment in the Rashid Ahmad case1 was rendered on
an incorrect understanding, of the Muslim ‘personal law’ – ‘Shariat’.
117. If the Muslim Personal Law (Shariat) Application Act, 1937, had
incorporated the manner in which questions regarding intestate succession,
special property of females including personal property inherited or
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obtained under contract or gift or matters such as marriage, dissolution of
marriage, including talaq, ila, jihar, lian, khula and mubaraat,
maintenance, dower, guardianship, gifts, trusts and trust properties, and
wakfs (-as in Section 2 thereof), had to be dealt with, as per Muslim
‘personal law’ – ‘Shariat’ according to the petitioners, it would be quite a
different matter. All the same, the Shariat Act did not describe how the
above questions and subjects had to be dealt with. And therefore, for
settlement of disputes amongst Muslims, it would need to be first
determined, what the Muslim ‘personal law’, with reference to the
disputation, was. Whatever it was, would in terms of Section 2 of the 1937
Act, constitute “the rule of decision”. After the Privy Council had rendered
the judgment in the Rashid Ahmad case1, and well after the asserted
statutory status came to be conferred on Muslim ‘personal law’ – ‘Shariat’,
the issue came up for consideration before the Kerala High Court in A.
Yusuf Rawther v. Sowramma35, wherein, the High Court examined the
above decision of the Privy Council in the Rashid Ahmad case1, and
expressed, that the views of the British Courts on Muslim ‘personal law’,
were based on an incorrect understanding of ‘Shariat’. In the above
judgment, a learned Single Judge (Justice V.R. Krishna Iyer, as he then
was) of the Kerala High Court, recorded the following observations:
“7. There has been considerable argument at the bar – and precedents
have been piled up by each side – as to the meaning to be given to the
expression ‘failed to provide for her maintenance’ and about the grounds
recognised as valid for dissolution under Muslim law. Since infallibility
is not an attribute of the judiciary, the view has been ventured by
Muslim jurists that the Indo-Anglian judicial exposition of the Islamic

35 AIR 1971 Ker 261
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law of divorce has not exactly been just to the Holy Prophet or the Holy
Book. Marginal distortions are inevitable when the Judicial Committee
in Downing Street has to interpret Manu and Muhammad of India and
Arabia. The soul of a culture – law is largely the formalized and
enforceable expression of a community’s cultural norms – cannot be fully
understood by alien minds. The view that the Muslim husband enjoys
an arbitrary, unilateral power to inflict instant divorce does not accord
with Islamic injunctions …. It is a popular fallacy that a Muslim male
enjoys, under the Quaranic law, unbridled authority to liquidate the
marriage. “The whole Quoran expressly forbids a man to seek pretexts
for divorcing his wife, so long as she remains faithful and obedient to
him, “if they (namely, women) obey you, then do not seek a way against
them”.” (Quaran IV:34). The Islamic “law gives to the man primarily the
faculty of dissolving the marriage, if the wife, by her indocility or her bad
character, renders the married life unhappy; but in the absence of
serious reasons, no man can justify a divorce, either in the eye of religion
or the law. If he abandons his wife or puts her away in simple caprice,
he draws upon himself the divine anger, for the curse of God, said the
Prophet, rests on him who repudiates his wife capriciously.” As the
learned author, Ahmad A. Galwash notices, the pagan Arab, before the
time of the Prophet, was absolutely free to repudiate his wife whenever it
suited his whim, but when the Prophet came He declared divorce to he
“the most disliked of lawful things in the sight of God. He was indeed
never tired of expressing his abhorrence of divorce. Once he said: ‘God
created not anything on the face of the earth which He loveth more than
the act of manumission. (of slaves) nor did He create anything on the
face of the earth which he detesteth more than the act of divorce”.
Commentators on the Quoran have rightly observed – and this tallies
with the law now administered in some Mulsim countries like Iraq – that
the husband must satisfy the court about the reasons for divorce.
However, Muslim law, as applied in India, has taken a course contrary to
the spirit of what the Prophet or the Holy Quoran laid down and the
same misconception vitiates the law dealing with the wife’s right to
divorce.”
118. Without pointedly examining the issue of the validity of ‘talaq-ebiddat’,
under the Muslim ‘personal law’ – ‘Shariat’, this Court in Fuzlunbi
v. K. Khader Vali36, recorded the following observations:
“20. Before we bid farewell to Fazlunbi it is necessary to mention that
Chief Justice Baharul Islam, in an elaborate judgment replete with
quotes from the Holy Quoran, has exposed the error of early English
authors and judges who dealt with talaq in Muslim Law as good even if
pronounced at whim or in tantrum, and argued against the diehard view

36 (1980) 4 SCC 125
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of Batchelor J. ILR 30 Bom 539 that this view ‘is good in law, though bad
in theology’. Maybe, when the point directly arises, the question will
have to be considered by this court, but enough unto the day the evil
thereof and we do not express our opinion on this question as it does not
call for a decision in the present case.”
The above observations lead to the inference, that the proposition of law
pronounced by the Privy Council in the Rashid Ahmad case1, needed a
relook.
119. It would be relevant to mention, that in the interregnum, the
validity of ‘talaq-e-biddat’ was considered by a learned Single Judge (Justice
Baharul Islam, as he then was) of the Gauhati High Court, in the Jiauddin
Ahmed case2, wherein, the High Court took a view different from the one
recorded by the Privy Council (-in the Rashid Ahmad case1). In doing so, it
relied on ‘hadiths’, ‘ijma’ and ‘qiyas’. The issue was again examined, by a
Division Bench of the Gauhati High Court, in the Mst. Rukia Khatun case3.
Yet again, the High Court (speaking through, Chief Justice Baharul Islam,
as he then was), did not concur with the view propounded by the Privy
Council. The matter was also examined by a Single Judge (Justice Badar
Durrez Ahmed, as he then was) of the Delhi High Court in the Masroor
Ahmed case4. Herein again, by placing reliance on relevant ‘hadiths’, the
Delhi High Court came to the conclusion, that the legal position expressed
by the Privy Council on ‘talaq-e-biddat’, was not in consonance with the
Muslim ‘personal law’. The Kerala High Court, in the Nazeer case5
(authored by, Justice A. Muhamed Mustaque) highlighted the woeful
condition of Muslim wives, because of the practice of ‘talaq-e-biddat’, and
recorded its views on the matter.
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120. In view of the position expressed hereinabove, we are of the
considered view, that the opinion expressed by the Privy Council with
reference to ‘talaq-e-biddat’, in the Rashid Ahmad case1, holding that ‘talaqe-biddat’
results in finally and irrevocably severing the matrimonial tie
between spouses, the very moment it is pronounced, needs to be examined
afresh. More particularly, because the validity of the same as an approved
concept, of Muslim ‘personal law’ – ‘Shariat’, was not evaluated at that
juncture (-as it indeed could not have been, as the legislation was not
available, when the Privy Council had rendered its judgment), in the
backdrop of the Shariat Act, and also, the provisions of the Constitution of
India.
II. Has ‘talaq-e-biddat’, which is concededly sinful, sanction of law?
121. The petitioners, and others who support the petitoner’s cause, have
vehemently contended, that ‘talaq-e-biddat’, does not have its source of
origin from the Quran. The submission does not need a serious
examination, because even ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ which the
petitioners acknowledge as – ‘the most proper’, and – ‘the proper’ forms of
divorce respectively, also do not find mention in the Quran. Despite the
absence of any reference to ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ in the
Quran, none of the petitioners has raised any challenge thereto, on this
score. A challenge to ‘talaq-e-biddat’ obviously cannot be raised on this
ground. We are satisfied, that the different approved practices of talaq
among Muslims, have their origin in ‘hadiths’ and other sources of Muslim
jurisprudence. And therefore, merely because it is not expressly provided
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for or approved by the Quran, cannot be a valid justification for setting
aside the practice.
122. The petitioners actually call for a simple and summary disposal of
the controversy, by requiring us to hold, that whatever is irregular and
sinful, cannot have the sanction of law. The above prayer is supported by
contending, that ‘talaq-e-biddat’ is proclaimed as bad in theology. It was
submitted, that this practice is clearly patriarchal, and therefore, cannot be
sustained in today’s world of gender equality. In order to persuade this
Court, to accept the petitioners’ prayer – to declare the practice of ‘talaq-ebiddat’
as unacceptable in law, the Court’s attention was invited to the fact,
that the present controversy needed a similar intervention, as had been
adopted for doing away with similar patriarchal, irregular and sinful
practices amongst Hindus. In this behalf, reference was made to the
practices of ‘Sati’, ‘Devadasi’ and ‘Polygamy’.
123(i). We may only highlight, that ‘Sati’ was commonly described as –
widow burning. The practice required a widow to immolate herself, on her
husband’s pyre (or alternatively, to commit suicide shortly after her
husband’s death). ‘Sati’ just like ‘talaq-e-biddat’, had been in vogue since
time immemorial. It is believed, that the practice of ‘Sati’ relates back to the
1st century B.C.. On the Indian sub-continent, it is stated to have gained
popularity from the 10th century A.D. The submission was, that just as
‘Sati’ had been declared as unacceptable, the practice of ‘talaq-e-biddat’
should likewise be declared as unacceptable in law.
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(ii) ‘Devadasi’ translated literally means, a girl dedicated to the worship
and service of a diety or temple. The surrender and service of the
‘Devadasi’, in terms of the practice, was for life. This practice had also been
in vogue since time immorial, even though originally ‘Devadasis’ had a high
status in society, because the Rulers/Kings of the time, were patrons of
temples. During British rule in India, the Rulers backing and support to
temples, waned off. It is believed, that after funds from the Rulers stopped,
to sustain themselves ‘Devadasis’ used dancing and singing as a means of
livelihood. They also commenced to indulge in prostitution. The life of the
‘Devadasi’, thereupon came into disrepute, and resulted in a life of
destitution. The practice had another malady, tradition forbade a ‘Devadasi’
from marrying.
(iii) So far as ‘polygamy’ is concerned, we are of the view that polygamy
is well understood, and needs no elaboration.
124. We are of the view, that the practices referred to by the petitioners,
to support their claim, need a further examination, to understand how the
practices were discontinued. We shall now record details, of how these
practices, were abolished:
(i) Insofar as the practice of ‘Sati’ is concerned, its practice reached
alarming proportion between 1815-1818, it is estimated that the incidence
of ‘Sati’ doubled during this period. A campaign to abolish ‘Sati’ was
initiated by Christian missionaries (- like, William Carey), and by Hindu
Brahmins (-like, Ram Mohan Roy). The provincial Government of Bengal
banned ‘Sati’ in 1829, by way of legislation. This was then followed by
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similar laws by princely States in India. After the practice was barred by
law, the Indian Sati Prevention Act, 1988 was enacted, which crimnalised
any type of aiding, abetting or glorifying the practice of ‘Sati’.
(ii) Insofar as the practice of ‘Devadasi’ is concerned, soon after the end
of British rule, independent India passed the Madras Devadasi’s (Prevention
of Dedication) Act (-also called the Tamil Nadu Devadasis (Prevention of
Dedication Act) on 09.10.1947. The enactment made prostitution illegal.
The other legislations enacted on the same issue, included the 1934
Bombay Devadasi Protection Act, the 1957 Bombay Protection (Extension)
Act, and the Andhra Pradesh Devadasi (Prohibition of Dedication) Act of
1988. It is therefore apparent, that the instant practice was done away
with, through legislation.
(iii) The last of the sinful practices brought to our notice was ‘polygamy’.
Polygamy was permitted amongst Hindus. In 1860, the Indian Penal Code
made ‘polygamy’ a criminal offence. The Hindu Mariage Act was passed in
1955. Section 5 thereof provides, the conditions for a valid Hindu marriage.
One of the conditions postulated therein was, that neither of the parties to
the matrimonial alliance should have a living spouse, at the time of the
marriage. It is therefore apparent, that the practice of polygamy was not
only done away with amongst Hindus, but the same was also made
punishable as a criminal offence. This also happened by legislation.
125. The factual and the legal position noticed in the foregoing paragraph
clearly brings out, that the practices of ‘Sati’, ‘Devadasi’ and ‘polygamy’ were
abhorrent, and could well be described as sinful. They were clearly
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undesirable and surely bad in theology. It is however important to notice,
that neither of those practices came to be challenged before any court of
law. Each of the practices to which our pointed attention was drawn, came
to be discontinued and invalidated by way of legislative enactments. The
instances cited on behalf of the petitioners cannot therefore be of much
avail, with reference to the matter in hand, wherein, the prayer is for
judicial intervention.
126. We would now venture to attempt an answer to the simple prayer
made on behalf of the petitioners, for a summary disposal of the petitioner’s
cause, namely, for declaring the practice of ‘talaq-e-biddat’, as unacceptable
in law. In support of the instant prayer, it was submitted, that it could not
be imagined, that any religious practice, which was considered as a sin, by
the believers of that very faith, could be considered as enforceable in law. It
was asserted, that what was sinful could not be religious. It was also
contended, that merely because a sinful practice had prevailed over a long
duration of time, it could best be considered as a form of custom or usage,
and not a matter of any binding faith. (This submission, is being dealt with
in part IV, immediately hereinafter). It was submitted, that no court should
find any difficulty, in declaring a custom or usage – which is sinful, as
unacceptable in law. It was also the pointed assertion on behalf of the
petitioners, that what was sacrilegious could not ever be a part of Muslim
‘personal law’ – ‘Shariat’. The manner in which one learned counsel
expressed the proposition, during the course of hearing, was very
interesting. We may therefore record the submission exactly in the manner
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it was projected. Learned counsel for evoking and arousing the Bench’s
conscience submitted, “if something is sinful or abhorrent in the eyes of
God, can any law by man validate it”. It seems to us, that the suggestion
was, that ‘talaq-e-biddat’ did not flow out of any religious foundation, and
therefore, the practice need not be considered as religious at all. One of the
non-professional individuals assisting this Court on behalf of the
petitioners’, went to the extent of stating, that the fear of the fact, that the
wife could be thrown out of the matrimonial house, at any time, was like a
sword hanging over the matrimonial alliance, during the entire duration of
the marriage. It was submitted, that the fear of ‘talaq-e-biddat’, was a
matter of continuous mental torture, for the female spouse. We were told,
that the extent of the practice being abhorrent, can be visualized from the
aforesaid, position. It was submitted, that the practice was extremely selfeffacing,
and continued to be a cause of insecurity, for the entire duration of
the matrimonial life. It was pointed out, that this practice violated the
pious and noble prescripts of the Quran. It was highlighted, that even
those who had appeared on behalf of the respondents, had acknowledged,
that the practice of ‘talaq-e-biddat’ was described as irregular and sinful,
even amongst Muslims. It was accordingly asserted, that it was accepted by
one and all, that the practice was bad in theology. It was also
acknowledged, that it had no place in modern day society. Learned counsel
therefore suggested, that triple talaq should be simply declared as
unacceptable in law, and should be finally done away with.
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127. A simple issue, would obviously have a simple answer. Irespective
of what has been stated by the learned counsel for the rival parties, there
can be no dispute on two issues. Firstly, that the practice of ‘talaq-e-biddat’
has been in vogue since the period of Umar, which is roughly more than
1400 years ago. Secondly, that each one of learned counsel, irrespective of
who they represented, (-the petitioners or the respondents), acknowledged
in one voice, that ‘talaq-e-biddat’ though bad in theology, was considered as
“good” in law. All learned counsel representing the petitioners were also
unequivocal, that ‘talaq-e-biddat’ was accepted as a “valid” practice in law.
That being so, it is not possible for us to hold, the practice to be invalid in
law, merely at the asking of the petitioners, just because it is considered
bad in theology.
III. Is the practice of ‘talaq-e-biddat’, approved/disapproved by “hadiths”?
128. At the beginning of our consideration, we have arrived at the
conclusion, that the judgment rendered by the Privy Council in the Rashid
Ahmad case1, needs a reconsideration, in view of the pronouncements of
various High Courts including a Single Judge of the Gauhati High Court in
the Jiauddin Ahmed case2, a Division Bench of the same High Court – the
Gauhati High Court in the Rukia Khatun case3, by a Single Judge of the
Delhi High Court in the Masroor Ahmed case4, and finally, on account of
the decision of a Single Judge of the Kerala High Court in the Nazeer case5.
129. Even though inconsequential, and the same can never – never be
treated as a relevant consideration, it needs to be highlighted, that each one
of the Judges who authored the judgments rendered by the High Courts
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referred to above, professed the Muslim religion. They were Sunni Muslims,
belonging to the Hanafi school. The understanding by them, of their
religion, cannot therefore be considered as an outsider’s view. In the four
judgments referred to above, the High Courts relied on ‘hadiths’ to support
and supplement the eventual conclusion drawn. There is certainly no room
for any doubt, that if ‘hadiths’ relied upon by the High Courts in their
respective judgments, validly affirmed the position expressed with reference
to ‘talaq-e-biddat’, there would be no occasion for us to record a view to the
contrary. It is in the aforestated background, that we proceed to examine
the ‘hadiths’ relied upon by learned counsel appearing for the rival parties,
to support their individual claims.
130. A number of learned counsel who had appeared in support of the
petitioners’ claim, that the practice of ‘talaq-e-biddat’ was un-Islamic, and
that this Court needed to pronounce it as such, invited our attention to a
set of ‘hadiths’, to substantiate their position. The assertions made on
behalf of the petitioners were opposed, by placing reliance on a different set
of ‘hadiths’. Based thereon, we will endeavour to record a firm conclusion,
whether ‘talaq-e-biddat’, was or was not, recognized and supported by
‘hadiths’.
131. First of all, we may refer to the submissions advanced by Mr. Amit
Singh Chadha, Senior Advocate, who had painstakingly referred to the
‘hadiths’ in the four judgments of the High Courts (-for details, refer to Part-
6 – Judicial pronouncements, on the subject of ‘talaq-e-biddat’). Insofar as
the Jiauddin Ahmed case2 is concerned, details of the entire consideration
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have been narrated in paragraph 31 hereinabove. Likewise, the
consideration with reference to the Rukia Khatun case3 has been recorded
in paragraph 32. The judgment in the Masroor Ahmed case4 has been dealt
with in paragraph 33. And finally, the Nazeer case5 has been deciphered,
by incorporating the challenge, the consideration and the conclusion in
paragraph 34 hereinabove. For reasons of brevity, it is not necessary to
record all the above ‘hadiths’ for the second time. Referefence may therefore
be made to the paragraphs referred to above, as the first basis expressed on
behalf of the petitioners, to lay the foundation of their claim, that the
practice, of ‘talaq-e-biddat’ cannot be accepted as a matter of ‘personal law’
amongst Muslims, including Sunni Muslims belonging to the Hanafi school.
In fact, learned senior counsel, asserted, that the position expressed by the
High Courts, had been approved by this Court in the Shamim Ara case12.
132. Mr. Anand Grover, Senior Advocate, reiterated and reaffirmed the
position expressed in the four judgments (two of the Gauhati High Court,
one of the Delhi High Court, and the last one of the Kerala High Court) to
emphasize his submissions, as a complete justification for accepting the
claims of the petitioners. Interestingly, learned senior counsel made a
frontal attack to the ‘hadiths’ relied upon by the AIMPLB. To repudiate the
veracity of the ‘hadiths’ relied upon by the respondents, it was pointed out,
that it was by now settled, that there were various degrees of reliability
and/or authenticity of different ‘hadiths’. Referring to the Principles of
Mohomedan Law by Sir Dinshaw Fardunji Mulla (LexisNexis, Butterworths
Wadhwa, Nagpur, 20th edition), it was asserted, that the ‘hadiths’ relied
192
upon by the AIMPLB (to which a reference will be made separately), were far
– far removed from the time of the Prophet Mohammad. It was explained,
that ‘hadiths’ recorded later in point of time, were less credible and
authentic, as with the passage of time, distortions were likely to set in,
making them unreliable. It was asserted, that ‘hadiths’ relied upon in the
four judgments rendered by the High Courts, were the truly reliable
‘hadiths’, as they did not suffer from the infirmity expressed above. In
addition to the above, learned senior counsel drew our attention, to Sunan
Bayhaqi 7/547 referred to on behalf of the AIMPLB, so as to point out, that
the same was far removed from the time of Prophet Mohammad. As against
the above, it was submitted, that the ‘hadiths’ of Bhukahri (published by
Darussalam, Saudi Arabia), also relied upon by the AIMPLB, were obvious
examples of a clear distortion. Moreover, it was submitted, that the
‘hadiths’, relied upon by the AIMPLB were not found in the Al Bukhari
Hadiths. It was therefore submitted, that reliance on the ‘hadiths’ other
than those noticed in the individual judgments referred to hereinabove,
would be unsafe (-for details, refer to paragraph 42).
133. Learned senior counsel also asserted, that as a historical fact Shia
Muslims believe, that during the Prophet’s time, and that of the First Caliph
– Abu Baqhr, and the Second Caliph – Umar, pronouncements of talaq by
three consecutive utterances were treated as one. (Reference in this behalf
was made to “Sahih Muslim” compiled by Al-Hafiz Zakiuddin Abdul-Azim
Al-Mundhiri, and published by Darussalam). Learned senior counsel also
placed reliance on “The lawful and the prohibited in Islam” by Al-Halal Wal
193
Haram Fil Islam (edition – August 2009). It was pointed out, that the
instant transcript was of Egyptian origin, and further emphasized, that the
same therefore needed to be accepted as genuine and applicable to the
dispute, because Egypt was primarily dominated by Sunni Muslims
belonging to the Hanafi school. In the above publication, it was submitted,
that the practice of instant triple talaq was described as sinful. Reference
was then made to “Woman in Islamic Shariah” by Maulana Wahiduddin
Khan (published by Goodword Books, reprinted in 2014), wherein,
irrespective of the number of times the word ‘talaq’ was pronounced (if
pronounced at the same time, and on the same occasion), was treated as a
singular pronouncement of talaq, in terms of the ‘hadith’ of Imam Abu
Dawud in Fath al-bari 9/27. It was submitted, that the aforesaid ‘hadith’
had rightfully been taken into consideration by the Delhi High Court in the
Masroor Ahmed case4. In addition to the above, reference was made to
“Marriage and family life in Islam” by Prof. (Dr.) A. Rahman (Adam
Publishers and Distributors, New Delhi, 2013 edition), wherein by placing
reliance on a Hanafi Muslim scholar, it was opined that triple talaq was not
in consonance with the verses of the Quran. Reliance was also placed on
“Imam Abu Hanifa – Life and Work” by Allamah Shiblinu’mani’s of
Azamgarh, who founded the Shibli College in the 19th century. Relying
upon a prominent Hanafi Muslim scholar, it was affirmed, that Abu Hanifa
himself had declared, that it was forbidden to give three divorces at the
same time, and whoever did so was a sinner (-for details, refer to paragraph
42). Based on the aforestated text available in the form of ‘hadiths’, it was
194
submitted, that the position adopted by the AIMPLB in its pleadings, was
clearly unacceptable, and need to be rejected. And that, the coclusions
drawn by the four High Courts referred to above, need to be declared as a
valid determination on the subject of ‘talaq-e-biddat’, in exercise of this
Court’s power under Article 141 of the Constitution.
134. Mr. Kapil Sibal, appearing on behalf of the AIMPLB, contested the
submissions advanced on behalf of the petitioners. In the first instance,
learned senior counsel placed reliance on verses from the Quran. Reference
was made to Quran, Al-Hashr 59:71; Quran, Al-Anfal 8:20; Quran, Al-Nisa
4:64; Quran, Al-Anfal 8:13; Quran, Al-Ahzab 33:36; and Quran, Al-Nisa
4:115 (-for details, refer to paragraph 86 above). Pointedly on the subject of
triple talaq, and in order to demonstrate, that the same is not in
consonance with the Quranic verses, the Court’s attention was drawn to
Quran, Al-Baqarah 2:229; Quran, Al-Baqarah 2:229 and 230; Quran, AlBaqarah
2:232; and Quran, Al-Talaq 65:1 (-for details, refer to paragraph 86
above). Besides the aforesaid, learned senior counsel invited this Court’s
attention to the statements attributed to the Prophet Mohammad, with
reference to talaq. On this account, the Court’s attention was drawn to
Daraqutni, Kitab Al-Talaq wa Al-Khula wa Al-Aiyla, 5/23, Hadith number:
3992; Daraqutni, 5/81; Kitab al-Talaq wa Al-Khulawa aI-Aiyala, Hadith
number: 4020; Sunan Bayhaqi, 7/547, Hadith number: 14955; AI-Sunan
AI-Kubra Iil Bayhaqi, Hadith number: 14492; and Sahi al-Bukhari Kitab alTalaq,
Hadith number: 5259 (-for details, refer to paragraph 86 above).
Representing the AIMPLB, learned senior counsel, also highlighted ‘hadiths’
195
on the subject of ‘talaq’ and drew our attention to Sunan Abu Dawud, Bad
Karahiya al-Talaq, Hadith no: 2178; Musannaf ibn Abi Shaybah, Bab man
kara an yatliq aI rajal imratahuu thalatha fi maqad wahadi wa ajaza
dhalika alayhi, Hadith number: 18089; (Musannaf ibn Abi Shayba, Kitab
al-Talaq, bab fi al rajal yatlaqu imratahuu miata aw alfa, Hadith number:
18098; Musannaf Abd al-Razzaq, Kitab al-talaq, Hadith number 11340;
Musannaf ibn Abi Shayba, Kitab aI-Talaq, Hadith no: 18091; Musannaf Ibn
Abi Shayba, Hadith no: 18087; Al-Muhadhdhab, 4/305; and Bukhari,
3/402 (-for details, refer to paragraph 87 above).
135. Having dealt with the position expounded in the Quran and
‘hadiths’ as has been noticed above, learned senior counsel attempted to
repudiate the veracity of the ‘hadiths’ relied upon, in all the four judgments
rendered by the High Courts. In this behalf learned senior counsel provided
the following complilation for this Court’s consideration:
1. The Jiauddin Ahmed case2
Sl.
No.
Reference Comments
(i) Maulana Mohammad Ali
(referred to at paras 7, 11,
12 and 13 of the judgment)
He is a Qadiyani. Mirza
Ghulam Ahmed (founder of the
Qadiani School) declared
himself to be the Prophet after
Prophet Mohammed and it is for
this reason that all Muslims do
not consider the Qadiyani sect
to be a part of the Islamic
community.
2. The Rukia Khatun case3
Sl.
No.
Reference Comments
(i) Authorities in this judgment are
identical to the above mentioned
judgment of Jiauddin Ahmed v.
Anwara Begum.
196
3. The Masroor Ahmed case4
Sl.
No.
Reference Comments
(i) Mulla (Referred at the
footnote at page 153 of the
judgment)
Approves the proposition that
triple talaq is sinful, yet effective
as an irrevocable divorce.
4. The Nazeer case5.
Sl. No.Reference Comments
(i) Basheer Ahmad Mohyidin
(Referred at paras 1 and 6
of the judgment)
He wrote a commentary on the
Quran entitled as Quran: The
Living Truth, however the extract
relied upon in the decision does
not discuss triple talaq.
(ii) Ibn Kathir (Referred in
paras 1 and 8 of the
judgment)
He wrote a commentary on the
Quran entitled as Tafsir Ibn
Kathir. He takes the view, that
three pronouncements at the
same time were unlawful. It is
submitted that he belonged to
the Ahl-e-Hadith/Salafi school,
which school does not recognize
triple talaq.
(iii) Dr. Tahir Mahmood
(Referred in para 6 of the
judgment)
He was a Professor of Law, Delhi
University.
He wrote a book entitled “Muslim
Law in India and Abroad” and
other books. Referred to other
Islamic scholars to state, that it
is a misconception that three
talaqs have to be pronounced in
three consecutive months, it is
not a general rule as the three
pronouncements have to be
made when the wife is not in her
menses, which would obviously
require about three months.
It is submitted, that the said
extract is irrelevant and out of
context as it does not specifically
deal with validity of triple talaq.
(iv) Sheikh Yusuf Al-Qaradawi
(Referred in para 8 of the
judgment)
He regarded triple talaq as
against God’s law. It is
submitted that he was a follower
of the Ahl-e-Hadith School.
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(v) Mahmoud Rida Murad
(Referred in para 8 of the
judgment)
He authored the book entitled as
Islamic Digest of Aqeedah and
Fiqh. He took the view that triple
talaq does not conform to the
teachings of the Prophet. He is a
follower of the Ahl-e-Hadith
school.
(vi) Sayyid Abdul Ala Maududi
(Referred in para 11 of the
judgment)
He is a scholar of the Hanafi
School. Though the passages
extracted in the judgment
indicate that he was of the view
that three pronouncements can
be treated as one depending on
the intention. However,
subsequently he has changed his
own view and has opined that
triple talaq is final and
irrevocable.
(vii) Dr. Abu Ameenah Bilal
Philips (Referred in para 19
of the judgment)
He authored the book ‘Evolution
of Fiqh’. He states that Caliph
Umar introduced triple talaq in
order to discourage abuse of
divorce. He is a follower of the
Ahl-e Hadith school.
(viii) Mohammed Hashim
Kamali (Referred in para 23
of the judgment)
He was of the view that Caliph
Umar introduced triple talaq in
order to discourage abuse of
divorce. He is a professor of law.
It was the submitted on behalf of the AIMPLB, that the views of persons
who are not Sunnis, and those who did not belong to the Hanafi school,
could not have been validly relied upon. It was submitted, that reliance on
Maulana Muhammad Ali was improper because he was a Qadiyani, and
that Muslims do not consider the Qadiyani sect to be a part of the Islamic
community. Likewise, it was submitted, that reference to Basheer Ahmad
Mohyidin was misplaced, as the commentary authored by him, did not deal
with the concept of ‘talaq-e-biddat’. Reference to Tafsir Ibn Kathir was
stated to be improper, as he belonged to the Ahl-e-Hadith/Salafi school,
198
which school does not accept triple talaq. It was submitted, that Dr. Tahir
Mahmood was a Professor of Law at the Delhi University, and his views
must be treated as personal to him, and could not be elevated to the
position of ‘hadiths’. It was pointed out, that Sheikh Yusuf al-Qaradawi,
was a follower of Ahl-e-Hadith school, and therefore, his views could not be
taken into consideration. So also, it was submitted, that Mahmoud Rida
Murad was a follower of Ahl-e-Hadith/Salafi school. Reference to Sayyid
Abdul Ala Maududi, it was pointed out, was improperly relied upon,
because the view expressed by the above scholar was that “three
pronouncements of talaq could be treated as one, depending on the
‘intention’ of the husband”. This position, according to learned senior
counsel, does not support the position propounded on behalf of the
petitioners, because if the ‘intention’ was to make three pronouncements, it
would constitute a valid ‘talaq’. With reference to Dr. Abu Ameenah Bilal
Philips, it was submitted, that he was also a follower of the Ahl-eHadith/Salafi
school. Last of all, with reference to Mohammed Hashim
Kamali, it was pointed out, that he was merely a Professor of Law, and the
views expressed by him should be considered as his personal views. It was
accordingly asserted, that supplanting the views of other schools of Sunni
Muslims, with reference to the practice of ‘talaq-e-biddat’ by the proponents
of the Hanafi school, and even with the beliefs of Shia Muslims, was a clear
breach of a rightful understanding of the school, and the practice in
question.
199
136. Based on the submissions advanced on behalf of the AIMPLB, as
have been noticed hereinabove, it was sought to be emphasized, that such
complicated issues relating to norms applicable to a religious sect, could
only be determined by the community itself. Learned counsel cautioned,
this Court from entering into the thicket of the instant determination, as
this Court did not have the expertise to deal with the issue.
137. Having given our thoughtful consideration, and having examined
the rival ‘hadiths’ relied upon by learned counsel for the parties, we have
no other option, but to accept the contention of learned senior counsel
appearing on behalf of the AIMPLB, and to accept his counsel, not to enter
into the thicket of determining (on the basis of the ‘hadiths’ relied upon)
whether or not ‘talaq-e-biddat’ – triple talaq, constituted a valid practice
under the Muslim ‘personal law’ – ‘Shariat’. In fact, even Mr. Salman
Khurshid appearing on behalf of the petitioners (seeking the repudiation of
the practice of the ‘talaq-e-biddat’) had pointed out, that it was not the role
of a court to interprete nuances of Muslim ‘personal law’ – ‘Shariat’. It was
pointed out, that under the Muslim ‘personal law’, the religious head – the
Imam would be called upon to decipher the teachings expressed in the
Quran and the ‘hadiths’, in order to resolve a conflict between the parties.
It was submitted, that the Imam alone, had the authority to resolve a
religious conflict, amongst Muslims. It was submitted, that the Imam
would do so, not on the basis of his own views, but by relying on the verses
from the Quran, and the ‘hadiths’, and based on other jurisprudential tools
available, and thereupon he would render the correct interpretation. Mr.
200
Salman Khurshid, learned Senior Advocate also cautioned this Court, that
it was not its role to determine the true intricacies of faith.
138. All the submissions noted above, at the behest of the learned
counsel representing the AIMPLB would be inconsequential, if the judgment
rendered by this Court in the Shamim Ara case12, can be accepted as
declaring the legal position in respect of ‘talaq-e-biddat’. Having given a
thoughtful consideration to the contents of the above judgment, it needs to
be recorded, that this Court in the Shamim Ara case12 did not debate the
issue of validity of ‘talaq-e-biddat’. No submissions have been noticed for or
against, the proposition. Observations recorded on the subject, cannot
therefore be treated as ratio decendi in the matter. In fact, the question of
validity of talaq-e-biddat’ has never been debated before this Court. This is
the first occasion that the matter is being considered after rival submissions
have been advanced. Moreover, in the above judgment the Court was
adjudicating a dispute regarding maintenance under Section 125 of the
Code of Criminal Procedure. The husband, in order to avoid the liability of
maintenance pleaded that he had divorced his wife. This Court in the above
judgment decided the factual issue as under:
“15. The plea taken by Respondent 2 husband in his written statement
may be renoticed. Respondent 2 vaguely makes certain generalized
accusations against the appellant wife and states that ever since the
marriage he found his wife to be sharp, shrewd and mischievous.
Accusing the wife of having brought disgrace to the family, Respondent 2
proceeds to state, vide para 12 (translated into English) — “The
answering respondent, feeling fed up with all such activities unbecoming
of the petitioner wife, has divorced her on 11-7-1987.” The particulars of
the alleged talaq are not pleaded nor the circumstances under which and
the persons, if any, in whose presence talaq was pronounced have been
stated. Such deficiency continued to prevail even during the trial and
Respondent 2, except examining himself, adduced no evidence in proof of
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talaq said to have been given by him on 11-7-1987. There are no reasons
substantiated in justification of talaq and no plea or proof that any effort
at reconciliation preceded the talaq.
16. We are also of the opinion that the talaq to be effective has to be
pronounced. The term “pronounce” means to proclaim, to utter formally,
to utter rhetorically, to declare, to utter, to articulate (see Chambers 20th
Century Dictionary, New Edition, p. 1030). There is no proof of talaq
having taken place on 11-7-1987. What the High Court has upheld as
talaq is the plea taken in the written statement and its communication to
the wife by delivering a copy of the written statement on 5-12-1990. We
are very clear in our mind that a mere plea taken in the written
statement of a divorce having been pronounced sometime in the past
cannot by itself be treated as effectuating talaq on the date of delivery of
the copy of the written statement to the wife. Respondent 2 ought to have
adduced evidence and proved the pronouncement of talaq on 11-7-1987
and if he failed in proving the plea raised in the written statement, the
plea ought to have been treated as failed. We do not agree with the view
propounded in the decided cases referred to by Mulla and Dr Tahir
Mahmood in their respective commentaries, wherein a mere plea of
previous talaq taken in the written statement, though unsubstantiated,
has been accepted as proof of talaq bringing to an end the marital
relationship with effect from the date of filing of the written statement. A
plea of previous divorce taken in the written statement cannot at all be
treated as pronouncement of talaq by the husband on the wife on the
date of filing of the written statement in the Court followed by delivery of
a copy thereof to the wife. So also the affidavit dated 31-8-1988, filed in
some previous judicial proceedings not inter partes, containing a selfserving
statement of Respondent 2, could not have been read in evidence
as relevant and of any value.
17. For the foregoing reasons, the appeal is allowed. Neither the marriage
between the parties stands dissolved on 5-12-1990 nor does the liability
of Respondent 2 to pay maintenance comes to an end on that day.
Respondent 2 shall continue to remain liable for payment of
maintenance until the obligation comes to an end in accordance with
law. The costs in this appeal shall be borne by Respondent 2.”
The liability to pay maintenance was accepted, not because ‘talaq-e-biddat’
– triple talaq was not valid in law, but because the husband had not been
able to establish the factum of divorce. It is therefore not possible to accept
the submission made by learned counsel on the strength of the Shamim Ara
case12.
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139. Having given our thoughtful consideration on the entirety of the
issue, we are persuaded to accept the counsel of Mr. Kapil Sibal and Mr.
Salman Khurshid, Senior Advocates. It would be appropriate for us, to
refrain from entertaining a determination on the issue in hand, irrespective
of the opinion expressed in the four judgments relied upon by learned
counsel for the petitioners, and the Quranic verses and ‘hadiths’ relied upon
by the rival parties. We truly do not find ourselves, upto the task. We have
chosen this course, because we are satisfied, that the controversy can be
finally adjudicated, even in the absence of an answer to the proposition
posed in the instant part of the consideration.
IV. Is the practice of ‘talaq-e-biddat’, a matter of faith for Muslims? If yes,
whether it is a constituent of their ‘personal law’?
140. In the two preceding parts of our consideration, we have not been
able to persuade ourselves to disapprove and derecognize the practice of
‘talaq-e-biddat’. It may however still be possible for us, to accept the
petitioners’ prayer, if it can be concluded, that ‘talaq-e-biddat’ was not a
constituent of ‘personal law’ of Sunni Muslims belonging to the Hanafi
school. And may be, it was merely a usage or custom. We would, now
attempt to determine an answer to the above noted poser.
141. As a historical fact, ‘talaq-e-biddat’ is known to have crept into
Muslim tradition more than 1400 years ago, at the instance of Umayyad
monarchs. It can certainly be traced to the period of Caliph Umar – a senior
companion of Prophet Muhammad. Caliph Umar succeeded Abu Bakr
(632-634) as the second Caliph on 23.8.634. If this position is correct, then
the practice of ‘talaq-e-biddat’ can most certainly be stated to have
203
originated some 1400 years ago. Factually, Mr. Kapil Sibal had repeatedly
emphasized the above factual aspects, and the same were not repudiated by
any of learned counsel (-and private individuals) representing the
petitioner’s cause.
142. The fact, that the practice of ‘talaq-e-biddat’ was widespread can
also not be disputed. In Part-5 of the instant judgment – Abrogation of the
practice of ‘talaq-e-biddat’ by legislation, the world over, in Islamic, as well
as, non-Islamic States, we have dealt with legislations at the hands of Arab
States – Algeria, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libiya, Mrocco,
Sudan, Syria, Tunesia, United Arab Emirates, Yemen; we have also dealt
with legislations by South-east Asian States – Indonesia, Malaysia,
Philippines; we have additionally dealt with legislations by sub-continental
States – Pakistan and Bangladesh. All these countries have legislated with
reference to - ‘talaq-e-biddat’, in one form or the other. What can certainly
be drawn from all these legislations is, that ‘talaq-e-biddat’ was a prevalent
practice amongst Muslims, in these countries. Had it not been so,
legislation would not have been required on the subject. It is therefore
clear that the practice of ‘talaq-e-biddat’ was not limited to certain areas,
but was widespread.
143. We have also extracted in the submissions advanced by learned
counsel representing the rival parties, ‘hadiths’ relied upon by them, to
substantiate their rival contentions. The debate and discussion amongst
Islamic jurists in the relevant ‘hadiths’ reveal, that the practice of triple
talaq was certainly, in vogue amongst Muslims, whether it was considered
204
and treated as irregular or sinful, is quite another matter. All were agreed,
that though considered as improper and sacrilegious, it was indeed
accepted as lawful. This debate and discussion in the Muslim community –
as has been presently demonstrated by the disputants during the course of
hearing, and as has been highlighted through articles which appeared in
the media (at least during the course of hearing), presumably by
knowledgeable individuals, reveal views about its sustenance. The only
debate in these articles was about the consistence or otherwise, of the
practice of ‘talaq-e-biddat’ – with Islamic values. Not that, the practice was
not prevalent. The ongoing discussion and dialogue, clearly reveal, if
nothing else, that the practice is still widely prevalent and in vogue.
144. The fact, that about 90% of the Sunnis in India, belong to the
Hanafi school, and that, they have been adopting ‘talaq-e-biddat’ as a valid
form of divorce, is also not a matter of dispute. The very fact, that the issue
is being forcefully canvassed, before the highest Court of the land, and at
that – before a Constitution Bench, is proof enough. The fact that the
judgment of the Privy Council in the Rashid Ahmad case1 as far back as in
1932, upheld the severance of the matrimonial tie, based on the fact that
‘talaq’ had been uttered thrice by the husband, demonstrates not only its
reality, but its enforcement, for the determination of the civil rights of the
parties. It is therefore clear, that amongst Sunni Muslims belonging to the
Hanafi school, the practice of ‘talaq-e-biddat’, has been very much
prevalent, since time immemorial. It has been widespread amongst
Muslims in countries with Muslim popularity. Even though it is considered
205
as irreligious within the religious denomination in which the practice is
prevalent, yet the denomination considers it valid in law. Those following
this practice have concededly allowed their civil rights to be settled thereon.
‘Talaq-e-biddat’ is practiced in India by 90% of the Muslims (who belong to
the Hanafi school). The Muslim population in India is over 13% (-about
sixteen crores) out of which 4-5 crores are Shias, and the remaining are
Sunnis (besides, about 10 lakhs Ahmadias) – mostly belonging to the Hanafi
school. And therefore, it would not be incorrect to conclude, that an
overwhelming majority of Muslims in India, have had recourse to the
severance of their matrimonial ties, by way of ‘talaq-e-biddat’ – as a matter
of their religious belief – as a matter of their faith.
145. We are satisfied, that the practice of ‘talaq-e-biddat’ has to be
considered integral to the religious denomination in question – Sunnis
belonging to the Hanafi school. There is not the slightest reason for us to
record otherwise. We are of the view, that the practice of ‘talaq-e-biddat’,
has had the sanction and approval of the religious denomination which
practiced it, and as such, there can be no doubt that the practice, is a part
of their ‘personal law’.
V. Did the Muslim Personal Law (Shariat) Application Act, 1937 confer
statutory status to the subjects regulated by the said legislation?
146. ‘Personal law’ has a constitutional protection. This protection is
extended to ‘personal law’ through Article 25 of the Constitution. It needs
to be kept in mind, that the stature of ‘personal law’ is that of a
fundamental right. The elevation of ‘personal law’ to this stature came
about when the Constitution came into force. This was because Article 25
206
was included in Part III of the Constitution. Stated differently, ‘personal
law’ of every religious denomination, is protected from invasion and breach,
except as provided by and under Article 25.
147. The contention now being dealt with, was raised with the object of
demonstrating, that after the enactment of the Muslim Personal Law
(Shariat) Application Act, 1937, the questions and subjects covered by the
Shariat Act, ceased to be ‘personal law’, and got transformed into ‘statutory
law’. It is in this context, that it was submitted, by Ms. Indira Jaising,
learned senior counsel and some others, that the tag of ‘personal law’ got
removed from the Muslim ‘personal law’ – ‘Shariat’, after the enactment of
the Shariat Act, at least for the questions/subjects with reference to which
the legislation was enacted. Insofar as the present controversy is
concerned, suffice it to notice, that the enactment included “… dissolution
of marriage, including talaq …” amongst the questions/subjects covered by
the Shariat Act. And obviously, when the parties are Muslims, ‘talaq’
includes ‘talaq-e-biddat’. The pointed contention must be understood to
mean, that after the enactment of the Shariat Act, dissolution of marriage
amongst Muslims including ‘talaq’ (and, ‘talaq-e-biddat’) had to be
considered as regulated through a State legislation.
148. Having become a part of a State enactment, before the Constitution
of India came into force, it was the submission of learned senior counsel,
that all laws in force immediately before the commencement of the
Constitution, would continue to be in force even afterwards. For the instant
assertion, reliance was placed on Article 372 of the Constitution. We may
207
only state at this juncture, if the first proposition urged by the learned
senior counsel is correct (that dissolution of marriage amongst Muslims
including ‘talaq’ was regulated statutorily after the 1937 Act), then the latter
part of the submission advanced, has undoubtedly to be accepted as
accurate.
149. We have already enumerated the relevant provisions of the Shariat
Act (-for details, refer to Part-4 – Legislation in India, in the field of Muslim
‘personal law’). A perusal of Section 2 thereof (extracted in paragraph 23
above) reveals, that on the questions/subjects of intestate succession,
special property of females, including personal property inherited or
obtained under contract or gift or any other provision of ‘personal law’,
marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and
mubaraat, maintenance, dower, guardianship, gifts, trusts and trust
properties, and wakfs, “… the rule of decision …”, where the parties are
Muslims, shall be “… the Muslim Personal Law – Shariat. The submission
of the learned counsel representing the petitioners, in support of the instant
contention was, that since the “rule of the decision” inter alia with reference
to ‘talaq’ (-‘talaq-e-biddat’), was thereafter to be regulated in terms of the
Shariat Act, what was ‘personal law’ (-prior to the above enactment), came
to be transformed into ‘statutory law’. This, according to learned counsel
for the petitioners, has a significant bearing, inasmuch as, what was
considered as ‘personal law’ prior to the Shariat Act, became an Act of the
State. Having become an Act of the State, it was submitted, that it has to
satisfy the requirements of Part III – Fundamental Rights, of the
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Constitution. This, it was pointed out, is indeed the express mandate of
Article 13(1), which provides that laws in force immediately before the
commencement of the Constitution, insofar as they are inconsistent with
the provisions of Part III of the Constitution, shall to the extent of such
inconsistency, be considered as void.
150. In order to support the issue being canvassed, it was submitted,
that no “rule of decision” can be violative of Part III of the Constitution. And
“rule of decision” on questions/subjects covered by the Shariat Act, would
be deemed to be matters of State determination. Learned senior counsel was
however candid, in fairly acknowledging, that ‘personal laws’ which
pertained to disputes between the family and private individuals (where the
State had no role), cannot be subject to a challenge on the ground, that they
are violative of the fundamental rights contained in Part III of the
Constitution. The simple logic canvassed by learned counsel was, that all
questions pertaining to different ‘personal laws’ amongst Muslims having
been converted into “rule of decision” could no longer be treated as private
matters between the parties, nor would they be treated as matters of
‘personal law’’. In addition, the logic adopted to canvass the above position
was, that if it did not alter the earlier position, what was the purpose of
bringing in the legislation (the Shariat Act).
151. On the assumption, that ‘personal law’ stood transformed into
‘statutory law’, learned senior counsel for the petitioners assailed the
constitutional validity of ‘talaq-e-biddat’, on the touchstone of Articles 14,
15 and 21 of the Constitution.
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152. Mr. Kapil Sibal, learned senior counsel appearing for the AIMPLB,
drew our attention to the debates in the Legislative Assembly, whereupon,
the Muslim Personal Law (Shariat) Application Act, 1937 was enacted (for
details, refer to paragraph 94). Having invited our attention to the above
debates and more particularly to the statements of Abdul Qaiyum
(representing North-West Frontier Province), it was contended, that the
legislation under reference, was not enacted with the object of giving a
statutory status to the Muslim ‘personal law’ – ‘Shariat’. It was asserted,
that the object was merely to negate the effect of usages and customs. It
was pointed out, that even though Muslims were to be regulated under the
Muslim ‘personal law’ – ‘Shariat’, yet customs and usages to the contrary
were being given an overriding effect. To the extent that customs and
usages even of local tribes (-as also of local villages), were being given an
overriding position over Muslim ‘personal law’, in the course of judicial
determination, even where the parties were Muslims. It was therefore
asserted, that it would be wrong to assume, that the aim and object of the
legislators, while enacting the Shariat Act, was to give statutory status to
Muslim ‘personal law’ – ‘Shariat’. In other words, it was the contention of
learned senior counsel, that the Shariat Act should only be understood as
having negated customary practices and usages, which were in conflict with
the existing Muslim ‘personal law’ – ‘Shariat’.
153. Mr. V. Giri, learned senior counsel, supported the above contention
by placing reliance on Section 2 of the Muslim Personal Law (Shariat)
Application Act, 1937, on behalf of the AIMPLB. It was asserted, that
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Section 2 has a non obstante clause. It was pointed out, that aforestated
non obstante clause was merely relatable to customs and usages. A perusal
of Section 2, according to learned senior counsel, would leave no room for
any doubt, that the customs and usages referred to in Section 2 of the
Shariat Act, were only such customs and usages as were in conflict with the
Muslim ‘personal law’ – ‘Shariat’. It was accordingly submitted, that the
object behind Section 2 of the Shariat Act was to declare the Muslim
‘personal law’ – ‘Shariat’, as the “rule of decision”, in situations where
customs and usages were to the contrary.
154. Learned senior counsel for the respondents desired us to accept
their point of view, for yet another reason. It was submitted, that the
Muslim Personal Law (Shariat) Application Act, 1937, did not decide what
was, and what was not, Muslim ‘personal law’ – ‘Shariat’. It was therefore
pointed out, that it would be a misnomer to consider, that the Shariat Act,
legislated in the field of Muslim ‘personal law’ – ‘Shariat’ in any manner on
Muslim ‘personal law’ – ‘Shariat’. It was submitted, that Muslim ‘personal
law’ – ‘Shariat’ remained what it was. It was pointed out, that articles of
faith as have been expressed on the questions/subjects regulated by the
Shariat Act, have not been dealt with in the Act, they remained the same as
were understood by the followers of that faith. It was accordingly
contended, that the Muslim ‘personal law’ – ‘Shariat’, was not
introduced/enacted through the Shariat Act. It was also pointed out, that
the Shariat Act did not expound or propound the parameters on different
questions or subjects, as were applicable to the Sunnis and Shias, and their
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different schools. It was accordingly submitted, that it would be a
misnomer to interpret the provisions of the Shariat Act, as having given
statutory status to different questions/subjects, with respect to ‘personal
law’ of Muslims. It was therefore contended, that the Muslim ‘personal law’
– ‘Shariat’ was never metamorphosed into a statute. It was therefore
contended, that it would be wholly improper to assume that Muslim
‘personal law’ – ‘Shariat’ was given statutory effect, through the Muslim
Personal Law (Shariat) Application Act, 1937.
155. Based on the above contentions, it was submitted, that the Muslim
Personal Law (Shariat) Application Act, 1937 cannot be treated as having
conferred statutory status on the Muslim ‘personal law’ – ‘Shariat’, and as
such, the same cannot be treated as a statutory enactment, so as to be
tested for its validity in the manner contemplated under Article 13(1) of the
Constitution.
156. We have given our thoughtful consideration to the submissions
advanced at the hands of learned counsel for the rival parties. Having
closely examined Section 2 of the Muslim Personal Law (Shariat) Application
Act, 1937, we are of the view, that the limited purpose of the aforesaid
provision was to negate the overriding effect of usages and customs over the
Muslim ‘personal law’ – ‘Shariat’. This determination of ours clearly
emerges even from the debates in the Legislative Assembly before the
enactment of Muslim Personal Law (Shariat) Application Act, 1937. In fact,
the statements of H.M. Abdullah (representing West Central Punjab) and
Abdul Qaiyum (representing North-West Frontier Province), leave no room
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for any doubt, that the objective sought to be achieved by the ‘Shariat’ was
inter alia to negate the overriding effect on customs and usages over the
Muslim ‘personal law’ – ‘Shariat’. The debates reveal that customs and
usages by tribals were being given overriding effect by courts while
determining issues between Muslims. Even usages and customs of
particular villages were given overriding effect over Muslim ‘personal law’ –
‘Shariat’. We are also satisfied to accept the contention of the learned
senior counsel, that a perusal of Section 2 and the non obstante clause used
therein, has that effect. The Shariat Act, in our considered view, neither
lays down nor declares the Muslim ‘personal law’ – ‘Shariat’. Not even, on
the questions/subjects covered by the legislation. There is no room for any
doubt, that there is substantial divergence of norms regulating Shias and
Sunnis. There was further divergence of norms, in their respective schools.
The Shariat Act did not crystalise the norms as were to be applicable to
Shias and Sunnis, or their respective schools. What was sought to be done
through the Shariat Act, in our considered view, was to preserve Muslim
‘personal law’ – ‘Shariat’, as it existed from time immemorial. We are of the
view, that the Shariat Act recognizes the Muslim ‘personal law’ as the ‘rule
of decision’ in the same manner as Article 25 recognises the supremacy and
enforceability of ‘personal law’ of all religions. We are accordingly satisfied,
that Muslim ‘personal law’ – ‘Shariat’ as body of law, was perpetuated by
the Shariat Act, and what had become ambiguous (due to inundations
through customs and usages), was clarified and crystalised. In contrast, if
such a plea had been raised with reference to the Dissolution of Muslim
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Marriages Act, 1939, which legislatively postulated the grounds of divorce
for Muslim women, the submission would have been acceptable. The 1939
Act would form a part of ‘statutory law’, and not ‘personal law’. We are
therefore constrained to accept the contention advanced by learned counsel
for the respondents, that the proposition canvassed on behalf of the
petitioners, namely, that the Muslim Personal Law (Shariat) Application Act,
1937 conferred statutory status, on the questions/subjects governed by the
Shariat Act, cannot be accepted. That being the position, Muslim ‘personal
law’ – ‘Shariat’ cannot be considered as a State enactment.
157. In view of the conclusions recorded in the foregoing paragraph, it is
not possible for us to accept, the contention advanced on behalf of the
petitioners, that the questions/subjects covered by the Muslim Personal
Law (Shariat) Application Act, 1937 ceased to be ‘personal law’ and got
transformed into ‘statutory law’. Having concluded as above, we must also
hold (-which we do), that the practices of Muslim ‘personal law’ – ‘Shariat’
cannot be required to satisfy the provisions contained in Part III –
Fundamental Rights, of the Constitution, applicable to State actions, in
terms of Article 13 of the Constitution.
VI. Does ‘talaq-e-biddat’, violate the parameters expressed in Article 25 of
the Constitution?
158. In our consideration recorded hereinabove, we have held, that the
provisions of the Muslim Personal Law (Shariat) Application Act, 1937 did
not alter the ‘personal law’ status of the Muslim ‘personal law’ – ‘Shariat’.
We shall now deal with the next step. Since ‘talaq-e-biddat’ remains a
matter of ‘personal law’, applicable to a Sunni Muslim belonging to the
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Hanafi school, can it be declared as not enforceable in law, as it violates the
parameters expressed in Article 25 (which is also one of the pointed
contentions of those supporting the petitioners case)?
159. The above proposition is strenuously opposed by all the learned
counsel who appeared on behalf of the respondents, more particularly,
learned senior counsel representing the AIMPLB. During the course of the
instant opposition, our attention was invited to the judgment rendered by
the Bombay High Court in the Narasu Appa Mali case23. We may briefly
advert thereto. In the said judgment authored by M.C. Chagla, CJ, in
paragraph 13 and Gajendragadkar, J. (as he then was) in paragraph 23,
recorded the following observations:
“13. That this distinction is recognised by the Legislature is clear if one looks to
the language of S. 112, Government of India Act, 1915. That section deals with
the law to be administered by the High Courts and it provides that the High
Courts shall, in matters of inheritance and succession to lands, rents and
goods, and in matters of contract and dealing between party and party, when
both parties are subject to the same personal law or custom having the force of
law, decide according to that personal law or custom, and when the parties are
subject to different personal laws or customs having the force of law, decide
according to the law or custom to which the defendant is subject. Therefore, a
clear distinction is drawn between personal law and custom having the force of
law. This is a provision in the Constitution Act, and having this model before
them the Constituent Assembly in defining “law” in Art. 13 have expressly and
advisedly used only the expression “custom or usage” and have omitted
personal law. This, in our opinion, is a very clear pointer to the intention of the
Constitution-making body to exclude personal law from the purview of Art. 13.
There are other pointers as well. Article 17 abolishes untouchability and
forbids its practice in any form. Article 25(2)(b) enables the State to make laws
for the purpose of throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus. Now, if Hindu personal law
became void by reason of Art. 13 and by reason of any of its provisions
contravening any fundamental right, then it was unnecessary specifically to
provide in Art. 17 and Art. 25(2)(b) for certain aspects of Hindu personal law
which contravened Arts. 14 and 15. This clearly shows that only in certain
respects has the Constitution dealt with personal law. The very presence of Art.
44 in the Constitution recognizes the existence of separate personal laws, and
Entry No. 5 in the Concurrent List gives power to the Legislatures to pass laws
affecting personal law. The scheme of the Constitution, therefore, seems to be
to leave personal law unaffected except where specific provision is made with
215
regard to it and leave it to the Legislatures in future to modify and improve it
and ultimately to put on the statute book a common and uniform Code. Our
attention has been drawn to S. 292, Government of India Act, 1935, which
provides that all the law in force in British India shall continue in force until
altered or repealed or amended by a competent Legislature or other competent
authority, and S. 293 deals with adaptation of existing penal laws. There is a
similar provision in our Constitution in Art. 372(1) and Art. 372(2). It is
contended that the laws which are to continue in force under Art. 372(1)
include personal laws, and as these laws are to continue in force subject to the
other provisions of the Constitution, it is urged that by reason of Art. 13(1) any
provision in any personal law which is inconsistent with fundamental rights
would be void. But it is clear from the language of Arts. 372(1) and (2) that the
expression “laws in force” used in this article does not include personal
law because Art. 372(2) entitles the President to make adaptations and
modifications to the law in force by way of repeal or amendment, and
surely it cannot be contended that it was intended by this provision to
authorise the President to make alterations or adaptations in the
personal law of any community. Although the point urged before us is
not by any means free from difficulty, on the whole after a careful
consideration of the various provisions of the Constitution, we have come
to the conclusion that personal law is not included in the expression
“laws in force” used in Art. 13(1).
23. …..The Constitution of India itself recognises the existence of these
personal laws in terms when it deals with the topics falling under
personal law in item 5 in the Concurrent List—List III. This item deals
with the topics of marriage and divorce; infants and minors; adoption;
wills, intestacy and succession; joint family and partition; all matters in
respect of which parties in judicial proceedings were immediately before
the commencement of this Constitution subject to their personal law.
Thus it is competent either to the State or the Union Legislature to
legislate on topics falling within the purview of the personal law and yet
the expression “personal law” is not used in Art. 13. because, in my
opinion, the framers of the Constitution wanted to leave the personal
laws outside the ambit of Part III of the Constitution. They must have
been aware that these personal laws needed to be reformed in many
material particulars and in fact they wanted to abolish these different
personal laws and to evolve one common code. Yet they did not wish that
the provisions of the personal laws should be challenged by reason of the
fundamental rights guaranteed in Part III of the Constitution and so they
did not intend to include these personal laws within the definition of the
expression “laws in force.” Therefore, I agree with the learned Chief
Justice in holding that the personal laws do not fall within Art. 13(1) at
all.”
160. It seems to us, that the position expressed by the Bombay High
Court, as has been extracted above, deserves to be considered as the
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presently declared position of law, more particularly, because it was
conceded on behalf of the learned Attorney General for India, that the
judgment rendered by the Bombay High Court in the Narasu Appa Mali
case23, has been upheld by the Court in the Shri Krishna Singh case29 and
the Maharshi Avadhesh32 cases, wherein, this Court had tested the
‘personal laws’ on the touchstone of fundamental rights in the cases of
Mohd. Ahmed Khan v. Shah Bano Begum37 (by a 5-Judge Constitution
Bench), Daniel Latifi v. Union of India38 (by a 5-Judge Constitution Bench),
and in the John Vallamattom case9, (by a 3-Judge Division Bench). An
extract of the written submissions placed on the record of the case, on
behalf of the Union of India, has been reproduced verbatim in paragraph 71
above.
161. The fair concession made at the hands of the learned Attorney
General, is reason enough for us to accept the proposition, and the legal
position expressed by the Bombay High Court, relevant part whereof has
been extracted above. Despite our instant determination, it is essential for
us to notice a few judgments on the issue, which would put a closure to the
matter.
(i) Reference may first of all be made to the Shri Krishna Singh case29.
The factual position which arose in the above case, may be noticed as
under:
‘S’, a Hindu ascetic, established the Garwaghat Math at Varanasi in 1925.
The ‘math’ (monastery) comprised of Bangla Kuti and other buildings and

37 (1985) 2 SCC 556
38 (2001) 7 SCC 740
217
lands endowed by his devotees. ‘S’ belonged to the Sant Math Sampradaya,
which is a religious denomination of the Dasnami sect, founded by the
‘Sankaracharya’ (head of a monastery). During this lifetime, ‘S’ initiated ‘A’
as his ‘chela’ (disciple) and gave him full rights of initiation and ‘bhesh’
(spiritual authority). After the death of ‘S’, his ‘bhesh’ and sampradaya
(succession of master or disciples) gave ‘A’ the ‘chadar mahanti’ (cloak of the
chief priest) of the ‘math’ and made him the ‘mahant’ (chief priest),
according to the wishes of ‘S’. ‘A’ thereafter initiated the plaintiff, a ‘sudra’
(lowest caste of the four Hindu castes), as his ‘chela’ according to the
custom and usage of the sect and after this death, in accordance with his
wishes the ‘mahants’ and ‘sanyasis’ (persons leading a life of renunciation)
of the ‘bhesh’ and ‘sampradaya’ gave the ‘chadar mahanti’ to the plaintiff,
and installed him as the ‘mahant’ of the ‘math’ in the place of ‘A’, by
executing a document to that effect. ‘A’ during his life time purchased two
houses in the city of Varanasi, from out of the income of the ‘math’. When
the plaintiff became the ‘mahant’, he brought a suit for ejectment of
Respondents 2 to 5 from one of those houses, on the ground that
Respondent 2 after taking the house on rent from ‘A’, had unlawfully sublet
the premises to Respondents 3 to 5. The defendant respondents inter alia
pleaded, that they were in occupation of the house as ‘chelas’ of ‘A’, in their
own rights, by virtue of a licence granted to them by ‘A’, and therefore, on
his death his natural son and disciple, the appellant became the owner
thereof. One of the questions which needed to be determined in the above
controversy, was formulated as under:
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(1) Whether the plaintiff being a ‘sudra’ could not be ordained to a
religious order and become a ‘sanyasi’ or ‘yati’ and therefore, installed as
‘mahant’ according to the tenets of the Sant Mat Sampradaya?
In recording its conclusions with reference to Article 25, in the above
disputed issue, this Court held as under:
“17. It would be convenient, at the outset, to deal with the view
expressed by the High Court that the strict rule enjoined by the Smriti
writers as a result of which Sudras were considered to be incapable of
entering the order of yati or sanyasi, has ceased to be valid because of
the fundamental rights guaranteed under Part III of the Constitution. In
our opinion, the learned Judge failed to appreciate that Part III of the
Constitution does not touch upon the personal laws of the parties. In
applying the personal laws of the parties, he could not introduce his own
concepts of modern times but should have enforced the law as derived
from recognised and authoritative sources of Hindu law i.e. Smritis and
commentaries referred to, as interpreted in the judgments of various
High Courts, except, where such law is altered by any usage or custom
or is modified or abrogated by statute.”
(ii) Reference is also essential to Madhu Kishwar v. State of Bihar39,
wherein this Court observed a under:
“It is worthwhile to account some legislation on the subject. The Hindu
Succession Act governs and prescribes rules of succession applicable to
a large majority of Indians being Hindus, Sikhs, Buddhists, Jains etc.
whereunder since 1956, if not earlier, the female heir is put on a par with
a male heir. Next in the line of numbers is the Shariat law, applicable to
Muslims, whereunder the female heir has an unequal share in the
inheritance, by and large half of what a male gets. Then comes the Indian
Succession Act which applies to Christians and by and large to people
not covered under the aforesaid two laws, conferring in a certain manner
heirship on females as also males. Certain chapters thereof are not made
applicable to certain communities. Sub-section (2) of Section 2 of the
Hindu Succession Act significantly provides that nothing contained in
the Act shall apply to the members of any Scheduled Tribe within the
meaning of clause (25) of Article 366 of the Constitution, unless
otherwise directed by the Central Government by means of a notification
in the Official Gazette. Section 3(2) further provides that in the Act,
unless the context otherwise requires, words importing the masculine
gender shall not be taken to include females. General rule of legislative
practice is that unless there is anything repugnant in the subject or
context, words importing the masculine gender used in statutes are to be

39 (1996) 5 SCC 125
219
taken to include females. Attention be drawn to Section 13 of the General
Clauses Act. But in matters of succession the general rule of plurality
would have to be applied with circumspection. The afore provision thus
appears to have been inserted ex abundanti cautela. Even under Section
3 of the Indian Succession Act, the State Government is empowered to
exempt any race, sect or tripe from the operation of the Act and the
tribes of Mundas, Oraons, Santhals etc. in the State of Bihar, who are
included in our concern, have been so exempted. Thus neither the Hindu
Succession Act, nor even the Shariat law is applicable to the customgoverned
tribals. And custom, as is well recognized, varies from people to
people and region to region.”
In the face of these divisions and visible barricades put up by the
sensitive tribal people valuing their own customs, traditions and usages,
judicially enforcing on them the principles of personal laws applicable to
others, on an elitist approach or on equality principle, by judicial
activism, is a difficult and mind-boggling effort. Brother K. Ramaswamy,
J. seems to have taken the view that Indian legislatures (and
Governments too) would not prompt themselves to activate in this
direction because of political reasons and in this situation, an activist
court. apolitical as it avowedly is, could get into action and legislate
broadly on the lines as suggested by the petitioners in their written
submissions. However laudable, desirable and attractive the result may
seem, it has happily been viewed by our learned brother that an activist
court is not fully equipped to cope with the details and intricacies of the
legislative subject and can at best advise and focus attention on the
State polity on the problem and shake it from its slumber, goading it to
awaken, march and reach the goal. For, in whatever measure be the
concern of the court, it compulsively needs to apply, motion, described in
judicial parlance as self-restraint. We agree therefore with brother K.
Ramaswamy, J. as summed up by him in the paragraph ending on p.36
(para 46) of his judgment that under the circumstances it is not desirable
to declare the customs of tribal inhabitants as offending Articles 14, 45
and 21 of the Constitution and each case must be examined when full
facts are placed before the court.
With regard to the statutory provisions of the Act, he has proposed to the
reading down of Sections 7 and 8 in order to preserve their
constitutionality. This approach is available from p.36 (paras 47, 48)
onwards of his judgment. The words "male descendant wherever
occurring , would include "female descendants". It is also proposed that
even though the provisions of the Hindu Succession Act, 1925 in terms
would not apply to the Schedule Tribes, their general principles
composing of justice, equity and fair play would apply to them. On this
basis it has been proposed to take the view that the Scheduled Tribe
women would succeed to the estate of paternal parent, brother or
husband as heirs by intestate succession and inherit the property in
equal shares with the male heir with absolute rights as per the principles
of the Hindu Succession Act as also the Indian Succession Act. However,
much we may like the law to be so we regret our inability to subscribe to
220
the means in achieving such objective. If this be the route of return on
the court's entering the thicket, it would follow a beeline for similar
claims in diverse situations, not stopping at tribal definitions, and a
deafening uproar to bring other systems of law in line with the line with
the systems of law in line with the Hindu Succession Act and the Indian
Succession Act as models. Rules of succession are, indeed susceptible of
providing differential treatment, not necessarily equal. Non-uniformities
would not in all events violate Article 14. Judge-made amendments to
provisions, should normally be avoided. We are thus constrained to take
this view. even though it may appear to be conservative for adopting a
cautious approach, and the one proposed by our learned brother is,
regretfully not acceptable to us.”
(iii) In the Ahmedabad Women Action Group case30, this Court recorded
the questions arising for consideration in pargraphs 1 to 3, which are
reproduced below:
“All these Writ Petitions are filed as Public Interest Litigation. In W.P. (C)
No. 494 of 1996, the reliefs prayed for are as follows:
(a) to declare Muslim Personal Law which allows polygamy as void as
offending Articles 14 and 15 of the Constitution;
(b) to declare Muslim Personal Law which enables a Muslim male to give
unilateral Talaq to his wife without her consent and without resort to
judicial process of courts, as void, offending Articles 13, 14 and 15 of the
Constitution;
(c) to declare that the mere fact that a Muslim husband takes more than
one wife is an act of cruelty within the meaning of Clause VIII (f)
of Section 2 of Dissolution of Muslim Marriages Act, 1939;
(d) to declare that Muslim Women (Protection of Rights on Divorce) Act,
1986 is void as infringing Articles 14 and 15;
(e) to further declare that the provisions of Sunni and Shia laws of
inheritance which discriminate against females in their share as
compared to the share of males of the same status, void as
discriminating against females only on the ground of sex.
2. In writ Petition (C) No. 496 of 1996, the reliefs prayed for are the
following:-
(a) to declare Sections 2(2), 5(ii) and (iii), 6 and Explanation to Section
30 of Hindu Succession Act, 1956, as void offending Articles 14 and 15
read with Article 13 of the Constitution of India;
(b) to declare Section (2) of Hindu Marriage Act, 1955, as void offending
Articles 14 and 15 of the Constitution of India;
(c) to declare Sections 3 (2), 6 and 9 of the Hindu Minority
and Guardianship Act read with Section 6 of Guardians and Wards Act
void;
221
(d) to declare the unfettered and absolute discretion allowed to a Hindu
spouse to make testamentary disposition without providing for an
ascertained share of his or her spouse and dependant, void.
3. In writ Petition (C) No. 721 of 1996, the reliefs prayed for are the
following :
(a) to declare Sections 10 and 34 of Indian Divorce Act void and also to
declare Sections 43 to 46 of the Indian Succession Act void.”
The position expressed in respect of the above questions, after noticing the
legal position propounded by this Court in the Madhu Kishwar case39, was
recorded in paragraph 4 as under:
“4. At the outset. we would like to state that these Writ Petitions do not
deserve disposal on merits inasmuch as the arguments advanced by the
learned Senior Advocate before us wholly involve issues of State policies
with which the Court will not ordinarily have any concern. Further, we
find that when similar attempts were made, of course by others, on
earlier occasions this Court held that the remedy lies somewhere else
and not by knocking at the doors of the courts.”
(iv) Reference may also be made to the Sardar Syedna Taher Saifuddin
Saheb case28, wherein, this Court held as under:
“The content of Articles 25 and 26 of the Constitution came up for
consideration before this Court in the Commissioner, Hindu Religious
Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Matt; Mahant Jagannath Ramanuj Das v. The State of Orissa; Sri
Ventatamana Devaru v. The State of Mysore; Durgah Committee, Ajmer
v. Syed Hussain Ali and several other cases and the main principles
underlying these provisions have by these decisions been placed beyond
controversy. The first is that the protection of these articles is not
limited to matters of doctrine or belief they extend also to acts done in
pursuance of religion and therefore contain a guarantee for rituals and
observances, ceremonies and modes of worship which are integral parts
of religion. The second is that what constitutes an essential part of a
religion or religious practice has to be decided by the courts with
reference to the doctrine of a particular religion and include practices
which are regarded by the community as a part of its religion”.
(v) It is also essential to note the N. Adithyan case33, wherein this
Court observed as under:
“9. This Court, in Seshammal v. State of T.N., (1972) 2 SCC 11 again
reviewed the principles underlying the protection engrafted in Articles 25
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and 26 in the context of a challenge made to abolition of hereditary right
of Archaka, and reiterated the position as hereunder: (SCC p.21, paras
13-14)
“13. This Court in Sardar Taher Saifuddin Saheb v. State of Bombay AIR
1962 SC 853 has summarized the position in law as follows (pp.531 and
532):
‘The content of Articles 25 and 26 of the Constitution came up for
consideration before this Court in Commr., Hindu Religious Endowments
v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, Mahant
Jagannath Ramanuj Das v. State of Orissa, Venkataramana Devaru v.
State of Mysore, Durgah Committee, Ajmer v. Syed Hussain Ali and
several other cases and the main principles underlying these provisions
have by these decisions been placed beyond controversy. The first is that
the protection of these articles is not limited to matters of doctrine or
belief they extend also to acts done in pursuance of religion and therefore
contain a guarantee for rituals and observances, ceremonies and modes
of worship which are integral parts of religion. The second is that what
constitutes an essential part of a religion or religious practice has to be
decided by the courts with reference to the doctrine of a particular
religion and include practices which are regarded by the community as a
part of its religion.’
14. Bearing these principles in mind, we have to approach the
controversy in the present case.”
16. It is now well settled that Article 25 secures to every person, subject
of course to public order, health and morality and other provisions of
Part III, including Article 17 freedom to entertain and exhibit by outward
acts as well as propagate and disseminate such religious belief according
to his judgment and conscience for the edification of others. The right of
the State to impose such restrictions as are desired or found necessary
on grounds of public order, health and morality is inbuilt in Articles 25
and 26 itself. Article 25(2)(b) ensures the right of the State to make a law
providing for social welfare and reform besides throwing open of Hindu
religious institutions of a public character to all classes and sections of
Hindus and any such rights of the Sate or of the communities or classes
of society were also considered to need due regulation in the process of
harmonizing the various rights. The vision of the founding fathers of the
Constitution to liberate the society from blind and ritualistic adherence
to mere traditional superstitious beliefs sans reason or rational basis has
found expression in the form of Article 17. The legal position that the
protection under Articles 25 and 26 extends a guarantee for rituals and
observances, ceremonies and modes of worship which are integral parts
of religion and as to what really constitutes an essential part of religion
or religious practice has to be decided by the courts with reference to the
doctrine of a particular religion or practices regarded as parts of religion,
came to be equally firmly laid down.”
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(vi) Relevant to the issue is also the judgment in the Sri Adi
Visheshwara of Kashi Vishwanath Temple, Varanasi case34, wherein it was
held:
“28…..All secular activities which may be associated with religion but
which do not relate or constitute an essential part of it may be amenable
to State regulations but what constitutes the essential part of religion
may be ascertained primarily from the doctrines of that religion itself
according to its tenets, historical background and change in evolved
process etc. The concept of essentiality is not itself a determinative
factor. It is one of the circumstances to be considered in adjudging
whether the particular matters of religion or religious practices or belief
are an integral part of the religion. It must be decided whether the
practices or matters are considered integral by the community itself.
Though not conclusive, this is also one of the facets to be noticed. The
practice in question is religious in character and whether it could be
regarded as an integral and essential part of the religion and if the court
finds upon evidence adduced before it that it is an integral or essential
part of the religion, Article 25 accords protection to it. …..”
(vii) The position seems to be clear, that the judicial interference with
‘personal law’ can be rendered only in such manner as has been provided
for in Article 25 of the Constitution. It is not possible to breach the
parameters of matters of faith, as they have the protective shield of Article
25 (except as provided in the provision itself).
162. To be fair to the learned Attorney General, it is necessary to record,
that he contested the determination recorded by the Bombay High Court in
the Narasu Appa Mali case23, and the judgments rendered by this Court
affirming the same, by assuming the stance that the position needed to be
revisited (-for details, refer to paragraph 71 above). There are two reasons
for us not to entertain this plea. Firstly, even according to the learned
Attorney General, the proposition has been accepted by this Court in at
least two judgments rendered by Constitution Benches (-of 5-Judge each),
224
and as such, we (-as a 5-Judge Bench) are clearly disqualified to revisit the
proposition. And secondly, a challenge to ‘personal law’ is also competent
under Article 25, if the provisions of Part III – Fundamental Rights, of the
Constitution, are violated, which we shall in any case consider (hereinafter)
while examining the submissions advanced on behalf of the petitioners.
Likewise, we shall not dwell upon the submissions advanced in rebuttal by
Mr. Kapil Sibal, Senior Advocate.
163. So far as the challenge to the practice of ‘talaq-e-biddat’, with
reference to the constitutional mandate contained in Article 25 is
concerned, we have also delved into the submissions canvassed, during the
course of hearing. It would be pertinent to mention, that the constitutional
protection to tenets of ‘personal law’ cannot be interfered with, as long as
the same do not infringe “public order, morality and health”, and/or “the
provisions of Part III of the Constitution”. This is the clear position
expressed in Article 25(1).
164. We will now venture to examine the instant challenge with reference
to the practice of ‘talaq-e-biddat’. It is not possible for us to accept, that the
practice of ‘talaq-e-biddat’ can be set aside and held as unsustainable in
law for the three defined purposes expressed in Article 25(1), namely, for
reasons of it being contrary to public order, morality and health. Viewed
from any angle, it is impossible to conclude, that the practice impinges on
‘public order’, or for that matter on ‘health’. We are also satisfied, that it
has no nexus to ‘morality’, as well. Therefore, in our considered view, the
practice of ‘talaq-e-biddat’ cannot be struck down on the three non-
225
permissible/prohibited areas which Article 25 forbids even in respect of
‘personal law’. It is therefore not possible for us to uphold the contention
raised on behalf of the petitioners on this account.
165. The only remaining ground on which the challenge to ‘talaq-ebiddat’
under Article 25 could be sustainable is, if ‘talaq-e-biddat’ can be
seen as violative of the provisions of Part III of the Constitution. The
challenge raised at the behest of the petitioners, as has been extensively
noticed during the course of recording the submissions advanced on behalf
of the petitioners, was limited to the practice being allegedly violative of
Articles 14, 15 and 21. We shall now examine the veracity of the instant
contention. The fundamental rights enshrined in Articles 14, 15 and 21 are
as against State actions. A challenge under these provisions (Articles 14,
15 and 21) can be invoked only against the State. It is essential to keep in
mind, that Article 14 forbids the State from acting arbitrarily. Article 14
requires the State to ensure equality before the law and equal protection of
the laws, within the territory of India. Likewise, Article 15 prohibits the
State from taking discriminatory action on the grounds of religion, race,
caste, sex or place of birth, or any of them. The mandate of Article 15
requires, the State to treat everyone equally. Even Article 21 is a protection
from State action, inasmuch as, it prohibits the State from depriving anyone
of the rights enuring to them, as a matter of life and liberty (-except, by
procedure established by law). We have already rejected the contention
advanced on behalf of the petitioners, that the provisions of the Muslim
Personal Law (Shariat) Application Act, 1937, did not alter the ‘personal law’
226
status of ‘Shariat’. We have not accepted, that after the enactment of the
Shariat Act, the questions/subjects covered by the said legislation ceased to
be ‘personal law’, and got transformed into ‘statutory law’. Since we have
held that Muslim ‘personal law’ – ‘Shariat’ is not based on any State
Legislative action, we have therefore held, that Muslim ‘personal law’ –
‘Shariat’, cannot be tested on the touchstone of being a State action.
Muslim ‘personal law’ – ‘Shariat’, in our view, is a matter of ‘personal law’ of
Muslims, to be traced from four sources, namely, the Quran, the ‘hadith’,
the ‘ijma’ and the ‘qiyas’. None of these can be attributed to any State
action. We have also already concluded, that ‘talaq-e-biddat’ is a practice
amongst Sunni Muslims of the Hanafi school. A practice which is a
component of the ‘faith’ of those belonging to that school. ‘Personal law’,
being a matter of religious faith, and not being State action, there is no
question of its being violative of the provisions of the Constitution of India,
more particularly, the provisions relied upon by the petitioners, to assail the
practice of ‘talaq-e-biddat’, namely, Articles 14, 15 and 21 of the
Constitution.
VII. Constitutional morality and ‘talaq-e-biddat’:
166. One of the issues canvassed on behalf of the petitioners, which was
spearheaded by the learned Attorney General for India, was on the ground,
that the constitutional validity of the practice of ‘talaq-e-biddat’ – triple
talaq, was in breach of constitutional morality. The question raised before
us was, whether under a secular Constitution, women could be
discriminated against, only on account of their religious identity? It was
227
asserted, that women belonging to any individual religious denomination,
cannot suffer a significantly inferior status in society, as compared to
women professing some other religion. It was pointed out, that Muslim
women, were placed in a position far more vulnerable than their
counterparts, who professed other faiths. It was submitted, that Hindu,
Christian, Zoroastrian, Buddhist, Sikh, Jain women, were not subjected to
ouster from their matrimonial relationship, without any reasonable cause,
certainly not, at the whim of the husband; certainly not, without due
consideration of the views expressed by the wife, who had the right to repel
a husband’s claim for divorce. It was asserted, that ‘talaq-e-biddat’, vests
an unqualified right with the husband, to terminate the matrimonial
alliance forthwith, without any reason or justification. It was submitted,
that the process of ‘talaq-e-biddat’ is extra-judicial, and as such, there are
no remedial measures in place, for raising a challenge, to the devastating
consequences on the concerned wife. It was pointed out, that the
fundamental right to equality, guaranteed to every citizen under Article 14
of the Constitution, must be read to include, equality amongst women of
different religious denominations. It was submitted, that gender equality,
gender equity and gender justice, were values intrinsically intertwined in
the guarantee assured to all (-citizens, and foreigners) under Article 14. It
was asserted, that the conferment of social status based on patriarchal
values, so as to place womenfolk at the mercy of men, cannot be sustained
within the framework of the fundamental rights, provided for under Part III
of the Constitution. It was contended, that besides equality, Articles 14 and
228
15 prohibit gender discrimination. It was pointed out, that discrimination
on the ground of sex, was expressly prohibited under Article 15. It was
contended, that the right of a woman to human dignity, social esteem and
self-worth were vital facets, of the right to life under Article 21. It was
submitted, that gender justice was a constitutional goal, contemplated by
the framers of the Constitution. Referring to Article 51A(e) of the
Constitution, it was pointed out, that one of the declared fundamental
duties contained in Part IV of the Constitution, was to ensure that women
were not subjected to derogatory practices, which impacted their dignity. It
was pointed out, that gender equality and dignity of women, were nonnegotiable.
It was highlighted, that women constituted half of the nation’s
population, and inequality against women, should necessarily entail an
inference of wholesale gender discrimination.
167. In order to support the submissions advanced on behalf of the
petitioners, as have been noticed hereinabove, reliance was placed on Sarla
Mudgal v. Union of India40. Our pointed attention was drawn to the
following observations recorded therein:
“44. Marriage, inheritance, divorce, conversion are as much religious in
nature and content as any other belief or faith. Going round the fire
seven rounds or giving consent before Qazi are as much matter of faith
and conscience as the worship itself. When a Hindu becomes a convert
by reciting Kalma or a Mulsim becomes Hindu by reciting certain
Mantras it is a matter of belief and conscience. Some of these practices
observed by members of one religion may appear to be excessive and
even violative of human rights to members of another. But these are
matters of faith. Reason and logic have little role to play. The sentiments
and emotions have to be cooled and tempered by sincere effort. But today
there is no Raja Ram Mohan Rai who single handedly brought about that
atmosphere which paved the way for Sati abolition. Nor is a statesman of

40 (1995) 3 SCC 635
229
the stature of Pt. Nehru who could pilot through, successfully, the Hindu
Succession Act and Hindu Marriage Act revolutionising the customary
Hindu Law. The desirability of uniform Code can hardly be doubted. But
it can concretize only when social climate is properly built up by elite of
the society, statesmen amongst leaders who instead of gaining personal
mileage rise above and awaken the masses to accept the change.”
Reliance was also placed on the Valsamma Paul case20, wherefrom learned
counsel emphasized on the observations recorded in the following
paragraphs:
“6. The rival contentions give rise to the question of harmonising the
conflict between the personal law and the constitutional animation
behind Articles 16(4) and 15(4) of the Constitution. The concepts of
“equality before law” and “equal protection of the laws” guaranteed by
Article 14 and its species Articles 15(4) and 16(4) aim at establishing
social and economic justice in political democracy to all sections of
society, to eliminate inequalities in status and to provide facilities and
opportunities not only amongst individuals but also amongst groups of
people belonging to Scheduled Castes (for short ‘Dalits’), Scheduled
Tribes (for short ‘Tribes’) and Other Backward Classes of citizens (for
short ‘OBCs’) to secure adequate means of livelihood and to promote with
special care the economic and educational interests of the weaker
sections of the people, in particular, Dalits and Tribes so as to protect
them from social injustice and all forms of exploitation. By 42nd
Constitution (Amendment) Act, secularism and socialism were brought in
the Preamble of the Constitution to realise that in a democracy unless all
sections of society are provided facilities and opportunities to participate
in political democracy irrespective of caste, religion and sex, political
democracy would not last long. Dr Ambedkar in his closing speech on
the draft Constitution stated on 25-11-1949 that “what we must do is
not to be attained with mere political democracy; we must make our
political democracy a social democracy as well. Political democracy
cannot last unless there lies on the base of it a social democracy”.
Social democracy means “a way of life which recognises liberty, equality
and fraternity as principles of life”. They are not separate items in a
trinity but they form union of trinity. To diversity one from the other is to
defeat the very purpose of democracy. Without equality, liberty would
produce the supremacy of the few over the many. Equality without
liberty would kill individual initiative. Without fraternity, liberty and
equality could not become a natural course of things. Articles 15(4) and
16(4), therefore, intend to remove social and economic inequality to make
equal opportunities available in reality. Social and economic justice is a
right enshrined for the protection of society. The right to social and
economic justice envisaged in the Preamble and elongated in the
230
Fundamental Rights and Directive Principles of the Constitution, in
particular, Articles 14, 15, 16, 21, 38, 39 and 46 of the Constitution, is
to make the quality of the life of the poor, disadvantaged and disabled
citizens of society, meaningful. Equal protection in Article 14 requires
affirmative action for those unequals by providing facilities and
opportunities. While Article 15(1) prohibits discrimination on grounds of
religion, race, caste, sex, place of birth, Article 15(4) enjoins upon the
State, despite the above injunction and the one provided in Article 29(2),
to make special provision for the advancement of any socially and
educationally backward classes of citizens or for the Dalits and Tribes.
Equally, while Article 16(1) guarantees equality of opportunity for all
citizens in matters relating to employment or appointment to any office
under the State, Article 16(4) enjoins upon the State to make provision
for reservation for these sections which in the opinion of the State are
not adequately represented in the services under the State. Article 335 of
the Constitution mandates that claims of the members of the Dalits and
Tribes shall be taken into consideration in making appointments to
services and posts in connection with affairs of the Union or of a State
consistent with the maintenance of efficiency of administration.
Therefore, this Court interpreted that equal protection guaranteed by
Articles 14, 15(1) and 16(1) is required to operate consistently with
Articles 15(4), 16(4), 38, 39, 46 and 335 of the Constitution, vide per
majority in Indra Sawhney v.Union of India [1992 Supp (3) SCC 217]
known as Mandal case [1992 Supp (3) SCC 217]. In other words, equal
protection requires affirmative action for those unequals handicapped
due to historical facts of untouchability practised for millennium which
is abolished by Article 17; for tribes living away from our national
mainstream due to social and educational backwardness of OBCs.
xxx xxx xxx
16. The Constitution seeks to establish a secular socialist democratic
republic in which every citizen has equality of status and of opportunity,
to promote among the people dignity of the individual, unity and integrity
of the nation transcending them from caste, sectional, religious barriers
fostering fraternity among them in an integrated Bharat. The emphasis,
therefore, is on a citizen to improve excellence and equal status and
dignity of person. With the advancement of human rights and
constitutional philosophy of social and economic democracy in a
democratic polity to all the citizens on equal footing, secularism has been
held to be one of the basic features of the Constitution (Vide: S.R.
Bommai v. Union of India (1994) 3 SCC 1) and egalitarian social order is
its foundation. Unless free mobility of the people is allowed transcending
sectional, caste, religious or regional barriers, establishment of secular
socialist order becomes difficult. In State of Karnataka v. Appa Balu
Ingale [1995 Supp (4) SCC 469] this Court has held in para 34 that
judiciary acts as a bastion of the freedom and of the rights of the people.
The Judges are participants in the living stream of national life, steering
the law between the dangers of rigidity and formlessness in the seamless
web of life. A Judge must be a jurist endowed with the legislator's
231
wisdom, historian's search for truth, prophet's vision, capacity to
respond to the needs of the present, resilience to cope with the demands
of the future to decide objectively, disengaging himself/herself from every
personal influence or predilections. The Judges should adapt purposive
interpretation of the dynamic concepts under the Constitution and the
Act with its interpretative armoury to articulate the felt necessities of the
time. Social legislation is not a document for fastidious dialects but
means of ordering the life of the people. To construe law one must enter
into its spirit, its setting and history. Law should be capable to expand
freedom of the people and the legal order can weigh with utmost equal
care to provide the underpinning of the highly inequitable social order.
Judicial review must be exercised with insight into social values to
supplement the changing social needs. The existing social inequalities or
imbalances are required to be removed readjusting the social order
through rule of law. In that case, the need for protection of right to take
water, under the Civil Rights Protection Act, and the necessity to uphold
the constitutional mandate of abolishing untouchability and its practice
in any form was emphasised.
xxx xxx xxx
21. The Constitution through its Preamble, Fundamental Rights and
Directive Principles created a secular State based on the principle of
equality and non-discrimination, striking a balance between the rights of
the individuals and the duty and commitment of the State to establish an
egalitarian social order. Dr K.M. Munshi contended on the floor of the
Constituent Assembly that “we want to divorce religion from personal
law, from what may be called social relations, or from the rights of
parties as regards inheritance or succession. What have these things got
to do with religion, I fail to understand? We are in a stage where we must
unify and consolidate the nation by every means without interfering with
religious practices. If, however, in the past, religious practices have been
so construed as to cover the whole field of life, we have reached a point
when we must put our foot down and say that these matters are not
religion, they are purely matters for secular legislation. Religion must be
restricted to spheres which legitimately appertain to religion, and the rest
of life must be regulated, unified and modified in such a manner that we
may evolve, as early as possible, a strong and consolidated nation” [Vide:
Constituent Assembly Debates, Vol. VII, pp. 356-58].
xxx xxx xxx
26. Human rights are derived from the dignity and worth inherent in the
human person. Human rights and fundamental freedoms have been
reiterated in the Universal Declaration of Human Rights. Democracy,
development and respect for human rights and fundamental freedoms
are interdependent and have mutual reinforcement. The human rights
for women, including girl child are, therefore, inalienable, integral and an
indivisible part of universal human rights. The full development of
personality and fundamental freedoms and equal participation by women
in political, social, economic and cultural life are concomitants for
232
national development, social and family stability and growth — cultural,
social and economical. All forms of discrimination on grounds of gender
is violative of fundamental freedoms and human rights. Convention for
Elimination of all forms of Discrimination Against Women (for short,
“CEDAW”) was ratified by the UNO on 18-12-1979 and the Government
of India had ratified as an active participant on 19-6-1993 acceded to
CEDAW and reiterated that discrimination against women violates the
principles of equality of rights and respect for human dignity and it is an
obstacle to the participation on equal terms with men in the political,
social, economic and cultural life of their country; it hampers the growth
of the personality from society and family, making more difficult for the
full development of potentialities of women in the service of the respective
countries and of humanity.”
Reference was also made to the decision of this Court in the John
Vallamattom case9, wherefrom learned counsel for the petitioner highlighted
the following observations:
“42. Article 25 merely protects the freedom to practise rituals and
ceremonies etc. which are only the integral parts of the religion. Article
25 of the Constitution of India will, therefore, not have any application in
the instant case.
xxx xxx xxx
44. Before I part with the case, I would like to state that Article 44
provides that the State shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India. The aforesaid
provision is based on the premise that there is no necessary connection
between religious and personal law in a civilized society. Article 25 of the
Constitution confers freedom of conscience and free profession, practice
and propagation of religion. The aforesaid two provisions viz. Articles 25
and 44 show that the former guarantees religious freedom whereas the
latter divests religion from social relations and personal law. It is no
matter of doubt that marriage, succession and the like matters of a
secular character cannot be brought within the guarantee enshrined
under Articles 25 and 26 of the Constitution. Any legislation which
brings succession and the like matters of secular character within the
ambit of Articles 25 and 26 is a suspect legislation, although it is
doubtful whether the American doctrine of suspect legislation is followed
in this country. In Sarla Mudgal v. Union of India (1995) 3 SCC 635 it
was held that marriage, succession and like matters of secular character
cannot be brought within the guarantee enshrined under Articles 25 and
26 of the Constitution. It is a matter of regret that Article 44 of the
Constitution has not been given effect to. Parliament is still to step in for
framing a common civil code in the country. A common civil code will
233
help the cause of national integration by removing the contradictions
based on ideologies.”
Last of all, our attention was drawn to the Masilamani Mudaliar case16,
wherefrom reliance was placed on the following:
“15. It is seen that if after the Constitution came into force, the right to
equality and dignity of person enshrined in the Preamble of the
Constitution, Fundamental Rights and Directive Principles which are a
trinity intended to remove discrimination or disability on grounds only of
social status or gender, removed the pre-existing impediments that stood
in the way of female or weaker segments of the society. In S.R.
Bommai v. Union of India (1994) 3 SCC 1 this Court held that the
Preamble is part of the basic structure of the Constitution. Handicaps
should be removed only under rule of law to enliven the trinity of justice,
equality and liberty with dignity of person. The basic structure permeates
equality of status and opportunity. The personal laws conferring inferior
status on women is anathema to equality. Personal laws are derived not
from the Constitution but from the religious scriptures. The laws thus
derived must be consistent with the Constitution lest they become void
under Article 13 if they violate fundamental rights. Right to equality is a
fundamental right. Parliament, therefore, has enacted Section 14 to
remove pre-existing disabilities fastened on the Hindu female limiting her
right to property without full ownership thereof. The discrimination is
sought to be remedied by Section 14(1) enlarging the scope of acquisition
of the property by a Hindu female appending an explanation with it.”
168. We have given our thoughtful consideration to the submissions
noticed in the foregoing paragraphs. We are of the view, that in the
determination of the matter canvassed, the true purport and substance of
Articles 25 and 44 have to be understood. We shall now endeavour to deal
with the above provisions.
169. During the course of hearing our attention has been drawn to the
Constituent Assembly debates, with reference to Article 25 (-draft Article
19). The debates reveal that the members of the Constituent Assembly
understood a clear distinction between ‘personal law’ and the ‘civil code’.
‘Personal law’ was understood as based on the practices of members of
234
communities. It was to be limited to the community itself, and would not
affect members of other communities. The ‘civil code’ on the other hand,
had an unlimited reach. The ‘civil code’ was understood to apply to every
citizen of the land, to whatever community he may belong. So far as
‘personal law’ is concerned, it was recognized as arising out of, practices
followed by members of particular communities, over the ages. The only
member of the Assembly, who made a presentation during the debates (-
Mohammed Ismail Sahib) stated, “This practice of following ‘personal law’
has been there amongst the people for ages. What we want under this
amendment is that that practice should not be disturbed now and I want
only the continuance of a practice that has been going on among the people
for ages past ….. Under this amendment what I want this House to accept
is that when we speak of the State doing anything with reference to the
secular aspect of religion, the question of personal law shall not be brought
in and it shall not be affected. ….. The question of professions, practicing
and propagating one’s faith is a right which the human being had from the
very beginning of time and that has been recognized as an inalienable right
of every human being, not only in this land, but the world over and I think
that nothing should be done to affect that right of man as a human being.
That part of the article as it stands is properly worded and it should stand
as it is.” It is apparent, that the position expressed in the Sarla Mudgal
case40, clearly reiterates the above exposition during the Constituent
Assembly debates. The response to the above statement (-of Mohammed
Ismail Sahib), was delivered by Laksnmikanta Mitra, who observed, “This
235
article 19 of the Draft Constitution confers on all persons the right to
profess, practise and propagate any religion they like but this right has
been circumscribed by certain conditions which the State would be free to
impose in the interests of public morality, public order and public health
and also in so far as the right conferred here does not conflict in any way
with the other provisions elaborated under this part of the Constitution.
Some of my Friends argued that this right ought not to be permitted in this
Draft Constitution for the simple reason that we have declared time and
again that this is going to be a secular State and as such practice of religion
should not be permitted as a fundamental right. It has been further argued
that by conferring the additional right to propagate a particular faith or
religion the door is opened for all manner of troubles and conflicts which
would eventually paralyse the normal life of the State. We would say at once
that this conception of a secular State is wholly wrong. By secular State, as
we understand it, is meant that the State is not going to make any
discrimination whatsoever on the ground of religion or community against
any person professing any particular form of religious faith. This means in
essence that no particular religion in the State will receive any State
patronage whatsoever. The State is not going to establish, patronise or
endow any particular religion to the exclusion of or in preference to others
and that no citizen in the State will have any preferential treatment or will
be discriminated against simply on the ground that he professed a
particular form of religion. ….. At the same time we must be very careful to
see that this land of ours we do not deny to anybody the right not only to
236
profess or practise but also to propagate any particular religion.
…..Therefore I feel that the Constitution has rightly provided for this not
only as a right but also as a fundamental right. In the exercise of this
fundamental right every community inhabiting this State professing any
religion will have equal right and equal facilities to do whatever it likes in
accordance with its religion provided it does not clash with the conditions
laid down here.”
170. The debates in the Constituent Assembly with reference to Article
25, leave no room for any doubt, that the framers of the Constitution were
firm in making ‘personal law’ a part of the fundamental rights. With the
liberty to the State to provide for social reform. It is also necessary to notice
at this stage, that the judgment in the Valsamma Paul case20, cannot be the
basis for consideration in the present controversy, because it did not deal
with issues arising out of ‘personal law’ which enjoy a constitutional
protection. What also needs to be recorded is, that the judgment in the
John Vallamattom case9, expresses that the matters of the nature, need to
be dealt with through legislation, and as such, the view expressed in the
above judgment cannot be of any assistance to further the petitioners’
cause.
171. The debates of the Constituent Assembly with reference to Article
44, are also relevant. We may refer to draft Article 25 (which came to be
enacted as Article 44). The Article requires the State to endeavour to secure
a uniform ‘civil code’. A member who debated the provision during the
deliberations of the Constituent Assembly, canvassed that groups and
237
sections of religious denominations be given the right to adhere to their own
personal law (-Mohamed Ismail Sahib), as it was felt, that interference in
‘personal law’ would amount to interfering with “…the way of life and
religion of the people…”. It was also argued (-by Naziruddin Ahmad), that
what was extended as a protection through Article 25 (-draft Article 19),
namely, “…all persons are equally entitled to freedom of conscience and the
right to freely profess, practice and propagate religion…”, was sought to be
taken away via Article 44. The position highlighted, was that all religious
practices should remain, beyond the purview of law. One member of the
Constituent Assembly (-Mahbood Ali Baig Sahib Bahadur), said that the
uniform civil code, in the Article, should not include ‘personal law’. He
refuted the suggestions of M.Ananthasayanam Ayyangar by asserting, that
practices of Muslims, in vogue for 1350 years could not be altered.
Another member – Pocker Sahib Bahadur, supported the suggestion of
Mohamed Ismail Sahib. The question he posed was “…whether by the
freedom we have obtained for this country, are we going to give up the
freedom of conscience and that freedom of religion practices and that
freedom of following ones own personal law…” But all these submissions
were rejected. All this leads to the clear understanding, that the
Constitution requires the State to provide for a uniform civil code, to remedy
and assuage, the maladies expressed in the submissions advanced by the
learned Attorney General.
172. There can be no doubt, that the ‘personal law’ has been elevated to
the stature of a fundamental right in the Constitution. And as such,
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‘personal law’ is enforceable as it is. All constitutional Courts, are the
constitutional guardians of all the Fundamental Rights (– included in Part
III of the Constitution). It is therefore the constitutional duty of all Courts
to protect, preserve and enforce, all fundamental rights, and not the other
way around. It is judicially unthinkable for a Court, to accept any prayer to
declare as unconstitutional (-or unacceptable in law), for any reason or
logic, what the Constitution declares as a fundamental right. Because, in
accepting the prayer(s), this Court would be denying the rights expressly
protected under Article 25.
173. It is not possible to adopt concepts emerging from the American
Constitution, over the provisions of the Indian Constitution. It is therefore
not possible to refer to substantive due process, as the basis of the decision
of the present controversy, when there are express provisions provided for,
on the matter in hand, under the Indian Constitution. It is also not
possible, to read into the Constitution, what the Constituent Assembly
consciously and thoughtfully excluded (-or, to overlook provisions expressly
incorporated). One cannot make a reference to decisions of the U.S.
Supreme Court, though there would be no difficulty of their being taken into
consideration for persuasive effect, in support of a cause, in consonance
with the provisions of the Constitution of India and the laws. In fact, this
Court is bound by the judgments of the Supreme Court of India, which in
terms of Article 141 of the Constitution, are binding declarations of law.
174. The prayer made to this Court by those representing the petitioners’
cause, on the ground that the practice of ‘talaq-e-biddat’ is violative of the
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concept of constitutional morality cannot be acceded to, and is accordingly
declined.
VIII. Reforms to ‘personal law’ in India:
175. In our consideration, it is also necessary to briefly detail legislation
in India with regard to matters strictly pertaining to ‘personal law’, and
particularly to the issues of marriage and divorce, i.e., matters strictly
within the confines of ‘personal law’.
176(i). Reference in this context may first of all be made to the Divorce Act,
1869. The Statement of objects and reasons of the Bill, delineates the
purpose that was sought to be achieved through the enactment. Relevant
part thereof, is reproduced hereunder:-
“Statement of objects and reasons
The object of Indian Divorce Bill is to place the Matrimonial Law
administered by the High Courts, in the exercise of their original
jurisdiction, on the same footing as the Matrimonial Law administered
by the court for Divorce and Matrimonial Causes in England.
The 9th Section of the Act of Parliament for establishing High Courts of
Judicature in India (24 and 25 Vic., C.104) provides that the High Courts
shall exercise such Matrimonial Jurisdiction as Her Majesty by Letters
Patent shall grant and direct. Under the authority thus conferred by
Parliament, the 35th Section of the Letters Patent, constituting the High
Courts of Judicature, provides as follows:—
"And we do further ordain that the said High Court of Judicature at
Fort William in Bengal shall have jurisdiction in matters matrimonial
between our subjects professing the Christian religion, and that such
jurisdiction shall extend to the local limits within which the Supreme
Court now has Ecclesiastical Jurisdiction. Provided always that nothing
herein contained shall be held to interfere with the exercise of any
Jurisdiction in matters matrimonial by any court not established by
Royal Charter within the said Presidency lawfully possessed thereof."
In the Despatch of the Secretary of State transmitting the Letters Patent
the 33rd and 34th paragraphs are to the following effect:—
“33. Her Majesty's Government are desirous of placing the Christian
subjects of the Crown within the Presidency in the same position under
the High Court, as to matters matrimonial in general as they now are
under the Supreme Court, and this they believe to be effected by Clause
35 of the Charter. But they consider it expedient that the High Court
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should possess, in addition, the power of decreeing divorce which the
Supreme Court does not possess, in other words, that the High Court
should have the same jurisdiction as the Court for Divorce and
Matrimonial Causes in England, established in virtue of the Act 20 and
21 Vic., C. 85, and in regard to which further provisions were made by 22
and 23 Vic., C.61, and 23 and 24 Vic., C.144. The Act of Parliament for
establishing the High Courts, however, does not purport to give to the
Crown the power of importing into the Charter all the provisions of the
Divorce Court Act, and some of them, the Crown clearly could not so
import, such, for instance, as those which prescribe the period of remarriage,
and those which exempt from punishment clergymen refusing
to re-marry adulterers. All these are, in truth, matters for Indian
legislation, and I request that you will immediately take the subject into
your consideration, and introduce into your Council a Bill for conferring
upon the High Court, the jurisdiction and powers of the Divorce Court in
England, one of the provisions of which should be to give an appeal to the
Privy Council in those cases in which the Divorce Court Act gives an appeal
to the House of Lords.
34. The objects of the provision at the end of Clause 35 is to obviate any
doubt that may possibly arise as to whether, by vesting the High Court
with the powers of the Court for Divorce and Matrimonial Causes in
England, it was intended to take away from the Courts within Divisions of
the Presidency, not established by Royal Charter, any jurisdiction which
they might have in matters matrimonial, as for instance in a suit for
alimony between Armenians or Native Christians. With any such
jurisdiction it is not intended to interfere."
In addition to the Act of Parliament mentioned by the Secretary of State as
regulating the jurisdiction of the England Divorce Court the Statute 25 and
26 Vic., Ch.81 has been passed in the year just expired (1862). The object of
this statute is to render perpetual 23 and 24 Vic., Ch. 144 the duration of
which had been originally limited to two years.
The draft of a Bill has been prepared to give effect to the Secretary of State’s
instructions, but some variations from the English Statutes in respect of
Procedure have been adopted.
With a view to uniformity in practice in the several branches of
jurisdiction, the Bill provides that the Procedure of the Code of Civil
Procedure shall be followed, instead of the Rules of Her Majesty's Court for
Divorce and Matrimonial Causes in England, and it omits the provision in
20 and 21 Vic., Ch. 85 respecting the occasional trial of questions of fact by
juries.”
(ii) The Divorce Act, 1869 provided for the grounds for dissolution of
marriage in Section 10 thereof. The same is extracted hereunder:-
“10.Grounds for dissolution of marriage.-(1) Any marriage solemnized,
whether before or after the commencement of the Indian Divorce
(Amendment) Act, 2001, may, on a petition presented to the District
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Court either by the husband or the wife, be dissolved on the ground that
since the solemnization of the marriage, the respondent—
(i) has committed adultery; or
(ii) has ceased to be Christian by conversion to another religion; or
(iii) has been incurably of unsound mind for a continuous period of not
less than two years immediately preceding the presentation of the
petition; or
(iv) has, for a period of not less than two years immediately preceding the
presentation of the petition, been suffering from a virulent and incurable
form of leprosy; or
(v) has, for a period of not less than two years immediately preceding the
presentation of the petition, been suffering from venereal disease in a
communicable form; or
(vi) has not been heard of as being alive for a period of seven years or
more by those persons who would naturally have heard of the
respondent if the respondent had been alive; or
(vii) has wilfully refused to consummate the marriage and the marriage
has not therefore been consummated; or
(viii) has failed to comply with a decree for restitution of conjugal rights
for a period of two years or upwards after the passing of the decree
against the respondent; or
(ix) has deserted the petitioner for at least two years immediately
preceding the presentation of the petition; or
(x) has treated the petitioner with such cruelty as to cause a reasonable
apprehension in the mind of the petitioner that it would be harmful or
injurious for the petitioner to live with the respondent.
(2) A wife may also present a petition for the dissolution of her marriage
on the ground that the husband has, since the solemnization of the
marriage, been guilty of rape, sodomy or bestiality.”
(iii) In addition to the above, consequent upon a further amendment,
Section 10A was added thereto, to provide for dissolution of marriage by
consent. What is sought to be highlighted is, that it required legislation to
provide for divorce amongst the followers of the Christian faith in India.
The instant legislation provided for grounds on which Christian husbands
and wives could obtain divorce.
177 (i). Parsis in India, are the followers of the Iranian prophet Zoroaster.
The Parsis, are stated to have migrated from Iran to India, to avoid religious
persecution by the Muslims. Parsis in India were governed in the matter of
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marriage and divorce by their ‘personal law’. For the first time in 1865, the
Parsi Marriage and Divorce Act was passed. The same was substituted by
the Parsi Marriage and Divorce Act, 1936 after substantial amendments to
the original enactment. The statement of objects and reasons of the Parsi
Marriage and Divorce Act, 1936 clearly demonstrates the above position.
The same is reproduced below:-
“Statement of objects and reasons
The Parsi Marriage and Divorce Act at present in force was passed in
1865. Since then circumstances have greatly altered and to some extent
there has also been a change in the sentiments and views of the Parsi
community. Hence a necessity for some change in the law has been felt
for years. The Parsi Central Association took up the question in 1923
and appointed a Sub-Committee to suggest amendments. The SubCommittee
submitted a report which the Association got printed and
circulated for opinion to most other Parsi Associations as well as
prominent members of the community both in Bombay and outside.
Many suggestions were made, and among them by the Trustees of the
Bombay Parsi Panchayat who had the advantage of seeing the
suggestions of others. The Central Association adopted the suggestions of
the Panchayat Trustees and reprinted the whole and again circulated it.
Fresh suggestions were thereupon made in the press, on the platform, by
associations and individuals. These were fully considered by the Trustees
as well as the Association and the present draft is the result. On the
whole it represents, the views of the great majority of the community,
and has been approved by leading Parsis like Sir Dinshaw E. Wacha and
the late Rt. Hon. Sir Dinshaw F. Mulla.”
(ii) Chapter II of the aforesaid enactment, deals with the subject of
marriages between Parsis. Section 3 provides for requisites of a valid Parsi
marriage. Section 6 denotes a requirement of a certificate of marriage.
Chapter IV provides for a variety of matrimonial suits, wherein Section 30
deals with suits for nullity. Section 31 deals with suits for dissolution of
marriage. The grounds for divorce are set out in Section 32, which is
reproduced herein below:-
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“32.Grounds for divorce.- Any married person may sue for divorce on
any one or more of the following grounds, namely:—
(a) that the marriage has not been consummated within one year after its
solemnization owing to the wilful refusal of the defendant to consummate
it;
(b) that the defendant at the time of the marriage was of unsound mind
and has been habitually so up to the date of the suit:
Provided that divorce shall not be granted on this ground, unless the
plaintiff; (1) was ignorant of the fact at the time of the marriage, and (2)
has filed the suit within three years from the date of the marriage;
(bb) that the defendant has been incurable of the unsound mind for a
period of two years or upwards immediately preceding the filing of the
suit or has been suffering continuously or intermittently from mental
disorder of such kind and to such an extent that the plaintiff cannot
reasonable be expected to live with the defendant.
Explanation.- In this clause,-
(a) the expression “mental disorder” means mental illness, arrested or
incomplete development of mind, psychopathic disorder or any other
disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder of
disability of mind (whether or not including subnormality of intelligence)
which results in abnormally aggressive or seriously irresponsible conduct
on the part of the defendant, and whether or not it requires or is
susceptible to medical treatment;
(c) that the defendant was at the time of marriage pregnant by some
person other than the plaintiff:
Provided that divorce shall not be granted on this ground, unless: (1) the
plaintiff was at the time of the marriage ignorant of the fact alleged, (2)
the suit has been filed within two years of the date of marriage, and (3)
marital intercourse has not taken place after the plaintiff came to know
of the fact;
(d) that the defendant has since the marriage committed adultery or
fornication or bigamy or rape or an unnatural offence:
Provided that divorce shall not be granted on this ground if the suit has
been filed more than two years after the plaintiff came to know of the
fact;
(dd) that the defendant has since the solemnization of the marriage
treated the plaintiff with cruelty or has behaved in such a way as to
render it in the judgment of the Court improper to compel the plaintiff to
live with the defendant:
Provided that in every suit for divorce on this ground it shall be in the
discretion of the Court whether it should grant a decree for divorce or for
judicial separation only;
(e) that the defendant has since the marriage voluntarily caused grievous
hurt to the plaintiff or has infected the plaintiff with venereal disease or,
where the defendant is the husband, has compelled the wife to submit
herself to prostitution:
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Provided that divorce shall not be granted on this ground if the suit has
been filed more than two years (i) after the infliction of the grievous hurt,
or (ii) after the plaintiff came to know of the infection, or (iii) after the last
act of compulsory prostitution;
(f) that the defendant is undergoing a sentence of imprisonment for
seven years or more for an offence as defined in the Indian Penal Code
(45 of 1860):
Provided that divorce shall not be granted on this ground, unless the
defendant has prior to the filing of the suit undergone at least one year's
imprisonment out of the said period;
(g) that the defendant has deserted the plaintiff for at least two years;
(h) that an order has been passed against the defendant by a Magistrate
awarding separate maintenance to the plaintiff, and the parties have not
had marital intercourse for one year or more since such decree or order;
(j) that the defendant has ceased to be a Parsi by conversion to another
religion;
Provided that divorce shall not be granted on this ground if the suit has
been filed more than two years after the plaintiff came to know of the
fact.
(iii) In addition to the above, Section 32B introduced by way of an
amendment, provides for divorce by mutual consent, and Section 34
provides for suits for judicial separation, and Section 36 provides for suits
for restitution of conjugal rights.
178(i). The Special Marriage Act, 1872 provided for inter-faith marriages.
The same came to be replaced by the Special Marriage Act, 1954. The
statement of objects and reasons thereof is reproduced hereunder:-
“Statement of objects and reasons
This Bill revises and seeks to replace the Special Marriage Act of 1872 so
as to provide a special form of marriage which can be taken advantage of
by any person in India and by all Indian nationals in foreign countries
irrespective of the faith which either party to the marriage may profess.
The parties may observe any ceremonies for the solemnization of their
marriage, but certain formalities are prescribed before the marriage can
be registered by the Marriage Officers. For the benefit of Indian citizens
abroad, the Bill provides for the appointment of Diplomatic and Consular
Officers as Marriage Officers for solemnizing and registering marriages
between citizens of India in a foreign country.
2. Provision is also sought to be made for permitting persons who are
already married under other forms of marriage to register their marriages
under this Act and thereby avail themselves of these provisions.
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3. The bill is drafted generally on the lines of the existing Special
Marriage Act of 1872 and the notes on clauses attached hereto explain
some of the changes made in the Bill in greater detail.”
(ii) The subject of solemnization of special marriages, is provided for in
Section 4 of the above enactment. Section 4 lays down the conditions
related to solemnization of special marriages, which requires a notice of the
parties intending to get married, the procedure and conditions whereof are
contained in Section 5. The provisions of the enactment require, entering a
copy of the notice in the ‘marriage notice book’, and the publication thereof
by affixation of the copy thereof to some conspicuous place in the office of
marriage officer. Objections to the contemplated marriage can be preferred
under Section 7. The manner in which the objections have to be dealt with
is provided for in Sections 8, 9 and 10. Consequent upon the completion of
the formalities postulated in Chapter II of the enactment, parties are
permitted to solemnize their marriage, for which the marriage officer shall
issue a certificate of marriage, that would be considered as conclusive
evidence of the fact that parties are married under the provisions of the
Special Marriages Act, 1954.
(iii) Parties who have entered into a matrimonial alliance by way of
ceremonies of marriage conducted under different faiths, and have been
living together, are also permitted to register their marriage under the
Special Marriage Act, 1954, under Section 15 thereof.
(iv) Chapter IV of the enactment deals with consequences of marriage
under the Act. Chapter V provides the remedies of restitution of conjugal
rights and judicial separation. Chapter VI defines void and voidable
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marriages, and provides for nullity of marriage and divorce. Section 27
included in Chapter VI incorporates the grounds for divorce, which are
extracted hereunder:-
“27.Divorce.-(1) Subject to the provisions of this Act and to the rules
made thereunder, a petition for divorce may be presented to the district
court either by the husband or the wife on the ground that the
respondent—
(a) has, after the solemnization of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than
two years immediately preceding the presentation of the petition; or
(c) is undergoing a sentence of imprisonment for seven years or more for
an offence as defined in the Indian Penal Code (45 of 1860);
(d) has since the solemnization of the marriage treated the petitioner with
cruelty; or
(e)has been incurably of unsound mind, or has been suffering
continuously or intermittently from mental disorder of such a kind and
to such an extent that the petitioner cannot reasonably be expected to
live with the respondent.
Explanation.—In this clause,—
(a) the expression “mental disorder” means mental illness, arrested or
incomplete development of mind, psychopathic disorder or any other
disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or
disability of mind (whether or not including sub-normality of intelligence)
which results in abnormally aggressive or seriously irresponsible conduct
on the part of the respondent, and whether or not it requires or is
susceptible to medical treatment; or
(f) has been suffering from venereal disease in a communicable form;
or
(g)has been suffering from leprosy, the disease not having been contacted
from the petitioner; or
(h)has not been heard of as being alive for a period of seven years or
more by those persons who would naturally have heard of the
respondent if the respondent had been alive;
Explanation.—In this sub-section, the expression “desertion” means
desertion of the petitioner by the other party to the marriage without
reasonable cause and without the consent or against the wish of such
party, and includes the wilful neglect of the petitioner by the other party
to the marriage, and its grammatical variations and cognate expressions
shall be construed accordingly;
(1A)A wife may also present a petition for divorce to the district court on
the ground,—
(i) that her husband has, since the solemnization of the marriage, been
guilty of rape, sodomy or bestiality;
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(ii)that in a suit under section 18 of the Hindu Adoptions and
Maintenance Act, 1956 (78 of 1956), or in a proceeding under section
125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the
corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of
1898), a decree or order, as the case may be, has been passed against
the husband awarding maintenance to the wife notwithstanding that she
was living apart and that since the passing of such decree or order,
cohabitation between the parties has not been resumed for one year or