TRIPLE TALAQ JUDGEMENT

FACTS
- Rizwan Ahmed pronounced “Talaq, talaq, talaq” in the presence of two witnesses and
delivered Talaq Nama to Shayara Bano. The wife challenged the same. Prayer to
declare the divorce as void ab initio on the grounds that it is violative of Fundamental
Rights.
ISSUES
- Is Talaq-e-biddat Islamic in nature?
- Whether the Muslim Personal Law (Shariat) Act, 1937 confers statutory status to the
subjects regulated by it or is it still covered under “Personal Law” which is not “law”
under Article 13 of the Constitution as per previous the Supreme Court judgments?
- Is it protected by Article 25 of the Constitution?
JUDGEMENT
- Uncodified person law is exempted from Fundamental Rights scrutiny. Justice
Nariman and Justice Lalit agreed that 1937 Act codifies Triple Talaq.
- While J. Kurian, Khehar and Nazeer said it does not codify triple talaq. J. Khehar and
Nazeer went on to prescribe triple talaq as part of uncodified muslim personal law,
But J. Kurian did not. Since J. Khehar and Nazeer considered it to be part of
uncodified muslim personal law, it could not be tested under the constitution and held
it to be an essential practice of Islam under Article 25
- Majority of three judges held that triple talaq is not part of uncodified muslim
personal law- thus not an essential practice of Islam.

- JUDGMENT OF J. NARIMAN
- S.2 of the 1937 Act meant that after 1937, the shariat was accorded statutory sanction
in India.
- He held that a non-obstante clause could not determine the interpretation of a section
that was otherwise ambiguous as a response to the argument that the opening words of
Section 2 – “notwithstanding any custom or usage to the contrary” implied that the
purpose of the 1937 Act was not to enforce Shariat, but to remove “custom and
usage” as sources of Islamic personal law.
- Therefore 1937 Act would be hit by Article 13(1) if found to be inconsistent with the
provisions of Part III of the constitution, to the extent of such inconsistency.
- Another argument by the Muslim personal law board was that triple talaq was saved
by Article 25. It was rejected stating that it was not an ‘essential religious practice’ as
triple talaq was an “irregular” way of conducting divorce.- reliance on the
ESSENTIAL RELIGIOUS PRACTICES TEST
- ‘Arbitrariness” is a ground for legislative review under Article 14. The standard of
arbitrariness required that if a law was “disproportionate, excessive or otherwise
manifestly unreasonable“, then it would be struck down under Article 14.
- It is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie
can be broken capriciously and whimsically by a Muslim man without any attempt at
reconciliation so as to save it. Therefore violative of Article 14 of the Indian
Constitution. – Para 57
- PRIMARY CRITICISM- it was more of a question of unequal power and
inequality(article 15) than rule of law.

- JUDGMENT OF J. JOSEPH

- In Shamin Ara, instantaneous triple talaq was held as invalid under Islamic Law
which said, “What is held to be bad in the Holy Quran cannot be good in Shariat and,
in that sense, what is bad in theology is bad in law as well.”
- 1937 Act is not a law regulating talaq. Quran is the primary authoritative source for
Islamic personal law.
- “The Holy Quran has attributed sanctity and permanence to matrimony. However, in
extremely unavoidable situations, talaq is permissible. But an attempt for
reconciliation and if it succeeds, then revocation are the Quranic essential steps before
talaq attains finality.51 In triple talaq, this door is closed, hence, triple talaq is against
the basic tenets of the Holy Quran and consequently, it violates Shariat
- Did not consider Triple Talaq to be part of uncodified personal law.
- JUDGMENT OF CHIEF JUSTICE KHEHAR AND J. NAZEER

- the sources of Islamic personal law are not limited to the Quran (paragraph 121), and
that, in fact, all parties have agreed that talaq – ul – biddat is “bad in theology but
good in (Islamic personal) law
- Amongst Sunni Muslims belonging to the Hanafi school, the practice of ‘talaq-e-
biddat’, has been very much prevalent, since time immemorial.”
- Practice of ‘talaq-e-biddat’ has to be considered integral to the religious denomination
in question – Sunnis belonging to the Hanafi school.
- Criticism - Under the essential religious practices test, as applied by the Supreme
Court over time, not everything sanctioned by religion is integral to it.
- ‘personal law’ of every religious denomination, is protected from invasion and
breach, except as provided by and under Article 25. But Rights under Article 25
belong to individuals, not to “laws”. More importantly, Article 25 does not confer
constitutional protection upon personal laws. It guarantees that “all persons are
equally entitled to freedom of conscience and the right freely to profess, practise and
propagate religion.”
- Criticism - The effect of holding that “personal laws” are protected under the
Constitution’s religious freedom guarantee is to grant to religious bodies the power of
determining individuals’ civil status, without constitutional recourse. This seems to be
a negation of the very basic meaning of secularism.
- The Chief Justice held that this is also inapplicable, because Articles 14, 15 and 21 –
which triple talaq potentially violates – are only applicable to State action against
individuals, and not to private violations of rights.
- This reasoning is flawed because the SC has already done so in pervious judgments
like liquor ban judgment
- He held that Triple talaq does not violate constitutional morality because personal
laws are themselves part of Fundamental rights. (Para 193)