In the High Court of Judicature at Madras Dated : 27/12/2002 Coram : The Honourable Mr.Justice R.Jayasimha Babu and The Honourable Mr.Justice E.Padmanabhan W.P. No.744 of 1992 A.S.Parveen Akthar Petitioner vs. 1. The Union of India, represented by the Secretary to Government, Ministry of Law, New Delhi. 2. Y.Md. Ismail Farook 3. The Station Director, All India Radio, Madurai 625 002. 4. Association for Women Assistance and Security (AWAS) rep. by its Secretary I.Abdul Bhai (R4 impleaded as per order in WMP No.32204 of 1993 dt. 18.12.1997) 5. Mrs.Bader Syed 6. Tamil Nadu Advocates Meelad Forum represented by its President A.S.Bibi John Respondents (R5 & 6 impleaded as per order in WMPs. 27207 & 30327/1998 dated 15.04.1999) Writ Petition filed under Article 226 of the Constitution of India for the issue of writ of declaration declaring Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 in so far as it seeks to recognise and validate Talaaq-ul-Biddat or Talaaq-i-Badai form of divorce as void and unconstitutional. For Petitioner : Mr.Javed and Mr.P.V.S.Giridhar For Respondent 1 : Mr.V.T.Gopalan Additional Solicitor General, assisted by Mr.R.Santhanam For Respondent 2 : Mr.Mohamed Yousuf For Respondent 3 : Mr.S.Veeraraghavan For Respondent 4 : Mr.Zafarullah Khan, for Mrs.Geetha Ramaseshan For Respondent 5 : Ms.G.Kavitha For Respondent 6 : Mr.S.B.Fazluddin :ORDER R.Jayasimha Babu, J. The relief sought in the writ petition is for a declaration that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 in so far as it seeks to recognise and validate Talaaq-ul-Biddat or Talaaq-i-Badai form of divorce as void and unconstitutional. 2. The petitioner is a Muslim woman who was aged 27 years at the time of her marriage, on 06.02.1990 to the second respondent and who on 01.05.1991 was intimated through her father that the second respondent had pronounced talaq in the presence of two witnesses in a single sitting in Talaq-ul-biddat or Talaq-i-badai form. She has stated that after her marriage to the second respondent according to the Sunni Mohammadan rites and customs and after she commenced her marital life with the second respondent, she was ill-treated in various ways and forced to undergo abortion against her wishes. She has also stated that her parents had been compelled to give dowry before the marriage and that even after that the second respondent threatened to divorce her if she did not persuade her parents to give him a scooter as an additional dowry. She has stated that she is employed as a typist in the Public Works Department, that she had sought and obtained transfer to Madurai, that she was sent out of marital home on 04.03.1991, and that she was forced to stay in a local ladies hostel. She has stated that the second respondent had told her that he would permit her to live with him only if additional dowry is given to him by her parents. 3. She has further averred that after the receipt of the notice sent by the second respondent to her father in which it was stated that he had effected divorce in Talaq-ul-biddat form, attempts were made to persuade the second respondent to take back the petitioner, but he declined to do so on the ground that the irrevocable talaq had already taken place. She has stated that on a complaint being made to the police about the dowry harassment, the second respondent's parents returned Rs.10,000/- out of the amount of Rs.15,000/- paid as dowry and also some of the articles given by her parents at the time of the petitioner's marriage. 4. She has averred that Talaq-ul-biddat is not a mode recognised in the Quran, and that the Holy Book provides for reconsideration and reconciliation before recognising divorce as irrevocable. The petitioner has referred to Chapter IV verse 35 of Quran which says, "Any if you fear a breach between the two, appoint an arbiter from his people and an arbiter from her people. If they desire agreement, God will effect harmony between them." She has also stated that due to lack of knowledge and understanding of the permissible forms of talaq and of the need for reconciliation and reconsideration before it could be regarded as irrevocable, this form of talaq has been widely used resulting in untold misery and harm to the divorced wife and the children of the marriage. 5. It is her further case that the Muslim Personal Law (Shariat) Application Act, 1937, by providing for the application of Muslim Personal Law in matters relating to marriage where the parties are Muslims, conveyed a wrong impression that the law sanctions this sinful form of talaq which form, according to the petitioner is grossly injurious to the human rights of the married Muslim women and offends Articles 14, 15 and 21 of the Constitution. She has submitted that the assumptions and beliefs upon which such a form of divorce is recognised are factually false, scientifically untenable and contrary to the spirit and provisions of the Constitution. She has also stated that this form of divorce has been declared to be a spiritual offence in the Quran and giving recognition to that form interferes with the Muslim women's right to profess and practice her religion, inasmuch as it unleashes a spiritual offence on her and is thus, violative of Article 25 of the Constitution. 6. Though the petition was initially filed only against the Union of India, Ismail Farook, to whom she was married in the year 1990 and who pronounced talaq on 01.05.1991 and the Station Director of All India Radio, the employer of the second respondent, subsequently, three other respondents were added. The respondents subsequently added are - the Association for Women's Assistance and Security (AWAS), Mrs. Badar Syed, wife of Dr.Zaheer Ahmed Sayeed, and Tamil Nadu Advocates Meelad Forum. The allegations made against Ismail Farook stand unrebutted. He has not filed any counter affidavit. His employer has in the affidavit filed stated that the second respondent had reported to his employer that he has remarried. 7. For the Union of India a counter affidavit has been filed through it's Assistant Legislative Counsel. He has averred that Muslim Personal Law (Shariat) Application Act, 1937 came into existence only for the purpose of making the Personal Law applicable to Muslims and certain maters as specified in Section 2 of that Act and that it is a social legislation to make applicable the Shariat law which is a well recognised and purest form of law as imbibed in Quran, Hadis, Ijma and Qiyas. Reference is made in the affidavit to the decision of the Jammu and Kashmir High Court in the case of Ahmed Giri vs. Mst. Begha, AIR 1955 J & K 1, in which it was observed that 'talak-ul-biddat' is the most prevalent form of divorce among Muslims in India. It is also pointed out that there are seven different schools of Muslims law which have interpreted the Islamic law and it has been the policy of the Government not to bring changes in Personal Laws unless an initiative comes from the community. It is also asserted in the affidavit that Personal Laws are not within the purview of Article 13(1) of the Constitution, that there is no separation of Personal Law and religion in the tenets of Islam, and that this form of talaq is well recognised and that it forms part of the Muslim Personal Law. It is submitted in the affidavit that the Shariat Act, 1937 though is a preconstitutional enactment, is valid even now and Section 2 of that Act is constitutionally valid. 8. For the added respondent the Association for Women's Assistance and Security (AWAS) it is stated by it's Secretary I.Abdul Bhai in his affidavit that the association is championing the cause of the muslim women who have been rendered destitute and are victims of this pernicious form of divorce which is un-Islamic and un-Quranic. 9. Mrs. Bader Syed in her affidavit has stated that she is a practising advocate in the High Court and her area of practice has been exclusively in women's rights and family laws. She states that she has published several articles and papers concerning the family law and more specifically Muslim law as it relates to women. She adopts in toto the legal grounds raised by the petitioner. She has stated that in her day to day practice as a lawyer and activist working at the grass root level for the causes of marginalised women, she has come across numerous cases of the arbitrary and rampant divorce by way of triple talaq practised among the Muslims and that she has tried to counsel and explain to the parties concerned that the triple talaq is illegal as per the Holy Quran and is considered sinful. She has stated that this form of divorce is unilateral, arbitrary and gives no chance for reconciliation between the parties. She has also stated that it is very often used as a weapon by men not to pay maintenance. 10. She has in her affidavit stated that she has been the Chairperson of the State Minorities Commission, of the Government of Tamilnadu for some years and that during that period she came across innumerable victims of this violation of the dicta propounded in the Holy Quran; that the question raised by the petitioner is of great importance to Muslim women and affects their right, dignity and human rights; and has pointed out that in several Muslim countries legislation has been enacted in the areas of polygamy and divorce procedures keeping in mind the social milieu. She has also averred that unless this form of talaq is declared as null and void and opposed to Quranic injunctions, Muslim women of the country would be socially and economically deprived of their rights and entitlements as equal citizens of our country. 11. For the Tamil Nadu Advocates Meelad Forum an affidavit has been filed by it's President. The deponent seeks to place certain points regarded by the association as being relevant for the just adjudication of the issue raised in this petition. She has stated that triple repetition of the term 'talaq' renders it irrevocable. She has referred to certain decisions, wherein it has been held that though that form of divorce is theologically bad, it is perfectly valid in law. She has submitted that as the apex Court in it's decision reported in the case of Mst. Zohara Khatoon vs Mohd. Ibrahim AIR 1981 SC 1243, has observed that divorce given unilaterally by the husband is commonest form and is peculiar to Mohammadan Law, this form of talaq has to be accepted as being legal. She has contended that the prayers in writ petition are untenable and are not to be granted by the Court. 12. Mr. Javed, learned counsel for the petitioner invited attention to several passages in the texts on Mohammedan Law by Amir Ali, Badruddin Tyabji and Professor Tahir Mohammed. 13. Syed Ameer Ali, who was a member of the Judicial Committee of the Privy Council in his book on the Personal Law of Mohammedans titled "Mahommedan Law" compiled from the authorities in the original arabic, (5th edition) at page 572 states, "The reforms of Mohammed marked a new departure in the history of Eastern legislation. He restrained the power of divorce possessed by the husbands, he gave to the women the right of obtaining a separation on reasonable grounds, and towards the end of his life he went so far as practically to forbid its exercise by the men without the intervention of arbiters or a judge. He pronounced, "talaq to be the most detestable before the Almighty God of all permitted things, for it prevented conjugal happiness and interfered with the proper bringing up of children. The permission, therefore, in the Koran, though it gave a certain countance to the old customs, has to be read with the light of the Lawgiver's own words. When it is borne in mind how intimately law and religion are connected in the Islamic system, it will be easy to understand the bearing of the words on the institution of divorce. Naturally, therefore, great divergence exists among the various schools regarding the exercise of the power of divorce by the husband of his own motion and without the intervention of the Judge. A large and influential body of jurists regard talak emanating from the husband as really prohibited except for necessity, such as the adultery of the wife. Another section consisting chiefly of the M'utazilas, consider talak as not permissible without the sanction of the judge administering the Musulman Law. They consider that any such cause as may justify separation and remove talak from the category of being forbidden, should be tested by an unbiased judge; and, in support of their doctrine, they refer to the words of the Prophet already quoted, and his direction that in case of dispute between the married parties, arbiters should be appointed for the settlement of their differences. The Hanafis, the Malikis, the Sahfeis and the bulk of the Shiahs hold talak to be permitted, though they regard the exericse of the pwer without any cause to be morally or religiously abominable." 14. Regarding the 'talaq' recognised by the Hanafis, the learned author states, "Two kinds of talak are recognised by the Hanafis, viz., Talak-ussunnat, and (2), the talak-ul-bidat or talak-ul-badai. The talak-ussunnat is the divorce which is effected in accordance with the rules laid down in the traditions (the sunnat) handed down from the Prophet or his principal disciples. It is, in fact, the mode or procedure which seems to have been approved of by him at the beginning of his ministry, and is, consequently, regarded as the regular or proper and orthodox form of divorce. The talak-ul-bidat, as its name signifies, is the heritical or irregular mode of divorce, which was introduced in the second century of the Mahommedan era. It was then that the Omeyyada monarchs, 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. As a matter of fact, the capricous and irregular exercise of the power of divorce which was in the beginning left to the husbands was strongly disapproved of by the Prophet. It is reported that when once news was brought to him that one of his disciples had divorced his wife, pronouncing the three talaks at one and the same time, the Prophet stood up in anger on his carpet and declared that the man was making a plaything of the words of God, and made him take back his wife. The Shias and the Malikis do not recognise the validity of the talak-ul-biddat, whilst the Hanafi and the Shaffeis agree in holding that a divorce is effective, if pronounced in the bidat form, "though in its commission the man incurs a sin"." 15. In the book of Muhammadan Law by Faiz Badurddin Tyabji, Third Edition, 1940, in his introduction the author states that, "...where the standard set by the example and percept of the Prophet was found to be too novel or too high, there was a natural tendency to revert to the old customs and views of life. This tendency accounts for those rules of divorce, which in practice have fallen from the high standard set by Islam, but are nevertheless recognised as law, though admitted to be sinful. It explains the stringent way in which the rights of women are interpreted, though the interpretation may be opposed to logic and principle. " 16. After referring to the Quran, the sunna, ijma, and quiyas as foundations of Islamic law the author has set out some of the main characteristics of the form of divorce sanctioned in the Holy Book: (i)It is not pronounced when the husband is prevented from having intercourse with his wife owing only to her courses. (ii) Abstinence from intercourse is required. (iii) The divorce is suspended during the iddat and the husband has time to reconsider his decision, so that if the pronouncement is not revoked, there is indication that it was not capriciously or hastily made. (iv)After the divorce is complete and marriage dissolved, there being only one pronouncement, there is no prohibition against re-marriage of the parties. (v) If the husband or wife dies during the period of iddat, the other inherits. (vi) The wife's menstruating after the last occasion when there has been sexual intercourse, assures the husband that she is not going to bear a child to him; her being pregnant may remove the cause of the divorce. 17. Referring to the Talaq-i-bidaai, the learned author states: "By a deplorable, though, perhaps, natural development of the Hanafi law, it is the fourth and most disapproved or sinful mode of talaq that seems to be most prevalent, and in a sense, even favoured by the law. ............ It is indeed possible, that the Hanafi jurists wished to inflict on a husband, who disregarded the requirements of S. 1 36, the penalty of rendering the talaq irrevocable; and there are indications that they considered it always favour to the wife to relieve her of the husband and, "Men have always moulded the law of marriage so as to be most agreeable to themselves"." 18. Professor Tahir Mohammed in his book Muslim Law of India, Third Edition (new version) 2002, after observing that the Hanafi rule recognising and giving effect to improper talaq is not a part of the original Islamic law, has stated : "In a later period of history it was somehow believed, rather misbelieved, that a talaq-e-bid'at was to be given effect invariably in every case - even against the wishes of a repentant husband and an aggrieved wife both of whom may be wanting to continue their marital relationship. As this was never the intention of the jurists of the past, a large number of Muslim countries have enacted laws to outlaw all forms of talaq-e-bid'at." 19. The details regarding the law prevailing in some of the Muslim countries is to be found in Professor Tahir Mohammed's book - Statutes of Personal Law in Islamic Countries; History, Texts and Commentaries (2nd Edn. 1995) 20. The learned author further observed, "It sounds logical and very rational in the social circumstances of India - where legal illiteracy is the order of the day - that unless the husband or the wife insists otherwise there should be a legal presumption that every declaration of 'triple talaq' or 'three talaqs together' was meant only to put emphasis on the words of talaq and not to make the divorce final and terminal. It will be all the more fair and humanitarian to raise such a presumption in a case where after the talaq the parties wilfully resume cohabitation during the iddat or remarry after its expiry. The rules of Islam, after all, aim at keeping married couples united and do not mean to throw them apart against their wishes." "A Muslim husband may, under all schools of Muslim law, effect an out-of-court divorce by his own declaration. This is called talaq. It was in fact a pre-islamic practice which Islam reformed and retained in its law; it was not introduced by Islam. There is nothing in the law of Islam suggesting that the husband is free to exercise the power of talaq in an arbitrary, irrational or unreasonable manner. The Muslim law allows talaq subject to several conditions that are of a dissuasive nature; their purpose is to discourage the husband from exercising his right without a careful and cool consideration. ............................ The Muslim law prescribes a simple procedure for talaq, keeping all chances of reconciliation and reconsideration open. A talaq strictly following this procedure is talaq-e-sunnat - a proper talaq. ............................ A major section of Sunni Muslims, called the Ahl-e-Hadis or Salafi, also has no recognition for talaq-ul-bid'at; if pronounced they will at best give it the effect of a proper talaq only." "In the Quran, the verse 65.1 reads thus: "O Prophet! when ye do divorce women divorce them at their prescribed periods and count (accurately) their prescribed periods: and fear Allah 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 Allah: and any who transgresses the limits of Allah does verily wrong his (own) soul: thou knowest not if perchance Allah will bring about thereafter some new situation." The verse clearly indicates that divorce is to take place only when there is proven immorality committed. The wife is not to be driven from the home or to be allowed to go away unless ..."they commit immorality". "In 'Sunan Abu-Dawud Book 12, No.2172 it is narrated by Muharib that, "The Prophet said: Allah did not make anything lawful more abominable to Him than divorce." In the same book at Number 2173 as narrated by Abdullah ibn Umar: "The Prophet said: Of all the lawful acts the most detestable to Allah is divorce." 21. Counsel for the petitioner placed before us a report titled " Voice of the Voiceless - Status of Muslim Women in India" by Syeda Saiyidain Hameed, a member of the National Commission for Women. That report refers to Muslim women as the weakest link in the generally disempowered chain of Indian womanhood. He invited our attention to the following passages in the Report: "Since marriage in Islam is a contract, it may be dissolved at any time. A Muslim husband of sound mind may divorce his wife whenever he so desires without assigning any reason. The presence of the wife is not even necessary for pronouncing a divorce nor any notice need be given for that purpose. The most popular form of talaq practised in India is Talaq-al-Bid'at, literally translated as "the divorce of the wrong innovation". It allows instantaneous talaq; three pronouncements in a single sitting - "I divorce, I divorce you, I divorce you". In every single of its the Public Hearings NCW found innumerable instances of triple talaq. It was pronounced by men in a single breath, without reason or warning. Women were left stranded with children while the husbands having uttered the three words walked away to start a new life. In cases taken up by the Commission, the talaqs were spoken over the telephone or communicated through a postcard. ..... " "Muslim women too have the right to seek dissolution of marriage under the system of Khula, but this right is very rarely invoked for the simple reason that her seeking divorce would completely deprive her of whatever she may get from her husband, most importantly, a place to live. This in itself is a great disincentive. It is significant that during the Public Hearings not a single woman raised the question of Khula,its usefulness or the need to improve upon it and the right of women to seek it. The deponents only expressed their anguish at the tyranny of the triple talaq, which was the single most potent cause of their devastation." "The demand for dowry has never been a part of the Muslim Personal Law but its practice as a social norm has acquired oppressive proportions among Muslims. During the public hearings NCW found itself listening to cases of dowry related atrocities from deponents all over the country. Marriages are held up if dowry demand is not met. Cases of dowry torture, dowry death and bride burning among Muslims are found in each and every State - without exception." "The suffering and deprivations of Muslim women is largely similar to those of the poor and oppressed women of other communities. The Public Hearings, however, brought out some important differences. All women suffer when they are divorced or deserted. The Muslim Woman, suffers not only when she is divorced or abandoned but lives her entire