KURIAN, J.:

2. Application of Personal law to Muslims. – Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) 57 58 59 284 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 Muslim Personal Law (Shariat).

(Emphasis supplied)

4. After the 1937 Act, in respect of the enumerated subjects under Section 2 regarding “marriage, dissolution of marriage, including talaq”, the law that is applicable to Muslims shall be only their personal law namely Shariat. Nothing more, nothing less. It is not a legislation regulating talaq. In contradistinction, The Dissolution of Muslim Marriages Act, 1939 provides for the grounds for dissolution of marriage. So is the case with the Hindu Marriage Act, 1955 . The 1937 Act simply makes Shariat applicable as the rule of decision in the matters enumerated in section 2 . Therefore, while talaq is governed by Shariat, the specific 285 grounds and procedure for talaq have not been codified in the 1937 Act.

5. In that view of the matter, I wholly agree with the learned Chief Justice that the 1937 Act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman, J. that the 1937 Act is a legislation regulating triple talaq and hence, the same can be tested on the anvil of Article 14. However, on the pure question of law that a legislation, be it plenary or subordinate, can be challenged on the ground of arbitrariness, I agree with the illuminating exposition of law by Nariman, J. I am also of the strong view that the Constitutional democracy of India cannot conceive of a legislation which is arbitrary.

6. Shariat, having been declared to be Muslim Personal Law by the 1937 Act, we have to necessarily see what Shariat is. This has been beautifully explained by the renowned author, Asaf A.A. Fyzee in his book Outlines of 286 Muhammadan Law, 5th Edition, 2008 at page 10.60 “…What is morally beautiful that must be done; and what is morally ugly must not be done. That is law or Shariat and nothing else can be law. But what is absolutely and indubitably beautiful, and what is absolutely and indubitably ugly? These are the important legal questions; and who can answer them? Certainly not man, say the Muslim legists. We have the Qur’an which is the very word of God. Supplementary to it we have Hadith which are the Traditions of the Prophet- the records of his actions and his sayings- from which we must derive help and inspiration in arriving at legal decisions. If there is nothing either in the Qur’an or in the Hadith to answer the particular question which is before us, we have to follow the dictates of secular reason in accordance with certain definite principles. These principles constitute the basis of sacred law or Shariat as the Muslim doctors understand it. And it is these fundamental juristic notions which we must try to study and analyse before we approach the study of the Islamic civil law as a whole, or even that small part of it which in India is known as Muslim law.”

7. There are four sources for Islamic law- (i) Quran

(ii) Hadith (iii) Ijma (iv) Qiyas. The learned author has rightly said that the Holy Quran is the “first source of law”. According to the learned author, pre-eminence is to be given to 60 287 the Quran. That means, sources other than the Holy Quran are only to supplement what is given in it and to supply what is not provided for. In other words, there cannot be any Hadith, Ijma or Qiyas against what is expressly stated in the Quran. Islam cannot be anti-Quran. According to Justice Bader Durrez Ahmad in Masroor Ahmed v. State (NCT of Delhi) & Another61 :

8. It is in that background that I make an attempt to see what the Quran states on talaq. There is reference to talaq in three Suras- in Sura II while dealing with social life of the community, 61 288 in Sura IV while dealing with decencies of family life and in Sura LXV while dealing explicitly with talaq.

9. Sura LXV of the Quran deals with talaq. It reads as follows:

And take for witness 289 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,

3. And He provides for him From (sources) he never Could imagine. And if Any one puts his trust In God, sufficient is (God) For him. For God will Surely accomplish His purpose :

4. Such of your women As have passed the age Of monthly courses, for them The prescribed period, if ye Have any doubts, is Three months, and for those Who have no courses (It is the same):

5. That is the Command Of God, which He Has sent down to you :

6. Let the women live (In ‘iddat) in the same Style as ye live, According to your means :

7. Let the man of means Spend according to His means : and the man Whose resources are restricted, Let him spend according To what God has given him.

God puts no burden On any person beyond What He has given him.

After a difficulty, God Will soon grant relief.” Verse 35 in Sura IV of the Quran speaks on arbitration for reconciliation-

“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, 291 God will cause Their reconciliation:

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.” “229. A divorce is only 292 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 other limits Ordained by God, Which He makes plain To those who understand.

231. When ye divorce 293 Women, and they fulfill The term of their (‘Iddat), Either take 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 anyone 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 Sent down to you The Book And Wisdom, For your instruction.

And fear God, And know that God Is well acquainted With all things.”62

10. These instructive verses do not require any interpretative exercise. They are clear and unambiguous as far as talaq is concerned. 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 62 294 finality.63 In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.

11. The above view has been endorsed by various High Courts, finally culminating in Shamim Ara by this Court which has since been taken as the law for banning triple talaq. Interestingly, prior to Shamim Ara, Krishna Iyer, J. in Fuzlunbi v. K Khader Vali and Another64 , while in a three judge bench in this Court, made a very poignant observation on the erroneous approach of Batchelor, J. in Sarabai v. Rabiabai65 on the famous comment “good in law, though bad in theology”. To quote:

12. More than two decades later, Shamim Ara has referred to, as already noted above, the legal perspective across the country on the issue of triple talaq starting with the decision of the Calcutta High Court in Furzund Hossein v. Janu Bibee66 in 1878 and finally, after discussing two decisions of the Gauhati High Court namely Jiauddin Ahmed v. Anwara Begum67 and Rukia Khatun v. Abdul Khalique Laskar68, this Court held as follows- “13. There is yet another illuminating and weighty judicial opinion available in two decisions of the Gauhati High Court recorded by Baharul Islam, J. (later a Judge of the Supreme Court of India) sitting singly in Jiauddin Ahmed v. Anwara Begum (1981) 1 Gau LR 358 and later speaking for the Division Bench in Rukia Khatun v.Abdul Khalique Laskar (1981) 1 Gau LR 375. In Jiauddin Ahmed case a plea of previous 66 67 68 296 divorce i.e. the husband having divorced the wife on some day much previous to the date of filing of the written statement in the Court was taken and upheld. The question posed before the High Court was whether there has been valid talaq of the wife by the husband under the Muslim law. The learned Judge observed that though marriage under the Muslim law is only a civil contract yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it. But inspite of the sacredness of the character of the marriage tie, Islam recognizes the necessity, in exceptional circumstances, of keeping the way open for its dissolution (para 6). Quoting in the judgment several Holy Quranic verses and from commentaries thereon by well-recognized scholars of great eminence, the learned Judge expressed disapproval of the statement that "the whimsical and capricious divorce by the husband is good in law, though bad in theology" and observed that such a statement is based on the concept that women were chattel belonging to men, which the Holy Quran does not brook. 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 and the other from the husband's; if the attempts fail, ‘ talaq’ may be effected. (para 13). In Rukia Khatun case, the Division Bench stated that the correct law of talaq as ordained by the Holy Quran, is: (i) that 'talaq' must be for a reasonable cause; and (ii) that it must be preceded by an 297 attempt of reconciliation between the husband and the 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. The Division Bench expressly recorded its dissent from the Calcutta and Bombay views which, in their opinion, did not lay down the correct law.

14. We are in respectful agreement with the above said observations made by the learned Judges of High Courts….” (Emphasis supplied)

13. There is also a fruitful reference to two judgments of the Kerala High Court - one of Justice Krishna Iyer in A. Yousuf Rawther v. Sowramma69 and the other of Justice V. Khalid in Mohd. Haneefa v. Pathummal Beevi70. No doubt, Sowaramma was not a case on triple talaq, however, the issue has been discussed in the judgment in paragraph 7 which has also been quoted in Shamim Ara.

“..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 Quoranic law, unbridled authority to liquidate the marriage. ‘The whole Quoran expressly forbids a man to 69 70 298 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”.’ (Quoran 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." ….Commentators on the Quoran have rightly observed - and this tallies with the law now administered in some Muslim 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…"

14. Khalid, J. has been more vocal in Mohd. Haneefa:

15. After a detailed discussion on the aforementioned cases, it has been specifically held by this Court in Shamim Ara, at paragraph 15 that “…there are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq.” It has to be particularly noted that this conclusion by the Bench in Shamim Ara is made after “respectful agreement” with Jiauddin Ahmed 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 and the other from the husband’s; if the attempts fail, ‘talaq’ may be effected.” In the light of such specific findings as to how triple talaq is bad in law on account of not following the Quranic principles, it cannot be said that there is no ratio decidendi on triple talaq in Shamim Ara.

16. Shamim Ara has since been understood by various High Courts across the country as the law deprecating triple talaq as it is opposed to the tenets of the Holy Quran. Consequently, triple talaq lacks the approval of Shariat.

17. The High Court of Andhra Pradesh, in Zamrud Begum v. K. Md. Haneef and another71, is one of the first High Courts to affirm the view adopted in Shamim Ara. The High Court, after referring to Shamim Ara and all the other decisions mentioned therein, held in paragraphs 13 and 17 as follows:

6. The only thing to be further considered in this case is whether the divorce alleged to have been effected by the husband by pronouncement of talaq on 23-7-1999 is proved or not. The mere pronouncement of 76 304 talaq three times even in the presence of the wife is not sufficient to effect a divorce under Mohammadan Law. As held by the Supreme Court in Shamim Ara 's case [2002 (3) KLT 537 (SC)], there should be an attempt of mediation by two mediators; one on the side of the husband and the other on the side of the wife and only in case it was a failure that the husband is entitled to pronounce talaq to divorce the wife…” (Emphasis supplied)

21. In Masroor Ahmed, Justice Badar Durrez Ahmed, held as follows:

22. As recently as in 2016, Mustaque, J. of the High Court of Kerala in Nazeer @ Oyoor Nazeer v. Shemeema77 , has inter alia referred to Shamim Ara and has disapproved triple talaq.

23. Therefore, I find it extremely difficult to agree with the learned Chief Justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law.

24. To freely profess, practice and propagate religion of one’s choice is a Fundamental Right guaranteed under the Indian Constitution. That is subject only to the following- (1) public order, (2) health, (3) morality and (4) other provisions of Part III dealing with Fundamental Rights. Under Article 25 (2) of the Constitution of India, the State is also granted power to make law in two contingencies notwithstanding the freedom granted under Article 25(1). Article 25 (2) states that “nothing in this Article shall affect the 77 306 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.” Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the learned Chief Justice. However, on the statement that triple talaq is an integral part of the religious practice, I respectfully disagree. Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of 307 Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice and thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq. I also have serious doubts as to whether, even under Article 142 , the exercise of a Fundamental Right can be injuncted.

25. When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights. I believe that a reconciliation between the same is possible, but the process of harmonizing different interests is within the powers of the legislature. Of course, this power has to be exercised within the constitutional parameters without curbing the religious freedom guaranteed under the Constitution of India. However, it is not for the Courts to direct for any legislation.

26. Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and 308 re-iterate the law declared in Shamim Ara.

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.

..……………………J. (KURIAN JOSEPH) New Delhi;

August 22, 2017.

309 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION SUO MOTU WRIT (CIVIL) No. 2 of 2015 IN RE: MUSLIM WOMEN’S QUEST FOR EQUALITY …PETITIONER VERSUS JAMIAT ULMA-I-HIND & ORS. ...RESPONDENTS WITH WRIT PETITION (CIVIL) No. 118 of 2016 SHAYARA BANO …PETITONER VERSUS UNION OF INDIA AND ORS. MINISTRY OF WOMEN AND CHILD DEVELOPMENT SECRETARY AND ORS. ...RESPONDENTS WITH WRIT PETITION (CIVIL) No. 288 of 2016 AAFREEN REHMAN …PETITIONER VERSUS UNION OF INDIA AND ORS. …RESPONDENTS WITH WRIT PETITION (CIVIL) No. 327 of 2016 GULSHAN PARVEEN …PETITIONER VERSUS UNION OF INDIA REPRESENTED BY 310 THE SECRETARY AND ORS. … RESPONDENTS WITH WRIT PETITION (CIVIL) No. 665 of 2016 ISHRAT JAHAN …PETITIONER VERSUS UNION OF INDIA MINISTRY OF WOMEN AND CHILD DEVELOPMENT REPRESENTED BY THE SECRETARY AND ORS. …RESPONDENTS WITH WRIT PETITION (CIVIL) No. 43 of 2017 ATIYA SABRI …PETITIONER VERSUS UNION OF INDIA REPRESENTED BY THE SECRETARY AND ORS. …RESPONDENTS JUDGMENT R.F. Nariman, J.

Having perused a copy of the learned Chief Justice’s judgment, I am in respectful disagreement with the same.

1. This matter has found its way to a Constitution Bench of this Court because of certain newspaper 311 articles which a Division Bench of this Court in Prakash v. Phulavati , (2016) 2 SCC 36, adverted to, and then stated:

Reference was also made to observations in Madhu Kishwar v. State of Bihar , (1996) 5 SCC 125 to the effect that the Court could at best advise and focus attention to the problem instead of playing an activist role.] It was observed that challenge to the Muslim Women (Protection of Rights on Divorce) Act, 1986 was pending before the Constitution Bench and there was no reason to multiply proceedings on such an issue.

31. It was, thus, submitted that this aspect of the matter may be gone into by separately registering the matter as public interest litigation (PIL). We are of the view that the suggestion needs consideration in view of the earlier decisions of this Court. The issue has also been highlighted in recent articles appearing in the press on this subject. [The Tribune dated 24-9-2015 “Muslim Women’s Quest for Equality” by Vandana Shukla and Sunday Express Magazine dated 4-10-2015 “In Her Court” by Dipti Nagpaul D’Souza.]

32. For this purpose, a PIL be separately registered and put up before the appropriate Bench as per orders of Hon’ble the Chief Justice of India.” (at pages 53 and 55) Several writ petitions have thereafter been filed and are before us seeking in different forms the same relief – namely, that a Triple Talaq at one go by a Muslim husband which severs the marital bond is bad in constitutional law.

2. Wide ranging arguments have been made by various counsel appearing for the parties. These have been referred to in great detail in the judgment of the learned Chief Justice. In essence, the petitioners, supported by the Union of India, state that Triple Talaq is an anachronism in today’s day and age and, constitutionally speaking, is anathema. 313 Gender discrimination is put at the forefront of the argument, and it is stated that even though Triple Talaq may be sanctioned by the Shariat law as applicable to Sunni Muslims in India, it is violative of Muslim women’s fundamental rights to be found, more particularly, in Articles 14 , 15(1) and 21 of the Constitution of India. Opposing this, counsel for the Muslim Personal Board and others who supported them, then relied heavily upon a Bombay High Court judgment, being State of Bombay v. Narasu Appa Mali , AIR 1952 Bom 84, for the proposition that personal laws are beyond the pale of the fundamental rights Chapter of the Constitution and hence cannot be struck down by this Court. According to them, in this view of the matter, this Court should fold its hands and send Muslim women and other women’s organisations back to the legislature, as according to them, if Triple Talaq is to be removed as a measure of social welfare and reform under Article 25(2) , the legislature alone should do so. To this, the counter argument of the other side is that Muslim personal laws are not being attacked as such. What is the subject matter 314 of attack in these matters is a statute, namely, the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as the “1937 Act”). According to them, Triple Talaq is specifically sanctioned by statutory law vide Section 2 of the 1937 Act and what is sought for is a declaration that Section 2 of the 1937 Act is constitutionally invalid to the aforesaid extent. To this, the Muslim Personal Board states that Section 2 is not in order to apply the Muslim law of Triple Talaq, but is primarily intended to do away with custom or usage to the contrary, as the non-obstante clause in Section 2 indicates. Therefore, according to them, the Muslim personal law of Triple Talaq operates of its own force and cannot be included in Article 13(1) as “laws in force” as has been held in Narasu Appa (supra).

3. The question, therefore, posed before this Court is finally in a very narrow compass. Triple Talaq alone is the subject matter of challenge – other forms of Talaq are not. The neat question that arises before this Court is, therefore, whether the 1937 Act can be said to recognize and enforce Triple Talaq as a rule 315 of law to be followed by the Courts in India and if not whether Narasu Appa (supra) which states that personal laws are outside Article 13(1) of the Constitution is correct in law.

4. Inasmuch as the Muslims in India are divided into two main sects, namely Sunnis and Shias, and this case pertains only to Sunnis as Shias do not recognize Triple Talaq, it is important to begin at the very beginning.

5. In a most illuminating introduction to Mulla’s Principles of Mahomedan Law (16th Ed.) (1968), Justice Hidayatullah, after speaking about Prophet Mahomed, has this to say:

6. It is in this historical setting that it is necessary to advert to the various sub-sects of the Sunnis. Four major sub-sects are broadly recognized schools of Sunni law. They are the Hanafi school, Maliki school, Shafi’i school and Hanbali school. The overwhelming majority of Sunnis in India follow the Hanafi school of law. Mulla in Principles of Mahomedan Law (20th Ed.), pg. xix to xxi, has this to say about the Hanafi school:

7. Needless to add, the Hanafi school has supported the practice of Triple Talaq amongst the Sunni Muslims in India for many centuries.

8. Marriage in Islam is a contract, and like other contracts, may under certain circumstances, be terminated. There is something astonishingly modern about this – no public declaration is a condition precedent to the validity of a Muslim marriage nor is any religious ceremony deemed absolutely essential, though they are usually carried 319 out. Apparently, before the time of Prophet Mahomed, the pagan Arab was absolutely free to repudiate his wife on a mere whim, but after the advent of Islam, divorce was permitted to a man if his wife by her indocility or bad character renders marital life impossible. In the absence of good reason, no man can justify a divorce for he then draws upon himself the curse of God. Indeed, Prophet Mahomed had declared divorce to be the most disliked of lawful things in the sight of God. The reason for this is not far to seek. Divorce breaks the marital tie which is fundamental to family life in Islam. Not only does it disrupt the marital tie between man and woman, but it has severe psychological and other repercussions on the children from such marriage.

9. This then leads us to the forms of divorce recognized in Islamic Law. Mulla (supra), at pages 393-395, puts it thus:

When the marriage has not been consummated, a talak in the ahsan form may be pronounced even if the wife is in her menstruation.

Where the wife has passed the age of periods of menstruation the requirement of a declaration during a tuhr is inapplicable; furthermore, this requirement only applies to a oral divorce and not a divorce in writing.

Talak Ahsan is based on the following verses of Holy Quran: “and the divorced woman should keep themselves in waiting for three courses.” (II:228).

“And those of your woman who despair of menstruation, if you have a doubt, their prescribed time is three months, and of those too, who have not had their courses.” (LXV: 4).

(2) Talak hasan- This consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs. The first pronouncement should be made during a tuhr, the second during the next tuhr, and the third during the succeeding tuhr.

Talak Hasan is based on the following Quranic injunctions:

Talak-ul-sunnat is of two kinds, namely, (1) ahsan, that is, most proper, and (2) hasan, that is, proper. The talak-ul-biddat or heretical divorce is good in law, though bad in theology and it is the most common and prevalent mode of divorce in this country, including Oudh. In the case of talak ahsan and talak hasan, the husband has an opportunity of reconsidering his decision, for the talak in both these cases does not become absolute until a certain period has elapsed (S.312), and the husband has the option to revoke it before then. But the talak-ul-biddat becomes irrevocable immediately it is pronounced (S.312). The essential feature of a talak-ul-biddat is its irrevocability. One of tests of irrevocability is the repetition three times of the formula 322 of divorce within one tuhr. But the triple repetition is not a necessary condition of talak-ul-biddat, and the intention to render a talak irrevocable may be expressed even by a single declaration. Thus if a man says “I have divorced you by a talak-ul-bain (irrevocable divorce)”, the talak is talak-ul-biddat or talak-i-badai and it will take effect immediately it is pronounced, though it may be pronounced but once. Here the use of the expression “bain” (irrevocable) manifests of itself the intention to effect an irrevocable divorce.” [Emphasis Supplied]

10. Another noted author, A.A.A. Fyzee, in his book “Outlines of Muhammadan Law” (5 th Ed.), at pages 120-122, puts it thus:

therefore not approved) – (i) three declarations (the so-called triple divorce) at one time, (ii) one irrevocable declaration (generally in writing).

The talaq al-sunna, most approved form consists of one single pronouncement in a period of tuhr (purity, i.e., when the woman is free from her menstrual courses), followed by abstinence from sexual intercourse during that period of sexual purity (tuhr) as well as during the whole of the iddat. If any such intercourse takes place during the periods mentioned, the divorce is void and of no effect in Ithna Ashari and Fatimi laws. It is this mode or procedure which seems to have been approved by the Prophet at the beginning of his ministry and is consequently regarded as the regular or proper and orthodox form of divorce.

Where the parties have been away from each other for a long time, or where the wife is old and beyond the age of menstruation, the condition of tuhr is unnecessary.

A pronouncement made in the ashan form is revocable during iddat. This period is three months from the date of the declaration or, if the woman is pregnant, until delivery. The husband may revoke the divorce at any time during the iddat. Such revocation may be by express words or by conduct. Resumption of conjugal intercourse is a clear case of revocation. For instance, H pronounces a single revocable talaq against his wife and then says ‘I have retained thee’ or cohabits with her, the divorce is revoked under Hanafi as well as Ithna Ashari law. After the expiration of the iddat the divorce becomes irrevocable.

A Muslim wife after divorce is entitled to maintenance during the iddat, and so also her child in certain circumstances. The hasan form of talaq, also an approved form but less approved than the first (ahsan), consists of three successive pronouncements during three consecutive periods of purity (tuhr). Each of these 324 pronouncements should have been made at a time when no intercourse has taken place during that particular period of purity. The hasan form of talaq requires some explanation and a concrete illustration should suffice. The husband (H) pronounces talaq on his wife (W) for the first time during a period when W is free from her menstrual courses. The husband and wife had not come together during this period of purity. This is the first talaq. H resumes cohabitation or revokes this first talaq in this period of purity. Thereafter in the following period of purity, at a time when no intercourse has taken place, H pronounces the second talaq. This talaq is again revoked by express words or by conduct and the third period of purity is entered into. In this period, while no intercourse having taken place, H for the third time pronounces the formula of divorce. This third pronouncement operates in law as a final and irrevocable dissolution of the marital tie. The marriage is dissolved; sexual intercourse becomes unlawful; iddat becomes incumbent; remarriage between the parties becomes impossible unless W lawfully marries another husband, and that other husband lawfully divorces her after the marriage has been actually consummated.

Thus it is clear that in these two forms there is a chance for the parties to be reconciled by the intervention of friends or otherwise. They are, therefore, the ‘approved’ forms and are recognized both by Sunni and Shia laws. The Ithna Ashari and the Fatimi schools, however, do not recognize the remaining two forms and thus preserve the ancient conventions of the times of the Law-giver.

The first, or ahsan, form is ‘most approved’ because the husband behaves in a gentlemanly manner and does not treat the wife as a chattel. The second is a form in 325 which the Prophet tried to put an end to a barbarous pre-Islamic practice. This practice was to divorce a wife and take her back several times in order to ill-treat her. The Prophet, by the rule of the irrevocability of the third pronouncement, indicated clearly that such a practice could not be continued indefinitely. Thus if a husband really wished to take the wife back he should do so; if not, the third pronouncement after two reconciliations would operate as a final bar. These rules of law follow the spirit of the Quranic injunction: ‘when they have reached their term take them back in kindness or part from them in kindness’.

A disapproved form of divorce is talaq by triple declarations in which three pronouncements are made in a single tuhr, either in one sentence e.g. ‘I divorce thee triply or thrice’ or in three sentences ‘I divorce thee, I divorce thee, I divorce thee.’ Such a talaq is lawful, although sinful, in Hanafi law; but in Ithna Ashari and the Fatimi laws it is not permissible. This is called talaq al-ba’in, irrevocable divorce. Another form of the disapproved divorce is a single, irrevocable pronouncement made either during the period of tuhr or even otherwise. This form is also called talaq al-ba’in and may be given in writing. Such a ‘bill of divorcement’ comes into operation immediately and severs the marital tie. This form is not recognized by the Ithna Ashari or the Fatimi schools.” [Emphasis Supplied]

11. It is at this stage that the 1937 Act needs consideration. The Statement of Objects and Reasons of this Act are as follows:

12. It is a short Act consisting of 6 Sections. We are directly concerned in these cases with Section 2 . Section 2 of the 1937 Act states: 327

13. A word as to the meaning of the expression “Shariat”. A.A.A. Fyzee (supra), at pages 9-11, describes “Shariat” as follows:

According to the Shariat religious injunctions are of five kinds, al-ahkam al-khamsah. Those strictly enjoined are farz, and those strictly forbidden are haram. Between them we have two middle categories, namely, things which you are advised to do (mandub), and things which you are advised to refrain from (makruh) and finally there are things about which religion is indifferent (ja’iz). The daily prayers, five in number, are farz; wine is haram; the addition prayers like those on 330 the Eid are mandub; certain kinds of fish are makruh; and there are thousands of ja’iz things such as travelling by air. Thus the Shariat is totalitarian; all human activity is embraced in its sovereign domain. This fivefold division must be carefully noted; for unless this is done it is impossible to understand the distinction between that which is only morally enjoined and that which is legally enforced. Obviously, moral obligation is quite a different thing from legal necessity and if in law these distinctions are not kept in mind error and confusion are the inevitable result.”

14. It can be seen that the 1937 Act is a pre-constitutional legislative measure which would fall directly within Article 13(1) of the Constitution of India, which reads as under:

15. However, learned counsel for the Muslim Personal Board as well as other counsel supporting their stand have argued that, read in light of the Objects and Reasons, the 1937 Act was not meant to enforce Muslim personal law, which was enforceable by itself through the Courts in India. The 1937 Act was only meant, as the non-obstante clause in Section 2 indicates, to do away with custom or usage which is contrary to Muslim personal law.

16. We are afraid that such a constricted reading of the statute would be impermissible in law. True, the Objects and Reasons of a statute throw light on the background in which the statute was enacted, but it is difficult to read the non-obstante clause of Section 2 as governing the enacting part of the Section, or otherwise it will become a case of the tail wagging the dog. A similar attempt was made many years ago and rejected in Aswini Kumar Ghosh v. Arabinda Bose , 1953 SCR 1. This Court was concerned with Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951. Section 2 of the said Act read as follows: 332

17. The argument made before this Court was that the non-obstante clause furnishes the key to the proper interpretation of the scope of the Section and the enacting clause must, therefore, be construed as conferring only a right co-extensive with the disability removed by the opening clause. This argument was rejected by this Court as follows:

18. It is, therefore, clear that all forms of Talaq recognized and enforced by Muslim personal law are recognized and enforced by the 1937 Act. This would necessarily include Triple Talaq when it comes to the Muslim personal law applicable to Sunnis in India. Therefore, it is very difficult to accept the argument on behalf of the Muslim Personal Board that Section 2 does not recognize or enforce Triple Talaq. It clearly and obviously does both, because the Section makes Triple Talaq “the rule of decision in cases where the parties are Muslims”.

19. As we have concluded that the 1937 Act is a law made by the legislature before the Constitution came into force, it would fall squarely within the expression “laws in force” in Article 13(3)(b) and 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.

20. At this stage, it is necessary to refer to the recognition of Triple Talaq as a legal form of divorce in India, as applicable to Sunni Muslims. In an early Bombay case, Sarabai v. Rabiabai , (1906) ILR 30 Bom 537, Bachelor, J. referred to Triple Talaq and said that “it is good in law though bad in theology”. In a Privy Council decision in 1932, 5 years before the 1937 Act, namely Rashid Ahmad v. Anisa Khatun , (1931-32) 59 IA 21: AIR 1932 PC 25, the Privy Council was squarely called upon to adjudicate upon a Triple Talaq. Lord Thankerton speaking for the Privy Council put it thus:

21. It is thus clear that it is this view of the law which the 1937 Act both recognizes and enforces so as to come within the purview of Article 13(1) of the Constitution.

22. In this view of the matter, it is unnecessary for us to decide whether the judgment in Narasu Appa (supra) is good law. However, in a suitable case, it may be necessary to have a re-look at this judgment in that the definition of “law” and “laws in force” are both inclusive definitions, and that at least one part of the judgment of P.B. Gajendragadkar, J., (para 26), in which the learned Judge opines that the expression “law” cannot be read into the expression “laws in force” in Article 13(3) is itself no longer good law – See Sant Ram & Ors. v. Labh Singh & Ors. , (1964) 7 SCR 756.

23. It has been argued somewhat faintly that Triple Talaq would be an essential part of the Islamic faith and would, therefore, be protected by Article 25 of the Constitution of India. Article 25 reads as follows:

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 (2), the 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.”

24. “Religion” has been given the widest possible meaning by this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt , 1954 SCR 1005 at 1023-1024. In this country, therefore, atheism would also form part of “religion”. But one important caveat has been entered by this Court, namely, that only what is an essential religious practice is protected under Article 25. A few decisions 338 have laid down what constitutes an essential religious practice. Thus, in Javed v. State of Haryana , 2003 (8) SCC 369, this Court stated as under:

25. Applying the aforesaid tests, it is clear that Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it. According to Javed (supra), therefore, this would not form part of any essential religious practice. Applying the test stated in Acharya Jagdishwarananda (supra), it is equally clear that the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice. Indeed, Islam divides all human action into five kinds, as has been stated by Hidayatullah, J. in his introduction to Mulla (supra). There it is stated:

Wajib. Perhaps a little less compulsory than Fard but only slightly less so.

(ii) Second degree: Masnun, Mandub and Mustahab: These are recommended actions.

(iii) Third degree: Jaiz or Mubah: These are permissible actions as to which religion is indifferent.

(iv) Fourth degree: Makruh: That which is reprobated as unworthy.

(v) Fifth degree: Haram: That which is forbidden.” Obviously, Triple Talaq does not fall within the first degree, since even assuming that it forms part of the Koran, Hadis or Ijmaa, it is not something “commanded”. Equally Talaq itself is not a recommended action and, therefore, Triple Talaq will not fall within the second degree. Triple Talaq at best falls within the third degree, but probably falls more squarely within the fourth degree. It will be remembered that under the third degree, Triple Talaq is a permissible action as to which religion is indifferent. Within the fourth degree, it is reprobated as unworthy. We have already seen that though permissible in Hanafi jurisprudence, yet, that very jurisprudence castigates Triple Talaq as being sinful. It is clear, therefore, that Triple Talaq forms no part of Article 342 25(1). This being the case, the submission on behalf of the Muslim Personal Board that the ball must be bounced back to the legislature does not at all arise in that Article 25(2)(b) would only apply if a particular religious practice is first covered under Article 25(1) of the Constitution.

26. And this brings us to the question as to when petitions have been filed under Article 32 of the Constitution of India, is it permissible for us to state that we will not decide an alleged breach of a fundamental right, but will send the matter back to the legislature to remedy such a wrong.

27. In Prem Chand Garg v. Excise Commissioner, U.P. , 1963 (Supp.) 1 SCR 885, this Court held:

28. We are heartened to note that in a recent U.S. Supreme Court decision the same thing has been 344 said with respect to knocking at the doors of the U.S. Supreme Court in order to vindicate a basic right. In Obergefell v. Hodges, 135 S. Ct. 2584 at 2605, decided on June 26, 2015, the U.S. Supreme Court put it thus:

29. However, counsel for the Muslim Personal Board relied heavily on this Court’s decision in Ahmedabad Women Action Group v. Union of India , (1997) 3 SCC 573. This judgment refers to several earlier decisions to hold that the declarations sought for did not deserve disposal on merits, which involve issues of State policy that courts ordinarily do not have 345 concern with. This Court, therefore, declined to entertain writ petitions that asked for very sweeping reliefs which, interestingly enough, included a declaration of voidness as to “unilateral talaq”. This Court referred in detail to the judgment of the Bombay High Court in Narasu Appa (supra) in declining to review Muslim personal law. However, when it came to the challenge of a statutory enactment, Muslim Women (Protection of Rights on Divorce) Act, 1986 , this Court did not wish to multiply proceedings in that behalf, as a challenge was pending before a Constitution Bench regarding the same.

30. Hard as we tried, it is difficult to discover any ratio in this judgment, as one part of the judgment contradicts another part. If one particular statutory enactment is already under challenge, there is no reason why other similar enactments which were also challenged should not have been disposed of by this Court. Quite apart from the above, it is a little difficult to appreciate such declination in the light of Prem Chand Garg (supra). This judgment, therefore, to the extent that it is contrary to at least two Constitution 346 Bench decisions cannot possibly be said to be good law.

31. It is at this point that it is necessary to see whether a fundamental right has been violated by the 1937 Act insofar as it seeks to enforce Triple Talaq as a rule of law in the Courts in India.

32. Article 14 of the Constitution of India is a facet of equality of status and opportunity spoken of in the Preamble to the Constitution. The Article naturally divides itself into two parts- (1) equality before the law, and (2) the equal protection of the law. Judgments of this Court have referred to the fact that the equality before law concept has been derived from the law in the U.K., and the equal protection of the laws has been borrowed from the 14th Amendment to the Constitution of the United States of America. In a revealing judgment, Subba Rao, J., dissenting, in State of U.P. v. Deoman Upadhyaya , (1961) 1 SCR 14 at 34 further went on to state that whereas equality before law is a negative concept, the equal protection of the law has positive content. The early judgments of this Court referred to the “discrimination” aspect of Article 14 , and evolved a rule by which subjects could be classified. If 347 the classification was “intelligible” having regard to the object sought to be achieved, it would pass muster under Article 14’s anti-discrimination aspect. Again, Subba Rao, J., dissenting, in Lachhman Das v. State of Punjab , (1963) 2 SCR 353 at 395, warned that overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the Article of its glorious content. He referred to the doctrine of classification as a “subsidiary rule” evolved by courts to give practical content to the said Article.

33. In the pre-1974 era, the judgments of this Court did refer to the “rule of law” or “positive” aspect of Article 14 , the concomitant of which is that if an action is found to be arbitrary and, therefore, unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground. In S.G. Jaisinghani v. Union of India , (1967) 2 SCR 703, this Court held:

34. Similarly, again in the context of an Article 14 challenge to service rules, this Court held in State of 349 Mysore v. S.R. Jayaram , (1968) 1 SCR 349 as follows:

35. In the celebrated Indira Gandhi v. Raj Narain judgment, reported in 1975 Supp SCC 1, Article 329-A sub-clauses (4) and (5) were struck down by a Constitution Bench of this Court. Applying the newly evolved basic structure doctrine laid down in Kesavananda Bharati v. State of Kerala , (1973) 4 350 SCC 225, Ray, C.J. struck down the said amendment thus:

36. This passage is of great significance in that the amendment was said to be bad because the constituent power did not have any law to apply to the case, and this being so, the rule of law contained in the Constitution would be violated. This rule of law has an obvious reference to Article 14 of the Constitution, in that it would be wholly arbitrary to decide the case without applying any law, and would thus violate the rule of law contained in the said Article. Chandrachud, J., was a little more explicit in that he expressly 351 referred to Article 14 and stated that Article 329-A is an outright negation of the right of equality conferred by Article 14. This was the case because the law would be discriminatory in that certain high personages would be put above the law in the absence of a differentia reasonably related to the object of the law. He went on to add:

37. This paragraph is an early application of the doctrine of arbitrariness which follows from the rule of law contained in Article 14. It is of some significance that Dicey’s formulation of the rule of law was referred to, which contains both absence of arbitrary power and equality before the law, as being of the essence of the rule of law.

38. We now come to the development of the doctrine of arbitrariness and its application to State action as a distinct doctrine on which State action may be struck down as being violative of the rule of law contained in Article 14. In a significant passage Bhagwati, J., in E.P. Royappa v. State of T.N. , (1974) 4 SCC 3 stated (at page 38):

They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as 355 distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.” [Emphasis Supplied]

39. This was further fleshed out in Maneka Gandhi v. Union of India , (1978) 1 SCC 248, where, after stating that various fundamental rights must be read together and must overlap and fertilize each other, Bhagwati, J., further amplified this doctrine as follows (at pages 283-284):

40. This was further clarified in A.L. Kalra v. Project and Equipment Corpn. , (1984) 3 SCC 316, following Royappa (supra) and holding that arbitrariness is a doctrine distinct from discrimination. It was held:

In Maneka Gandhi v. Union of India [(1978) 1 SCC 248: AIR 1978 SC 597: (1978) 2 SCR 621] it was observed that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It is thus too late in the day to contend that an executive action shown to be arbitrary is not either judicially reviewable or within the reach of Article 14.” (at page 328) The same view was reiterated in Babita Prasad v. State of Bihar , (1993) Suppl. 3 SCC 268 at 285, at paragraph 31.

41. That the arbitrariness doctrine contained in Article 14 would apply to negate legislation, subordinate legislation and executive action is clear from a celebrated passage in the case of Ajay Hasia v. 358 Khalid Mujib Sehravardi , (1981) 1 SCC 722 (at pages 740-741):

Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., “a 359 way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude.

Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 , and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.” This vital and dynamic aspect which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa case [(1975) 1 SCC 485: 1975 SCC (L&S) 99: (1975) 3 SCR 616] and it was reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] where this Court again speaking through one of us (Bhagwati, J.) observed: (SCC pp. 283-84, para 7) 360 “Now the question immediately arises as to what is the requirement of Article 14: What is the content and reach of the great equalising principle enunciated in this Article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence.” This was again reiterated by this Court in International Airport Authority case [(1979) 3 SCC 489] at p. 1042 (SCC p. 511) of the Report. It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not paraphrase of Article 14 nor is it the objective and end of that article. It is merely 361 a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of an ‘authority’ under Article 12 , Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution.” [Emphasis Supplied]

42. In this view of the law, a three Judge Bench of this Court in K.R. Lakshmanan (Dr.) v. State of T.N. , (1996) 2 SCC 226, struck down a 1986 Tamil Nadu Act on the ground that it was arbitrary and, therefore, violative of Article 14. Two separate arguments were addressed under Article 14. One was that the Act in question was discriminatory and, therefore, violative of Article 14. The other was that in any case the Act was arbitrary and for that reason would also violate a separate facet of Article 14. This is clear from paragraph 45 of the said judgment . The judgment went on to accept both these arguments. In 362 so far as the discrimination aspect is concerned, this Court struck down the 1986 Act on the ground that it was discriminatory in paragraphs 46 and 47. Paragraphs 48 to 50 are important, in that this Court struck down the 1986 Act for being arbitrary, separately, as follows (at pages 256-257):

43. Close upon the heels of this judgment, a discordant note was struck in State of A.P. v. 364 McDowell & Co. , (1996) 3 SCC 709. Another three Judge Bench, in repelling an argument based on the arbitrariness facet of Article 14 , held:

44. This judgment failed to notice at least two binding precedents, first, the judgment of a Constitution Bench in Ajay Hasia (supra) and second, the judgment of a coordinate three judge bench in Lakshmanan (supra). Apart from this, the reasoning contained as to why arbitrariness cannot be used to strike down legislation as opposed to both executive action and subordinate legislation was as follows: 367

Supreme Court of India, (2014) 9 SCC 737, has held, following the celebrated Maneka Gandhi (supra), as follows:

283-84, para 6) “6. … In Sunil Batra v. Delhi Admn. [(1978) 4 SCC 494:

Mathew, J., while delivering the first Tej Bahadur Sapru Memorial Lecture entitled “Democracy and Judicial Review”, has pointed out:

However, the three Judge Bench in Mcdowell (supra) dealt with the binding Constitution Bench decision in Mithu (supra) as follows (at page 739):

(2) The second reason given is that a challenge under Article 14 has to be viewed separately from a challenge under Article 19 , which is a reiteration of the point of view of A.K. Gopalan v. State of Madras , 1950 SCR 88, that fundamental rights must be seen in watertight compartments. We have seen how this view was upset by an eleven Judge Bench of this Court in Rustom Cavasjee Cooper v. Union of India , (1970) 1 SCC 248, and followed in Maneka Gandhi (supra). Arbitrariness in legislation is very much a facet of unreasonableness in Article 19(2) to (6), as has been laid down in several Judgments of this Court, some of which are referred to in Om Kumar (infra) and, therefore, there is no reason why arbitrariness cannot be used in the aforesaid sense to strike down legislation under Article 14 as well. (3) The third reason given is that the Courts cannot sit in Judgment over Parliamentary wisdom. Our law reports are replete with instance after instance where Parliamentary wisdom has been successfully set at 378 naught by this Court because such laws did not pass muster on account of their being “unreasonable”, which is referred to in Om Kumar (infra).

We must never forget the admonition given by Khanna, J. in State of Punjab v. Khan Chand , (1974) 1 SCC 549. He said:

2 SCC 684 : 1980 SCC (Cri) 580] the majority upholding the legislation. The dissenting judgment of Bhagwati, J.

(see Bachan Singh v. State of Punjab [(1982) 3 SCC 24 : 1982 SCC (Cri) 535]) dealt elaborately with “proportionality” and held that the punishment provided by the statute was disproportionate.

32. So far as Article 14 is concerned, the courts in India examined whether the classification was based on intelligible differentia and whether the differentia had a reasonable nexus with the object of the legislation. Obviously, when the courts considered the question whether the classification was based on intelligible differentia, the courts were examining the validity of the differences and the adequacy of the differences. This is again nothing but the principle of proportionality. There are also cases where legislation or rules have been struck down as being arbitrary in the sense of being unreasonable [see Air India v. Nergesh Meerza [(1981) 4 SCC 335: 1981 SCC (L&S) 599] (SCC at pp. 372-373)]. But this latter aspect of striking down legislation only on the basis of “arbitrariness” has been doubted in State of A.P. v. McDowell and Co. [(1996) 3 SCC 709] .” 382

45. The thread of reasonableness runs through the entire fundamental rights Chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article

14. Further, there is an apparent contradiction in the three Judges’ Bench decision in McDowell (supra) when it is said that a constitutional challenge can succeed on the ground that a law is “disproportionate, excessive or unreasonable”, yet such challenge would fail on the very ground of the law being “unreasonable, unnecessary or unwarranted”. The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.

46. We only need to point out that even after McDowell (supra), this Court has in fact negated statutory law on the ground of it being arbitrary and 383 therefore violative of Article 14 of the Constitution of India. In Malpe Vishwanath Acharya v. State of Maharashtra , (1998) 2 SCC 1, this Court held that after passage of time, a law can become arbitrary, and, therefore, the freezing of rents at a 1940 market value under the Bombay Rent Act would be arbitrary and violative of Article 14 of the Constitution of India (see paragraphs 8 to 15 and 31).

47. Similarly in Mardia Chemicals Ltd. & Ors. v. Union of India & Ors. etc. etc., (2004) 4 SCC 311 at 354, this Court struck down Section 17(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, as follows:

48. In two other fairly recent judgments namely State of Tamil Nadu v. K. Shyam Sunder , (2011) 8 SCC 737 at paragraphs 50 to 53, and A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy , (2011) 9 SCC 286 at paragraph 29, this Court reiterated the position of law that a legislation can be struck down on the ground that it is arbitrary and therefore violative of Article 14 of the Constitution.

49. In a Constitution Bench decision in Ashoka Kumar Thakur v. Union of India , (2008) 6 SCC 1 at 524, an extravagant argument that the impugned legislation was intended to please a section of the community as part of the vote catching mechanism was held to not be a legally acceptable plea and rejected by holding that:

50. A subsequent Constitution Bench in K.T. Plantation (P) Ltd. v. State of Karnataka , (2011) 9 SCC 1, dealt with the constitutional validity of the Roerich and Devikarani Roerich Estate (Acquisition and Transfer) Act, 1996 , the legal validity of Section 110 of the Karnataka Land Reforms Act, 1961, Notification No. RD 217 LRA 93 dated 8-3-1994 issued by the State Government thereunder and the scope and content of Article 300-A of the Constitution. While 386 examining the validity of a legislation which deprives a person of property under Article 300-A , this Court when faced with Mcdowell (supra) pointed out that (at page

Instead, it broad based the test, stating that if a constitutional infirmity is found, Article 14 will interdict such infirmity. And a constitutional infirmity is found in Article 14 itself whenever legislation is “manifestly arbitrary”; i.e. when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favoritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment. Positively speaking, it should conform to norms which are rational, informed with reason and guided by public interest, etc.

52. Another Constitution Bench decision reported as Dr. Subramanian Swamy v. Director, Central Bureau of Investigation , (2014) 8 SCC 682, dealt with a challenge to Section 6-A of the Delhi Special Police Establishment Act, 1946. This Section was ultimately struck down as being discriminatory and hence violative of Article 14. A specific reference had been made to the Constitution Bench by the reference order in Dr. Subramanian Swamy v. Director, Central 391 Bureau of Investigation , (2005) 2 SCC 317, and after referring to several judgments including Ajay Hasia (supra), Mardia Chemicals (supra), Malpe Vishwanath Acharya (supra) and McDowell (supra), the reference inter alia was as to whether arbitrariness and unreasonableness, being facets of Article 14 , are or are not available as grounds to invalidate a legislation.

After referring to the submissions of counsel, and several judgments on the discrimination aspect of Article 14 , this Court held:

“48. In E.P. Royappa [E.P. Royappa v. State of T.N. , (1974) 4 SCC 3:

Where the legislation is sought to be challenged as being unconstitutional and violative of Article 14 of the Constitution, the Court must remind itself to the principles relating to the applicability of Article 14 in relation to invalidation of legislation. The two dimensions of Article 14 in its application to legislation and rendering legislation invalid are now well recognised and these are: (i) discrimination, based on an impermissible or invalid classification, and (ii) excessive delegation of powers; conferment of uncanalised and unguided powers on the executive, whether in the form of delegated legislation or by way of conferment of authority to pass administrative orders—if such conferment is without any guidance, control or checks, it is violative of Article 14 of the Constitution. The Court also needs to be mindful that a legislation does not become unconstitutional merely because there is another view or because another method may be considered to be as good 393 or even more effective, like any issue of social, or even economic policy. It is well settled that the courts do not substitute their views on what the policy is.” (at pages 721-722) Since the Court ultimately struck down Section 6-A on the ground that it was discriminatory, it became unnecessary to pronounce on one of the questions referred to it, namely, as to whether arbitrariness could be a ground for invalidating legislation under Article 14. Indeed the Court said as much in paragraph 98 of the judgment as under (at page 740):

53. However, in State of Bihar v. Bihar Distillery Ltd. , (1997) 2 SCC 453 at paragraph 22, in State of M.P. v. Rakesh Kohli , (2012) 6 SCC 312 at paragraphs 17 to 19, in Rajbala v. State of Haryana & Ors. , (2016) 2 SCC 445 at paragraphs 53 to 65 and Binoy Viswam v. Union of India, (2017) 7 SCC 59 at paragraphs 80 to 82, McDowell (supra) was read as being an absolute bar to the use of “arbitrariness” as a 394 tool to strike down legislation under Article 14. As has been noted by us earlier in this judgment, Mcdowell (supra) itself is per incuriam, not having noticed several judgments of Benches of equal or higher strength, its reasoning even otherwise being flawed. The judgments, following McDowell (supra) are, therefore, no longer good law.

54. To complete the picture, it is important to note that subordinate legislation can be struck down on the ground that it is arbitrary and, therefore, violative of Article 14 of the Constitution. In Cellular Operators Association of India v. Telecom Regulatory Authority of India , (2016) 7 SCC 703, this Court referred to earlier precedents, and held:

(See Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [(1985) 1 SCC 641: 1985 SCC (Tax) 121], SCC at p. 689, para 75.)

43. The test of “manifest arbitrariness” is well explained in two judgments of this Court. In Khoday Distilleries Ltd. v. State of 395 Karnataka [(1996) 10 SCC 304], this Court held: (SCC p. 314, para 13) “13. It is next submitted before us that the amended Rules are arbitrary, unreasonable and cause undue hardship and, therefore, violate Article 14 of the Constitution. Although the protection of Article 19(1)(g) may not be available to the appellants, the Rules must, undoubtedly, satisfy the test of Article 14 , which is a guarantee against arbitrary action.

However, one must bear in mind that what is being challenged here under Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law-making power. In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [(1985) 1 SCC 641 : 1985 SCC (Tax) 121], this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; ‘unreasonable not in the sense of not being 396 reasonable, but in the sense that it is manifestly arbitrary’. Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, ‘Parliament never intended the authority to make such Rules; they are unreasonable and ultra vires’. In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution.”

44. Also, in Sharma Transport v. State of A.P. [(2002) 2 SCC 188], this Court held:

The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.

56. Applying the test of manifest arbitrariness to the case at hand, it is clear that Triple Talaq is a form of 398 Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq. We have noticed how in Fyzee’s book (supra), the Hanafi school of Shariat law, which itself recognizes this form of Talaq, specifically states that though lawful it is sinful in that it incurs the wrath of God. Indeed, in Shamim Ara v. State of U.P. , (2002) 7 SCC 518, this Court after referring to a number of authorities including certain recent High Court judgments held as under:

57. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, 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. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated 400 above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.

…………………………………J. (Rohinton Fali Nariman) …………………………………J. (Uday Umesh Lalit) New Delhi;

August 22, 2017.

401 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 402 ORDER OF THE COURT In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside.

..………………..…..………CJI.

(Jagdish Singh Khehar) ..………………..…..…….……J. (Kurian Joseph) ..………………..…..…….……J. (Rohinton Fali Nariman) ..………………..…..…….……J. (Uday Umesh Lalit) ..………………..…..…….……J. (S. Abdul Nazeer) New Delhi;

August 22, 2017.