WP/744/1992 of Vs on 27 December 2002

:ORDER

R.Jayasimha Babu, J.

The relief sought in the writ petition is for a declaration thatSection 2 of the Muslim Personal Law (Shariat) Application Act, 1937 inso far as it seeks to recognise and validate Talaaq-ul-Biddat orTalaaq-i-Badai form of divorce as void and unconstitutional. 2. Thepetitioner is a Muslim woman who was aged 27 years at the time of hermarriage, on 06.02.1990 to the second respondent and who on 01.05.1991was intimated through her father that the second respondent hadpronounced talaq in the presence of two witnesses in a single sitting inTalaq-ul-biddat or Talaq-i-badai form. She has stated that after hermarriage to the second respondent according to the Sunni Mohammadan ritesand customs and after she commenced her marital life with the secondrespondent, she was ill-treated in various ways and forced to undergoabortion against her wishes. She has also stated that her parents hadbeen compelled to give dowry before the marriage and that even after thatthe second respondent threatened to divorce her if she did not persuadeher parents to give him a scooter as an additional dowry. She has statedthat she is employed as a typist in the Public Works Department, that shehad sought and obtained transfer to Madurai, that she was sent out ofmarital home on 04.03.1991, and that she was forced to stay in a localladies hostel. She has stated that the second respondent had told herthat he would permit her to live with him only if additional dowry isgiven to him by her parents.

3. She has further averred that after the receipt of the noticesent by the second respondent to her father in which it was stated thathe had effected divorce in Talaq-ul-biddat form, attempts were made topersuade the second respondent to take back the petitioner, but hedeclined to do so on the ground that the irrevocable talaq had alreadytaken place. She has stated that on a complaint being made to the policeabout 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 someof the articles given by her parents at the time of the petitioner'smarriage.

4. She has averred that Talaq-ul-biddat is not a mode recognisedin the Quran, and that the Holy Book provides for reconsideration andreconciliation before recognising divorce as irrevocable. The petitionerhas referred to Chapter IV verse 35 of Quran which says, "Any if you feara breach between the two, appoint an arbiter from his people and anarbiter from her people. If they desire agreement, God will effectharmony between them." She has also stated that due to lack of knowledgeand understanding of the permissible forms of talaq and of the need forreconciliation and reconsideration before it could be regarded asirrevocable, this form of talaq has been widely used resulting in untoldmisery 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 MuslimPersonal Law in matters relating to marriage where the parties areMuslims, conveyed a wrong impression that the law sanctions this sinfulform of talaq which form, according to the petitioner is grosslyinjurious to the human rights of the married Muslim women and offendsArticles 14, 15 and 21 of the Constitution. She has submitted that theassumptions and beliefs upon which such a form of divorce is recognisedare factually false, scientifically untenable and contrary to the spiritand provisions of the Constitution. She has also stated that this formof divorce has been declared to be a spiritual offence in the Quran andgiving recognition to that form interferes with the Muslim women's rightto profess and practice her religion, inasmuch as it unleashes aspiritual offence on her and is thus, violative of Article 25 of theConstitution.

6. Though the petition was initially filed only against the Union of India, Ismail Farook, to whom she was married in the year 1990and who pronounced talaq on 01.05.1991 and the Station Director of AllIndia Radio, the employer of the second respondent, subsequently, threeother respondents were added. The respondents subsequently added are -the Association for Women's Assistance and Security (AWAS), Mrs. BadarSyed, wife of Dr.Zaheer Ahmed Sayeed, and Tamil Nadu Advocates MeeladForum. The allegations made against Ismail Farook stand unrebutted. Hehas not filed any counter affidavit. His employer has in the affidavitfiled stated that the second respondent had reported to his employer thathe has remarried.

7. For the Union of India a counter affidavit has been filedthrough it's Assistant Legislative Counsel. He has averred that MuslimPersonal Law (Shariat) Application Act, 1937 came into existence only forthe purpose of making the Personal Law applicable to Muslims and certainmaters as specified in Section 2 of that Act and that it is a sociallegislation to make applicable the Shariat law which is a well recognisedand purest form of law as imbibed in Quran, Hadis, Ijma and Qiyas.

Reference is made in the affidavit to the decision of the Jammu andKashmir 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 mostprevalent form of divorce among Muslims in India. It is also pointed outthat there are seven different schools of Muslims law which haveinterpreted the Islamic law and it has been the policy of the Governmentnot to bring changes in Personal Laws unless an initiative comes from thecommunity. It is also asserted in the affidavit that Personal Laws arenot within the purview of Article 13(1) of the Constitution, that thereis no separation of Personal Law and religion in the tenets of Islam, andthat this form of talaq is well recognised and that it forms part of theMuslim Personal Law. It is submitted in the affidavit that the ShariatAct, 1937 though is a preconstitutional enactment, is valid even now andSection 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.AbdulBhai in his affidavit that the association is championing the cause ofthe muslim women who have been rendered destitute and are victims of thispernicious 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 beenexclusively in women's rights and family laws. She states that she haspublished several articles and papers concerning the family law and morespecifically Muslim law as it relates to women. She adopts in toto thelegal grounds raised by the petitioner. She has stated that in her dayto day practice as a lawyer and activist working at the grass root levelfor the causes of marginalised women, she has come across numerous casesof the arbitrary and rampant divorce by way of triple talaq practisedamong the Muslims and that she has tried to counsel and explain to theparties concerned that the triple talaq is illegal as per the Holy Quranand is considered sinful. She has stated that this form of divorce isunilateral, arbitrary and gives no chance for reconciliation between theparties. She has also stated that it is very often used as a weapon bymen 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 ofTamilnadu for some years and that during that period she came acrossinnumerable victims of this violation of the dicta propounded in the HolyQuran; that the question raised by the petitioner is of great importanceto Muslim women and affects their right, dignity and human rights; andhas pointed out that in several Muslim countries legislation has beenenacted in the areas of polygamy and divorce procedures keeping in mindthe social milieu. She has also averred that unless this form of talaqis declared as null and void and opposed to Quranic injunctions, Muslimwomen of the country would be socially and economically deprived of theirrights and entitlements as equal citizens of our country.

11. For the Tamil Nadu Advocates Meelad Forum an affidavit has

11. For the Tamil Nadu Advocates Meelad Forum an affidavit has been filed by it's President. The deponent seeks to place certain pointsregarded by the association as being relevant for the just adjudicationof the issue raised in this petition. She has stated that triplerepetition of the term 'talaq' renders it irrevocable. She has referredto certain decisions, wherein it has been held that though that form ofdivorce is theologically bad, it is perfectly valid in law. She hassubmitted that as the apex Court in it's decision reported in the case ofMst. Zohara Khatoon vs Mohd. Ibrahim AIR 1981 SC 1243, has observedthat divorce given unilaterally by the husband is commonest form and ispeculiar to Mohammadan Law, this form of talaq has to be accepted asbeing legal. She has contended that the prayers in writ petition areuntenable and are not to be granted by the Court.

12. Mr. Javed, learned counsel for the petitioner invitedattention 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 Committeeof the Privy Council in his book on the Personal Law of Mohammedanstitled "Mahommedan Law" compiled from the authorities in the originalarabic, (5th edition) at page 572 states, "The reforms of Mohammed markeda new departure in the history of Eastern legislation. He restrained thepower of divorce possessed by the husbands, he gave to the women theright of obtaining a separation on reasonable grounds, and towards theend of his life he went so far as practically to forbid its exercise bythe men without the intervention of arbiters or a judge. He pronounced,"talaq to be the most detestable before the Almighty God of all permittedthings, for it prevented conjugal happiness and interfered with theproper bringing up of children. The permission, therefore, in the Koran,though it gave a certain countance to the old customs, has to be readwith the light of the Lawgiver's own words. When it is borne in mind howintimately law and religion are connected in the Islamic system, it willbe easy to understand the bearing of the words on the institution ofdivorce. Naturally, therefore, great divergence exists among thevarious schools regarding the exercise of the power of divorce by thehusband of his own motion and without the intervention of the Judge. Alarge and influential body of jurists regard talak emanating from thehusband as really prohibited except for necessity, such as the adulteryof the wife. Another section consisting chiefly of the M'utazilas,consider talak as not permissible without the sanction of the judgeadministering the Musulman Law. They consider that any such cause as mayjustify 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 directionthat in case of dispute between the married parties, arbiters should beappointed for the settlement of their differences. The Hanafis, theMalikis, the Sahfeis and the bulk of the Shiahs hold talak to bepermitted, though they regard the exericse of the pwer without any causeto be morally or religiously abominable."

14. Regarding the 'talaq' recognised by the Hanafis, the learnedauthor states, "Two kinds of talak are recognised by the Hanafis, viz.,Talak-ussunnat, and (2), the talak-ul-bidat or talak-ul-badai. Thetalak-ussunnat is the divorce which is effected in accordance with therules laid down in the traditions (the sunnat) handed down from theProphet or his principal disciples. It is, in fact, the mode orprocedure which seems to have been approved of by him at the beginning ofhis ministry, and is, consequently, regarded as the regular or proper andorthodox form of divorce. The talak-ul-bidat, as its namesignifies, is the heritical or irregular mode of divorce, which wasintroduced in the second century of the Mahommedan era. It was then thatthe Omeyyada monarchs, finding that the checks imposed by the Prophet onthe facility of repudiation interfered with the indulgence of theircaprice, endeavoured to find an escape from the strictness of the law,and found in the pliability of the jurists a loophole to effect theirpurpose.

As a matter of fact, the capricous and irregular exercise of thepower of divorce which was in the beginning left to the husbands wasstrongly disapproved of by the Prophet. It is reported that when oncenews 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 stoodup in anger on his carpet and declared that the man was making aplaything of the words of God, and made him take back his wife. The Shiasand the Malikis do not recognise the validity of the talak-ul-biddat,whilst the Hanafi and the Shaffeis agree in holding that a divorce iseffective, if pronounced in the bidat form, "though in its commission theman 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 wasfound to be too novel or too high, there was a natural tendency to revertto the old customs and views of life. This tendency accounts for thoserules of divorce, which in practice have fallen from the high standardset by Islam, but are nevertheless recognised as law, though admitted tobe sinful. It explains the stringent way in which the rights of womenare interpreted, though the interpretation may be opposed to logic andprinciple. "

16. After referring to the Quran, the sunna, ijma, and quiyas asfoundations of Islamic law the author has set out some of the maincharacteristics of the form of divorce sanctioned in the Holy Book:(i)It is not pronounced when the husband is prevented from havingintercourse with his wife owing only to her courses. (ii) Abstinencefrom intercourse is required. (iii) The divorce is suspended during theiddat and the husband has time to reconsider his decision, so that if thepronouncement is not revoked, there is indication that it was notcapriciously or hastily made. (iv)After the divorce is complete andmarriage dissolved, there being only one pronouncement, there is no prohibition against re-marriage of the parties. (v) If the husband orwife dies during the period of iddat, the other inherits. (vi) Thewife's menstruating after the last occasion when there has been sexualintercourse, assures the husband that she is not going to bear a child tohim; 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 seemsto be most prevalent, and in a sense, even favoured by the law.

............ It is indeed possible, that the Hanafi jurists wished toinflict on a husband, who disregarded the requirements of S. 1 36, thepenalty of rendering the talaq irrevocable; and there are indicationsthat they considered it always favour to the wife to relieve her of thehusband and, "Men have always moulded the law of marriage so as to bemost agreeable to themselves"."

18. Professor Tahir Mohammed in his book Muslim Law of India,Third Edition (new version) 2002, after observing that the Hanafi rulerecognising and giving effect to improper talaq is not a part of theoriginal Islamic law, has stated : "In a later period of history it wassomehow believed, rather misbelieved, that a talaq-e-bid'at was to begiven effect invariably in every case - even against the wishes of arepentant husband and an aggrieved wife both of whom may be wanting tocontinue their marital relationship. As this was never the intention ofthe jurists of the past, a large number of Muslim countries have enactedlaws to outlaw all forms of talaq-e-bid'at."

19. The details regarding the law prevailing in some of theMuslim countries is to be found in Professor Tahir Mohammed's book -Statutes of Personal Law in Islamic Countries; History, Texts andCommentaries (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 thehusband or the wife insists otherwise there should be a legal presumptionthat every declaration of 'triple talaq' or 'three talaqs together' wasmeant only to put emphasis on the words of talaq and not to make thedivorce final and terminal. It will be all the more fair andhumanitarian to raise such a presumption in a case where after the talaqthe parties wilfully resume cohabitation during the iddat or remarryafter its expiry. The rules of Islam, after all, aim at keeping marriedcouples united and do not mean to throw them apart against their wishes.""A Muslim husband may, under all schools of Muslim law, effect anout-of-court divorce by his own declaration. This is called talaq. Itwas in fact a pre-islamic practice which Islam reformed and retained inits law; it was not introduced by Islam. There is nothing in thelaw of Islam suggesting that the husband is free to exercise the power oftalaq in an arbitrary, irrational or unreasonable manner. The Muslim lawallows talaq subject to several conditions that are of a dissuasivenature; 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 andreconsideration open. A talaq strictly following this procedure istalaq-e-sunnat - a proper talaq. ............................ Amajor section of Sunni Muslims, called the Ahl-e-Hadis or Salafi, alsohas no recognition for talaq-ul-bid'at; if pronounced they will at bestgive it the effect of a proper talaq only." "In the Quran, the verse65.1 reads thus: "O Prophet! when ye do divorce women divorcethem at their prescribed periods and count (accurately) their prescribedperiods: and fear Allah your Lord: and turn them not out of theirhouses nor shall they (themselves) leave except in case they are guiltyof some open lewdness. Those are limits set by Allah: and any whotransgresses the limits of Allah does verily wrong his (own) soul: thouknowest not if perchance Allah will bring about thereafter some newsituation." The verse clearly indicates that divorce is to take placeonly when there is proven immorality committed. The wife is not to bedriven from the home or to be allowed to go away unless ..."they commitimmorality".

"In 'Sunan Abu-Dawud Book 12, No.2172 it is narrated by Muharibthat, "The Prophet said: Allah did not make anything lawful moreabominable to Him than divorce." In the same book at Number 2173as narrated by Abdullah ibn Umar: "The Prophet said: Of all the lawfulacts 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 SyedaSaiyidain Hameed, a member of the National Commission for Women. Thatreport refers to Muslim women as the weakest link in the generallydisempowered chain of Indian womanhood. He invited our attention to thefollowing passages in the Report: "Since marriage in Islam is acontract, it may be dissolved at any time. A Muslim husband of soundmind may divorce his wife whenever he so desires without assigning anyreason. The presence of the wife is not even necessary for pronouncing adivorce nor any notice need be given for that purpose. The most popularform of talaq practised in India is Talaq-al-Bid'at, literally translatedas "the divorce of the wrong innovation". It allows instantaneous talaq;three pronouncements in a single sitting - "I divorce, I divorce you, Idivorce you". In every single of its the Public Hearings NCW foundinnumerable instances of triple talaq. It was pronounced by men in asingle breath, without reason or warning. Women were left stranded withchildren while the husbands having uttered the three words walked away tostart a new life. In cases taken up by the Commission, the talaqs werespoken over the telephone or communicated through a postcard. ..... "

"Muslim women too have the right to seek dissolution of marriageunder the system of Khula, but this right is very rarely invoked for thesimple reason that her seeking divorce would completely deprive her ofwhatever 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,itsusefulness or the need to improve upon it and the right of women to seekit. The deponents only expressed their anguish at the tyranny of thetriple talaq, which was the single most potent cause of theirdevastation." "The demand for dowry has never been a part of the MuslimPersonal Law but its practice as a social norm has acquired oppressiveproportions among Muslims. During the public hearings NCW found itselflistening to cases of dowry related atrocities from deponents all overthe country. Marriages are held up if dowry demand is not met. Cases ofdowry torture, dowry death and bride burning among Muslims are found ineach and every State - without exception." "The suffering anddeprivations of Muslim women is largely similar to those of the poor andoppressed women of other communities. The Public Hearings, however,brought out some important differences. All women suffer when they aredivorced or deserted. The Muslim Woman, suffers not only when she isdivorced or abandoned but lives her entire married life under the dreadthat her husband has the arbitrary power to divorce her and throw her outof the house along with the children at his slightest fancy. At anymoment he may bring into the house another woman as his second, third orfourth wife; the woman has no say in this regard. This burden ofinsecurity colours the entire life of a married Muslim woman. Sometimesshe is threatened by her in-laws that a second marriage will be arranged(for more dowry or male heir) and she will either have to accept dividingher meagre resources with the second wife or be slapped with a tripletalaq. All doors are firmly shut in her face, the law, which isapplicable to women of all other communities, is not for her. She mustaccept being on the streets after instantaneous triple talaq and tokenmehr (if any) because her personal law permits it and she must accept herhusband's multiple wives because that too is part of her personal law.As for mehr and maintenance, whereas it is equally a part of her personallaw, it is hardly ever recognised as an injunction by the men, who floutit, first by getting the Qazi to insert the most nominal amount in theNikahnama and second by refusing to pay maintenance, regardless of itscompulsory status. Although "Zero maintenance" is the norm for Muslimwomen across the length and breadth of the country, very few voices areraised in protest against this gross violation of Personal Law."

22. Reference was also made by counsel to the following portionsof the article by Professor Wener Menski on "Developments in Muslim Law -The South Asian Context", (2000) 3 SCC (Jour) 9, wherein it was observedabout talaq, "with Allah, the most detestable of all things permitted.".... "The various forms of divorce by the man are grouped under talaqassunna, comprising the talaq al-ahsan and the talaq al-hasan. Beyondthat, the so-called triple talaq the talaq al-bidah, is clearly aninnovation and is treated as less than ideal, because it does not allowreconsideration, and evidently bad for women. Not surprisingly, thetriple talaq has found favour with men, especially in South Asia, andthere has been widespread abuse of this male discretion to divorce. Theinstant effects of the triple talaq leave Muslim wives totally powerlessand, in the harsh social realities of South Asian life, husbands may noteven honour their obligations in terms of paying maintenance during the

iddat period and paying dower (mahr). This particular form of divorceclashes head-on with human rights focused concepts of modernity,especially because of its gender bias. Yet at the same time, the talaqis very modern as well, in that it allows freedom of choice to theindividual. The difficulty is, of course, that the talaq gives menunilateral power over women and children, and such powers and discretionmay be abused too easily, thus creating a definite gender imbalance whicha modern state may wish to reduce."

23. Counsel submitted that it is acknowledged by the scholars inthe field that Talaq-ul-biddat does not conform to the Quranicinjunctions and is an innovation made about two centuries later to avoidrestrictions and limitations subject to which divorce was regarded aspermissible in the Quran. This later innovation has, however, been atall times regarded as sinful. Though in some cases the Courts have heldthat this form of talaq, though sinful, is nevertheless valid in law,this form of talaq is violative of the fundamental rights of the Muslimwomen who are the victims of it's capricious exercise. The adverseconsequence on the children was also emphasised by the counsel.

24. Counsel pointed out that the family law of Muslims in Indiahas not so far been codified by statute. The principal preconstitutionalenactments governing Muslim Family Law being Muslim Personal Law(Shariat) Application Act, 1937 and Dissolution of Muslim Marriages Act,1939. The Shariat Act makes Muslim law applicable to all Muslims inrespect of matters referred to in Section 2 which reads as under:"Notwithstanding any custom or usage to the contrary, in all questions(save questions relating to agricultural land) regarding intestatesuccession, special property for females including personal propertyinherited or obtained under contract or gift or any other provision ofpersonal law, marriage, dissolution of marriage, including talaq, Ila,Zihar, Li'an, Khula and Mubarrat, maintenance, dower, guardianship,gifts, trusts and trust properties, and wakfs (other than charities andcharitable institutions and charitable and religious endowments), therule of decision in cases where the parties are Muslims shall be theMuslim Personal law (Shariat). " The Dissolution of Muslim Marriages Actsets out the grounds on which Muslim women can claim divorce. It doesnot deal with grounds on which or the procedure to be followed when thedissolution is at the instance of the husband. After the judgment of theSupreme Court in the case of Mohammed Ahmed Khan vs. Shah Ba no Begum,(1985) 2 SCC 55 6, Parliament enacted Muslim Women (Protection of Rightson Divorce) Act, 1986 (Act 25 of 1986), which Act, as held by theConstitution Bench of the apex Court in the case of Daniel Latifi vs.Union of India, (2001) 7 SCC 740, requires that the Muslim husbands makereasonable and fair provision for the future of the divorced wife withinthe iddat period.

25. Learned counsel for the petitioner invited our attention tothe decision of Justice Khalid, who later adorned the Supreme Court, inthe case of Mohammed Haneefa vs. Pathummal Beevi, 1972 Ker LT 512,wherein the learned Judge after referring to the unbridled power of a Muslim husband to divorce his wife, asked: - "Should muslim wives sufferthis tyranny for all times? Should their personal law remain so crueltowards these unfortunate wives? Can it not be amended suitably toalleviate their sufferings? My judicial conscience is disturbed at thismonstrosity."

26. Attention was also invited by counsel to the observations ofJustice Krishna Iyer in the case of Yousuf Rawther vs. Sowramma, AIR 1971 Ker 261 that, "......Since infallibility is not an attribute of thejudiciary, the view has been ventured by Muslim jurists that theIndo-Anglian judicial exposition of the Islamic law of divorce has notexactly been just to the Holy Prophet or the Holy Book. ...............The view that the Muslim husband enjoys an arbitrary, unilateral power toinflict instant divorce does not accord with Islamic injunctions. "

27. It was also observed in that decision that, ".. However,Muslim law, as applied in India, has taken a course contrary to thespirit of what the Prophet or the Holy Quoran laid down and the samemisconception vitiates the law dealing with the wife's right to divorce."The learned Judge quoted from Dr.Ahmed Galwash's book on `the Religion ofIslam', wherein it is stated that, "it is only when all efforts foreffecting reconciliation have failed, the parties may proceed to adissolution of marriage by 'Talak' or 'Khola'."

28. Reference was also made in that decision to the book - Holy Quaran by Moulana Muhammed Ali, wherein the learned author afterreferring to the verse in the Quran, - "And if ye fear a breach betweenhusband and wife, send a judge out of his family, and a judge out of herfamily; if they are desirous of agreement, God will effect areconciliation between them; for God is knowing and appraised of all" ,has explained the verse thus: -- "This verse lays down the procedure tobe adopted when a case for divorce arises. It is not for the husband toput away his wife; it is the business of the judge to decide the case.Nor should divorce cases be made too public. The judge is required toappoint two arbiters, one belonging to the wife's family and the other tothe husband's. These two arbiters will find out the facts but theirobjective must be to effect a reconciliation between the parties. If allhopes of reconciliation fail, a divorce is allowed, but the finaldecision for divorce rests with the judge who is legally entitled topronounce a divorce. Cases were decided in accordance with thedirections contained in this verse in the early days of Islam." Thepermissible form of divorce which form is not sinful, was described bythe learned Judge in that decision as disclosing a surprisingly rational,realistic and modern law of divorce.

29. Learned counsel invited our attention to the case of ZeenatFatema Rashid vs. Md. Iqbal Anwar, 1993 (2) Crimes 853, a decisionrendered by a Division Bench of Gauhati High Court which referred to thedecisions of the Bombay High Court in the case of Sarabai vs. Rabiabai,ILR 30 Bom. 537, of Madras High Court in the case of Asha Bibi vs. KadiIbrahim, ILR 33 Madras 22 and of Calcutta High court in the case of Ahmed Kasim Molla vs. Khatun Bibi, ILR 59 Cal 833 all of which had beenconsidered by Justice Beharul Islam, who later adorned the Supreme Court,in the case of Jiauddin ahmed vs. Anwara Begum, (1981) 1 GLR 358,wherein the learned Judge had held that the divorce must be for areasonable cause, and must be preceded by an attempt for reconciliationbetween the husband and wife by two arbiters, one chosen by the wife fromher family and the other by the husband from his side. That decision ofJustice Islam was approved by a Division Bench of Gauhati High Court inthe case of Rukia vs. Abdul Khalique, (1981) 1 GLR 375.

30. The Division Bench in the case Zeenat Fatema Rashid, 1993(2) Crimes 853 after referring to the relevant verses in the Holy Quranheld that, "The Quran discourages divorce and it permits only in extremecases after pre-divorce conference. Therefore, a Mahomedan husband,cannot divorce his wife at his whim and caprice. The question then is, -whether, if divorce by talak is made arbitrarily, it should be treated asspiritual offence only? ...Marriage is the basis for social organisationand foundation of legal rights and obligations. ...... Under Section 7of the Family Court Act, 1984, cases relating the matrimonial status ofany person are within the jurisdiction of the Family Court. The FamilyCourt aims at reconciliation and persuasion of parties to arrive at asettlement. For these reasons, if a Mahomedan husband divorces his wifeat his whim and caprice, it would not only be a spiritual offence, but itwould also affect the divorce. In the above view of the matter, aMahomedan husband cannot divorce his wife at his whim and caprice, thatis, divorce must be for a reasonable cause, and it must be preceded by apre-divorce conference to arrive at a settlement......."

31. Counsel then referred to the decision of a learned singleJudge of this Court Sidickk, J., in the case of Saleem Basha vs. MumtazBegam, 1998 Cri. L.J. 4782, wherein the learned Judge considered thequestion as to whether talaq that had been pleaded in that case was validin Mohammedan law. After finding that no attempt at reconciliation hadpreceded the triple talaq, such talaq having been pronounced after thewife had brought a claim for maintenance, after quoting with approval theobservations of Justice Beharul Islam of the Gauhati High Court in thecase of Jiauddin Ahmed vs. Anwara Begum, (1981) 1 GLR 358, the learnedJudge held that divorce under Muslim law can be held to have been dulyeffected only when it does not violate the injunctions of Quran. Thelearned Judge quoted with approval the observations of Baharul Islam,that, "In my view the correct law of talaq as ordained by the HolyQuran is that talaq must be for a reasonable cause and be preceded byattempts at reconciliation by two relations, one each of the parties, isan essential condition precedent to talaq. It is fallacy that a Muslimmale enjoys, under the Quranic law, unbridled authority to liquidate themarriage. The Holy Quran expressly forbids a man to seek pretext fordivorcing his wife, so long as she remains faithful and obedient to him."

32. The learned single Judge referred to the decision of theSupreme Court in the case of Fazlunbi vs. K.Khader Vali, AIR 1980 SC 1730 wherein the decision of Justice Beharul Islam was referred to with approval, the Supreme Court in that decision having observed - " Beforewe bid farewell to Fazlunbi it is necessary to mention that Chief JusticeBeharul Islam in an elaborate judgment replete with quotes from the HolyQuoran, has exposed the error of early English authors and Judges, whodealt with talaq in Muslim law as good even if pronounced at whim or intantrum and argued against the diehard view of Batchelor, J., ILR (1906)30 Bombay 537 (539), that this view is good in law, though bad intheology."

33. Justice Sidickk, in conclusion in paragraph 24 of his

judgment held that there must be an attempt at reconciliation beforedivorce, and that divorce must be preceded among Muslims by an attempt atreconciliation between the husband and wife by two mediators - one chosenby the wife from her family and the other by the husband from his side,"in the above view of the matter a Mohomedan husband cannot divorce hiswife at his whim or caprice, i.e., divorce must be for a reasonable causeand it must be preceded by a pre-divorce conference to arrive at asettlement. Even if there is any reasonable cause for the divorce, yetthere must be evidence to show that there was an attempt for a settlementprior to the divorce and when there was no such attempt prior to divorceto arrive at a settlement by mediators, then there cannot be a validdivorce under Mohomedan Law."

34. Lastly, reference was made to a judgment rendered by a learned single Judge of Karnataka High Court in the case of Zulekha Begumvs. Abdul Raheem, 2000 (2) Kar. L.J. 70. In that case also referencewas made to the decisions of Justice Beharul Islam of Gauhati High Courtin the case of Jiauddin ahmed vs. Anwara Begum, (1981) 1 GLR 358, ofJustice Khalid of Kerala High Court in the case of Mohammed Haneefa vs.Pathummal Beevi, 1972 Ker LT 512, of Justice Sidickk of this Court in thecase of Saleema Basha vs. Mumtaz Begam, 1998 Cri. L.J. 47 82 as alsoto the decision of the Calcutta High Court in the case of Ahmed KasimMolla vs. Khatun Bibi, ILR 59 Cal 833 and it was held that a Muslimhusband cannot divorce his wife at his whim and caprice and that thedivorce must be for a reasonable cause and must be preceded by attemptsby arbiters nominated by the families of the parties and it is only whensuch attempts fail, divorce can be effected.

34. Learned counsel for the petitioner submitted that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, ifconstrued as taking within it's fold Talaq-ul-biddat, to that extent itis violative of the fundamental rights of Muslim wives under Articles 14, 15 and 21 as also 25 of the Constitution, and that in any event therecan be no talaq unless it is preceded by attempts at reconciliation andsufficient time for reconsideration, as talaq being in itselfundesirable, it is not to be resorted to at the whim and caprice of thehusband, and can only be effected for a reasonable cause after deepconsideration and sincere attempts of reconciliation.

35. Learned counsel for the petitioner in this context also invited our attention to the law laid down and observations made by the

Constitution Bench of the apex Court in the case of Daniel Laitifi vs.Union of India, 2001 7 SCC 740. The apex Court at paragraph 20 observedthus, "In interpreting the provisions where matrimonial relationship isinvolved, we have to consider the social conditions prevalent in oursociety. In our society, whether they belong to the majority or theminority group, what is apparent is that there exists a great disparityin the matter of economic resourcefulness between a man and a woman. Oursociety is male dominated, both economically and socially and women areassigned, invariably, a dependent role, irrespective of the class ofsociety to which she belongs. A woman on her marriage very often, thoughhighly educated, gives up her all other avocations and entirely devotesherself to the welfare of the family, in particular she shares with herhusband, her emotions, sentiments, mind and body, and her investment inthe marriage is her entire life - a sacramental sacrifice of herindividual self and is far too enormous to be measured in terms of money.When a relationship of this nature breaks up, in what manner we couldcompensate her so far as emotional fracture or loss of investment isconcerned, there can be no answer. It is a small solace to say that sucha woman should be compensated in terms of money towards her livelihoodand such a relief which partakes basic human rights to secure gender andsocial justice is universally recognised by persons belonging to allreligions and it is difficult to perceive that Muslim law intends toprovide a different kind of responsibility by passing on the same tothose unconnected with the matrimonial life such as the heirs who werelikely to inherit the property from her or the Wakf Boards. Such anapproach appears to us to be a kind of distortion of the social facts.Solutions to such societal problems of universal magnitude pertaining tohorizons of basic human rights, culture, dignity and decency of life anddictates of necessity in the pursuit of social justice should beinvariably left to be decided on considerations other than religion orreligious faith or beliefs or national, sectarian, racial or communalconstraints. "

36. The Court in that case was concerned with the constitutionalvalidity of the Muslim Women (Protection of Rights on Divorce) Act 198 6(Act 25 of 1986). The Court held that reasonable or fair provision forthe future of the divorced wife obviously includes her maintenance aswell, and such a reasonable and fair provision in terms of Section3(1)(a) of the Act is not limited to the iddat period and extends for theentire life of the divorced wife unless she remarries. The Court heldthat the emphasis in the section is not on the nature or duration of such"provision" or "maintenance", but at the time within which an arrangementfor the payment of provision and maintenance should be made and executed.The Court also held that to construe the provisions of the Act as lessbeneficial than the provisions under Chapter IX of the Code of CriminalProcedure and to hold that the husband is liable to pay maintenance onlyfor the iddat period would result in unreasonable discrimination againstdivorced muslim women and would render the Act violative of Articles 14,15 and 21. The validity of the Act was upheld.

37. One of the added respondents opposed the prayer in the writ petition and submitted that this form of talaq, though sinful, had beenrecognised for a long period of time and that the Courts had in theearlier decisions held that this form of talaq though bad in theology,the same was good in law. It was also submitted that any modification ofthe Personal Law can only be made by statute and further that PersonalLaw cannot be regarded as being violative of any of the rights given inPart III of the Constitution.

38. Learned Additional Solicitor General submitted that PersonalLaws fall outside the ambit of Article 13 of the Constitution, andtherefore, the question of declaring any part of the Personal Law of anysection of the population of this country as being void on account ofinconsistency with the rights guaranteed under Part III of theConstitution, does not arise. Counsel referred to the decision of theBombay High Court in the case of State of Bombay vs. Narasu Appa Mali,AIR 1952 Bom 84, to the decision of the Supreme Court in the case ofKrishna Singh vs. Mathura Ahir, AIR 1980 SC 707 and finally to thedecision of the apex Court in the case of AWAG vs. Union of India, 1 9973 SCC 573. Counsel submitted that the Courts in the past have regardedtalaq-ul-biddat 'though bad in theology, as valid in law'. The decisionof the Jammu and Kashmir High Court in the case of Ahamed Giri vs. Mst.Begha, AIR 1955 J & K 1 as also the decision of this Court in the case ofAsha Bibi vs. Kadir Ibrahim Rowther, XXXIII (1907 ) ILR 22 were referredto.

39. In the case of State of Bombay vs. Narasu Appa, AIR 1952Bombay 84, the High Court examined the validity of the Bombay Preventionof Hindu Bigamous Marriages Act and held that it was not discriminatoryby reason of bigamous marriages among other communities not having beendeclared illegal, and that the Personal Law of the different religiouscommunities had not, to the extent of inconsistency with the rightsguaranteed under Part III of the Constitution, become void after theConstitution came into force. It was held that 'laws in force' referredto in Article 13 (1) does not include 'Personal Law'. The observationsmade by Chagla, CJ and Gajendragadkar, J, in this case were approved bythe three Judge Bench of the apex Court in the case of AWAG, (1997) 3 SCC573.

40. In the case of Krishna Singh vs. Mathura Ahir, AIR 1980 SC707 a two Judge Bench of the apex Court considered the impact of Part IIIof the Constitution on Personal Laws. At paragraph 17 of the judgment,it was observed thus: "It would be convenient, at the outset, to dealwith the view expressed by the High Court that the strict rule enjoinedby the Smriti writers as a result of which Sudras were considered to beincapable of entering the order of yati or sanyasi, has ceased to bevalid because of the fundamental rights guaranteed under Part III of theConstitution. In our opinion, the learned Judge failed to appreciatethat Part III of the Constitution does not touch upon the Personal Lawsof the parties ......"

declined to entertain the challenge made to certain aspects of the MuslimPersonal Law, and to certain portions of statutes governing the HinduPersonal Law, the challenge being based on the ground that those aspectswere violative of Articles 13, 14, 15 and 21 of the Constitution. TheCourt rejected the challenge by holding that they are issues of statepolicy with which the Court will not ordinarily have any concern and thatthe remedy lies somewhere-else and not by knocking at the doors of theCourts. The prayers made in those petitions under Article 32 includedprayers to declare as void and unconstitutional, aspects of MuslimPersonal Law concerning polygamy and unilateral divorce by the husbandwithout the consent of his wife and without resort to the judicialprocess.

42. The Supreme Court in it's recent decision in the case ofShamim Ara vs. State of U.P., 2002 AIR SCW 4162, has examined thepreconditions for a valid talaq in Muslim Personal Law. The SupremeCourt referred to the observations of Justice Khalid in the case ofMohammed Haneefa vs. Pathummal Beevi, 1972 Ker LT 512, of JusticeV.R.Krishna Iyer, in the case of Yousuf Rawther vs. Sowramma, AIR 1971Ker 261 and those of Beharul Islam, J. sitting singly in Gauhati Highcourt in the case of Jiyauddin ahmed vs. Anwara Begums, (1981) 1 GauhatiLR 35 8 and later speaking for the Division Bench in the case of RukiaKhatun vs. Abdul Khalique Laskar, (1981) 1 Gauhati LR 375.

43. Paragraph 13 of that judgment reads as under: "There is yetanother illuminating and weighty judicial opinion available in twodecisions of Gauhati High Court recorded by Baharul Islam, J. (later aJudge of the Supreme Court of India) sitting singly in Sri Jiauddin Ahmedvs. Mrs.Anwara Begum, (1981) 1 GLR 358 and later speaking for theDivision Bench in Must. Rukia Khatun vs. Abdul Khalique Laskar, (1981)1 GLR 375. In Jiauddin Ahmed's case, a plea of previous divorce, i.e.,the husband having divorced the wife on some day much previous to thedate of filing of the written statement in the Court was taken andupheld. The question posed before the High Court was whether there hasbeen valid talaq of the wife by the husband under the Muslim Law? Thelearned Judge observed that though marriage under the Muslim Law is onlya civil contract yet the rights and responsibilities consequent upon itare of such importance to the welfare of humanity, that a high degree ofsanctity is attached to it. But in spite of the sacredness of thecharacter of the marriage-tie, Islam recognizes the necessity, inexceptional circumstances, of keeping the way open for its dissolution.(Para 6). Quoting in the judgment several Holy quaranic verses and fromcommentaries thereon by wellrecognized scholars of great eminence, thelearned Judge expressed disapproval of the statement that "the whimsicaland capricious divorce by the husband is good in law, though bad intheology" and observed that such a statement is based on the concept thatwomen 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 mustbe for a reasonable cause and be proceeded by attempts at reconciliationbetween the husband and the wife by two arbiters - one from the wife'sfamily and the other from the husband's; if the attempts fail, talaq may

be effected (Para 13). In Rukia Khatun's case, the Division Bench statedthat the correct law of talaq, as ordained by Holy Quaran, is : (i) that'talaq' must be for a reasonable cause; and (ii) that it must beproceeded by an attempt of reconciliation between the husband and thewife by two arbiters, one chosen by the wife from her family and theother by the husband from his. If their attempts fail, 'talaq' may beeffected. The Division Bench expressly recorded its dissent from theCalcutta and Bombay view which, in their opinion, did not lay down thecorrect law." 44. At paragraph 14 of that judgment, the apex Courtheld, "We are in respectful agreement with the above said observationsmade by the learned Judges of High Courts. We must note that theobservations were made 20-30 years before and our country has in recenttimes marched steps ahead in all walks of life including progressiveinterpretation of laws which cannot be lost sight of except bycompromising with regressive trends. "

45. Thus, the law with regard to talaq, as declared by the apexCourt, is that talaq must be for a reasonable cause and must be precededby attempt at reconciliation between the husband and the wife by twoarbiters one chosen by wife's family and the other from husband's familyand it is only if their attempts fail, talaq may be effected.

46. The judgment of Justice Sidickk of this Court in the case ofSaleem Basha, 1998 Cri.L.J. 4782 to which we have referred earlier, isin conformity with the law now declared by the Supreme Court in the caseof Shamim Ara, 2002 AIR SCW 4162. The earlier judgments to the contrary,of this Court and of other High Courts can no longer be regarded as goodlaw.

47. The grounds on which the petitioner has sought a declarationthat Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 in so far as it seeks to recognise and validate Talaaq-ul-Biddat orTalaaq-i-Badai form of divorce, as void and unconstitutional, are mainlythat it does not provide for reconsideration and is not preceded byattempts at reconciliation.

48. Having regard to the law now declared by the apex Court inthe case of Shamim Ara, 2002 AIR SCW 4162, talaq, in whatever form, mustbe for a reasonable cause, and must be preceded by attempts forreconciliation by arbiters chosen from the families of each of thespouses. The petitioner's apprehension that notwithstanding absence ofcause and no efforts having been made to reconcile the spouses, this formof talaq is valid, is based on a misunderstanding of the law.

49. Muslim Personal Law (Shariat) Act, 1937 provides for theapplication of Muslim Personal Law to all questions regarding, interalia, "...marriage, dissolution of marriage, including talaq, ila, zihar,lian, Khula and mubaraat ......". That Act is clearly a legislationdealing with Personal Law. Section 2 of that Act, in whole or in part,cannot, having regard to the decisions of the apex Court in the case ofAWAG, 1997-3 SCC 573, and in the case of Krishna Singh vs. Mathura Ahira, AIR 1980 SC 707, be declared as void or unconstitutional by reasonof any inconsistency with Part III of the Constitution.

50. The prayer made in the writ petition, therefore, cannot begranted. The writ petition is dismissed.

( R.J.B.,J.) (E.P.,J.)27.12. 2002Index : Yes Net : Yes mf