Noorjehan Safia Niaz of the Bharatiya Muslim Mahila Andolan, an intervenor in the Shayara Bano PIL before the Supreme Court, advances a mature and nuanced viewpoint in a vitiated political climate.
From May 11 onwards, the constitution bench of the Supreme Court is slated to hear a petition seeking major changes in Muslim personal law. Shayara Bano has filed a PIL challenging the practice of triple talaq and polygamy as unconstitutional and unfairly discriminatory towards women.
It is an important case, in which several organisations have intervened, notably the All India Muslim Personal Law Board (AIMPLB) and the activists of the Bharatiya Muslim Mahila Andolan (BMMA).
Chief among the issues that arise is whether any personal law is amenable to a constitutional challenge. The governing legislation is a law of 1937, the Muslim Personal Law (Shariat) Application Act, 1937,which tautologically refers disputes relating to Muslim personal law to the Muslim Personal Law (Shariat). But scholars say that the Shariat is far wider than personal law, which may at best, be a subset of the former. Is the Shariat amenable to a constitutional challenge? What nature of right is polygamy?
While the AIMPLB appears to resent any intervention at all in the practices of the Muslim community, Noorjehan Safia Niaz, co-founder of the BMMA, has taken a more nuanced stand.
Some say that there are already Supreme Court judgments outlawing triple talaq. Niaz points out that while these judgments have ruled against hasty divorces in general, in actual terms there is no authoritative ruling of the Supreme Court outlawing triple talaq as a mode of divorce. She says that judgments of the Delhi high court and the Kerala high court frontally hold that instantaneous talaq as a form of divorce is contrary to the Shariat principles. This principle the Supreme Court must now uphold.
Niaz also indicates that the introduction of this instantly operative talaq in India was aided by British judges, who followed scholars selectively to validate it, rather than heed Quranic precepts. With an apologetic adage “bad in theology, good in law” British judges upheld the practice, choosing advice from two notable commentators over others, that although religion considers it sinful, it is legally binding. That is, no school of Muslim jurisprudence other than two Sunni sects permit triple talaq, but they too regard it as sinful. And the Prophet disapproved of it. Thereby arose the phrase “bad in theology, good in law”.
It is also Niaz’s plea that polygamy, although definitely discriminatory, must be outlawed only by the legislature as it will directly set in motion the criminal law applying to bigamy. Striking down a norm of marriage as invalid has many more civil consequences than invalidating a form of divorce, for it is linked to the legitimacy of children and rights of inheritance.
Besides, there are communities other than Muslims that permit polygamy and polyandry in India that will be affected by such a ban.
Niaz has referred to a Law Commission report of 2009 which reveals that violation of the bar on polygamy is rampant among Hindus, and that it is rare among Indian Muslims.
When law has enforced monogamy upon a community that has traditionally been polygamous, it has had to provide for many allied matters. For example, the Hindu Marriage Act does not stop at declaring, via Section 11, that bigamous and polygamous marriages are void. By Section 16 it also makes provision in respect of the legitimacy and rights of inheritance of children of void and voidable marriages. Codification of this nature will have to accompany the voidance of polygamy, which the legislature is better equipped to do. A simple outlawing of polygamy by a writ will not take care of these attendant details.
Furthermore all the legislations of personal law that declare bigamy to be void, also specifically incorporate the application of Sections 494 and 495 IPC in that regard. The court would have to further engage in such a stipulation that is otherwise to be done by the legislature.
Below, we bring you excerpts from Niaz’s written submissions to the Supreme Court. Representing the BMMA, she has been impleaded as an intervenor, the respondent No.10. The text has been reproduced as per The Wire’s editorial style. To make the text more accessible to our readers we have used sub-headings and removed the citations from the judgments. In some places, we have provided brief explanations, enclosing them within square brackets to clarify that these explanations are not part of the original text, and highlighted specific passages.
The two main issues that arise in this case are:
- [the] validity of talaq-e-bidaat (commonly and incorrectly referred to as triple talaq); and
- [the] validity of polygamy as a permissible practice in Muslim personal law.
Associated with the issue of talaq-e-bidaat is the practice of nikah halala (a precondition that a divorced couple may not remarry until the erstwhile wife has been married to and divorced by another man. It applies to a triple pronouncement of divorce by a husband)
Instantaneous divorce invalid as per the Muslim Personal Law
The respondent No.10 [Noorjehan] submits that talaq-e-bidaat, a mode of divorce that operates instantaneously, is completely invalid even in terms of the Muslim Personal Law and so there is no need to issue a writ to strike it down.
It would suffice to uphold the Delhi high court’s ruling in Masroor Ahmed v State (NCT of Delhi) & Anr. (2007) that talaq-e-bidaat or an instantaneous divorce is invalid as per the Muslim personal law, an utterance of talaq by the husband will not take effect until the term of iddat [three menstrual cycles or three months] has passed, and even then the couple may remarry without resort to halala. The invalidation of talaq-e-bidaat is sufficient to render halala inoperative in reality.
Outlawing polygamy a matter for the legislature
On polygamy, the respondent No.10 submits that divergent marital norms for men and women without nexus to a reasonable object would be unfair discrimination [that is, different treatment can only be defended if the classification is based on an intelligible distinction, and which has a nexus with a legitimate object or purpose].
Yet, there are overwhelming reasons why outlawing of polygamy in Muslim personal law should be done by the legislature and not by a judicial writ.
Chief among these reasons is the fact that declaring a bigamous or polygamous marriage void will set in motion penal consequences under Section 494 Indian Penal Code. A law that will render a marriage void so as to result in penal consequences ought to be law passed by legislature. Invalidating a norm of marriage has greater civil consequences than invalidating a form of divorce. The validity of a marriage is linked to the legitimacy of children and rights of inheritance. Therefore, invalidating a norm of marriage would require extensive codification to provide for attendant facets, and is better left to the legislature. In fact, the prayer to strike down the Shariat Act 1937 to the extent it recognises polygamy is to all intents and purposes, a prayer demanding legislation.
The Muslim Personal Law (Shariat) Application Act, 1937 (the 1937 Act for short) does not by itself refer to or ratify polygamy, or any other practice for that matter. The statute is referential and merely states that in disputes regarding any “provision of personal law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship…the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”
The issue really is whether [the] Shariat recognises polygamy and if so where the remedy against that must be found. Often [it is] called the canon law of Islam. According to Fyzee, it is “totalitarian”, covering the whole range of human activity, consisting of injunctions of approval or disapproval. It consists of what is morally ordained, what is forbidden and what is a matter of indifference.
On a scale of approval, there is a five-fold classification of human conduct. Polygamy is neither ordained nor prohibited and is thus jaiz [permissible]. Therefore, the prayer in the writ is really to strike down the Shariat’s failure to bar polygamy. That is to say, the prayer actually amounts [to] asking this court to read into Section 2 of the 1937 Act after the words “the rule of decision…shall be the Muslim personal law (Shariat)” words to the effect “except insofar as the Shariat fails to ban polygamy”. Thus the prayer is seeking a veritable exercise in legislation. With respect, this is a matter in the realm of the legislature.
Myth of Muslims as a whole being resistant to reform, especially in the case of women’s rights
Islam, from the inception recognised rights for women that other communities did not. Statutory rights of divorce were also conferred on Muslim women far ahead of those belonging to other communities. Islam came as a movement of reform of the existing social order. Even in the 7th century, Islam granted a woman the right of divorce and remarriage.
The 1937 Act and its recognition of the Muslim Personal Law (Shariat) to the exclusion of all contrary usage [customary practices], was at the behest of not only Muslim men but also Muslim women and their organisations. As far back as in 1939, a statute was passed enabling judicial recourse to a Muslim wife seeking to end her marriage. The prevalent discourse suggesting that Muslims are resistant to personal law reform is contrary to historical fact. Legislative changes were initiated by the community in the past and the legislative option is appropriate for addressing the issue of polygamy as well.
Polygamy for Muslims in India is not barred, as is the case under the Hindu Marriage Act, the Christian Marriage Act, and the Parsi Marriage Act. Sections 11 and 17 of the Hindu Marriage Act, Sections 4 and 5 of the Parsi Marriage & Divorce Act and Section 61 of the Indian Divorce Act declare a bigamous marriage void and expressly apply the penal provisions under Sections 494 and 495 of the IPC to such a marriage.
By contrast, a polygamous Muslim marriage is not void. In fact under the 1939 Act a husband’s subsequent marriage constitutes a ground for the wife to seek a divorce, by alleging unequal treatment. Furthermore, this court has held that a Muslim wife may legitimately refuse to live with a husband who has contracted another marriage. She may also plead such a refusal to live with the husband while claiming maintenance under Section 125 CrPC.
Yet, Muslim personal law does not recognise an unfettered right in a man to take several wives. The addendum to Fyzee categorically states that bigamy is certainly not an essential practice in Islam. “It was only permitted, subject to very severe conditions that are almost impossible to comply with. The Quranic verses on bigamy in fact end with a ‘better not’ exhortation asserting that in order to avoid injustice bigamy should be avoided.”
However, as the Law Commission has observed, the conditions or fetters are not easily justiciable and an aggrieved wife in this regard can only assert the right of separate residence or the option of a divorce. Therefore, polygamy is neither compulsory nor an essential religious practice.
Consequences if court invalidates polygamy
The legal position until now has been that ‘personal law’ is not covered by Article 13 [as per Article 13, laws in force at the time of the adoption of the constitution are void if they contravene fundamental rights] and also not amenable to interference by way of a writ. Therefore, unlike talaq-e-bidaat that can be invalidated on the strength of the Muslim personal law itself, the outlawing of polygamy by a writ under Article 32 is an altogether different proposition.
The outlawing of polygamy by this court will directly lead to penal consequences. Section 494 IPC criminalises the contracting of a marriage that is void in law on account of being done during the subsistence of an earlier marriage.
Since polygamy is not expressly barred or void under Muslim personal law and a second marriage during the subsistence of an earlier one, is not void, currently Muslims are not covered by Section 494 IPC. Section 494 of the IPC envisages as the basis of applicability, a personal law enforcing monogamy and rendering a bigamous marriage void. A judicial declaration of invalidity was not within the contemplation of the provision.
This is also evident from Section 17 of the Hindu Marriage Act, Sections 43 and 44 of the Special Marriages Act, Sections 4 and 5 of the Parsi Marriage Act, Section 61 of the Indian Divorce Act and Section 12 of the Matrimonial Causes Act, which expressly declare not only that bigamous marriages are void but also that they would invite prosecution under Section 494 IPC.
Any law upon which a criminal offence can be constructed must be one enacted by the legislature. Courts cannot create a new criminal offence. By ascribing a void status to a polygamous Muslim marriage when no statute or personal law declares this to be so, this court will be creating a new criminal offence, or at least making Muslim men vulnerable to prosecution for an existing offence, from which their personal law renders them immune. Such a consequence ought only be set in motion by the legislature. By declaring polygamy to be void, this Court will not be merely interpreting an existing law but actually amending Muslim personal law.
In this context, the respondent No. 10 submits that it would, be worthwhile for this court to revisit the question whether adultery and bigamy should at all be criminal offences.
A yardstick for courts to interfere with personal laws
Even granting that a writ court could interfere with personal law to protect fundamental rights, respondent No.10 submits that there should be a threshold test that reveals that it is absolutely compelling for the court to do so. Personal laws of most communities evolved from patriarchal practices that were invariably unjust to women. If they are all to be put to the test of Article 14, there will be no end to it. Practices such as kanyadan and saptapadi among the Hindus would be thrown open to judicial scrutiny.
More particularly, asymmetric guardianship and adoption provisions in the Hindu Code would also have to bear judicial scrutiny. The reason why personal laws were generally held to be exempt from such scrutiny is probably that they go to the root of private lives of citizens. The occurrence of polygamy among Muslims is not of a frequency that calls for an immediate writ from this court. In fact, a survey in 1975 found that the incidence of polygamy was higher among Hindus, even though their law prohibited the practice. The Law Commission’s 227th report suggests that this continued to be the case even in 2009.
There are other polyandrous and polygamous communities that will be affected by this courts’ ruling on polygamy, which are not before this court in the present matter. Besides, the sociological causes of polyandry or polygamy will have to be addressed if law is to overhaul these practices.
Muslim personal laws currently prescribe an entire system of inheritance and succession that inherently recognises polygamy as valid. If polygamy were delegitimised, then the inheritance and property rights of many women and their children would be adversely affected (…for instance rights of consanguine brothers and sisters; half brothers and sisters). Thus, the legislature is best suited to holistically examine the issue and bring about the necessary reforms.
The question of reforming various aspects of Muslim personal law has come up time and again before this…court as well as the various high courts of the country. Mostly, the courts in these cases have taken a view that even if personal law has to be reformed this must be done by the legislature and not the courts.
Talaq-e-bidaat or ‘triple talaq’
There are many forms of divorce recognised by the Muslim Personal Law, including divorce by mutual consent (mubaraat), a delegated right of divorce to the wife (tafweez) and also khula [divorce] at the instance of the wife that often, but not necessarily, involves a forfeit of her right to maintenance.
Of all these forms [of divorce], the modes available to the husband are chiefly two, ahsan and hasan. Indeed, the Quran does not recognise talaq-e-bidaat, and the Prophet considered only two forms of divorce by the husband to be valid – ahsan and hasan. No school of Muslim jurisprudence, save two Sunni schools, recognise talaq-e-bidaat as a mode of divorce. The Shia schools do not recognise it at all. Only two among the several Sunni schools allow talaq-e-bidaat as a mode of effecting a severance of the marital tie, but they too hold this mode of divorce to be sinful.
‘Triple’ talaq a misnomer
Calling talaq-e-bidaat, triple talaq is a bit of a misnomer. Three utterances occur both in hasan and the bidaat form, and in the latter, a triple utterance is not invariable. Even a single sentence uttered with emphatic clarity suffices as bidaat. Notably, nikah halala attaches only when talaq is uttered three times (in hasan and [in] the three sentence version of bidaat) and not in its single sentence variant. See Bombay high court judgment in Sabah Sami Khan v Adnan Sami Khan (2010). Nikah halala only attaches to a talaq when it has been pronounced thrice. Even bidaat pronounced in one sentence does not invite halala.
However, entering into these nuances is completely unnecessary, if the view is taken that any number of utterances at one sitting will constitute only one single revocable utterance, which cannot take effect until the iddat term is over. If instantaneous talaq is held invalid then halala will be rendered effectively inoperative. The practice of halala is, anyway, quite rare in occurrence,
‘Bad in theology but good in law’ – triple talaq a colonial contrivance?
Whether talaq-e-bidaat really has recognition even in the Hanafi sects at all, or whether it was contrived into currency in the course of British codification, is a moot point. The Quran does not sanction instantaneous talaq, and it was a subsequent improvisation that crept into the Hanafi school. In India, the British judges before independence read instantaneous talaq into the Anglo-Muhammedan law through the judgments pronounced by them on the subject.
The noted legal and constitutional scholar A. G. Noorani has said that by holding the Hedaya and Baillie over the Quran, the British judges made a huge blunder including upholding triple talaq. Sarabai vs. Rabiabai was decided by Justice Batchelor of the Bombay high court on December 9, 1905, “where this sinful talaq was upheld”.
Judgments of free India
After the adoption of the constitution in India, various high courts, even this court [Supreme Court] in Shamim Ara’s case, refused to adopt the adage that instantaneous talaq is “bad in theology but good in law”. In light of the Quranic injunctions and hadiths, courts of free India have reassessed the whole concept of instantaneous talaq as also divorce generally under Muslim personal law.
One of the earliest such decisions was A. Yusuf Rather v. Sowramma , wherein, in the context of khula (divorce at the instance of wife), Krishna Iyer J. critiqued some of the views taken by British courts as stemming from an incorrect understanding of the Muslim personal law.
It was observed as follows:
“Since infallibility is not an attribute of the judiciary, the view has been ventured by Muslim jurists that the Indo-Anglian judicial exposition of the Islamic law of divorce has not exactly been just to the Holy Prophet or the Holy Book.
“Commentators on the Quran 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 Quran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce.”
Delhi high court’s decision of 2007 outlawing instantaneous triple talaq
The Delhi high court has, in Masroor Ahmed v State ILR (2007), held that a talaq that comes into operation instantly is invalid as per the Muslim personal law. An utterance at one sitting of the nature that passes as talaq-e-bidaat, will tantamount to one revocable utterance that will, provided other conditions are fulfilled, come into effect only after the iddat period. During the iddat period it is revocable and reconciliation may be tried by mediators too. While it does become effective after the iddat period if not earlier revoked, the parties may still come together by contracting a fresh marriage.
The Delhi high court judgment draws upon the Shariat to come to its conclusion. The respondent submits that the declaration in Masroor Ahmed’s case that talaq-e-bidaat as effecting an instantaneous divorce is un-Islamic and invalid even as per the Shariat, may be upheld as the correct position in law.
The Allahabad high court in Rahmat Ullah v. Khatoon Nisa, II (1994) has held triple talaq to be constitutionally invalid and the practice to be void by the operation of Article 372, upon the commencement of the constitution (See also Smt. Hina & Anr v. State of UP, Writ Petition).
On the contrary, the Madras high court in A.S. Parveen Akhter v. Union of India & Ors.  when petitioned to strike down Section 2 of the Shariat Application Act 1937 as unconstitutional in so far as it recognised triple talaq declined to do so on the count that personal law is not amenable to writs of striking down in light of judgments of this court [Supreme Court] in Ahmedabad Women Action Group & Ors. V. Union of India (1997); Maharishi Avadesh v. Union of India (1994); [and] A.S. Parveen Akhter v. Union of India & Ors. (2003 Madras high court).
Two streams of judgments – the Shamim Ara line and the Delhi high court invalidation of talaq-e-bidaat
This court [Supreme Court] in Shamim Ara vs State of UP & Anr. (2002) frowned upon declarations of instantaneous talaq, particularly when trotted out as a response to a wife’s plea for maintenance. This court held that divorce must be only for a reasonable cause and [be] preceded by attempts at reconciliation. It must also be proved as having been duly pronounced. The Shamim Ara judgment was followed by several high courts, even as it cited earlier high court judgments with approval for taking a similar view.
This set of judgments, while disapproving of a hasty pronouncement of talaq by a husband, and quoting the Shariat sources in support of such disapproval, primarily deal with opposition to maintenance applications, by a husband raising a claim of divorce.
These judgments of the Shamim Ara line, as they may be called, are really regarding the mode of proving a divorce, when the wife contests its factum or validity. Although they rule against a talaq that is not supported by reason, or not preceded any attempts at reconciliation, or lacking proof or the presence of witnesses as ordained by Islam, these judgments do not, in [actual] terms, contend with the issue whether talaq-e-bidaat in itself is a valid mode of divorce that can end a marital tie.
It was the Delhi high court in Masroor Ahmed that frontally held talaq-e-bidaat invalid in Islam as a mode of divorce that instantaneously severed the marital tie (although the Allahabad high court too had held it unconstitutional in 1994).
In Masroor Ahmed vs State (NCT) the Delhi high court held as under:
“It is accepted by all schools of law that talaq-e-bidaat is sinful. Yet some schools regard it as valid. Courts in India have also held it to be valid. The expression ‘bad in theology but valid in law’ is often used in this context.
“The fact remains that it is considered to be sinful. It was deprecated by Prophet Muhammad. It is definitely not recommended or even approved by any school. It is not even considered to be a valid divorce by Shia schools.
“There are views even amongst the Sunni schools that the triple talaq pronounced in one go would not be regarded as three talaqs but only as one.
“Judicial notice can be taken of the fact that the harsh abruptness of triple talaq has brought about extreme misery to the divorced women and even to the men who are left with no chance to undo the wrong or any scope to bring about a reconciliation.
“It is an innovation which may have served a purpose at a particular point of time in history but if it is rooted out such a move would not be contrary to any basic tenet of Islam or the Quran or any ruling of the Prophet Muhammad.
“[A] triple talaq (talaq-e-bidaat), even for Sunni Muslims, be regarded as one revocable talaq. This would enable the husband to have time to think and to have ample opportunity to revoke the same during the iddat period. All this while family members of the spouses could make sincere efforts at bringing about a reconciliation. Moreover, even if the iddat period expires and the talaq can no longer be revoked as a consequence of it, the estranged couple still has an opportunity to re-enter matrimony by contracting a fresh nikah on fresh terms of mahr etc.”
Thus, as per the above decision, talaq-e-bidaat will operate as talaq-e-ahsan and has lost its instantaneous as also its irrevocable nature. The occasion to invoke halala ceases, as a consequence.
Similarly, in a recent decision Nazeer v. Shemeema (2017) it has been held [quoting Tahir Mahmood] as follows:
Dr Tahir Mahmood in Muslim Law in India and Abroad also refers to this aspect as follows…:
‘There is no verse in the Quran that can be interpreted or stretched to mean approval of the so-called triple talaq. As regards the Hadith, the Prophet was infuriated when somebody pronounced triple talaq and had condemned it as “playing with the book of God while I am still alive”.’
“Years after the Prophet’s demise [the judgment states], his second Caliph, Umar, gave effect to triple talaq in some cases at the insistence of the wives, but after inflicting on the husband the traditional punishment of flogging. It is shocking that his action should have been treated as a binding precedent for giving effect to such an unlawful and repulsive action in every case, even against the wishes of a repentant husband and the aggrieved wife.
“Thus from a conspectus of understanding of Islamic law as above, it can be found that:
(i) Triple talaq in one utterance is not valid according to Quranic injunction.
(ii) It [triple talaq] was allowed during the period of Caliph Umar by an executive order to alleviate the grievances of the women and not as a right to conferred upon the husband. This executive action was exercised in a specified time in a special circumstances and therefore, it cannot apply as the general law regarding divorce by the husband.”
It will thus be seen that by a purely interpretative exercise in Muslim personal law, courts in India have already pronounced instantaneous talaq in one sitting as illegal, invalid and sinful in Islam. The preponderance of judicial opinion is that the Shariat does not approve of talaq-e-bidaat, and thus in terms of the Muslim personal law itself, such a declaration can be made without averting to issues of constitutionality.