Triple Talaq

The minority, Khehar CJI and Nazeer J. Personal law cannot be interfered with so long as it does not infringe public order, morality or health or the provisions of Part III, which is the position expressed in article 25(1). Examining the practice against the three grounds article 25(1) permits, it was impossible to conclude that talaq-e-biddat impinged on public order or health, and it had no nexus with morality; so it could not be struck down on those grounds. They would have injuncted the practice for six months while Parliament legislated.

Kurian Joseph J. What is bad in theology cannot be good in law. Talaq-e-biddat is not an essential part of the religion, and a practice that is not essential does not attract the protection of article 25.

Nariman and Lalit JJ. Talaq-e-biddat is recognised and enforced by section 2 of the Muslim Personal Law (Shariat) Application Act 1937, which makes it statutory "law" within article 13, so it is open to challenge under Part III; and a practice that permits a marital tie to be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation is manifestly arbitrary and therefore violates article 14.

Why the difference matters. Only the Nariman and Lalit route touches the general question whether personal law is subject to Part III, and even that route rests on the statute of 1937 rather than on personal law at large. A student who says that Shayara Bano decided that personal law is subject to the fundamental rights has stated the case too widely.

The statute

The Muslim Women (Protection of Rights on Marriage) Act 2019 is eight sections.

Section 1, and its third subsection matters. The Act may be called the Muslim Women (Protection of Rights on Marriage) Act 2019 and extends to the whole of India except the State of Jammu and Kashmir; and it shall be DEEMED to have come into force on 19 September 2018. It is retrospective to that date because it replaced an Ordinance promulgated then, which is why section 8 exists.

Section 2, the definitions. "Electronic form" has the meaning assigned to it in section 2(1)(r) of the Information Technology Act 2000; "Magistrate" means a Judicial Magistrate of the first class exercising jurisdiction under the Code of Criminal Procedure in the area where the married Muslim woman resides; and "talaq" means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.

Section 3. Any pronouncement of talaq by a Muslim husband upon his wife, by words either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.

Section 4. Any Muslim husband who pronounces talaq as referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.

Section 5. A married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance for her and dependent children as may be determined by the Magistrate.

Section 6. She shall be entitled to custody of her minor children.

Section 7. The offence is cognizable if information relating to it is given by the married Muslim woman or by a person related to her by blood or marriage; it is compoundable at her instance with the Magistrate's permission; and bail may be granted only after hearing her and if the Magistrate is satisfied that there are reasonable grounds.

Section 8, repeal and savings. The Muslim Women (Protection of Rights on Marriage) Second Ordinance 2019 is repealed, and anything done or any action taken under that Ordinance is deemed to have been done or taken under the Act. Read with section 1(3), this is what makes the Act continuous with the Ordinances that preceded it, so that a pronouncement made after 19 September 2018 is within the Act even though the Act was passed in 2019.

The argument about the Act, which is what MU is asking for

For the Act. The declaration in section 3 puts the invalidity beyond doubt for every court and every Magistrate, without a woman having to litigate the constitutional point. The deterrent in section 4 addresses the practical harm, which is that a woman is thrown out of her home on a pronouncement whatever its legal effect. Sections 5 and 6 give her a maintenance and custody remedy in the same proceeding.

Against the Act. If the pronouncement is void, the marriage subsists, so the husband is being punished for an act with no legal consequence. Imprisoning him removes the source of the subsistence allowance section 5 provides for. No other community's desertion of a wife is a criminal offence, which raises an article 14 question about the Act itself. And the cognizable and non-bailable design invites misuse in a field where the parties are estranged.

The answer to the strongest objection. That the harm is social rather than legal: the woman is treated as divorced by her family and her community whatever a court would say, and the offence is directed at that consequence. Whether a criminal sanction is the right instrument for it is exactly the question MU's "uniformity and social harmony" wording invites.

A worked example

Farida's husband sends her a message in 2026 pronouncing talaq three times.

The effect on the marriage. None. Section 3 declares the pronouncement, including one in electronic form, void and illegal, and Shayara Bano had already set the practice aside. The marriage subsists.

The offence. Section 4: up to three years and a fine. Cognizable under section 7 on information given by her or by a relative by blood or marriage.

Her remedies in the same proceeding. A subsistence allowance for herself and her dependent children under section 5, and custody of her minor children under section 6.

And if they reconcile. Section 7(b): the offence is compoundable at her instance with the Magistrate's permission, which is the provision that keeps the Act from destroying the marriage it declares to subsist.

What this does NOT mean

It does not mean all forms of talaq are abolished. Talaq-e-ahsan and talaq-e-hasan are untouched by the judgment and by the Act.

It does not mean personal law is now subject to Part III generally. Two of the five judges reasoned that way and their route ran through the statute of 1937; the question remains open, as [Personal Law: What It Is, and Why India Has Several] explains.

And it does not mean the Act was necessary to make the practice void. The judgment had already done that, which is the central criticism of the Act and the point an examiner is looking for.

Quick revision

Three forms of talaq: ahsan, one pronouncement then iddat, revocable; hasan, three in successive tuhrs; biddat, three at one sitting, instantaneous and irrevocable. Shayara Bano 2017, five judges, three to two, sets biddat aside. Minority: article 25(1) permits interference only for public order, morality, health or Part III, and none is attracted; six-month injunction while Parliament legislates. Kurian Joseph J: what is bad in theology cannot be good in law; not an essential practice. Nariman and Lalit JJ: recognised by section 2 of the Shariat Act 1937, therefore statutory law under article 13, and manifestly arbitrary under article 14. Act of 2019: section 1(3), deemed in force from 19 September 2018; section 2 defines electronic form by reference to the Information Technology Act 2000, Magistrate, and talaq as talaq-e-biddat or a similar instantaneous and irrevocable form; section 3 void and illegal including electronic form; section 4 up to three years; section 5 subsistence allowance; section 6 custody; section 7 cognizable on her information, compoundable at her instance, bail after hearing her; section 8 repeals the Second Ordinance of 2019 and saves what was done under it.

Test yourself

1. Distinguish the three forms of talaq. Talaq-e-ahsan is a single pronouncement followed by abstinence during iddat and is revocable until iddat ends. Talaq-e-hasan is three pronouncements in three successive tuhrs and is revocable until the third. Talaq-e-biddat is three pronouncements at one sitting, instantaneous and irrevocable, and it is the form that was set aside.

2. State the two routes by which the majority in Shayara Bano set the practice aside. Kurian Joseph J held that what is bad in theology cannot be good in law and that the practice is not an essential part of the religion, so article 25 does not protect it. Nariman and Lalit JJ held that the practice is recognised by section 2 of the Shariat Act 1937 and is therefore statutory law within article 13, and that it is manifestly arbitrary and violates article 14.

3. What did the minority hold? That article 25(1) permits interference with personal law only on the grounds of public order, morality, health or the other provisions of Part III; that talaq-e-biddat did not impinge on public order or health and had no nexus with morality; and that the practice should therefore be injuncted for six months while Parliament legislated.

4. Give the four operative provisions of the Act of 2019. Section 3, the pronouncement including one in electronic form is void and illegal; section 4, punishment of up to three years and fine; section 5, subsistence allowance for the woman and dependent children; section 6, custody of minor children. Section 7 makes the offence cognizable on information from her or a relative, compoundable at her instance, and bailable only after hearing her.

5. State the strongest objection to the Act and the best answer to it. That if the pronouncement is void the marriage subsists, so a man is imprisoned for an act with no legal effect, and imprisonment removes the source of the very allowance section 5 provides. The answer is that the harm is social rather than legal: the woman is treated as divorced by her family and community whatever a court would say, and the offence is aimed at that consequence.