MAJORITY OPINION

Muslim Law: Talaq-e-biddat - The practice of Talaq-e-biddat is set aside. (Per Court)

Muslim Law: Talaq-e-biddat - Triple Talaq by a Muslim husband which severs the marital bond - Constitutionality of - Held: In *Shamim Ara case, it was held that the correct law of  as ordained by the Holy Quinn is that, the 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 affected" - Given the fact that Triple Talaq is instantaneous 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 lie, cannot ever take place - 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 if - This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Art.14 of the Constitution of India - 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 Art.13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq - Muslim Personal Laws (Shariat) Application Act, 1937 - s.2 - Constitution of India - Art.13(1). (Per Nariman, J.)

Muslim Law: Sunnis - Various sub-sects of Sunnis - Discussed. (Per Nariman, J.)

Muslim Law: Various forms of divorce recognised in Islamic law - Discussed. (Per Nariman, J.)

Muslim Law: Triple Talaq - Legal sanctity and constitutional protection - Triple Talaq is not an integral part of the religious practice - Merely because a practice has continued far 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 s.2 which include talaq - Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible - Therefore, there cannot be any Constitutional protection to such a practice - Constitution of India - Art.25 - Muslim Personal Laws (Shariat) Application Act, 1937 - s.2. (Per Kurian, J.)

Muslim Law: Whether what is wrong in Quran can be legally right - Held: 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. (Per Kurian, J.)

Constitution of India: Art.14 - When something is done by the legislature capriciously, irrationally and/or without adequate determining principle or which is excessive and disproportionate, such legislation would be manifestly arbitrary - Therefore, arbitrariness in the sense of manifest arbitrariness would apply to negate legislation as well under Art.14 - Applying the test of manifest arbitrariness, it is clear that Triple Talaq is a form of 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 - Muslim law. (Per Nariman, J.)

Muslim Personal Laws (Shariat) Application Act, 1937: s.2 - Whether the 1937 Act can be said to recognise and enforce Triple Talaq as a rule of law to be followed by the courts in India - Held: The 1937 Act is a pre-constitutional legislative measure which would fall directly within Art.13(1) of the Constitution of India - 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 s.2 as governing the enacting part of the section - 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 Mus/impersonal law applicable to Sunnis in India - s.2 recognizes or enforces Triple Talaq because the Section makes Triple Talaq "the rule of decision in cases where the parties are Muslims" - Thus, 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 Art.13(3)(b) and would be hit by Art.13(1) if found to be inconsistent with the provisions of Part Ill of the Constitution, to the extent of such inconsistency - Constitution of India - Arts.13(1), 13(3)(b). (Per Nariman, J.)

Muslim Personal Laws (Shariat) Application Act, 1937: s.2 - Law applicable to Muslim shall be only their personal law namely Shariat - It is not a legislation regulating Talaq - The 1937 Act simply makes Shariat applicable as the rule of decision in the matters enumerated in s.2 - Therefore, while Talaq is governed by Shariat, the specific grounds and procedure for Talaq have not been codified in the 1937 Act. (Per Kurian, J.)

Words and Phrases: Expression 'Shariat' - Meaning of (Per: Nariman, J.)

Words and Phrases: Shariat - Meaning of (Per Kurian, J.)

MINORITY OPINION

Muslim Law: Talaq-e-biddat - Does the judgment of the Privy Council in the Rashid Ahmad case, upholding Talaq-e-biddat, require a relook - It was submitted, that after having acquired statutory status, the questions and subjects (including 'talaq-e-biddat'), would have to be in conformity (and not in conflict), with the provisions of Part III - Fundamental Rights, of the Constitution - All these are important legal questions, requiring examination - The matter would certainly require a fresh look, because various High Courts, having examined the practice of divorce amongst Muslims, by way of' 'talaq-e-biddat', have arrived at the conclusion, that the judgment in the Rashid Ahmad case was rendered on an incorrect understanding, of the Muslim 'personal law' - 'Shariat'. (Per Khehar, CJI)

Muslim law: Talaq-e-biddat - All the parties were unanimous, that despite the practice of 'talaq-e-biddat' being considered sinful, it was accepted amongst Sunni Muslims belonging to the Hanafi school, as valid in law, and has been in practice amongst them - Talaq-e-biddat' is integral to the religious denomination of Sunnis belonging to the Hanafi school - The same is a part of their faith, having been followed for more than 1400 years, and as such, has to be accepted as being constituent of their 'personal law'. (Per Khehar, CJI)

Muslim law: Talaq-e-biddat - Constitutionality under the Muslim 'personal law' - Shariat - The practice of 'talaq-e-biddat' being a constituent of 'personal law' has a stature equal to other fundamental rights, conferred in Part III of the Constitution - The practice cannot, therefore, be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention. (Per Khelrar, CJI) 

Muslim law: Talaq-e-biddat - Need for legislation - It is not within the realm of judicial discretion, to set aside a matter of faith and religion - The position can only be salvaged by way of legislation - This is a case which presents a situation where the Court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution - The Union of India is directed to consider appropriate legislation, particularly with reference to 'talaq-e-biddat' - Till such time as legislation in the matter is considered, Muslim husbands, are injuncted from pronouncing 'talaq-e-biddat' as a means for severing their matrimonial relationship. (Per Khehar, CJI) 
Muslim Personal Law (Shariat) Application Act, 1937: it is incorrect statement that the questions/subjects covered by the Muslim Personal Law (Shariat) Application Act, 1937, ceased to be 'personal law', and got transformed into 'statutory law'. (Per Khehar, CJI)

Constitution of India: Art.25 and Arts. 14, 15 and 21 - 'Talaq-e-biddat ', does not violate the parameters expressed in Art.25 - The practice is not contrary to public order, morality and health - The practice also does not violate Arts.14, 15 and 21 of the Constitution, which are limited to State actions alone - Muslim law. (Per Khehar, CJI)

Constitution of India: Arts.25 and 44 riw Seventh Schedule, List III, Entry 5 - Reforms to 'personal law' in India, with reference to socially unacceptable practices in different religions, have come about only by way of legislative intervention - Such legislative intervention is permissible under Arts25(2) and 44, read with Entry 5 of the Concurrent List, contained in the Seventh Schedule of the Constitution - The said procedure alone need to be followed with reference to the practice of 'talaq-e-biddat', if the same is to be set aside. (Per Khehar, CJI)

International Conventions and Declarations: Binding effect for deciding validity of talaq-e-biddat - Held: Not binding since the practice of 'talaq-e-biddat', is a component of 'personal law', and has the protection of Art.25 of the Constitution. (Per Khehar, CJI)