JUDICIAL INTERPRETATION OF TRIPLE TALAQ

I. The Post-Reform Jurisprudence

This chapter will primarily deal with the cases of post-reform era regarding Muslim divorce as
taken up by Indian judiciary. It is submitted that before the reforms were adopted, triple-talaq
was unconditionally approved by the Indian judiciary; making itself an accomplice in the
decayed perception and practice of Muslim society. The seeds of reform were first sown in an
excellent observation of Justice Krishna Iyer in the case of Yousuf Rawther v. Sowramma1
wherein he said-

“....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..... The view that the Muslim husband enjoys an arbitrary, unilateral power
to inflict instant divorce does not accord with Islamic injunctions.”…“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.”

Justice Iyer then went on to cite with approval a piece from Dr. Galwash’s authoritative work –
“Religion of Islam” -

“It is a popular fallacy that a Muslim male enjoys, under the Quaranic law,
unbridled authority to liquidate the marriage. “The whole Quran expressly forbids
a man to seek pretexts for divorcing his wife, so long as she remains faithful and
obedient to him, ‘if they (namely, women) obey you, then do not seek a way
against them’(Quran IV:34).” “The Islamic law gives to the man primarily the
faculty of dissolving the marriage, if the wife, by her indocility or her bad
character, renders the married life unhappy; but in the absence of serious reasons,
no man can justify a divorce, either in the eye of religion or the law. If he
abandons his wife or puts her away in simple caprice, he draws upon himself the
1
AIR 1971 Ker 261
 divine anger, for the curse of God, said the Prophet, rests on him who repudiates
his wife capriciously.”“It is clear, then, that Islam discourages divorce in
principle, and permits it only when it has become altogether impossible for the
parties, to live together in peace and harmony. It avoids, therefore, greater evil by
choosing the lesser one, and opens a way for the parties to seek agreeable
companions and, thus, to accommodate themselves more comfortably in their new
homes.”

The Hon’ble Judge then proceeded to note that as per Quranic law attempts of arbitration are also
required before a final divorce is given effect. After a detailed discussion on the subject Justice
Iyer finally deduced-

“To sum up, the Holy Prophet found a dissolute people dealing with women as
mere sex-satisfying chattel and he rid Arab society of its decadent values through
his doings and the Quoranic injunctions. The sanctity of family life was
recognised; so was the stubborn incompatibility between the spouses as a ground
for divorce; for it is intolerable to imprison such a couple in [a] quarrelsome
wedlock. While there is no rose but has a thorn if what you hold is all thorn and
no rose, better throw it away. The ground is not conjugal guilt but actual
repulsion.”2

This judgment’s primary observation however is related to a different subject than that of Triple
Divorce. The Hon’ble judge in this case mainly aimed to bring parity between husband’s right of
pronouncing divorce and wife’s right of seeking separation by Khula. However, in the process of
doing so he touched upon two basic tenets of Islamic law of divorce-

1. That the divorce is detested in Islam.

2. If it cannot be avoided then it has to be preceded by availability of ‘serious reasons’ and
attempts towards reconciliation in a manner as ordained by Quran.

Post this decision there was a series of High Court judgments which condemned the capricious
method of triple divorce. In the very next year, V. Khalid, J. recalled the decision of Kerala High

2
Ibid.
Court in Pathayi v. Moideen3 in which it was recognized that the absolute and unconditional
power to divorce (even under compulsion or in jest or in anger) rests with the Muslim husband
who is major and of sound mind.4 The court departed from this position and agreeing with the
observation in Yousuf Rawther judgment it asked several piercing questions-

“Should Muslim wives suffer this tyranny for all times? Should their personal law
remain so cruel towards these unfortunate wives? Can it not be amended suitably
to alleviate their sufferings? My judicial conscience is disturbed at this
monstrosity. The question is whether the conscience of the leaders of public
opinion of the community will also be disturbed?”5

These questions are significant in the sense that it came from a Muslim judge who was the part
of the same society in which other Muslims lived. These two observations from Kerala High
Court laid the foundation of the treatment of Muslim divorce law at the hands of Indian judiciary
in times to come.

Shamim Ara Case-

It will be safe to take a leap from 1972 to 2002 when the case of Shamim Ara v. State of
U.P. and Another6 was decided by the apex court. The discussion on this case will by itself entail
the ancillary inclusion of other intermediary High Court judgments which were cited with
approval by the respective bench. Being the only Supreme Court judgment directly dealing with
the issue of divorce under Muslim law it stands respected as the law of the land in the subsequent
decisions of the High Courts across the country.7

3
1968 KLT 763
4
Mohammed Haneefa v. Pathummal Beevi, 1972 K.L.T. 512
5
Ibid.
6
(2002) 7 SCC 513 2
7
A.S. Parveen Akthar. v. The Union of India MANU/TN/2472/2002, Aboobacker v. Ramlath, In the High Court of
Kerala at Ernakulam- RPFC.No. 152 of 2007, Ahammad Subair v. Nafsiya In the High Court of Kerala at
Ernakulam- Mat.Appeal.No. 85 of 2010, Ali v. Amina In the High Court of Kerala at Ernakulam RPFC.No. 292 of
2007, Anwor Ali Halder v. Sakina Bibi (2005) 3 CALLT 129 HC, Assanarukunju Abdul Hameed v. Ayshath In the
High Court of Kerala at Ernakulam- Crl.MC.No. 3836 of 2008, Basheer Valiyakath Karakkadu v. Kadeejuthul
Kubara In the High Court of Kerala at Ernakulam - Mat.Appeal.No. 670 of 2009, Farida Bano v. Kamruddin II
(2006) DMC 698, Gama Nisha And Munna Ansari v. Chottu Mian 2007 (2) BLJR 2026, Kamardeen v. Mst.Hashmat
Bano In the High Court of Rajasthan at Jodhpur- S.B. Civil Second Appeal No.197/2011, K.V. Ummer v.
Thekkerakathu Subaida In the High Court of Kerala at Ernakulam- RPFC.No. 226 of 2008, Karappan Veettil Hamza
v. Vattapparamnbil Kadeeja In the High Court of Kerala at Ernakulam-RPFC.No. 168 of 2008, M. Shahul Hameed
Facts of the case

Shamim Ara was married to Abrar Ahmad according to Muslim law. On 12.4.1979 Shamim Ara,
on behalf of herself and her two minor sons filed an application for maintenance under Section
125 of Cr.P.C. complaining desertion and cruelty on the part of husband. Abrar Ahmad pleaded
in a written statement dated 5.12.1990 that he divorced (by triple talaq) Shamim Ara on
11.7.1987 and therefore under Muslim Women (Protection of Rights on Divorce) Act his liability
stands dissolved. The averments by Abrar Ahmad were a mere statement devoid of any
adherence to the particulars of divorce. Shamim Ara denied being divorced at any point of time.
Nevertheless, Family court of Allahabad refused to grant the maintenance citing the reason that
Shamim Ara was already divorced.

A revision petition was filed by Shamim Ara in the High Court which held that since the divorce
was communicated on 5.12.1990 the maintenance plea can be upheld only till that date as after
that the divorce is deemed to have taken place. Therefore it was concluded that Shamim Ara was
entitled to claim maintenance of Rs. 200/- per month only from 1.1.1988 to 5.12.1990 (the later
date being the one on which reply to application under Section 125 Cr.P.C. was filed by the
husband in the Court).

Issue

v. A. Salima II (2003) DMC 262, Manzoor Ahmad Khan v. Mst. Saja And Three Ors. (2003 (II) SLJ 619), Mariyam
Akhter & Anr v. Wazir Mohd In the High Court of Jammu and Kashmir at Jammu- Cr Rev No. 51 OF 2005 AND Cr
M P No. 15 OF 2005, Md. Abu Taleb Ali v. Mst. Hasina Bibi (2007) 2 GLR 792, Mohd. Ibrahim v. Mehrunisa
Begum AIR 2004 Kant 261, Mohinuddin Middya v. State Of West Bengal and Anr 2004 (3) CHN 417, Muhammed
Basheer Maulavi v. Rukhiya In the High Court of Kerala at Ernakulam- Mat.Appeal.No. 434 of 2007, Mujeeb v.
Khadeeja In the High Court of Kerala at Ernakulam- RPFC.No. 302 of 2008, Mustari Begum and Anr. v. Mirza
Mustaque Baig 2005 I OLR 636, Nedumkandathil v. Kadeeja In the High Court of Kerala at Ernakulam- RPFC.No.
251 of 2009, Nizar v. State Of Kerala In the High Court of Kerala at Ernakulam- Crl.MC.No. 698 of 2008, Nur Ali
(Md) v. Thambal Sana Bibi 2007 (1) GLT 508, Pallipattu Kadeeja v. K. Beeran In the High Court of Kerala at
Ernakulam- Mat.Appeal.No. 123 of 2003(F), Rafeeq v. Ashida.K In the High Court of Kerala at Ernakulam-
RPFC.No. 395 of 2007, Rahmathulla v. Rasiya P.B In the High Court of Kerala at Ernakulam- RPFC.No. 379 of
2009, Sakariya v. Safreena In the High Court of Kerala at Ernakulam- RPFC.No. 271 of 2008, Sulaikha v.
Saidalikutty In the High Court of Kerala at Ernakulam- RPFC.No. 101 of 2003, Zahoor Ahmad Banday v. Yasmeen
Jan and Ors. 2006 (1) JKJ 102, Zamrud Begum v. K. Md. Haneef And Anr. 2003 (3) ALD 220, Shakir Khan v.
Shama Bano And Ors In the High Court of Rajasthan at Jaipur- SB Criminal Revision Petition No.1555/2008.
A special leave petition against this order of the High Court was filed in the Supreme Court by
Shamim Ara. The central issue that was framed out of the gamut of the aforesaid facts was –

Whether Shamim Ara can be said to have been divorced AND the said divorce
communicated to her so as to become effective from 5.12.1990, the date of filing
of the written statement by the husband in the proceedings?

Judgment

The judgment was delivered by a two judge bench comprising of Justice R.C. Lahoti and Justice
P.Venkatarama Reddi with Justice Lahoti being the author. The court read extensively into the
Quranic method of executing divorce and found it strikingly in contrast with the easiness of
triple talaq as practiced amongst Muslims in India. It derived supporting text from the
illuminating observations of Justice Krishna Iyer in Yusuf Rawther case and also from the
brilliant expositions of Justice Baharaul Islam in the two cases of corroborating factual
background - Sri Jiauddin Ahmed v. Mrs. Anwara Begum8 and later in Must. Rukia Khatun v.
Abdul Khalique Laskar9. In Jiauddin case Justice Islam pointed out that a plain reading of
Chapter IV Verse 34, 35 of the Quran makes it clear that divorce cannot be assigned without a
reasonable cause and also it must be preceded by “attempts at reconciliation between the
husband and the wife by two arbiters one from the wife’s family the other from the husband’s. If
the attempts fail, talaq may be effected”.

It was specially emphasised by the learned judge that attempts at reconciliation “is an essential
condition precedent to talaq”. He also expressed disapproval of the statement that “the whimsical
and capricious divorce by the husband is good in law, though bad in theology” and observed that
such a statement is based on the concept that women were chattel belonging to men, which the
Holy Quran does not brook.10 While arriving at these conclusions Justice Islam considered
opinions of various scholars and jurists such as Mohammad Ali, Yusuf Ali, Ameer Ali and Fyzee

8
(1981) 1 GLR 358
9
(1981) 1 GLR 375
10
Following this in Must. Rukia Khatun case the Division Bench of the same High Court expressly recorded its
dissent from the previous judgments of High Courts which incorrectly allowed triple divorce to take effect.
whose readings have already been pointed out in the earlier chapter. Justice Lahoti gave cent
percent approval to the ruling of Justice Islam and thereby arrived at following conclusions-

a. Plea of previous divorce taken by husband in written statement in proceedings initiated

by wife for maintenance cannot be treated as pronouncement of "Talaq" by husband on
wife on date of filing of written statement in Court followed by delivery of copy to wife. 11
To be effective, talaq has to be pronounced and pronouncement implies “to proclaim, to
utter formally, to utter rhetorically, to declare to, utter, to articulate”.

b. Neither marriage between parties stand dissolved on date of filing of written statement
nor does liability of husband to pay maintenance comes to an end on that day.

c. Law as ordained by the Holy Quran is-

i. that talaq must be for a reasonable cause: and

ii. that it must be preceded by an attempt of reconciliation between the husband and
the wife by two arbiters, one chosen by the wife from her family and the other by
the husband from his. Only when these attempts fail, talaq may be effected.

II. Other Ancillary Discussions by Indian Courts on Triple talaq

a. Reading the Shariat Act

Application of Personal Law on Muslims derives its mandate from Muslim Personal Law
(Shariat) Application Act, 1937 (Shariat Act). It allows the prevailing custom and usage to
supersede any other aspect of Shariat which is contrary to it. Section 2 of the Act reads as
follows –

11
This was reiterated in Iqbal Bano v. State of U.P., 2007(3) KLT 63 (SC) which is discussed later in greater detail as
the crux of the issue in Iqbal Bano related with maintenance.
 “Notwithstanding any custom or usage to the contrary, in all questions (save
questions relating to agricultural land) regarding intestate succession, special
property of females, including personal property inherited or obtained under
contract or gift or any other provision of Personal Law, marriage, dissolution of
marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance,
dower, …. the rule of decision in cases where the parties are Muslims shall be the
Muslim Personal Law (Shariat).”(emphasis supplied)

Since triple talaq has been a customary practice under Muslim Law, the petitioner in
A.S.Parveen Akthar v. The Union Of India12 contended before the Madras High Court bench that
Section 2 of the Shariat Act, 1937 in so far as it seeks to recognise and validate Talaaq-ul-Biddat
or Talaaq-i-Badai form of divorce should be declared as void and unconstitutional. The
arguments were mainly based on the premises that the said Act does not provide for
reconsideration and is not preceded by attempts at reconciliation. However, Justice
E.Padmanabhan cited Shamim Ara ratio and conferred that the position of law now already
stands altered and that “the petitioner's apprehension that notwithstanding absence of cause and
no efforts having been made to reconcile the spouses, this form of talaq is valid, is based on a
misunderstanding of the law”.13 The court made it clear that after the Shamim Ara case talaq, “in
whatever form”, must be for a reasonable cause, and must be preceded by attempts for
reconciliation by arbiters chosen from the families of each of the spouses. The court also cited
two judgments of the apex court to steer off any deliberate interference in the legislation which
dealt with application of personal law. In AWAG v. Union of India14 the constitutionality of
unilateral divorce by the husband without the consent of his wife and without resort to the
judicial process was challenged. The apex court refrained from interfering in the personal law
legislation and said that “they are issues of state policy with which the Court will not ordinarily
have any concern and that the remedy lies somewhere else and not by knocking at the doors of
the Courts”.15 Therefore, the message was given that in a conflict between fundamental rights
and personal law of the parties arises; personal laws will prevail unless changed by the
appropriate authority.16 For this reason, Justice Padmanabhan upholding the validity of Shariat

12
Infra note 31
13
Ibid.
14
(1997) 3 SCC 573
15
Ibid.
16
Similar observation was made in Krishna Singh v. Mathura Ahir, AIR 1980 SC 707 wherein the apex court
explicitly stated that “…. part III of the Constitution does not touch upon the Personal Laws of the parties ....”
Act held that the Shariat Act cannot be declared as void or unconstitutional by reason of any
inconsistency with Part III of the Constitution.

Without going into the debate that whether triple talaq falls under the custom or usage of
Muslim society or not, Madras High Court by including it in the ambit of the divorces in
“whatever form” label, in effect, turned down the validity of unilateral divorce which is
pronounced without abiding by the conditions laid down in Shamim Ara case.

b. Maintenance

One of the effects of Shamim Ara case was that it laid the foundation for checking any
mischievous plea of divorce by the husband so as to escape the liability of maintenance of his
wife. The court in that case held that since there was no divorce as per Quranic law liability of
the husband for maintaining his wife does not stand dissolved. This ratio was elaborately carried
forward in another judgment of the apex court - Iqbal Bano v. State of U.P.17 wherein the factual
situation was very similar to that of Shamim Ara case. It was categorically held that an
unsubstantiated plea of an anterior divorce taken up in pleadings filed before court cannot have
the effect of a legal divorce. Also, through the pen of Justice Arijit Pasayat, this case cleared the
miasma lurking around the relationship between Muslim Woman (Protection of Rights on
Divorce) Act, 198618 and Section 125 of Cr.P.C. The court said that “proceedings under Section
125 Cr.P.C. are civil in nature” and therefore “even if the court notices that there was a divorced
woman in the case in question, it was open to [it] to treat it as a petition under the 1986 Act
considering the beneficial nature of the legislation”. The rationale for this proposition
found its genesis in the text of Danial Latifi and Anr. v. Union of India 19 in which it was
stated by the apex court that - :

17
Supra note 11
18
Section 3(3) of the Act says - Where an application has been made under sub-section (2) by a divorced woman,
the Magistrate may, if he is satisfied that-(a) her husband having sufficient means, has failed or neglected to make
or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or
(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of
sub-section (1) have not been delivered to her, make an order, within one month of the date of the filing of the
application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced
woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life
enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of
such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) to the divorced
woman.
19
2001 (7) SCC 746
 “A careful reading of the provisions of the Muslim Woman (Protection of Rights
on Divorce) Act, 1986 would indicate that a divorced woman is entitled to a
reasonable and fair provision for maintenance. It was stated that Parliament seems
to intend that the divorced woman gets sufficient means of livelihood, after the
divorce and, therefore, the word provision indicates that something is provided in
advance for meeting some needs. In other words, at the time of divorce the
Muslim husband is required to contemplate the future needs and make preparatory
arrangements in advance for meeting those needs. Reasonable and fair provision
may include provision for her residence, her food, her cloths, and other articles.
The expression within should be read as during or for and this cannot be done
because words cannot be construed contrary to their meaning as the word within
would mean on or before, not beyond and, therefore, it was held that the Act
would mean that on or before the expiration of the iddat period, the husband is
bound to make and pay a maintenance to the wife and if he fails to do so then the
wife is entitled to recover it by filing an application before the Magistrate as
provided in Section 3(3) but no where the Parliament has provided that reasonable
and fair provision and maintenance is limited only for the iddat period and not
beyond it. It would extend to the whole life of the divorced wife unless she gets
married for a second time.”20

By this, apex court approved the proposition that maintenance can be made to divorced Muslim
woman under Section 125 of Cr.P.C. even after the iddat period has expired.21
20
Thus, Justice Rajendra Babu in this case upheld the constitutionality of Muslim Woman (Protection of Rights on
Divorce) Act, 1986 and gave a beneficial interpretation to its provisions which were challenged on grounds of being
violative of Article 14, 15 and 21 of the Indian Constitution because plain reading of it suggested inferior benefits to
the divorced Muslim women as compared to the benefits which Non-Muslim women enjoys under Section 125 of
Cr.P.C..
21
In a recent judgment of the Supreme Court, Justice Dipak Misra reiterated this principle in the following words -
“A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can
proceed as provided under Section 4 of the Act against his relatives, who are liable to maintain her”. Further, citing
Iqbal Bano and Danial Latifi case the learned judge concluded – “It is crystal clear that even a divorced Muslim
woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This
(Section 125, Cr.P.C.) being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim
women”. (Shamim Bano v. Asraf Khan, Criminal Appeal No.820 of 2014). Also in Mariyam Akhter & Anr v. Wazir
Mohd (Cr Rev No. 51 OF 2005 AND Cr M P No. 15 OF 2005) the Jammu and Kashmir High Court accepted
Section 125 Cr.P.C. as part of the scheme of the Constitution of India which is religion neutral. It held-“Article 15(3)
has compelling compassionate relevance in the context of S. 125 and the benefit of doubt, if any, in statutory
interpretation belongs to the ill- used wife and the derelict divorcee. Protection against moral and material
abandonment manifest in Article 39 is part of social and economic justice, specificated in Article.38, fulfilment of
 c. Justifiability of the Reasonableness of the Cause

Shamim Ara case stipulated generally that there should be a reasonable cause for pronouncement
of talaq. However, it did not venture into determining that whether the reasonableness of the
cause of divorce is justiciable in the courts or not. There are three high court decisions which
varyingly touched upon the issue of justiciability and interestingly all three of them are from
Kerala High Court.

In Kunhimohammed v. Ayishakutty22 Justice Basant delved into the issue of justiciability of

pronouncing divorce and observed that the text of Shamim Ara case and two judgments of
Justice Baharul Islam preceding it did not in any way demonstrate that the reasonableness of the
cause for divorce is justiciable. Thus it was held that – “The reasonableness of the substantive
cause for divorce cannot, in these circumstances, be held to be justiciable. But the fact remains
that procedural reasonableness must be insisted”.23 Learned judge further went on to observe-

“Giving reasons is different from having reasons. Reasonable cause must be there.
But there is no obligation to give reasons or satisfy any one else of such reasons.
This stipulation of Islamic law is not modified by any legislative intervention. The
Muslim husband is not hence bound to show reasons for the divorce. Nor is the
personal reason that prompts him to effect divorce justiciable.”24

In the view of above reasoning it was held that once procedural reasonableness is established and
it is shown that attempts at reconciliation have failed, it will be deemed that a reasonable cause
for divorce has arisen. However, in Pottengal Ali Askkar v. Raheena25 the court took a slightly
different view. In this case the question of “procedural reasonableness” was not discussed per se
rather the process of arbitration and reasonableness of the cause for pronouncement of divorce
were taken as two independent pre divorce stages. After deciding that arbitration proceedings
conducted by the parties were irregular because of the absence of wife and her family members

which is fundamental to the governance of the county Article 37”.

22
In the High Court of Kerala at Ernakulam- RPFC.No. 53 of 2006
23
The procedural reasonabless for court meant- if the attempt for reconciliation by the two arbiters in accordance
with Ayat 35 of Sura IV of Quran has taken place and in spite of attempts for such reconciliation there has been no
reconciliation.
24
Ibid.
25
In the High Court of Kerala at Ernakulam- RPFC.No. 268 of 2008
the court iterated separately that “…nothing is forthcoming before the court to establish that
there was a reasonable cause for pronouncement of Talaq”.26 Therefore, absence of reasonable
cause for divorce formed a ‘separate’ pre divorce stage according to the court.

Then, in Rahmathulla v. Rasiya P.B27 again a similar situation came up and court followed the
route adopted in Pottengal Ali Askkar case and treated arbitration and reasonable cause as two
different categories. By doing this the courts opened gates for justiciability of reasonableness of
substantive cause of divorce.

It will be also logical to go a decade back from Rahmathulla case to the judgment of Justice S.M.
28
Sidickk in Saleem Basha v. Mrs. Mumtaz Begam. In this case, the learned judge kept the
justiciability of reasonable cause for pronouncement of divorce and reconciliation attempts at
two different spots making it implicitly construable that reason for divorce is justiciable. The
learned judge stated –

“…a Mohomedan husband cannot divorce his wife at his whim or caprice i.e.,
divorce must be for a reasonable cause AND it must be preceded by a pre-divorce
conference to arrive at a settlement. Even if there is any reasonable cause for the
divorce, yet there must be evidence to show that there was an attempt for a
settlement prior to the divorce and when there was no such attempt prior to
divorce to arrive at a settlement by mediators, then there cannot be a valid divorce
under Mohomedan Law”.29

This statement suggests that ‘reconciliation’ and ‘reasonable cause for divorce’ are independent
of each other unlike what was held in Kunhimohammed case. The use of ‘and’ also suggests that
according to Justice Sidickk both are necessary for a divorce to take effect.

It is submitted that the view adopted in Pottengal Ali, Rahmathulla and Saleem Basha case
appears to be more viable because of the singular reason that Shamim Ara case also uses the
26
Ibid.
27
In the High Court of Kerala at Ernakulam- RPFC.No. 379 of 2009. The court held- “Over and above all these
things there is no case or evidence to show that there had been a talk of mediation or conciliation between the
spouses or by the mediators and the result of which later lead into pronouncement of talaq. The reasonable cause for
pronouncement of the talaq ALSO does not stand established”.
28
1999 (1) ALD Cri 182
29
Ibid.
word ‘and’ so as to make reasonableness of the cause for pronouncing divorce and attempts at
reconciliation independent of each other. Although the case did not explicitly dealt with the issue
of justifiability, nevertheless a simple reading of the judgment makes it clear that both –
reasonability of pronouncing divorce and attempts at reconciliation are neither intrinsically
mixed nor do they qualify each other.

However, it is also submitted that this can be viable only when parties approach the court to let it
decide on validity of divorce and that too for their divorce only.30This argument flows from the
reason that any petition in the court implies that parties have submitted their case in toto to the
court so as to let it decide on merit considering each and every important aspect as per the law of
the land. While deciding such cases it is expected from the courts that they will avoid undue
embarking on the core realms of personal laws.

It was for this reason that Justice R.Jayasimha Babu in A.S. Parveen Akthar. v. The Union of
India31 explicitly excluded personal laws from the ambit of Article 13(3) of the Constitution of
India32 and cited the case of AWAG33 as a precedent wherein the apex court declined to entertain
the challenge made to certain aspects of the Muslim Personal Law, and to certain portions of

30
When parties approach the court the judge assumes the responsibility of a Qazi in Shariat Courts not by any pre-
existing mandate but by an act of submission of the parties for the adjudication of their family law dispute. If they
do not do so, then failure of reconciliation can be presumed as a reason enough to move ahead with the divorce as
per personal laws. Chapter IV:35 of the Holy Quran clearly stipulates that - if they(husband and wife) wish for
peace, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things.
Therefore, as per this verse of the Quran and thereby, under Muslim personal law, peace between a couple can only
be facilitated and not imposed. It is left on Allah to put back the desire for cohabitation in the hearts of couple and
therefore, giving a final verdict on justiciability of reasons for divorce is not the prerogative of either arbitrator, or of
any judge.
In Kunhimohammed case (supra) Justice Basant further gave an excellent reasoning for not considering arbitrators as
judges who determine the reasonability of the reason for pronouncement of divorce. The learned judge categorically
stated– “The arbiters under Ayat 35 of Sura IV, we must hasten to observe, are not Judges or Arbitrators but only
facilitators who must attempt reconciliation. That shall be their limited brief. If we hold contra, law relating to
divorce in Muslim law will be rendered vague and uncertain. There will be as many interpretations about the
reasonableness of the cause for divorce as there are Judges, making the law of divorce in Muslim law uncertain,
vague and confusing. We have already been coming across decisions by Family Courts where Judges on their
personal concepts have been reckoning some causes to be reasonable and some not.”
31
MANU/TN/2472/2002
32
Article 13(3)- In this article, unless the context otherwise requires law includes any Ordinance, order, bye law,
rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force
includes laws passed or made by Legislature or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part
thereof may not be then in operation either at all or in particular areas.
33
(1997) 3 SCC 573
statutes governing the Hindu Personal Law because that they are considered to be issues of state
policy with which the court will not ordinarily intervene.34

d. Retracting of Either of the Spouses

Since the system of witness at the time of divorce or taking back is not in place in India 35 it may
so happen that either the husband or wife may retract from their pronouncement or acceptance of
divorce. In Kunhimohammed v. Ayishakutty36 the court hypothecated such situation and asked
two questions- “What if the wife accepts a divorce or does also want such a divorce? Will the
divorce accepted by the wife be held to be void for the reason that the preconditions of Shamim
Ara have not been complied with?”. The court itself answered these questions and fairly so, by
stating that- “procedural reasonableness insisted by Shamim Ara on the basis of Ayat 35 of Sura
IV can only enable the wife to dispute her divorce and when she accepts such divorce there can
be no question of the divorce being assailed by any one on that ground”.37

Similarly in Nizar v. State Of Kerala38 the husband who invoked the divorce to unilaterally
liquidate the relationship of matrimony, which was accepted by the wife came before the court
and contended that the divorce effected by him and accepted by the wife is not divorce in the eye
of law for the reason that he has no reasonable cause and there has been no previous attempt for
mediation by the arbitrators. The court condemned it by simply saying – “Less said about this
contention, the better” and held that “The interests of justice do not at all permit the petitioner to
raise such a contention to assail his own conduct of effecting the divorce, which divorce has been
accepted by the wife without challenge”.39

e. The Path Covered and the Way Ahead

34
Ibid.
35
Quran mandates presence of two witnesses as has been discussed in the earlier chapter. Various Muslim countries
have made the presence of witness an essential precondition to complete the formalities of divorce.
36
In the High Court of Kerala at Ernakulam- RPFC.No. 53 of 2006
37
Ibid.
38
In the High Court of Kerala at Ernakulam- Crl.MC.No. 698 of 2008
39
Ibid.
Judiciary has been generally cautious of any undue interference in personal laws. However, in
special circumstances where interests of Muslim women stood grossly compromised under
misinterpreted and abused personal laws, it intervened.40 Recent leap of reform has come through
the apex court’s rulings in Shamim Ara and Iqbal Bano case wherein ‘whimsical’ triple talaq was
regulated and put to pass some conditions before being effected. The good part is that judiciary
did what leaders of the community should have done much before and it did so by applying the
personal laws in their right letter and spirit. The change in the societal mind set is reflected in the
acceptability of such use of personal laws by judiciary by Muslim scholars and general people
alike. Earlier a backlash from orthodox custodians of religious laws was always feared especially
in the case of Muslim law interpretations.41

Having said this, it is imperative to point out that much is still left to be done. Especially in case
of triple talaq application of correct Muslim personal law by Indian courts has been incomplete.
After the ruling in Shamim Ara case, pronouncement of triple-talaq was qualified with
requirements of ‘a reasonable cause’ and ‘attempts at reconciliation’. The judgment seeks to
provide some norms and parameters within which the husband can pronounce talaq. The very
concept and right of unilateral triple talaq is, however, being assailed and change appears to be
in the offing.42 It is thus expected from the apex court that while dealing with the issue of triple-
talaq in any forthcoming case, complete application of correct divorce law under Muslim
personal law shall be done. If done so, triple-talaq will be legally abolished in India and that in
no way will be against the dictum of personal laws. Rather, such ruling shall find support in
them. A happy sign is that this process has already begun through the illuminating judgment by
Justice Badar Durrez Ahmed in the case of Masroor Ahmed v. State (NCT of Delhi)43 wherein the
learned judge with perfect understanding of the involved nuances iterated-

“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

40
Mohd. Ahmed Khan v. Shah Bano AIR 1985 SC 945, Shamim Ara case (supra)
41
As it happened in the Shah Bano case (supra) and the recent adoption case (Shabnam Hashmi v. Union of India,
(2014) 4 SCC 1). In Shah Bano case the apex court made the provision for maintenance beyond Iddat which was
taken as an attempt against the Personal Laws by the orthodox factions in Muslim community. In Shabnam Hashmi
case again the same situation cropped up regarding adoption of a child by Muslim wherein the court stated that a
muslim can adopt a child which was again taken as contrary to the ethos of Sharia by some Muslim groups.
42
See Kusum, Cases and Materials on Family Law, 2nd Edition, Universal Law Publishing Co., India, p. 210
43
ILR (2007) 2 Del 1329
 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. In this background, I would hold that 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.”44

This paragraph beautifully illustrates that how judiciary can play a role in constructive and
purposive interpretation of personal laws and give to itself the privilege of deciding on family
matters. Words of Justice Krishna Iyer and Justice Baharul Islam guided the court in Shamim Ara
case. Similarly, words of Justice Badar Durrez Ahmed will hopefully play the same role in some
case in apex court that will deal with the validity of triple-talaq. That is the only way other than
the codification (which is improbable in near future) in which the real essence of personal laws
vis-à-vis divorce can be made the law of the land.

_______________________

44
Ibid.