By Kitdor H. Blah
The Supreme Court of India has always exercised restraint when it comes to religious personal laws. It has never invalidated any personal law on constitutional grounds as personal laws are protected under Article 25 of the Constitution, the Right to Freedom of Religion. However, the way that the Judiciary has dealt with personal laws, has evolved throughout the years, although it has also maintained its consistency of protecting Article 25. While Article 25 protects the freedom of religion, Article 13(1) says that all laws in force in the territory of India before the commencement of the Constitution shall be null and void if, and to the extent that, they are inconsistent with any of the Fundamental Rights and Article 13(2) says that the State shall not make any law which contravenes any of the Fundamental Rights, and any law will be null and void to the extent of that contravention. So, besides upholding Article 25, the question before the Judiciary has always been whether religious personal laws qualify as “laws in force” or “law” in Article 13, which can be invalidated if they contradict any of the Fundamental Rights. The 1956 judgment of the Bombay High Court in “State of Bombay vs Narasu Appa Mali” is the precedent when it comes to case laws regarding religious personal laws. The case is with regards to the Hindu Bigamous Marriage Act, 1946 which prohibits Hindu men of having more than one wife. The petitioner stated that the law is unconstitutional as on the other hand, Muslim men may have upto four wives. IPC section 494 which prohibits polygamy is exempted for Muslims. Justice Chagla observed that while the religious Personal Laws referred to original Scriptures & Texts, the ‘customs’ in Article 13(3)(a) were more specific to the practices that were deviations or variants from the Scriptures & Texts. Thus Personal Laws in India were not the same as “customs & usage” in Article 13. Justice Chagla argued that the intention of the Constituent Assembly to exclude Personal Laws from Article 13 is clear from other provisions such as Articles 17, 25(1), 25(2)(b), 26, 372. These provisions already limit some aspects of religious personal laws such as abolition of Untouchability in Article 17, qualification of the Right to Religion by public order, morality and health in Articles 25(1) and 26, allowing the State to pass laws reforming Hindu religious institutions in Article 25(2)(b). Such provisions would be redundant if Article 13 automatically invalidates personal laws. Moreover, if “laws in force” include Personal Laws, then Article 372(1) (2) would mean the President is empowered to amend or repeal Personal Laws, which cannot be the intention of the Constituent Assembly. Justice Gajendragadkar opined that “laws in force” under Article 13 have not been used in the general sense but specifically refers to statutory laws, which have been passed by the Legislature or other competent authority, and UNTIL the Personal Laws satisfy this test, they could not be included in definition of “law in force.” In “Krishna Singh vs Mathura Ahir,” 1980, the Supreme Court overturned the ruling of the Allahabad HC which had invalidated Hindu custom whereby a Sudra cannot become a Sanyasi, saying that the custom has ceased to be valid because of the fundamental rights guaranteed under Part III of the Indian Constitution. The Supreme Court however, in overruling the Allahabad HC, stated that the learned Judge failed to appreciate that Part III of the Constitution does not touch upon the personal laws of the parties, and that the law as derived from recognised and authoritative sources of Hindu law should be enforced except where such law is altered by any usage or custom or is modified or abrogated by statute. So, while refusing to invalidate personal laws, the Court nevertheless recognized that only the Legislature can abrogate any personal law, just as Justice Gajendragadkar opined above. The 1985 judgment in “Shah Bano Begum vs Mohd Ahmed Khan” presented a subtle evolution in the Court’s ruling with regards to personal laws. While Muslim law says that alimony is to be paid to the wife after divorce within the Iddat period, which is roughly three months, the Court ruled in favour of Shah Bano Begum for right to alimony as per Section 125 of CrPC, which is not exempted for Muslims, unlike the polygamy law under section 494 of the IPC. While the Court did not invalidate the Muslim personal law of Iddat, yet the Court enforced the payment of alimony because the consistent view of the Court has been that only a statutory law can abrogate a personal law. In this case, section 125 of the CrPC overruled the personal law of Iddat. However, the government of the day moved to protect the Muslim personal law of Iddat by enacting the Muslim Women (Protection of Rights on Divorce) Act, 1986 which allowed for “reasonable and fair provision and maintenance” during the Iddat period, thus overturning the Court’s ruling for maintenance beyond the Iddat period. Here, the Court had overruled the personal law of Iddat by the statutory law of the CrPC, but the Legislature passed another statutory law which protected the personal law. Again, the consistency here is that only statutory laws can abrogate or modify personal laws, not the Judiciary. In “Maharishi Avadhesh vs Union of India,” 1994, the petitioner’s prayer was to declare the Muslim Women (Protection of Rights on Divorce) Act, 1986 as void being arbitrary and discriminatory and in violation of Articles 14 and 15 of Fundamental Rights and Articles 44, 38, 39 and 39-A of the Constitution of India and also not to enact the Muslim Personal Law (Shariat) Application Act, 1937 in respect of those personal laws which adversely affect the dignity and right of Muslim Women. The Court held that these are all matters for the Legislature and the Court cannot legislate in these matters. In “Danial Latifi vs Union of India,” 2001, the Court overruled the Muslim personal law of Iddat by appealing to the Muslim Women (Protection of Rights on Divorce) Act, 1986. Danial Latifi, the counsel of Shah Bano Begum filed a Writ Petition in Supreme Court challenging the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 on the grounds that the Act is in derogation of certain provisions of the Constitution, such as Articles 21, 14, 15, in cases where the wife is unable to maintain herself after divorce. The Constitution Bench of the Supreme Court upheld the view that the wording of Section 3(1)(a) was interpreted to mean that the husband must pay maintenance to the wife beyond the Iddat period in the case of the wife’s destitution, thus making reasonable and fair provision and maintenance. Thus, while the Court cannot invalidate personal laws because of Article 25, but because Iddat has been codified by the Muslim Women (Protection of Rights on Divorce) Act, 1986, and this Act is a statutory law, which qualifies as a law in Article 13(3)(a), therefore the Court could overturn the custom of Iddat by appealing to section 3(1)(a) of the Act which provided for reasonable and fair provision and maintenance. This broad and progressive interpretation of section 3(1)(a) of the Act saved it from being invalidated by Article 13(2), and upheld the rights of divorced Muslim women to fair maintenance, and the Court maintained its consistency in not touching upon personal laws, but only statutory laws. The “Shayara Bano vs Union of India” case, 2017, is perhaps the one where the Court ruling has evolved the most, yet also maintaining its consistent stand regarding personal laws. Shayara Bano petitioned the Supreme Court to assail the divorce pronounced by her husband by Triple Talaq, which is codified under section 2 of Muslim Personal Law (Shariat) Application Act, 1937. The Court ruled that it could not accept the contention that the practice of Triple Talaq ceased to be personal law and got transformed into statutory law once it was codified and covered by the Muslim Personal Law (Shariat) Application Act, 1937 as the law of Triple Talaq was applicable to the Muslims even prior to the enactment of the said Act and has been followed for more than 1400 years. The Court also ruled that the practice of Triple Talaq does not violate the qualifications of Article 25, i.e. public order, morality and health and it has equal stature as other Fundamental Rights and therefore, the practice cannot be set aside through judicial intervention. Thus, the Court followed the same consistent principle that the Judiciary cannot invalidate any religious personal laws. However, the Court also ruled that the practice itself is discriminatory towards women, and thus while the practice itself is protected by Article 25, the Act which codified it is not. Further, the Court stated that socially unacceptable personal laws in India have been reformed only by way of legislation and such legislative reform is permissible under Articles 25(2), 44, and entry 5 of the Concurrent List. Therefore, in consideration of the gender discriminatory nature of Triple Talaq and the fact that it can only be reformed by legislation, the Court passed an injunction order against the practice of Triple Talaq for six months. If legislation is initiated to redefine Triple Talaq or to prohibit it altogether, then the injunction shall continue until the said legislation is enacted. However, if the Legislature failed to bring such legislation, the injunction would cease to operate and the practice of Triple Talaq would be left untouched. Subsequently, Triple Talaq Bill was passed and the Muslim Women (Protection of Rights on Marriage) Act, 2019 made the pronouncement of Triple Talaq void and illegal. Thus, we can see from this brief history that the consistent principle and restraint that has been exercised by the Judiciary is that it cannot invalidate any personal law, but only statutory laws, if they are inconsistent with the Fundamental Rights. Moreover, any statutory law which codifies such unjust personal laws may be invalidated by Article 13, even if the personal law itself is protected. Hence the downside to the codification of any personal laws or social customs is that the statutory law which codifies them qualifies as law under Article 13, and can be invalidated by the Judiciary. Moreover, such statutory law which codifies personal laws may be modified or abrogated by an Act of Legislature. Lastly, the evolution of the Court judgment thus far, is that the Court may advise the Legislature to take cognizance of any unjust and discriminatory personal law, and advise it to pass legislative reforms, as permitted under Articles 25(2), 44 and entry 5 of the Concurrent List.