INSTANTANEOUS TRIPLE TALAQ

Overview
HISTORICAL BACKGROUND
CONSTITUTIONAL STATUS
VIOLATIVE OF FUNDAMENTAL RIGHTS OF MUSLIM WOMEN

HISTORICAL BACKGROUND

Since its inception, the provision of instantaneous Triple Talaq or Talaq-i-bidah has been
widely criticised not only by the society at large, but also by the muslims. It has been used as
a tool of oppression against women by the husbands where they can arbitrarily, without a just
cause can divorce their wives in one single go, and the wife has no right to repudiate or
cancel it. It totally depends upon the whims and pleasure of the husband. The most prevalent
method of exercising Talaq under sunni law is to pronounce three Talaqs at the same time or
in one sentence saying I divorce you three times, then also Talaq-i-bidah comes into action
and the women stands divorced the same moment.

Islamic jurisprudence (Fiqh) has developed from four roots (Usul al-fiqh):- (1) The Quran;
(2) the Hadith or Sunna; (3) Ijma and (iv) Qiyas. Employing these Usul al-fiqh, the Ulema
(the learned) conducted a scientific and systematic inquiry. This is known as the process of
ijtihad. Through this process of ijtihad sprung out various schools of law each of which owed
its existence to a renowned master. For example, the jurisprudence (Fiqh) developed by Abu
Hanifah and continued by his disciples came to be known as the Hanafi school. The Maliki
school owed its origin to Malik Ibn Anas, the Shafie school to al-Shafi'i, the Hanbali school
to Ibn-Hanbal and so on. These are the sunni schools. Similarly, there are Shia schools such
as the Athna Ashari, Jaffariya and Ismaili schools. In India, muslims are predominantly
Sunnis and, by and large, they follow the hanafi school. The Shias in India largely follow the
Athna Ashari school.

The practice of instantaneous Triple Talaq came into force at the time of Caliph Umar, one of
the companions of the prophet, where he allowed the practice of instantaneous Triple Talaq ,
its validity is backed by the above Hadith. Therefore, in the present case the Talaq
pronounced by Sulaiman is valid and must be enforced.

Abdullah ibn Umar also records the Prophet pointing to the straight way, saying: "The
straight way is the one which I and my Companions follow1.”

Consensus signifies the agreement of all competent persons on an issue. These persons
should be, in the opinion of the Muslim community, worthy of inferring rulings from the
Quran and other sources of Shariah. The following verse reinforces this point: “As for him
who sets himself against the Messenger and follows a path other than that of the believers
even after true guidance had become clear to him, We will let him go to the way he has
turned to, and We will cast him into Hell-an evil destination2.”

The above verse speaks of the way or the action adopted by Muslims. Scholars therefore hold
consensus as synonymous with the way of Muslims. Thus it is mandatory to follow the way
adopted by the leading members of the community.

Abdullah Ibn Umar recounts that the Prophet said: "My community or Muhammad's
community will not unanimously agree on something false. Allah helps the community3.

Abdullah ibn Masud states: "When your opinion is sought regarding an issue, you should first
consult the Quran. Unable to find any guidance in it, you should study Ahadith for guidance.
If you are still unable to get it, you should study the Muslims' consensus view on that issue. If
there is nothing on record, independent judgment should be exercised4.

Therefore , the mass acceptance of the practice by Sunni Muslims validates the instantaneous
Triple Talaq as per the consensus principle .

Notwithstanding the fact that Islam provides that divorce should essentially be for a valid
ground, it is submitted that even if divorce is pronounced irregularly without the existence of
any valid reason, it will still result into termination of marriage. The Shariat however strictly
reprimand such a practice and it is settled that as per Shariat , those men and women who
seek to terminate a marriage without a valid reason would be deemed to have committed a sin
by putting an end to a Sunnah Act without there being any compelling need or reason.

The present petition seeks to challenge the practice of only “TripleTalaq”. Triple Talaq or
Talaq-e-biddat comes into effect when three pronouncements are made in one go (Triple

1
Al-Tirmidhi, Babma jaa fiiftraq al-ummah, Hadith No.2541
2
Al-Nisa 4:115
3
Tirmidhi, Kitab Al-fitan, Bab luzum al-jama'h,Hadith No2167)
4
."(Al-Maqasid Al- Hasanah, 460 and Kashf Al Khifa,2,488)
Talaq) either in one sentence or in three sentences signifying a clear intention to divorce the
wife, for

instance, the husband saying “I divorce you three times” or “I divorce you, I divorce you, I
divorce you,”

In essence, the Shariat is a compendium of rules guiding the life of a Muslim from birth to
death in all aspects of law, ethics and etiquette. These rules have been crystallized through
the process of ijtihad employing the sophisticated jurisprudential techniques. The primary
source is the Quran. Yet, in matters not directly covered by the divine book, rules were
developed looking to the Hadiths and upon deriving a consensus. The differences arose
between the schools because of reliance on different hadiths, differences in consensus and
differences on qiyas or aql as the case may be7.

Among the various schools of Islamic law , talaq-e-bidat is not recognised ,it is considered
contrary to law of divorce laid down in Quran. It provides that a person cannot divorce his
wife unless there is an arbitration or reconciliation process. It is also an expressed view that
maulvis have thwarted reforms in the Muslim community in India and it is imperative for the
judiciary to step in.

In any event, the social, economic, humanitarian and moral significance of making attempts
over a period of time to reconcile marital disputes is widely prevalent and very well
recognised.

Islam which on one hand has provided equal rights to women as early as 7th century , at a
time when women did not have equal rights in the society where males were considered
superior to females. Muslim law in its pristine purity was an admirable system of
jurisprudence providing many rational and revolutionary concepts which could not be
conceived by other systems of law then in force at that distant date 5, cannot make way for
such a plenary law as instaneous Triple Talaq , which not only goes against the spirit of Islam
but also against that of a rational thinking mind.

CONSTITUTIONAL STATUS OF INSTANTANEOUS TRIPLE TALAQ

In various cases judiciary expressed complete disapproval of such practise and considered it
as an evil in the country governed by rule of law and where fundamental rights possess an
important place in securing liberties of individuals.
5
AMEER ALI, MOHAMMADAN LAW, 5THEDITION PAGE 9
In case of Mst. Rukia Khatun v. Abdul Khalique Laskar 6, Baharul Islam, J. stated that the
correct law of Talaq as ordained by the Holy Quran is that Talaq must be for a reasonable
cause and 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.

In Shamim Ara v. State of Uttar Pradesh & Another 7, wherein the Apex court considered
valid Talaq in Islamic law and, referring to these decisions as “illuminating and weighty
judicial opinion available in two decisions of Gauhati High Court recorded by Baharul Islam,
J”, observed that talaq must be for a reasonable cause and be preceded by attempts at
reconciliation between the husband and the wife.

John Vallamattom and Prakash v. Phulavati 8. It is further submitted that this Hon’ble Court
has already held that the issue of gender discrimination against Muslim women under Muslim
personal laws, specifically the lack of safeguards against arbitrary divorce by muslim
husband notwithstanding the guarantees of the Constitution, needs to be examined by this
Hon’ble Court.

In Masroor Ahmed v.State of NCT , DELHI 9, B. D. Ahmad J. observed that It was further
held that—

“Pronouncement of triple 'talak' amounts to talaq-ul-Biddat which became irrevocable and it

does not lie in the mouth of the applicant to say that the complainant was his wife. The
question which arises is, given the shariat and its various schools, how does a person
proceed on an issue which is in dispute” The solution is that in matters which can be settled
privately, a person need only consult a mufti (jurisconsult) of his or her school. The mufti
gives his fatwa or advisory decision based on the Shariat of his school. However, if a matter
is carried to the point of litigation and cannot be settled privately then the qazi (judge) is
required to deliver a qaza (judgment) based upon the Shariat. The difference between a
fatwa and a qaza must be kept in the forefront. A fatwa is merely advisory whereas a qaza is
binding. Both, of course, have to be based on the shariat and not on private interpretation de
hors the sharia. . In India, the confusion with regard to application of customary law as part
of muslim law was set at rest by the enactment of The Muslim Personal Law (Shariat)
Application Act, 1937. Section 2 of the 1937 Act reads as under:- “2. Application of Personal
6
(1981) 1 GLR 375 (DB),
7
(2002) 7 SCC 518
8
(2003) 6 SCC 611
9
(2008) 103 DRJ 137
Law to Muslims.-- Notwithstanding any customs 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, guardianship, gifts, trusts and trust
properties, and wakfs (other than charities and charitable institutions and charitable and
religious endowments) the rule of decision in cases where the parties are Muslims shall be
the Muslim Personal Law ( Shariat ).” The key words are “notwithstanding any customs or
usage to the contrary” and “the rule of decision in cases where the parties are muslims shall
be the muslim personal law (shariat).”. The 1939 Act introduced a very salutary principle
into muslim law as it is administered in India.. The Statement of Objects and Reasons of the
1939 Act clearly indicates the application of Maliki law to all muslim women seeking divorce
through court. It was specifically noted in the said Statement of Objects and Reasons that
“the Hanafi Jurists, however, have clearly laid down that in cases in which the application of
Hanafi Law causes hardship, it is permissible to apply the provisions of the Maliki, Shafii or
Hambali Law”. Talaq and its three forms 20. I now return to the central point in this case “
talaq. This mode of dissolving a marriage is unique to muslim law.

In this connection the Supreme Court, in Zohara Khatoon v. Mohd. Ibrahim10observed :-

“. There can be no doubt that under the Mahomedan law the commonest form of divorce is a
unilateral declaration of pronouncement of divorce of the wife by the husband according to
the various forms recognised by the law. A divorce given unilaterally by the husband is
especially peculiar to Mahomedan law. In no other law has the husband got a unilateral
right to divorce his wife by a simple declaration because other laws viz. the Hindu law or the
Parsi Marriage and Divorce Act, 1936, contemplate only a dissolution of marriage on
certain grounds brought about by one of the spouses in a Court of law.”

Three forms of talaq have been in existence “ (1) Ahsan talaq; (2) Hasan talaq; and (3) Talaq-
e-bidaat. Ahsan talaq is when the husband makes a single pronouncement of talaq during a
period of purity (tuhr) followed by abstinence from sexual intercourse for the period of iddat,
such a talaq is called ahsan talaq. A divorce of this kind is revocable during the period of
iddat. It becomes irrevocable when the period of iddat expires. It is irrevocable in the sense
that the former husband and wife cannot resume a legitimate marital relationship unless they
contract a fresh nikah with a fresh mahr22. This is subject to a limitation and that is that if the
10
(1981) 2 SCC 1
talaq was the third time such a talaq was pronounced, then they cannot re-marry unless the
wife were to have, in the intervening period, married someone else and her marriage had been
dissolved either through divorce or death of that person and the iddat of divorce or death has
expired. This latter process is known as halala. However, the process of halala cannot be
employed as a device to re-marry the same spouse but, it must happen in the natural course of
events. It is, in effect, a near impossibility and, for all intents and purposes, the third talaq
brings about a final parting of the erstwhile spouses . Hasan talaq Where the husband makes a
single pronouncement of divorce during three succes1sive tuhrs, without any sexual
intercourse during the said tuhrs, the divorce is known as hasan talaq. The first two
pronouncements are revocable. The third is irrevocable. The first two pronouncements can be
revoked during iddat. The third, cannot be. And, after iddat, the former husband and wife
cannot even enter into a nikah unless the said process of halala is completed. Talaq-e-bidaat
Where three pronouncements are made in one go (triple talaq) either in one sentence or in
three sentences signifying a clear intention to divorce the wife, for instance, the husband
saying “I divorce you three times” or “I divorce you, I divorce you, I divorce you” or the
much publicised “Talaq, talaq, talaq”. Sanctity and effect of Talaq-e-bidaat or triple talaq.
There is no difficulty with ahsan talaq or hasan talaq. Both have legal recognition under all
fiqh schools, sunni or shia. The difficulty lies with triple talaq which is classed as bidaat (an
innovation). Generally speaking, the shia schools do not recognise triple talaq as bringing
about a valid divorce. There is, however, difference of opinion even within the sunni schools
as to whether the triple talaq should be treated as three talaqs, irrevocably bringing to an end
the marital relationship or as one rajai (revocable) talaq, operating in much the same way as
an ahsan talaq. When a difference of opinion is discernible within a particular school,
normally the dominant opinion is taken as representative of the school. But, this does not
mean that a qazi, when required to render a decision in a specific case, cannot, in the interest
of justice and equity, adopt the view of the minority within the school. It is also interesting to
note that traditionally the qazi gave the ruling based upon the school which he followed.

In case of Sarabhai v. Rabia Bai11, the Court observed that Talaq –i-bidah is theologically
improper and is also improper from moral point of view.
12
In case of Fazlur Rahman v. Aisha , the validity of Talaq –i-bidah was questioned . It was
argued that this type of divorce is against the Quranic Law and the Court is bound not to give

11
(1906)30 Bom. 537
12
(1929)8 Pat.690
effect to the rule and it also opposed a tradition of the prophet . It was held that the Quranic
verses have been differently interpreted by different schools.

In case of Rahmatullah v. State of U.P. and others 13, H.N.Tilhari , J. of Allahabad High Court
observed that Talaq-i-bidah, that is giving an irrevocable divorce at one sitting or by
pronouncing it in a tuhr once in an irrevocable manner without allowing the period of waiting
for reconciliation or without allowing the will of Allah to bring about reunion , by removing
differences or cause , of differences and helping the two in solving their differences , runs
counter to the mandate of Holy Quran and has been regarded as , by all under Islam-Sunnat ,
to be sinful .He further observed that the mode of talaq giving unbridled power to the
husband cannot be deemed operative as same as the effect of perpetuating discrimination on
the ground of sex that is male authoritarianism .”

In case of Shayara bano v. U.O.I14, the Supreme Court has admitted the case for hearing
which confirms the importace and gravity of the issue of Triple Talaq which needs to be
addressed by the Hon’ble Court .The same is listed for final hearing in the Court for which a
five Judges Constitutional bench has been constituted.

INSTANTANEOUS TRIPLE TALAQ IS VIOLATIVE OF FUNDAMENTAL RIGHTS

Article 14 embodies within it the Dicean concept of the ‘Rule of Law’ 15, which means
interalia an equal subjection of all classes to the ordinary law of the land. 16 This also
exemplifies the concept of equal protection of the law. 17 Equal protection means the absence
of any arbitrary discrimination by the laws themselves or in their administration. 18 None
should be favoured19 and none should be placed under any disadvantage in circumstances that
do not admit of any reasonable justification for a different treatment. 20 The principle guiding
Article 14 is that there should not be discrimination between one person and another, if as
regards the subject matter of the legislation their position is the same, 21 or in other words, its
action must not be arbitrary but must be based on some valid principle which itself must not

13
1994(12)Lucknow Civil Decision , p.463
14
Writ Petition( civil) no. 118 0f 2016
15
Josheph Raz, The Rule of Law and its Virtue, (1977) 93 LQR 195.
16
Bachan Singh v. State of Punjab, AIR 1982 SC 1325.
17
Article 7, United Nations Universal Declaration of Human Rights, GA res. 217A (III), UN Doc A/810 at 71
(1948); Article 14, United Nation Covenant on Civil and Political Rights, 6 ILM 368 (1967); Article 14,
European Convention on Human Rights, 213 UNTS 221.
18
Charles K. Burdick, The Law of the American Constitution, 605 (1st ed. 1922).
19
Morey v. Doud, (1956) 118 U.S. 356.
20
Truax v. Corrigan, (1921) 257 U.S. 312.
21
Chiranjit Lal v. Union of India , AIR 1951 SC 41; Neera Gupta v. University of Delhi, AIR 1997 Del 175.
be irrational or discriminatory.22 If the State leaves the existing inequalities, untouched by the
laws, it fails in its duty of providing equal protection of the law to all persons.23

Our Constitution is wedded to the concept of equality and equality is a basic feature. 24

Equality before law means that among equals the law should be equal and equally
administered, that like should be treated alike. 25 Therefore, equal laws can be applied only to
those in similar circumstances.26

As per the facts of the case , the unilateral and uncontrolled exercise of power of divorce by
the husband by pronouncement of instantaneous triple talaq is against the principle of
equality in which the wife does not have any say and is bound by it which is absolutely
arbitrary .

In the case of , Maneka Gandhi v. Union of India,27 the Supreme Court held that Article 14
strikes at arbitrariness in State action and ensures fairness and equality of treatment. This
principle was reiterated in Ramana Dayaram Shetty v. International Airport Authority,28 Kasturi
Lal Lakshmi Reddy v. State of J&K29 and Ajay Hasia v. Khalid Mujib.30

INSTANTANEOUS TRIPLE TALAQ IS DISCRIMINATORY IN NATURE AS

PER ARTICLE 15 OF THE CONSTITUTION.

That it is most humbly submitted that social justice is fundamental right. 31The Preamble
delineates the contours in accordance with which our Constitutional machinery has to
function.32 It enlists the goals which our Constitution intends to achieve. This fact can be
appreciated only by looking into the history of the framing of our Preamble. 33 Not only was
the Constitution framed in light of the Preamble34 but the Preamble was finally adjusted so as

22
Ramana v. I.A.A., AIR 1979 SC 1628, Kasturi v. State of Jammu and Kashmir, AIR 1980 SC 1992.
23
St. Stephen College v. University of Delhi, AIR 1992 SC 1630.
24
Indira Sawhney v. Union of India and Ors., AIR 2000 SC 498, Para 7.
25
Sir Ivor Jennings, Law of the Constitution, 49 (3rd ed. 1963).
26
V.N. Shukla, Constitution of India, 46 (11th ed. 2010).
27
(1978) 1 SCC 248.
28
Ramana Dayaram Shetty v. International Airport Authority, (1979) 3 SCC 498.
29
(1980) 4 SCC 1.
30
(1981) 1 SCC 722.
31
Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201 (para26).
32
State of Victoria v. The Commonwealth, 45 ALJ 251.
33
Basheshar Nath v. Commissioner of Income Tax Rajasthan, [1959] Supp 1 SCR 528.
34
Atam Prakash v. State of Haryana, AIR 1986 SC 859 (864). See also Excel Wear v. Union of India, AIR 1979
SC 25 (Para 24).
to bring it in conformity with the Constitution.35 The draft Preamble was considered by the
Constituent Assembly on October 17, 1949.36 Shiva Rao observes that “The object of putting
the Preamble last was to see that it was in conformity with the constitution as accepted.” 37 In
the end, the words “give to ourselves this Constitution”38 was added so as to clearly show
that the people are who have given a charter for their governance, in the Constitution, and the
goals of which have been clearly mentioned in the Preamble to the Constitution.39

The grand vision and the objective behind making of the constitution are reflected in the
Preamble.40 It lays down the ideas that our forefathers after years of struggle for freedom
wanted to achieve.41 The desires, the hopes and the aspiration of the people of this country are
materialized in the form of the Preamble by the constitutional framers. 42 The Indian
Constitution was not only looked to be an alliance between democracies and dynasties, but a
The grand vision and the objective behind making of the constitution are reflected in the
Preamble.43 It lays down the ideas that our forefathers after years of struggle for freedom
wanted to achieve.44 The desires, the hopes and the aspiration of the people of this country are
materialized in the form of the Preamble by the constitutional framers. 45 The Indian
Constitution was not only looked to be an alliance between democracies and dynasties, but a
real union of Indian people, built on the basic concept of Sovereignty. 46 The constitution and
the Preamble were drafted in light and direction of the Objective resolution where the
Constitutional Assembly declared India as an Independent Sovereign republic. 47 Therefore
the basic tenants of the constitution were made in light of this idea of the preamble which in
turn was drafted after the Constitution.

Govt.. Of Andhra Pradesh v. P. B. Vijaykumar 48, it was held that the insertion of Article 15
(3) is to eliminate socio-economic backwardness of women and to empower them in the
manner that would be about effective equality between men and women .
35
B. Shiva Rao, “Framing of the Indian Constitution”, (1967).
36
B. Shiva Rao, “Framing of the Indian Constitution”, (1967) p.127.
37
B. Shiva Rao, “Framing of the Indian Constitution”, (1967) p.131.
38
B. Shiva Rao, “Framing of the Indian Constitution”, (1967) p.132.
39
1, Story, Commentaries On The Constitution Of The United States 444 (1883).
40
Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933 at 968.
41
Lord Thring, Practical Legislation, Chapter IV (2nd ed. 1902).
42
Mangal Singh v. Union of India, (1967) 2 SCR 109 at 112.
43
Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933 at 968.
44
Lord Thring, Practical Legislation, Chapter IV (2nd ed. 1902).
45
Mangal Singh v. Union of India, (1967) 2 SCR 109 at 112.
46
B. Shiva Rao, Framing of the Indian Constitution, (1967) at 130.
47
III, Constitutional Assembly Debates, 399-436.
48
AIR 1995 SC1648
Air India v. Nargesh Meerza49 , Supreme court held in this case that Air India’s refusal of
employment to air hostesses after a certain age was held to be discriminative .

Medha Kotwal Lele v. U.O.I50, the court held in this case that discrimination against women
in the government services is against the social ethics of the constitution .

Anuj Garg Assosciation v. U.O.I.51, the related facts were women will not be allowed to work
at night , the Supreme Court held it to be totally discriminatory.

THE PROVISION OF INSTANTANEOUS TRIPLE TALAQ IS AGAINST THE PRINCIPLES OF

SOCIAL JUSTICE EMBODIED IN THE PREAMBLE.

Our Constitution is a social document. It is based on Social Philosophy and every social
philosophy has two main features i.e., basic and circumstantial. The former remains constant
and the latter is subject to change according to the needs of the society.

Social justice is the recognition of greater good to a larger number without deprivation of the
legal rights of anybody.52 According to this concept, the court leans in favour of the weaker
sections of the society.53 The constitutional concern of social justice as an elastic continuous
process is to accord justice to all sections of the society by providing facilities and
opportunities to remove handicaps with which the backward sections are languishing and
secure dignity of their person.54 Social justice aims to remove social imbalance by law,
harmonizing the rival interests of different sections in the social structure, in order to build a
Welfare State.55

The meaning of the expression is also brought out by Article 46 56 which aims at protecting
the weaker sections from social injustice. 57 The words of the Preamble enjoin the State to
enact positive measures for the protection of weaker sections of the community. 58 Social

49
AIR 1981,4SCC 355
50
( 2013) 1SCC 297
51
( 2007) 5SCC 5657
52
G.B Paul University of Agriculture and Technology v. State of U.P., AIR 2000 SC 2695.
53
Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471.
54
Consumer Education and Research Center v. Union of India, AIR 1995 SC 922.
55
Dalmia Cement (Bharat) Ltd. v. UOI, (1996) 10 SCC 104; Air India Statutory Corporation v. United Labour
Union, AIR 1997 SC 645.
56
Provisions in this regard are also made in Articles 15(4), 16(4), 19 (1)(d)-(e), 275, 330, 335, The Constitution
of India (1950).
57
Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471.
58
Lingappa Pochanna Appelwar v. State of Maharastra, AIR 1985 SC 389; Indra Sawhney v. Union of India,
AIR 1993 SC 477.
justice is a fundamental right.59 Preamble read with Art. 14 strike down a statute which failed
to achieve the socialist goal to the fullest extent.60

Thereby , it is manifestly clear that the doctrine of instantaneous Triple Talaq , which gives
unilateral power of divorce to the husband which is arbitrary in nature and is discriminatory
to the wife. Since the discrimination is based solely on the ground of sex is violative of the
principle of social justice and is against the spirit of Constitution of Indiana .

The basis behind the laws of equality is that they serve a better purpose than what they are
actually meant to do. The better purpose is called “Justice”. After all, justice is one thing that
is common for all before the government and must be delivered .

INSTANTANEOUS TRIPLE TALAQ IS VIOLATATIVE OF ARTICLE 21

That Article 21 is one of the most important of fundamental rights under the Constitution. It
has been described as heart of fundamental rights. Article 21 reads that : “No person shall be
deprived of his life or personal liberty except according to procedure established by law”.
The object of the fundamental right under Article 21 is to prevent encroachment upon
personal liberty and deprivation of life except according to procedure established by law. It
clearly means that this fundamental right has been provided against state only. If an act of
private individual amounts to encroachment upon the personal liberty or deprivation of life of
other person. Such violation would not fall under the parameters set for the Article 21. But,
where an act of private individual supported by the state infringes the personal liberty or life
of another person, the act will certainly come under the ambit of Article 21.

The expression “ life” in Article 21 has been interpreted by the Supreme Court rather
liberally and broadly. Over time , the court has been giving an expansive interpretation to
life . The Court has often quoted the following observation of FIELD , J. , an American case :
“ By the term ‘ life’ as here used something more is meant than mere animal existence . The
inhibition against its depreviation extends to all those limbs and faculties by which life is
enjoyed . The provision equally prohibits the mutiliation of the body by the amputation of an
arm or leg ..”

59
Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201.
60
Nakara D.S. v. Union of India, AIR 1983 SC 130 (Para 33-34); see also Minerva Mills v. Union of India, AIR
1980 SC 1789 (Para 62, 111).
 61
BHAGWATI, J. , has observed in Francis Coralie : “ We think that the right to life
Includes the right to live with human dignity and all that goes along with it , namely , the bare
necessities of life such as adequate nutrition , clothing and shelter over the head and facilities
for reading , writing and expressing oneself in diverse forms, freely moving about and
mixing and commingling with fellow human beings” .
62
Further , in the case of P. Rathinam v. U.O.I. , the Supreme Court has defined life as
follows :“The right to live with human dignity and the same does not connote continued
drudgery . It takes within it’s fold some fine graces of civilization which makes life worth
living and that the expanded concept of life would mean the tradition , culture and heritage of
the person concerned”.

Another broad formulation of the theme of life with dignity is to be found in Bandhua Mukti
63
Morcha , characterizing Article 21 as the heart of Fundamental Rights , the Court gave it
expanded interpretation – “ To live with human dignity , free from exploitation .”

In the present case the exercise of unilateral arbitrary power of divorce by the Sulaiman is
exploitative in nature to Salma as she is upon the whim and pleasure of the husband and
cannot exercise any discretion of her own , thus it is against the spirit of Article 21 .

As per the facts , Sulaiman did not agree with Salma on the issue of having a child which is
in violation of her right to motherhood which is a fundamental right as being observed by the
Supreme Court in case of Sandesh Bansal v. U.O.I. 64.

Again in case of Suchitra Srivastava v. Chandigarh Administration 65the A pex court held
that personal liberty in Article 21 includes the right to make reproductive choice . In view of
this woman’s right to privacy, dignity and bodily integrity should be respected .

INSTANTANEOUS TRIPLE TALAQ IS VIOLATIVE OF ARTICLE 25

It is most humbly submitted before the Hon’ble Supreme Court that instantaneous Triple
Talaq is violative of Article 25 which guarantees to every person subject to public order ,
health and morality , freedom not only to entertain his religious beliefs , as may be approved

61
FRANCIS CORALIE v. DELHI AIR 1981 SC746
62
1994 3SCC394
63
BANDHUA MUKTI MORCHA V. U.O.I (1994) 3 SCC 394
64
2008 SCC 542
65
AIR 2010 SC 235
of his judgement and conscience , but also to exhibit his belief in such outwardly act as he
thinks proper and to propagate or discriminate his ideas for the edification of others 66.

The freedom to profess religion is absolute inner freedom of the citizen to mould his own
relation with god in whatever manner he likes. To profess a religion means to declare freely
and openly one’s faith and belief, he has right to practice his belief by practical expression in
any manner he likes. To practice religion is to perform the prescribed religious duties, rites
and rituals and to exhibit beliefs and ideas by such acts as prescribed by religious order as has
been held in case of S.P.Mittal v. U.O.I.67.

The right to freedom of religion postulates that to transmit his religion and to practice in its
purest form as has been held in Commr. H.R.E. v. L.T. Swamiar 68, so herein with reference to
this case, Salma as a follower of the Shia sect has the right to profess and practice beliefs and
rituals of her own sect according to Article 25 and decision of High Court of Delsi is in
against it.

66
JAIN , M. P. EDITION 5 , PAGE 1409
67
AIR 1983 SC1
68
AIR 1954