2) Whether the ‘personal law’ is a law under Article 13 of the Constitution of India,

1950?

The Respondent humbly submits that the ‘personal law’ i.e. Muslim Personal Law (Shariat)
Application Act, 1937 cannot be considered as law under Article 131 of the Constitution of
India 1950. In the light of the Objects and Reasons of the said 1937 Act, it was not meant to
enforce Muslim Personal Law, which was enforceable by itself through the courts in India.
The 1937 Act was only meant, as the non-obstante clause in section 2 indicates, to do away
with customs or usage which is contrary to Muslim Personal Law. Therefore the 1937 Act per
se is not law for the purpose of Art 13. Moreover, the respondent submits that the Supreme
Court in Krishna Singh v. Mathura Athir2, has held that the Part III of the Constitution does
not touch upon the personal laws of the parties. This Court also observed that the High Court
in applying the personal laws of the parties could not introduce its own concepts of modern
times but should enforce the law as derived from recognized and authoritative sources. It is
also submitted that since Part III of the Constitution does not touch upon the personal laws of
the parties, Court cannot examine the question of constitutional validity of the practices of
marriage, divorce and maintenance in Muslim personal law.

So far as the challenge to the practice of ‘talaq-e-biddat’, with reference to the constitutional
mandate contained in Article 25 is concerned, we submits that the constitutional protection to
tenets of ‘personal law’ cannot be interfered with, as long as the same do not infringe “public
order, morality and health”, and/or “the provisions of Part III of the Constitution”. This is the
clear position expressed in Article 25(1).

The respondents will now venture to examine the instant challenge with reference to the
practice of ‘talaq-e-biddat’. It is not possible for us to accept, that the practice of ‘talaq-e-
biddat’ can be set aside and held as unsustainable in law for the three defined purposes
expressed in Article 25(1), namely, for reasons of it being contrary to public order, morality
and health. Viewed from any angle, it is impossible to conclude, that the practice impinges on

1
13. Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so
far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law
made in contravention of this clause shall, to the extent of the contravention, be void
(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
2
Krishna Singh v. Mathura Athir, (1981) 3 SCC 689
‘public order’, or for that matter on ‘health’. We are also satisfied, that it has no nexus to
‘morality’, as well. Therefore, in our considered view, the practice of ‘talaq-e-biddat’ cannot
be struck down on the three non-permissible/prohibited areas which Article 25 forbids even
in respect of ‘personal law’. It is therefore not possible for us to uphold the contention raised
on behalf of the petitioners on this account.

The only remaining ground on which the challenge to ‘talaq-e-biddat’ under Article 25 could
be sustainable is, if ‘talaq-e-biddat’ can be seen as violative of the provisions of Part III of the
Constitution. The challenge raised at the behest of the petitioners, was limited to the practice
being allegedly violative of Articles 14, 15 and 21. The fundamental rights enshrined in
Articles 14, 15 and 21 are as against State actions. A challenge under these provisions
(Articles 14, 15 and 21) can be invoked only against the State. It is essential to keep in mind,
that Article 14 forbids the State from acting arbitrarily. Article 14 requires the State to ensure
equality before the law and equal protection of the laws, within the territory of India.
Likewise, Article 15 prohibits the State from taking discriminatory action on the grounds of
religion, race, caste, sex or place of birth, or any of them. The mandate of Article 15 requires,
the State to treat everyone equally. Even Article 21 is a protection from State action,
inasmuch as, it prohibits the State from depriving anyone of the rights enduring to them, as a
matter of life and liberty (except, by procedure established by law). The respondents have not
accepted that after the enactment of the Shariat Act, the questions/subjects covered by the
said legislation ceased to be ‘personal law’, and got transformed into ‘statutory law’. Since
the respondents have held that Muslim ‘personal law’ – ‘Shariat’ is not based on any State
Legislative action, we have therefore submits that Muslim ‘personal law’ – ‘Shariat’, cannot
be tested on the touchstone of being a State action.

Muslim ‘personal law’ – ‘Shariat’, in our view, is a matter of ‘personal law’ of Muslims, to
be traced from four sources, namely, the Quran, the ‘hadith’, the ‘ijma’ and the ‘qiyas’. None
of these can be attributed to any State action. We have also already concluded that ‘talaq-e-
biddat’ is a practice amongst Sunni Muslims of the Hanafi School. A practice which is a
component of the ‘faith’ of those belonging to that school. ‘Personal law’, being a matter of
religious faith, and not being State action, there is no question of its being violative of the
provisions of the Constitution of India, more particularly, the provisions relied upon by the
petitioners, to assail the practice of ‘talaq-e-biddat’, namely, Articles 14, 15 and 21 of the
Constitution.3

The origin of personal laws or family laws in India also find its foundation or basis in the
recognition of very “right to practice” religion under Article 25 of the Indian Constitution
where a citizen has been given “freedom of conscience and free profession, practice and
propagation of religion”. This is evident from the pertinent observations made by the
Supreme Court of India in Commissioner Hindu Religious Endowments (HRE), Madras v.
Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt4 where Supreme Court of India has
observed:

“The guarantee under the Constitution of India not only protects the freedom of religious
opinion but it protects also acts done in pursuance of a religion and this is made clear by the
use of the expression "practice of religion" in Art. 25”

In the case of State of Bombay v. Narasu Appa Malli5, the Court was faced with the question
of the constitutionality of the Bombay Prohibition of Bigamous Marriage Act, 1946, and
whether an alteration in the personal law of one community, without similar alterations in
that of the other communities, violates equality. The Bombay High Court held that personal
laws are not ‘laws in force’ as under Article 13(3), since they are based on religious precepts
and accordingly are not subjected to review for violation of fundamental rights. Further, the
Court stated that the Act was not an alteration of the personal law, but an exercise of the
State’s prerogative of introducing social reforms.

Guidance is provided by the Calcutta High Court in Union of India v. B C

Nawn6, which held that primary purpose of this principle is when a provision in a statute
expressly mentions one or more particulars, but does not mention some others, then those
others not mentioned are taken to have been excluded from the provision.

J. Chagla argues, there can be found in the inclusion of various provisions in the Constitution
that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability),
Article 25 (Freedom of Religion) and Article 372 (Power to Adapt and Modify laws); the

3
Shayara Bano vs. Union Of India, (2017) 9 SCC 1
4
Commissioner Hindu Religious Endowments (HRE), Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt, [1954] AIR SC 282
5
State of Bombay v. Narasu Appa Malli, AIR 1952 Bom. 84
6
Union of India v. B C Nawn ,1972 84 ITR 526 Cal
implication being that the drafters did not intend to subject personal laws to Constitutional
provisions, because otherwise it would be ‘unnecessary to specifically provide for them.’

This reason is based on the maxim, expressio unius exclusio alterius, i.e., the express mention
of one, rules out others. The Court has applied this rule thus, concluding that any provision in
the religious texts, followed in its purity is beyond judicial scrutiny. Take for example Article
23, which establishes a right against discrimination on grounds of religion, caste or class. As
per J. Chagla’s reasoning, the inclusion of a specific right against caste-discrimination would
signify its exclusion from the scope of Article 14, which establishes a right to equality.

The Court in the present matter have already been examined by the Supreme Court in
Ahmedabad Women Action Group v. Union of India7. In that case, inter alia the following
issues were considered by this Hon’ble Court:-

(i) Whether Muslim Personal Law which allows Polygamy is void as offending
Articles 14 and 15 of the Constitution.
(ii) Whether Muslim Personal Law which enables a Muslim male to give unilateral
Talaq to his wife without her consent and without resort to judicial process of
courts, is void as it offends Articles 13, 14 and 15 of the Constitution.
(iii) Whether the mere fact that a Muslim Husband takes more than one wife is an act
of cruelty

While considering the above issues the Court declined to entertain the above mentioned
issues stating that these were matters wholly involving issues of State Policies with which the
Court will not ordinarily have any concern. The Court also held that these issues are matters
which are to be dealt with by the Legislature.

Even in a case Khuran Sunnath Society and others v. Union of India8 as recent as that of
2015, the same reluctance was visible in deciding the constitutional validity of the Shariat
law by the Kerala High Court, as it was stated that only a competent legislative authority
would be capable of addressing this issue.

In Sardar Sydena Taher Saifuddin Saheb v. State of Bombay9, Supreme Court observed that
the exception carved in Article 25 (2) of the Constitution of India to the Freedom of Religion
enabling the state to enact laws providing for “social welfare and reform” was not intended to

7
Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573
8
Khuran Sunnath Society and others v. Union of India,MANU/KE/0906/2015.
9
Sardar Sydena Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853
enable the legislature to “reform” a religion out of its existence or identity. Hence, We the
respondents contend that the practice that has been followed for the past 1400 years cannot be
abrogated in the name of a Social Reform.