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The Islamic practice of instant triple talaq permits Sunni Muslim men to enact divorce with their wives, simply by pronouncing talaq, meaning divorce, three times. Despite, many Islamic countries have banned it and the Supreme Court finding it unconstitutional in the past, Chief Justice J. S. Khehar concluded that talaq-e-biddat constitutes a matter of faith for Sunni Muslims of the Hanafi school and has been practiced by them for at least 1,400 years.

India has two primary ways of dealing with religious matters. The Constitution protects the personal law of religious communities, allowing them to carry on practices as per their traditions without the interference of the courts. But where religious law has been codified by legislatures, such as through the Shariat Act of 1937, it becomes open to constitutional questions and the test of fundamental rights.

In a majority 3:2 Judgment, a Five-Judge Bench of the Supreme Court on 22nd August 2017, set aside talaq-e-biddat as a “manifestly arbitrary” practice, which is not protected by Article 25 (Freedom of Religion) of the Constitution in the case of Shayara Bano vs. Union of India and others (22.08.2017)

Justices Kurian Joseph and Rohinton Fali Nariman gave separate Judgments against the validity of talaq-e-biddat.

Justice Nariman’s Judgment says, talaq-e-biddat allowed a Muslim man to “whimsically and capriciously” divorce his wife. The practice is “manifestly arbitrary” and does not enjoy the protection of Article 25. Furthermore, Justice Nariman opined, talaq-e-biddat was merely permissive and not a absolute religious practice, and so, does not deserve the protection of Article 25, again. This view was supported by Justice U.U. Lalit.

Justice U. U. Lalit further stated that the 1937 Shariat Act is a law made by the legislature before the Constitution came into force, and would fall squarely within the expression “laws in force” under Article 13(3)(b). Therefore, it would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution.

Justice Kurian Joseph, in his Judgment, concurs with Justice Nariman on the ‘arbitrariness aspect’ stating that,“However, on the pure question of law that a legislation, be it plenary or subordinate, can be challenged on the ground of  arbitrariness, I agree with the illuminating exposition of law by Nariman, J. I am also of the strong view that Constitutional democracy of India cannot conceive of a legislation which is arbitrary.

The minority view of Chief Justice of India J. S. Khehar, who led the Bench, held that talaq-e-biddat is an integral part of Article 25 (Freedom of Religion). He said it had been followed for over 1,400 years by the Hanafis and become a part of religious pratice. He held that instant talaq does not violate Articles 14, 19 and 21 of the Constitution, and has passed it on to the Legislature to decide a law invoking extraordinary jurisdiction within six months of the Judgment.

The opinion of Justice J.S. Khehar and Justice S. Abdul Nazeer is that, “Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months,

If it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.”

Chief Justice J.S. Khehar’s dissenting opinion concluded that instant talaq-e-biddat did not come under codified, statutory law – as argued by the Petitioners calling for it to be struck down – and instead accepted the All India Muslim Personal Law Board’s contention that it was personal religious law, and could not be changed by the court.

Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion,” the dissenting opinion says. “We cannot accept the Petitioners’ claim, because the challenge raised is in respect of an issue of ‘personal law’ which has constitutional protection.

We hope and expect, that the contemplated legislation will also take into consideration advances in Muslim ‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States. When the British rulers in India provided succor to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind,” the dissenting opinion said. “We would also beseech different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation.

Ultimately, however, this opinion was only supported by two of the Five Judges on the Bench and so, rather than leaving talaq-e-biddat to the Legislature, the Supreme Court of India has decided to strike down talaq-e-biddat as unconstitutional regardless of the above dissenting opinions of two Judges that it comes under personal law.

Taruna Verma

Senior Associate

The Indian Lawyer

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Highway Liquor Ban

Owners of liquor shops in Maharashtra have approached the Supreme Court challenging the State Government’s decision to declare State Roads as Highways without following the procedure mandated under the Bombay Highways Act, 1955.

The petition is an appeal against the decision of the Bombay High Court, which had dismissed the challenge.

When the matter came up in the Supreme Court for hearing on Friday (18.08.2017) before a Bench of Justices Dipak Misra and AM Khanwilkar, the Court directed that the matter should be heard by the same Bench which had passed the order banning liquor shops within 500 meters of National and State Highways.

It is the Petitioner’s case that they are operating their liquor shops along roads which are neither National Highways nor State Highways. The Petitioners have submitted that the State Government has merely changed the name of the roads into State Highways without declaration in the Official Gazette which is mandatory as per Section 3 of the Bombay Highways Act, 1955. The Petitioner’s have averred that:

“The liquor shops of the Petitioners are neither operating on National Highway nor State highway.. Mere change of name of the road without any notification whatsoever would not give a State Road, status of State Highway. Section 3 of the Bombay Highways Act, 1955 is a mandatory section for declaring/converting any road into State Highway.”

The Petitioner goes on to state that when the case had come up before Bombay High Court, the State Government had, in fact, admitted that there exists no Notification by which the State Roads were declared as State Highways. They further say:

“The Hon’ble High Court erred in not taking any action against the Respondents, who in fact have admitted before the Hon’ble High Court that there exists no notification vide which the State Roads are converted/declared as State Highways, where the Petitioners are carrying out their businesses.”

On December 15, 2016, a three-judge Bench of the Supreme Court comprising Chief Justice JS Khehar and Justices DY Chandrachud and L Nageswara Rao had ordered a ban on sale of alcohol within a distance of 500 meters from National and State Highways. The matter may now come up before the same Bench.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

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In a landmark judgment of Shayara Bano versus Union of India (22.08.2017), the Supreme Court set aside the Triple Talaq system of divorce followed by Sunni Muslims under personal law as unconstitutional.

The affected Muslim women in a bunch of petitions had challenged the validity of instant Triple Talaq on the grounds that it violated their fundamental right to equality. A five-judge bench, taken from different religious backgrounds, comprising Chief Justice J.S. Khehar and Justices Kurian Joseph, Rohinton F. Nariman, Uday U. Lalit and S.A. Abdul Nazeer, in a 395-page verdict by a majority of 3:2, held that instant Triple Talaq is unconstitutional, arbitrary and unreasonable.

Justices Kurian Joseph, UU Lalit and RF Nariman delivered the majority Judgment. Justice Nariman’s view is that Triple Talaq does not fall within the sanction of the Quran. Even assuming that it forms part of the Quran, Hadis or Ijmaa, it is not something that is “commanded”. Talaq itself is not a recommended action and therefore, he argued, Triple Talaq will not fall within the category of sanction ordained by the Quran. While the practice is permissible in the Hanafi jurisprudence, that very jurisprudence criticizes Triple Talaq as being sinful.

A practice that is clearly arbitrary is obviously unreasonable and, being contrary to the rule of law, would violate Article 14 of the Constitution. If an action is found to be arbitrary and unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground. Pointing out that Triple Talaq is sanctioned under the Muslim Personal Law (Shariat) Application Act, 1937, Justice Nariman said it is constitutionally invalid.

Justice Joseph’s view on the said point is as follows:

“What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

He further held the simple question that needs to be answered in this case is only whether Triple Talaq has any legal sanctity.

“The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality. In Triple Talaq, this door is closed, hence, Triple Talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat. Therefore, in any case, after the introduction of the 1937 Shariat Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice. When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights.”

Sanchayeeta Das

Legal Associate

The Indian Lawyer

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Muslims in India are categorized into two main sects, Shias and Sunnis. India comprises of a majority of Sunnis who recognize the practice of ‘Talaq-e-biddat’ i.e. Triple Talaq, whereby, a Muslim man may arbitrarily and whimsically break his marital ties without making any attempt of reconciliation with his wife. Recently on 22.08.2017, the Supreme Court of India in a judgment, Shayara Bano Vs. Union of India, by a majority of 3:2, has set aside this arbitrary and discriminative practice of Triple Talaq in India based on the following logic and reasoning.

The Supreme Court has discussed herein that the Muslim Personal Law (Shariat) Application Act, 1937 (the “1937 Act”) was enacted to bring to an end all the unholy, oppressive and discriminatory customs and usages in the Muslim community. The Court reasoned that the said 1937 Act also defies the tenets of Quran by upholding several customs and usages which include Triple Talaq. The 1937 Act has recognized and enforced all forms of Talaq including Triple Talaq and thus, Triple Talaq has been held to be a legal form of divorce in India, as applicable to Sunnis.

In the recent Judgment mentioned above, the Supreme Court has arrived at the following conclusion:

1. Article 25(1) of the Constitution of India:

It has been brought to the notice of the Supreme Court that most of the Muslims in India belong to the Hanafi school of Sunni Muslims, which has always supported the practice of Triple Talaq in India. But at the same time, this School has also described Triple Talaq as a sinful form of divorce. The Supreme Court has, therefore, held that Triple Talaq does not form a part of the Fundamental Rights provided under Article 25(1) of the Constitution i.e. Freedom of conscience and free profession, practice and propagation of religion.

2. Article 14 of the Constitution of India:

The Supreme Court has discussed that in the practice of Triple Talaq, an instant, irrational and irrevocable Talaq is given by a Muslim husband to his wife, where no attempt is made to reconcile, which is essential to save the marital tie. In various cases, the Supreme Court has negated statutory laws on the ground of being arbitrary i.e. when they are ‘not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favoritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment’ and therefore violative of Article 14 of the Constitution. In view of the above, the Supreme Court has held Triple Talaq to be violative of Article 14 of the Constitution.

3. Article 13 of the Constitution of India:

The Supreme Court has, further, discussed that as the 1937 Act is a pre-Constitutional law, it would be covered by the expression “laws in force” in Article 13(3)(b) of the Constitution and would be declared void, by virtue of Article 13(1) of the Constitution, if found to be inconsistent with the Fundamental Rights laid down in Part III of the Constitution, to the extent of such inconsistency. Therefore, since Triple Talaq has been held to be violative of Article 14 of the Constitution, the Supreme Court has declared Section 2 of the 1937 Act to be void to the extent that it recognizes and enforces Triple Talaq.

 

Harini Daliparthy

Legal Associate

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38513961-cmsThe obligation of the husband continues throughout the matrimonial life and the husband cannot get away with an excuse that for many years no request was made by the wife for the maintenance amount. The Court said while upholding maintenance awarded to a wife who filed petition for maintenance after 3 decades

The husband in this case raised his contention that for 30 years, his wife had no grievance about his second marriage and it is only after so many years that she filed the petition and hence, is barred by limitation.

Justice Rathnakala observed that the question of limitation raised by the husband cannot be mechanically accepted on the core point that the wife has filed this petition after decades of separation.

The Court further said: “Domestic violence” under Section 3 of the Act among others takes into its fold ‘economic abuse’ also. The omission of the husband in neglecting to maintain the aggrieved person, who is at the receiving end, falls within the description of Section 3 of the Act. The very fact that he has led life with another woman during the subsistence of his marriage with his wife and begot children from the second wife amounts to emotional abuse as contemplated by Section 3(a) of the Act.”

The Court finally held that the husband is guilty of the offence of domestic violence and limitation cannot be a ground for the husband to escape his liability and that the wife is entitled for the protection under the Domestic Violence Act.

 

Taruna Verma

Senior Associate

The Indian Lawyer

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The Indian Penal Code (IPC) 1860, under Section 498A, provides for keeping a check on the acts of cruelty caused to married women by their greedy husbands and relatives, which is either likely to result in their death, grave injury or danger to life, health, etc, or cause harassment with a view to force them to meet their unconscionable and unlawful demands. Although this provision was enacted to safeguard and protect the interests of married women, but there has been a growing tendency amongst them to misuse this provision by filing false cases against their innocent husbands and families including parents of advanced age, minor children, siblings, grand-parents, etc, and thereby, causing them harassment and even arrest without any verifiable evidence of physical or mental injury. Such false cases and allegations may also hamper the possibility of reconciliation between the married couple.

In light of the aforesaid issue, various high courts have issued guidelines to curb the instances where false cases are lodged under Section 498A IPC and human rights of innocent families are violated. The Supreme Court has also, in Rajesh Sharma & ors vs. State of U.P. & Anr. 2017, laid down certain directions to deal with this menace and to ensure that the working of a penal provision is not rendered unjust, unfair or unreasonable:

  1. Constitution of one or more Family Welfare Committees in every district by the District Legal Services Authorities, who will look into the complaints received by the police under Section 498A IPC and interact with the parties involved. A report may be prepared by this Committee within one month from the date of receipt of such complaint and until such report is received by the police, no arrest may be made.
  2. Only a designated Investigating Officer appointed for an area within one month from the date of this judgment (27 July, 2017) may investigate the complaints under Section 498A IPC.
  3. In the event that the parties involved in such dispute reach to a settlement, the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district may dispose of such proceedings.
  4. While dealing with the bail applications filed, various aspects may be carefully considered and weighed including the prima facie truth of the allegations, any requirement of further arrest and interest of justice, etc.
  5. In respect of persons ordinarily residing out of India confiscation of passports or issue of red corner notice should not be a routine.
  6. The District Judge or a designated senior judicial officer nominated by him may club all connected cases between the parties, arising out of their matrimonial disputes in order to enable him to take a holistic view.
  7. The trial court may allow either personal appearance or appearance by video conferencing of all family members for conducting the trial.

 

The Supreme Court has held that these Directions will not apply to the offences involving tangible physical injuries or death and that the aforesaid arrangement may be tried for at least 6 months or till 31.03.2018, after which the National Legal Services Authority will have to submit a report to the Court about the need for any addition, alteration or modification of these Directions.

 

Harini Daliparthy

Legal Associate

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The Lok Sabha on 27th July, 2017, passed the Companies (Amendment) Bill, 2016, which was introduced in March 2016. The Bill will now go to the Rajya Sabha.

The Bill amends more than 40 provisions of the Companies Act, 2013 moved by Arjun Ram Meghwal, Minister of State for Finance and Corporate Affairs. The Bill was introduced based on the suggestions received from various stakeholders on the Companies Law Committee Report, which was published in February 2016 suggesting certain reforms to the Act to remove complexities and improve ease of doing business, strengthen corporate governance standards and prescribes strict action against defaulting companies.

FEATURES OF COMPANIES AMENDENT BILL, 2016

The Bill simplifies the private placement process under Section 42, which currently prohibits an issue while an older one is pending, thus allowing companies to keep more than one issue of security open by simultaneously offering different kind of securities.

The amendments raise the threshold for the easy compliance scheme to Rs 100 crore from Rs 20 crore, making more companies eligible for the simple compliance regime. The Bill seeks also to ease rules for private placement of securities and fix an eight-year limit on reopening of past accounts against no limit in the earlier regime.

It further removes restrictions on layers of subsidiaries and investment companies which is currently limited to two.

Another interesting feature is that the Bill allows unrestricted object clause in the Memorandum of Association dispensing with ‘detailed listing of objects, self-declarations to replace affidavits from subscribers to memorandum and first directors’. While this amendment will allow operational freedom to companies, on the flip side, it may be detrimental to the interests of investors and creditors since the object clause defined and indicated the scope and extent of the main business activity of a company.

Another important change is the replacing of Central Government approval under Section 197(1) of the Act with special resolution approval of shareholders in case the managerial remuneration crosses the prescribed thresholds.

Provisions relating to forward dealing and insider trading from the Act have also been omitted, since they only apply to listed entities which are already covered under regulations promulgated by SEBI.

Taruna Verma

Senior Associate

The Indian Lawyer

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According to the Reserve Bank of India (RBI), in the recent times, the amount of stressed (non-performing, restructured or written-off) assets in the banking system has been significantly high. Stressed assets are loans where the borrower has defaulted on repayment, or are loans which have been restructured. A Report of Credit Rating Information Services of India Limited (CRISIL) has stated that the stressed companies are largely from the metals, construction and power industries and they account for nearly half of the total non-performing assets (NPAs) in the banking sector as in the end of March 2017. Also, that the total non-performing loans in the banking system amounted to Rs. 7.29 lakh crore (approx.), or 5 percent of India’s gross domestic product, as in the end-March 2017. This has resulted in reduced profits to lenders, slow credit flow to industry, etc.

Therefore, the Government of India has taken the following initiatives to resolve the menace of stressed assets in the economy:

1. The RBI’s internal advisory committee has identified 12 large stressed cases for proceedings under the Insolvency and Bankruptcy Code 2016, of which the National Company Law Tribunal (NCLT) has already admitted bankruptcy proceedings against five such companies.

2. The Government has introduced the Banking Regulation (Amendment) Bill, 2017 in the Lok Sabha which will empower the RBI to tackle the situation of mounting bad loans and stressed assets that have clogged the banking system.

3. By virtue of this Bill, the RBI may be empowered in the following manner:

i) The RBI may direct a banking company to initiate insolvency proceedings against companies having stressed assets and give directions to the banks for its timely resolution.

ii) The RBI may monitor bank accounts of big defaulters of loans. The Government may direct the RBI to carry out inspection of lenders.

iii) A committee may be set up to oversee companies that have been the biggest defaulters of loans so that a bank may be barred from extending loans to such defaulting persons, in order to curb NPAs.

iv) Various schemes were introduced by the RBI such as corporate debt restructuring, formation of joint lenders’ forum, flexible structuring for long-term project loans to infrastructure, strategic debt restructuring scheme and sustainable structuring of stressed assets to check the menace of NPAs.

v) The Government and the RBI may also come up with a one-time settlement scheme for top defaulters before initiating stringent steps against them.

vi) The RBI is planning to set up a ‘bad bank’ and has also floated two models, i.e. Private Asset Management Company (PAMC) and National Asset Management Company (NAMC) for the orderly resolution of stressed assets.

Thus, the Government has been taking such initiatives to address the issue of stressed assets created in the banking sector of India.

 

Harini Daliparthy

Legal Associate

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Divorce-Battle

 

The Apex Court has issued an important decision to temper action in sexual harassment cases that there will be no arrests under Section 498A of the Indian Penal Code unless the District Family Welfare Committee report vets domestic violence by family members. The decision comes as a big relief to men and their families who have suffered untold harassment due to false cases filed by women.

There will be Family Welfare Committees, set up at the district level, comprising paralegal volunteers, social workers, retired persons, wives of working officers or other citizens who may be found suitable and willing to review complaints filed under Section 498A and interact with parties involved in such cases. The Committee will prepare a report of the case and submit it to the relevant authority.

The cases under 498A should only be investigated by designated Investigating Officers of that area. It has also been left open to District and Sessions Judges to dispose of criminal proceedings should the parties arrive at a settlement. Judges will also have the power to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court.

Relatives will be allowed to appear for hearing via video conferencing, their personal appearance is not mandatory. In addition, impounding of passports and issuance of Red Corner notices for people staying abroad should not be a routine.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

 

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The Government of India has linked the 12- digit unique identification number, i.e. Aadhaar to various centrally sponsored schemes including Pradhan Mantri Ujjwala Yojana (provision of free LPG connection to below poverty line people), Pradhan Mantri Jan Dhan Yojna (universal access to banking facilities), Janani Suraksha Yojana (promotion of institutional delivery among poor pregnant women), etc.

A number of petitions have been filed in the Supreme Court questioning the move of the Government to make Aadhaar mandatory for availing benefits of social welfare schemes. They have challenged the constitutional validity of the Aadhaar Scheme and have alleged that parting of Aadhaar and biometric details of citizens to access welfare and benefits would violate their fundamental right to privacy as it may probably result in data breaches, etc.

In two of the Supreme Court’s earlier decisions in M. P. Sharma and Others vs. Satish Chandra 1954 (eight-Judge Bench) and Kharak Singh vs. the State of U. P. & Others 1963 (six- Judge Bench), it has held that right to privacy was not a fundamental right.

This Court has also recently upheld the validity of Section 139AA of the Income Tax Act, 1961 which provides for mandatory linking of Aadhaar with permanent account number (PAN) by income tax assessees as it is the only robust method of de-duplication of PAN database and it may ensure that one person does not have more than one PAN card or a person is not able to get PAN cards in assumed/fictitious names.

Therefore, the Supreme Court has decided to set up a nine-judge bench to decide and settle the issue about whether right to privacy can be declared as a fundamental right under the Constitution of India.

 

Harini Daliparthy

Legal Associate

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