CLASS ACTION SUIT-INDIAN CONTEXT

The Indian civil law does not provide for class action case against the entity in case of recovery of damages or other relief as strictly available in UK and USA.

The Order I Rule 8 as set in the Civil Procedure Code, 1908, which appear to have some semblance of codification of the class action suit or representative suit reads as follows:

  1. One person may sue or defend on behalf of all in same interest. –

(1) Where there are numerous persons having the same interest in one suit, —

(a) one or more of such persons may, with the permission of the court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;

(b) the court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.

(2) The court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff’s expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct.

(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the court to be made a party to such suit.

(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3) of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the court has given, at the plaintiff’s expenses notice to all persons so interested in the manner specified in sub-rule (2).

(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.

Explanation: For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be. 

Per contra, the Rule 23 as set in the Federal Rule of Civil Procedure of USA with regard to class actions reads as follows:

Rule 23. Class Actions

(a) PREREQUISITES. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

 

(b) TYPES OF CLASS ACTIONS. A class action may be maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

                  ……………………………………………

The Order I, Rule 8 of the CPC, 1908 appears to be rudimentary in apposition to Rule 23 of the Federal Rule of Civil Procedure of USA. Further, the section 9 as set in the Civil Procedure Code, 1908 reads as follows:

  1. Courts to try all civil suits unless barred.-The Courts shall (subject to the provisions herein contained) have jurisdiction to try all Suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation 1.—As suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Explanation Il—For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.

Thus, any Indian Act, Rule and Regulations etc. which expressly or impliedly bars action under the CPC, 1908 cannot be taken as representative suit or class action suit vide Order I, Rule 8 of the CPC, 1908.

In case of Kesha Appliances P. Ltd. And Ors. vs Royal Holdings Services Ltd. And Ors the Hon’ble Bombay High Court (2006 (1) BomCR 545) held following:

  1. I am of the opinion that on plain and simple reading of section 15Y and 20Aof the Act all the cases arising out of the breach and Take Over Regulation must fall within the exclusive domain of SEBI and cannot be complained in the court of Law by virtue of express bar contained under section v of the SEBI Act. I am also of the further opinion that there is no doubt that there is a common law right in a share holder to apply for rectification of the share register even though it is not his own share in respect of which he is seeking rectification but still the said right if it flows from the provisions of Take Over Regulations then undoubtedly it would fall within the exclusive Jurisdiction of SEBI and not within the Jurisdiction of this court in view of the express bar contained under the aforesaid statue. I am of the further opinion that the enactment of the amendment of Take Over Regulation of Amending provisions of SEBI (Substantial Acquisition of Shares and Take Over) Second Amendment (Regulation 2002) w.e.f. 9.9.2002 by providing for the remedy under sub clause (c) and (d) of the Regulation 44 the board has been empowered to give effective relief of Rectification of Share Register by declaring cancellation of the Allotment and / or by directing the company not to give an effect to the transfer if they are found to be in contrary to the Take Over Regulation.

“       

Per contra, the ex CJI A. M. Ahmadi in his declaration as witness citing the provision of Order I Rule 8 of the CPC, 1908 in case of M/s Satyam Computer Services, Ltd. before United States District Court Southern District of New York has declared following while representing M/s J. Sagar Associates in support of the motion of PWC:

  1. Therefore, the procedural Law in India would accommodate the plaintiffs having a common interest to sue in a single suit under Indian Law after obtaining the permission of the court. This requirement of permission is for the court to be satisfied that the carriage of proceedings is in right hands that can be trusted to protect the interest of the class they seek to represent. A judgment entered in such a representative action binds the members of the class as res judicata. The same appellate/review procedure that applies to an individual lawsuit applies to a judgement issued in a representative action.

         “

The Memorandum of Law submitted before United States District Court Southern District of New York  by the Defendant, Pricewaterhouse Coopers Private Limited  and Ors in Support of their Motion to Dismiss the Consolidated Class Action  as forum non conveniens extensively quotes from ex CJI,  Ahmadi declaration. The said Memorandum of Law quotes  following:

While the Second Circuit has held that the absence of a U.S.-style class action mechanism does not render an alternative forum inadequate, see Aguinda v. Texaco, Inc., 303 F.3d 470, 478 (2d Cir. 2002), India in fact has a class action procedure. A person who was injured by relying upon a defendant’s fraudulent statements may initiate a class action lawsuit on behalf of all those similarly situated with the permission of the Indian court. See Ahmadi Decl. ¶¶ 20-24 (citing Civil Procedure Code, 1908, Order I, Rule 8 (attached to the Declaration of Fraser L. Hunter, Jr. (“Hunter Decl.”) as Exhibit 1)); Declaration of Arvind P. Datar in Support of Mot. to Dismiss by Def. Satyam Computer Services Ltd. (“Datar Decl.”) ¶¶ 25-27, 29. The court will grant permission to proceed as a “class” provided that (1) the parties are “numerous,” (2) have the “same interest” in the litigation, (3) notice of the class action is given to persons sharing the same interest in the litigation as prescribed by Indian law. See Ahmadi Decl. ¶¶ 20- 21; Datar Decl. ¶¶ 26-27. As in the U.S., the outcome of the class action is binding on all class members. See Ahmadi Decl. ¶ 22; Datar Decl. ¶ 29.

 

Mr Sandeep Parekh visiting professor of law at the IIM Ahmedabad has declared the following in case of class action against M/s Satyam Computer Services, Ltd.  Before United States District Court Southern District of New York:

III. SUMMARY OF CONCLUSIONS

  1. To summarise the conclusions explained in detail below:
  2. Private parties have no right to sue to recover damages resulting from the Satyam fraud under Indian statutory or common law because the Indian civil courts have no power to hear disputes where, as in this case, SEBI is empowered to act (discussed at Section IV, paras. 12 to 23 infira);
  3. Satyam investors will not be able to use the representative action procedure to recover damages because Indian law bars their substantive claims in civil court and the representative action is only a procedural mechanism that cannot create any substantive rights (discussed at Section V, paras. 24 to 29 infra);

It is in this background the specific provision in form of Section 245 under the Companies Act, 2016 has been enacted to enable class action by shareholders in case of defraud by the company.

The Section 12 of the Consumer Protection Act, 1986 reads as follows:

  1. Manner in which complaint shall be made. —

(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by—

(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;

(b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;

(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or

(d) the Central or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general.

 …………………………..

The section 12 (c) of the said consumer act provides for class action with the permission of the District Forum. However, the section 12 (d) of the act enables the Central or the State government to act as parens patriae or as representative of the consumers in general. The Central government has filed as representative of consumer in general, in case of Union of India vs Nestle India Limited before the National Consumer Disputed Redressal Commission (CC No.-870 0f 2015) alleging that the “Maggi noodles” manufactured and sold by Nestle India Ltd are defective goods, as they contain excess quantity of lead and also contain MSG which is a health hazard and is not permissible.

The CPC, 1908 need to be amended in line with the USA Federal Rule 23 of Civil Procedure to provide for strict and transparent class action against defaulting entity.

Rajni Sinha,

Advocate, Bombay High Court

7738080174

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FOREIGN ARBITRATION AWARD-FEMA

The Share Holder Agreement (SHA) between Indian entity and foreign entity in majority of cases of transfer of share to foreign entity provides for exit option for foreign investor, which may ex facie violate provision of FEMA, 1999. The foreign arbitration award requires remission of money to an entity outside India, it ex facie appear that RBI’s power under the FEMA, 1999 cannot be negated.

In Srm Exploration Pvt. Ltd. vs N & S & N Consultants S.R.O. , 2012, the Hon’ble Delhi High Court held following:

  1. We have perused the provisions of FEMA, 1999 Section 3 thereof prohibits dealing in or transferring of any foreign exchange save as otherwise provided therein or under the Rules & Regulations framed thereunder without general or special permission of RBI. We are unable to find any provision therein voiding the transactions in contravention thereof. We may mention that the predecessor legislation to FEMA namely FERA 1973 vide Section 47 prohibited entering into any contract or agreement directly or indirectly evading or avoiding any operation of the said Act or any provision thereof. However, Sub Section (3) thereof also provided that such prohibition shall not prevent legal proceedings being brought in India for recovery of a sum which apart from the provision of FERA would be due. However, the legislature while re-enacting the law on the subject has chosen to do away with such a provision. We are of the view that the same shows a legislative intent to not void the transaction even if in violation of the said Act. Thus, we are of the opinion that the plea of the appellant Company in this regard is without any force.

The RBI Circular No.-86 dated 9th January, 2014 issued under the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulations, 2000 states following with regard to exit option of Foreign Investor:

………………………………………

  1. b) After the lock-in period, as applicable above, the non-resident investor exercising option/right shall be eligible to exit without any assured return, as under:

(i) In case of a listed company, the non-resident investor shall be eligible to exit at the market price prevailing at the recognised stock exchanges;

(ii) In case of unlisted company, the non-resident investor shall be eligible to exit from the investment in equity shares of the investee company at a price not exceeding that arrived at on the basis of Return on Equity (RoE) as per the latest audited balance sheet. Any agreement permitting return linked to equity as above shall not be treated as violation of FDI policy/FEMA Regulations.

………………………………..

In terms of above circular optionality clauses granting assured returns on FDI appears to be prohibited. It is doubtful whether the said circular would be applicable to cases where a foreign investor founds its claim in breach of contract. Plainly, if an investment is made on representations which are breached, the investor would be entitled to its remedies including in damages.

 The RBI Circular No.-4 dated 15th July, 2014 issued under the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulations, 2000 amended certain provision of The RBI Circular No.-86 dated 9th January, 2014 with regard to exit option of Foreign Investor:

“                                                                                                  Annex 2

c.f. Annex to
A.P.(DIR Series) Circular No. 86 dated January 9, 2014

Earlier condition

Revised condition

Para 2(b)

(ii) In case of unlisted company, the non-resident investor shall be eligible to exit from the investment in equity shares of the investee company at a price not exceeding that arrived at on the basis of Return on Equity (RoE) as per the latest audited balance sheet. Any agreement permitting return linked to equity as above shall not be treated as violation of FDI policy/FEMA Regulations.

Note: For the above purpose, RoE shall mean Profit After Tax / Net Worth; Net Worth would include all free reserves and paid up capital.

(iii) Investments in Compulsorily Convertible Debentures (CCDs) and Compulsorily Convertible Preference Shares (CCPS) of an investee company may be transferred at a price worked out as per any internationally accepted pricing methodology at the time of exit duly certified by a Chartered Accountant or a SEBI registered Merchant Banker. The guiding principle would be that the non-resident investor is not guaranteed any assured exit price at the time of making such investment/agreement and shall exit at the price prevailing at the time of exit, subject to lock-in period requirement, as applicable.

(ii) In case of an unlisted company, the non-resident investor shall be eligible to exit from the investment in equity shares, Compulsorily Convertible Debentures (CCDs) and Compulsorily Convertible Preference Shares (CCPS) of the investee company at a price not exceeding that arrived at as per any internationally accepted pricing methodology on arm’s length basis, duly certified by a Chartered Accountant or a SEBI registered Merchant Banker.

The guiding principle would be that the non-resident investor is not guaranteed any assured exit price at the time of making such investment/agreements and shall exit at the fair price computed as above at the time of exit, subject to lock-in period requirement, as applicable.


All the above provision of RBI under FEMA relates to the transfer of shares per se from foreign investor back to the Indian entity if same is under put option. However, in majority of SHA such transfer of share back to Indian Entity is under damages clause in case of breach of agreement. It is a fair commitment of Indian investee in the SHA in relation to an investment and a downside protection of an investment of foreign investor, rather than an assured return or exit price.

It can be appreciated, the transfer of share back to Indian investee through damages clause of SHA and its award through foreign arbitration appear to be intentional to bypass the RBI guidelines for assured exit price. This circumstances appear to violate common rule i.e. the rule which prohibits one to accomplish indirectly, what the law forbids doing directly.

In Venture Global Engineering v. Satyam Computer Services Ltd., the Hon’ble Supreme Court went by the shareholders’ agreement (SHA) which expressly provided that the laws in force in India including the Companies Act would apply. This was held to be in the nature of a non-obstante clause which “would override the entirety of the agreement including sub-section (b) which deals with the settlement of the dispute by arbitration.

In recent judgment of Hon’ble Delhi High Court in case of NTT DOCOMO INC vs Tata Sons Limited, it was held that:

  1. As far as the Award itself is concerned, the interpretation placed by the AT on the clauses of the SHA was consistent with the intention of the contracting parties and not opposed to any provision of Indian law. There is nothing in the SHA as interpreted by the Award that renders it void or voidable under the ICA or opposed to either the public policy of India or the fundamental policy of Indian law. The AT’s interpretation of the various provisions of the FEMA and the regulations thereunder have also not been shown to be improbable or perverse. What was invested by Docomo was US $ 2.5 billion and what it will receive in terms of the Award is only 50% of that amount. The Court finds that no ground under Section 48 of the Act is attracted to deny the enforcement of the Award.

In another recent judgment of Hon’ble Delhi High Court in case of Cruz City 1 Mauritius Holdings vs Unitech Limited it was held that:

  1. The reliance placed by Unitech on the RBI circulars dated 09.01.2014 and 14.07.2014 is also misplaced. In terms of RBI’s circular dated 09.01.2014 optionality clauses granting assured returns on FDI are proscribed. However, it is doubtful whether the said circular would be applicable to cases where a foreign investor founds its claim in breach of contract. Plainly, if an investment is made on representations which are breached, the investor would be entitled to its remedies including in damages. The aforesaid circulars proscribe assured return instruments brought in India under the guise of equity. However, in the present case, Cruz City is only seeking to enforce its obligations against Burley, an overseas entity.
  2. Even if it is accepted that the Keepwell Agreement was designed to induce Cruz City to make investments by offering assured returns, Unitech cannot escape its liability to Cruz City. Cruz City had invested in Kerrush on the assurances held out by Unitech and notwithstanding that Unitech may be liable to be proceeded against for violation of provisions of FEMA, the enforcement of the Award cannot be declined

 

The obvious parting comment can be that foreign arbitral award cannot be contested on the ground of FEMA, 1999 violation if the SHA do not stipulate same and the payment back to investor for transfer of share is set as damages under the SHA.

Rajni Sinha

Advocate, Bombay High Court

7738080174

Triple Talaq: Constitutional Validity

The constitutional validity of “Triple Talaq” has been referred to Constitutional bench in case of Muslim Women’s Quest for Equality Vs Jamiat Ulma-I-Hind (Suo Moto W.P. (Civil)-2 of 2015) along with host of other petition by Apex Court for regular hearing from 11th May, 2017.
Earlier, the All India Muslim Personal Law Board (AIMPLB) has filed the affidavit in above stated Suo moto petition and also identical affidavit in other bunched case (including W.P. (Civil)- 118/2016) inter alia opposing that Personal Law cannot be challenged as violative of Part III of the Constitution.
However, the Union Government through its affidavit had submitted the following questions to be considered by the Apex court:

Whether the impugned practices of talaq-e-biddat, nikah halala and polygamy are protected under Article 25(1) of the Constitution of India
— Whether Article 25(1) is subject to part III of the Constitution and in particular Articles 14 and 21 of the Constitution of India
— Whether personal law is law under Article 13 of the Constitution
— Whether the impugned practices of talaq-e-biddat, nikaah halala and polygamy are compatible with India’s obligations under International treaties and covenants to which India is a signatory

The Article 25(1) reads as follows:

25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

The Supreme Court clarified that it would decide issues pertaining to legal aspects of the practices of triple talaq, ‘nikah halala’ and polygamy among Muslims and would not deal with the question whether divorce under Muslim law needs to be supervised by courts as it falls under the legislative domain. The bench had however, made it clear that it was not dealing with the issue of Uniform Civil Code (UCC), which is currently being examined by the Law Commission of India.
It is interesting to delve upon the available citation which may form basic ingredient for final judgment of the Hon’ble Supreme Court. One of the earliest judgment on this subject is Pathayi v. Moideen (1968 KLT 763), where following was stated:

The only condition necessary for the valid exercise of the right of divorce by a husband is that he must be a major and of sound mind at that time. He can effect divorce whenever he desires. Even if he divorces his wife under compulsion, or in jest, or in anger that is considered perfectly valid. No special form is necessary for effecting divorce under Hanafi law. The husband can effect if by conveying to the wife that he is repudiating the alliance. It need not even be addressed to her. It takes effect the moment it comes to her knowledge.


The three Judges Bench of the Supreme Court speaking through Justice V.R. Krishna Iyer as early as in Fuzlumbi vs. K. Khader Vali (AIR1980 SC 1730) had referred to the need to have a re-look at the die hard view of Batchelor, J. in (1906) ILR 30 Bom. 537 that such an arbitrary divorce “is good in law, though bad in theology.
The Apex Court in case of Shamim Ara Vs State of U.P. & Anr. (Appeal (crl.) 465 of 1996) has dealt extensively on the “Talaq” (quoting various citations and books) and its mode and manner.
In case of Smt. Hina and other vs State Of U.P. and others (WRIT -C No. ¬ 51421 of 2016 ), stage has been set by the Hon’ble Allahabad High court in following words:

The question which disturbs the Court is should muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Whether the person law can be amended suitably to alleviate their sufferings? The judicial conscience is disturbed at this monstrosity. The first wife has to live life for no fault of her but for the reason that her husband got attracted to a lady half of her age which is the reason for being divorced. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. It is a popular fallacy that a Muslim male enjoys, under the Quaranic Law, unbridled authority to liquidate the marriage. The whole Quaran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him. 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 divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously. In other Islamic State, where the husband must satisfy the court about the reason for divorce.

The Hon’ble Kerala High Court in case of Nazeer @ Oyoor Nazeer Vs Shememma (W. P. (Civil). No. 37436 of 2003(F)) and various other bunched petitions stated the following:

In these writ petitions question of validity of triple talaq does not arise. However this question was considered in larger perspective for the reason that if court grant any relief based on admission of the parties as to the repudiation of marriage by triple talaaq, that would amount to recognition of a triple talaq effected not in accordance with law, as this court has no mechanism to find out the manner in which talaq is effected. The Court cannot become a party to a proceedings to recognise an ineffective divorce in the guise of directions being given to passport authorities to accept the divorce. The legal effect of such divorce has to be probed by a fact finding authority in accordance with the true Islamic law. Stamp of approval being given by the court by ordering passport authority to accept divorce effected not in accordance with the law, will create an impression that court transgressed its limits while directing a public authority to honour an act which was done not in accordance with law. Though in these writ petitions, considering the urgency of the matters, this court granted interim order directing the passport authorities to act upon the request of the petitioners. Considering the large number of similar reliefs sought before this court in various writ petitions, this court is of the view that the issue can be resolved only through a larger remedy of codification of law in the light of the discussion as above. In the light of interim order, these writ petitions are disposed of.

In Javed & Ors vs State Of Haryana & Ors (Writ Petition (civil)-302 of 2001) the Hon’ble Supreme Court held the following in context of Article 25 of the Constitution and religious practice:

A bare reading of this Article deprives the submission of all its force, vigour and charm. The freedom is subject to public order, morality and health. So the Article itself permits a legislation in the interest of social welfare and reform which are obviously part and parcel of public order, national morality and the collective health of the nation’s people. The Muslim Law permits marrying four women. The personal law nowhere mandates or dictates it as a duty to perform four marriages. No religious scripture or authority has been brought to our notice which provides that marrying less than four women or abstaining from procreating a child from each and every wife in case of permitted bigamy or polygamy would be irreligious or offensive to the dictates of the religion.
In our view, the question of the impugned provision of Haryana Act being violative of Article 25 does not arise. We  may have a reference to a few decided cases. The meaning of religion – the term as employed in Article 25 and the nature of protection conferred by Article 25 stands settled by the pronouncement of the Constitution Bench decision in Dr. M. Ismail Faruqui and Ors. Vs. Union of India & Ors.(1994) 6 SCC 360. The protection under Articles 25 and 26 of the Constitution is with respect to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential and integral part of practice of that religion. The latter is not protected by Article 25.

In Adi Saiva Sivachariyargal Nala Sangam & Ors. Vs The Government of Tamilnadu & Anr. ( W. P (Civil) No. 354 of 2006) following was held by Hon’ble Apex Court


2. Before highlighting the issues that confronts the Court in the present case the relevant Constitutional provisions in Part III of the Constitution may be taken note of. Article 13, in clear and unequivocal terms, lays down that all laws including pre-constitution laws which are inconsistent with or in derogation of the fundamental rights guaranteed by Part III are void. Sub-Article (3) brings within the fold of laws, all Rules, Regulations, Notification, custom and usage having the force of law. While the several provisions of Part III would hardly need to be re-emphasized, specific notice must be had of, in the context of the present case, the provisions contained in Articles 25 and 26 of the Constitution. While Article 25 makes the freedom of conscience and the right to profess, practice and propagate the religion to which a person may subscribe, a fundamental right, the exercise of such right has been made subject to public order, morality and health and also to the other provisions of Part III. Article 25(2)(b) makes it clear that main part of the provisions contained in Article 25 will not come in the way of the operation of any existing law or prevent the State from making any law which provides for social welfare and reform or for throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Similarly, Article 26 while conferring the right on every religious denomination to manage its own affairs makes it clear that the right to manage the affairs of any religious denomination is restricted to matters of religion only.


In Ahmedabad Women Action Group (AWAG) & Ors. Vs. Union of India (W. P. (Civil- 196, 494 and 721 of 1996)) it was prayed “to declare 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. as void, offending Articles 13. 14 and 15 of the Constitution” , the Hon’ble Supreme Court held Following:

At the outset. we would like to state that these Writ Petitions do not deserve disposal on merits inasmuch as the arguments advanced by the learned Sr. Advocate before us wholly involve issues of State policies with the Court will not ordinarily have any concern. Further. We find that when similar attempts were made, of course by others, on earlier occasions this Court held that the remedy lies somewhere else and not by knocking at the doors of the courts.
……………………………………………………………………
In the result and having regard to the earlier decisions of this Court noticed above, we decline to entertain these writ petitions. Accordingly, these writ petitions are dismissed.

The Supreme Court reiterated that it would decide issues pertaining to legal aspects of the practices of triple talaq, ‘nikah halala’ and polygamy among Muslims and would not deal with the question whether divorce under Muslim law needs to be supervised by courts as that falls under the legislative domain.

Post Script:

The Supreme court has pronounced the judgement by majority verdict of 3:2 upholding that “Triple Talaq” is unconstitutional in following  expression:

ORDER OF THE COURT

In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside.

Rajni Sinha
Advocate Bombay High Court,
Mobile: 7738080174