Instant triple talaq banned

"…It is clear that this form of talaq is arbitrary in the sense that marital ties can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore, be held to be violative of fundamental right contained under Art 14. — Justice Rohinton Nariman and Justice UU Lalit

"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… Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. — Justice Kurian Joseph

"The practice of ‘talaq-e-biddat’ being a constituent of ‘personal law’ has a stature equal to other fundamental rights conferred in Part III of Constitution. The practice cannot, therefore, be set aside, on the ground of being violative of concept of constitutional morality, through judicial intervention. — CJI JS Khehar and Justice S Abdul Nazeer

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Majority holds practice arbitrary

Satya Prakash

Tribune News Service

New Delhi, August 22

The Supreme Court on Tuesday declared the 1,400-year-old practice of instant triple talaq unconstitutional, terming it as arbitrary and violative of right to equality of Muslim women.

A five-Judge Constitution Bench set aside the age-old practice by a majority of 3:2, maintaining it was unworthy of protection. All five Judges belonged to five different faiths — Hinduism, Islam, Christianity, Sikhism and Zoroastrianism.

Edit: A divided verdict

The ruling came on petitions filed by some Muslim women, challenging the practice on the ground that it violated their right to equality, right to non-discrimination and right to live with dignity. It is likely to have a bearing on petitions against polygamy and “nikah-halala” already pending before the top court. Prime Minister Narendra Modi welcomed the verdict, terming it “historic”, for it gave equality to Muslim women. He said the judgment would serve as a powerful measure for women empowerment.

Within hours of the judgment, the Centre prepared an advisory to be sent to all states, asking them to ensure compliance of the Supreme Court verdict on triple talaq. 

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There were three verdicts — one each pronounced by Chief Justice of India JS Khehar, Justice Kurian Joseph and Justice Rohinton F Nariman. The majority verdicts were pronounced by Justice Nariman and Justice Joseph. Justice UU Lalit agreed with Justice Nariman’s findings on the contentious issue.

“…It is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India,” said Justice Nariman and Justice Lalit.

Justice Nariman’s verdict held that The Muslim Personal Law (Shariat) Application Act, 1937, was a “law” within the meaning of Article 13 of the Constitution and, hence, it could not violate the fundamental rights of Muslim women. Accordingly, Justice Nariman and Justice Lalit declared Section 2 of the Act unconstitutional in so far as it sought to enforce triple talaq.

The CJI  and Justice S Abdul Nazeer held that triple talaq had been a part of the Muslim Personal Law  for 1,400 years. “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 CJI noted in his verdict.

“It is not difficult to comprehend, what kind of challenges would be raised by rationalists, assailing practices of different faiths on diverse grounds, based on all kinds of enlightened sensibilities. We have to be guarded, lest we find our conscience traversing into every nook and corner of religious practices, and personal law.

“Can a court, based on a righteous endeavour, declare that a matter of faith, be replaced — or be completely done away with?” asked the CJI. However, noting that there was gender bias in the Muslim law and the fact that the Muslim Personal Law has been reformed the world over, including Islamic countries such as Saudi Arabia and Pakistan, the CJI and Justice Nazeer exercised their powers under Article 142 of the Constitution to restrain Muslim husbands from pronouncing triple talaq.

Pointing out that personal laws of other communities in India had been reformed by the legislature, the CJI and Justice Nazeer asked the government to come up with a law on the issue within six months.

Justice Joseph — who heavily relied on the Quran and other Islamic scriptures — said what was sinful in religion could not be lawful under personal law. “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.” The CJI, Justice Nazeer and Justice Joseph talked about the responsibility of Parliament to take the initiative to reform personal laws. Justice Khehar also referred to Article 44 of the Constitution, which talks about the state’s responsibility to enact a Uniform Civil Code for its citizens.

‘No need for new law’

The government today virtually ruled out the need for a new law on instant triple talaq, indicating that the existing laws, including the one dealing with domestic violence, were sufficient.

“The government will consider the issue in a structured manner,” Law Minister Ravi Shankar Prasad said.

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How the judges were divided

Justice Kurian Joseph who wrote one of the two majority verdicts agreed with the minority verdict penned by CJI JS Khehar that The Muslim Personal Law (Shariat) Application Act, 1937, is not a law regulating talaq

He disagreed with a separate majority verdict by Justice RF Nariman that the 1937 Act is a legislation regulating triple talaq and hence, can be tested on the anvil of Article 14 (right to equality)

Justice Joseph, however, agreed with Justice Nariman that a legislation, be it plenary or subordinate, can be challenged on the ground of arbitrariness, saying Indian democracy cannot conceive of a legislation which is arbitrary

He disagreed with CJI Khehar that triple talaq has to be considered integral to the religious denomination in question and part of their personal law

Justice Joseph agreed with the CJI that freedom of religion is absolute

Justice Joseph said merely because a practice has continued for long, that by itself can’t make it valid, if it has been expressly declared to be impermissible

He disagreed with the CJI that there can’t be any constitutional protection to triple talaq

Justice Joseph disagreed with the CJI that though triple talaq is fundamental to Islam, its practice can be stayed by the SC by exercising extra-ordinary powers under Article 142 — PTI

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ONLY 'TALAQ-E-BIDDAT' SET ASIDE

Talaq-e-biddat: Pronouncing ‘talaq’ thrice instantly without adhering to 3-month ‘iddat’ period meant for reconciliation

Talaq ahsan: Pronouncing ‘talaq’ in a single sentence when wife is in state of ‘purity’, followed by abstinence during ‘iddat’ period 

Talaq hasan: Pronouncing ‘talaq’ during three successive ‘tuhrs’ (menstruation cycle) interspersed with abstinence

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Triple talaq verdict After winning a long legal battle, women activists want law framed to make the practice punishable 

Oct 16, 2015: SC asks CJI to set up Bench to examine if Muslim women face gender discrimination in divorce cases

Feb 5, 2016: SC asks AG Mukul Rohatgi to assist it on pleas challenging constitutional validity of ‘triple talaq’, ‘nikah halala’, polygamy

Mar 28: SC asks Centre to file report on ‘Women and the law: An assessment of family laws with focus on laws relating to marriage, divorce, custody, inheritence and succession’

Jun 29: SC says ‘triple talaq’ will be tested on ‘touchstone of constitutional framework’

Oct 7: Centre opposes in SC these practices and favours a relook on grounds like gender equality, secularism

Feb 14, 2017: SC allows interlocutory pleas to be tagged with the main matter

Mar 27: AIMPLB tells SC pleas not maintainable as issues fall outside judiciary’s realm

Mar 30: Supreme Court says issues ‘very important’ and involve ‘sentiments’

May 12: SC says triple talaq ‘worst’ and ‘not desirable’ form of dissolution of marriages

May 15: Centre tells SC that it will bring new law to regulate marriage and divorce among Muslims if triple talaq struck down

May 16: AIMPLB tells SC triple talaq a matter of faith for last 1,400 years, can’t be tested on grounds of constitutional morality

May 17: Centre tells SC triple talaq neither integral to Islam nor a ‘majority versus minority’ issue but an ‘intra-community tussle’ between Muslim men and deprived women

May 18: SC reserves verdict on triple talaq

May 22: AIMPLB files affidavit in SC saying it would issue an advisory to ‘Qazis’ to tell bridegrooms that they will not resort to triple talaq to annul their marriage.

Aug 22: SC rules triple talaq is void, unconstitutional and against basic tenets of Quran