SC sets aside triple talaq, declares it unconstitutional

Satya Prakash

Tribune News Service

New Delhi, August 22

Muslim men can no longer pronounce instant triple talaq as the Supreme Court on Tuesday declared the age-old controversial practice unconstitutional, terming it 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, holding it was unworthy of protection. Interestingly, all five judges on the bench belonged to five different faiths -- Hinduism, Islam, Christianity, Sikhism and Zoroastrianism.

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The ruling came on petitions filed by some Muslim women challenging the practice of triple talaq on the ground that it violated their right to equality, right to non-discrimination and right to live with human dignity.

It’s is likely to have a bearing on petitions against the practice of polygamy and nikah-halala which are 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 will serve as a powerful measure for women empowerment.

Judgment of the Hon'ble SC on Triple Talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment.

— Narendra Modi (@narendramodi) August 22, 2017

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 declaring triple talaq illegal. A Ministry of Home Affairs spokesperson said, “An advisory asking the states to keep close watch on the situation and also ensure compliance of the court order will be issued soon.” 

Read: Judges from 5 different religions divided on triple talaq verdict

Triple Talaq: BJP calls it victory for Muslim women

 Feel victorious and protected by SC verdict: Muslim women

Centre should discuss triple talaq in Parliament: Muslim League

Triple talaq case: Chronology of events

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 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 can't violate 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 was in minority with Justice S Abdul Nazeer agreeing with him. They held triple talaq to be a part of Muslim Personal Law practice 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 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 have 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 was sinful in religion can't 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,” Justice Joseph said.

The CJI, Justice Nazeer and Justice Joseph talked about the responsibility of Parliament to take 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 all citizens.