A Akhter / New Delhi
Terming the instant Triple Talaq as ‘not part of Islamic faith’, the Supreme Court today declared that such a Talaq being practised by the Muslim community as “unconstitutional”, “arbitrary”.
This means three judges have abolished instant triple talaq or talaq e biddat, Two judges have held that triple talaq is part of Personal Law and SC cannot abolish it.
Therefore Govt should enact law. But this judgement becomes irrelevant because it is a minority judgement.
As per majority judgement, instant triple talaq or talaq e biddat is illegal. It is against Islam. It is not part of Islam. Therefore the question is how will divorce among Muslims take place now.
READ HERE FULL JUDGEMENT ON INSTANT TRIPLE TALAQ
Saying that Holy Quran attributed “sanctity and permanence to matrimony” and only in “unavoidable situations” permits Talaq but not before attempts for reconciliation are made, Justice Kurian Joseph said, “In triple Talaq, this door is closed, hence, triple Talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.”
A five judge constitutional bench by a 3:2 majority judgement said there is no constitutional protection for Triple Talaq as it is arbitrary and Triple Talaq by men as “whimsical” as it leaves no scope for conciliation and violates Muslim women’s right.
“In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside”, the five judges’ bench said in their order.
Justices Kurien Joseph, Rohinton Fali Nariman and Uday Umesh Lalit held that triple talaq is not integral to Islam, is bad in law and lacks approval of the Shariat.
However, Chief Justice Khehar also speaking Justice Nazeer sheld that triple talaq was integral to Muslim faith and anjoyed constitutional protection.
Saying that Holy Quran attributed “sanctity and permanence to matrimony” and only in “unavoidable situations” permits Talaq but not before attempts for reconciliation are made, Justice Kurian Joseph said, “In triple Talaq, this door is closed, hence, triple Talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.”
“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 in his judgment differing with Chief Justice Khehar and Justice Nazeer.
Disagreeing with the Chief Justice Khehar that triple talaq was integral to Muslim faith, Justice Kurian Joseph said, “Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.
Having said that triple Talaq was not integral to Islamic faith, Justice Joseph further disagreed with the Chief Justice it enjoyed constitution protection under Article 25.
“There cannot be any Constitutional protection to such a practice”, said Justice Joseph.
Referring to Chief Justic Khehar’s order injuncting Muslim men from resorting to Triple Talaq after holding that it was integral to Islamic faith and enjoyed constitutional protection, Justice Joseph said, “I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right can be injuncted.”
Article 142 of the constitution provides for plenary powers of the Supreme Court for doing complete justice.
Justice Nariman also speaking for Justice Lalit said that triple 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”
Having held that ripple talaq is “arbitrary”, Justice Nariman said, “This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India.
Holding that triple talaq is violative of the Muslim wonan’s fundamental right of equality before law and equal opportunity, Justice Nariman said, “Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place.”
He further said, “Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq.” Sunna is anything that was practised by Prophet.
Pronouncing the minority judgment, Chief Justice Khehar said, “Talaq-e-biddat’ is integral to the religious denomination of Sunnis belonging to the Hanafi school. The same is a part of their faith, having been followed for more than 1400 years, and as such, has to be accepted as being constituent of their ‘personal law’.”
Having held that instant triple talaq was a constituent of personal law, Chief Justice said that being a part of ‘personal law’’ it has a “stature equal to other fundamental rights, … The practice cannot therefore be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention.”
‘Talaq-e-biddat’, the minority judgment said “does not violate the parameters expressed in Article 25 of the Constitution. The practice is not contrary to public order, morality and health. The practice also does not violate Articles 14, 15 and 21 of the Constitution, which are limited to State actions alone.”
It further said that Triple Talaq could not be set-aside on the ground of being violative of the concept of the constitutional morality.
Referring to international conventions and declaration, the minority judgment said that they are of no avail as “the practice of ‘talaq-e-biddat’, is a component of ‘personal law’, and has the protection of Article 25 of the Constitution.”
However, the minority judgment said that reforms in personal laws to get rid of socially unacceptable practices in different religions have come about by legislative intervention.
And same legislative course need to be taken with reference to the practice of ‘talaq-e-biddat’, if the same is to be set aside. Referring to the advances in Muslim personal law the world over including by theocratic Islamic States, Chief Justice in his judgment directed the Centre to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’.
“We would therefore implore the legislature, to bestow its thoughtful consideration, to this issue of paramount importance. We would also beseech different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation”, Chief Justice said in the minority judgment.
Having urged the political parties to address the issue by keeping apart their political gains, the Chief Justice Khehar in his judgment injuncted Muslim husbands from pronouncing instant triple talaq as a means for severing their matrimonial relationship for next six months.