The Holy Prophet had declared divorce to be the most disliked among the lawful things in the eyes of God as it broke the marital tie which is fundamental to family life in Islam, the Supreme Court on Tuesday said. Justice R F Nariman, who wrote one of the two separate majority judgements, said divorce not only disrupted the marital tie between man and woman, but had severe psychological and other repercussions on the children from such marriage.
Justice Nariman, whose views were concurred with by Justice U U Lalit, noted that marriage in Islam was a contract, and like other contracts, it could be terminated under certain circumstances.
“There is something astonishingly modern about this – no public declaration is a condition precedent to the validity of a Muslim marriage, nor is any religious ceremony deemed absolutely essential though they are usually carried out,” he said.
“Apparently, before the time of Prophet Mahomed, the pagan Arab was absolutely free to repudiate his wife on a mere whim, but after the advent of Islam, divorce was permitted to a man if his wife by her indocility or bad character rendered marital life impossible,” Justice Nariman said.
In the absence of good reason, no man can justify a divorce “for he then draws upon himself the curse of God.
“Indeed, Prophet Mahomed had declared divorce to be the most disliked of lawful things in the sight of God. The reason for this is not far to seek. Divorce breaks the marital tie which is fundamental to family life in Islam,” Justice Nariman said.
The five-judge Constitution bench, by a majority of 3:2 in which Chief Justice J S Khehar was in minority, said the practice of “‘talaq-e-biddat’ – triple talaq is set aside”.
The two separate judgements, written for majority by Justices Kurian Joseph and R F Nariman, did not concur with the CJI and Justice S Abdul Nazeer that ‘triple talaq’ was a part of religious practice and the government should step and come out with a law.