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CJI in minority view: It is integral to Sunni Islam, consider a law

Maintaining that “personal law has constitutional protection”, the judges said: “This protection is extended to personal law through Article 25 of the Constitution."

Written by Ananthakrishnan G | New Delhi | Updated: August 23, 2017 6:55 am
triple talaq, triple talaq verdict, Chief Justice of India, J S Khehar on triple talaq, triple talaq verdict vote, muslim women, divorce in sunni muslims, indian express news The CJI, who wrote for himself and Justice S Abdul Nazeer, said the practice has “the protection of Article 25 of the Constitution” and will “not be subjected to any challenge, even though they may seem to others (and even rationalists practising the same faith) unacceptable, in today’s world and age”.

Writing the minority ruling on the challenge to triple talaq, Chief Justice of India J S Khehar held that the practice is “a matter of personal law of Sunni Muslims, belonging to the Hanafi school” and “interference in matters of personal law is clearly beyond judicial examination”.

The CJI, who wrote for himself and Justice S Abdul Nazeer, said the practice has “the protection of Article 25 of the Constitution” and will “not be subjected to any challenge, even though they may seem to others (and even rationalists practising the same faith) unacceptable, in today’s world and age”.

The two judges said that judiciary must exercise “absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem”. “We therefore hereby direct the Union of India to consider appropriate legislation, particularly with reference to talaq-e-biddat. We hope and expect that the contemplated legislation will also take into consideration advances in Muslim personal law — Shariat, as have been corrected by legislation the world over, even by theocratic Islamic states,” they said.

To facilitate such a legislation, the two judges injuncted (stayed) Muslim men from pronouncing instant triple talaq. “The instant injunction shall, in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining talaq-e-biddat… if it is decided that the practice of talaq-e-biddat be done away with altogether, the injunction would continue till legislation is finally enacted. Failing which, the injunction shall cease to operate,” they said.

Maintaining that “personal law has constitutional protection”, the judges said: “This protection is extended to personal law through Article 25 of the Constitution. It needs to be kept in mind that the stature of personal law is that of a fundamental right… personal law of every religious denomination is protected from invasion and breach, except as provided by and under Article 25.”

The two judges concluded that The Muslim Personal Law (Shariat) Application Act, 1937 was not a law in force within the meaning of Article 13(3)(b) of the Constitution, but was made to “preserve Muslim personal law — Shariat, as it existed from time immemorial”. The order sought to explain how the practice was “integral” to the Sunnis: “It constitutes a matter of their faith. It has been practised by them, for at least 1400 years.”

The minority ruling recalled that the All India Muslim Personal Law Board, which had challenged the petitioners, “had undertaken to issue an advisory” to Muslims getting married “to agree in the nikah-nama that their marriage would not be dissolvable by talaq-e-biddat… it would not be incorrect to assume that even the AIMPLB is on board to assuage the petitioner’s cause”.

The judges referred to the “aggressive posture” of the Union of India and said that “a call of conscience, as the petitioners desire us to accept, may well have a cascading effect. We say so, because the contention of the learned Attorney General was that talaq-e-ahsan and talaq-e-hasan were also liable to be declared unconstitutional for the same reasons as have been expressed with reference to talaq-e-biddat”. The ruling noted the Centre’s “support” to the cause of the petitioners and wondered why it had not legislated on it so far. “Unfortunately, the Union seeks at our hands, what truly falls in its own,” the judges said.

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    enpa
    Aug 23, 2017 at 8:37 am
    Thank God for those three Justices that millions of Mushlim women got their honor back. Shame on CJI who failed to see that in a democracy the Cons ution is the Law, not just some stupid personal law no matter how long they have been practiced. It is a releif that this ignorant CJI has only a few days in the SC. Also thank that Congress is not in power now at the Center otherwise they would do a Rajib Gandhi all over again.
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    1. Chetan Naik
      Aug 23, 2017 at 8:17 am
      Live in todays world and age and get along with everyone else. Don't live in stone age.
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        RJ
        Aug 23, 2017 at 7:57 am
        The CJI is a coward. Instead of doing the right thing, i.e., enforcing the right to equality guaranteed by the cons ution, he is passing the buck to the government. He is unfit to ne the CJI. Equality before law trumps all religious laws and traditions.
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          RR
          Aug 23, 2017 at 7:48 am
          This man is a disgust to the post of CJI. Also, the muslim judge who favored instant triple talaq is another disgust which suggest that bringing such muslims on such sensitive post is not right as they may compromise with their duty under pressure from their religious lineage. But the CJI looked more idiat. Such judges should not exist in such a revered place like SC.
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            yash sehgal
            Aug 23, 2017 at 7:18 am
            Shocked..if they hv such perception. They didn't see millions of women suffering..
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