In a landmark 3-2 verdict, the Supreme Court on Tuesday “set aside” the centuries-old practice of instant triple talaq or talaq-e-biddat in which Muslim men divorce their wives by uttering talaq three times in quick succession. Three of the five judges on the Constitution Bench — Justices Rohinton F Nariman, Uday U Lalit and Kurian Joseph — called the practice un-Islamic and “arbitrary” and disagreed with the view that triple talaq was an integral part of religious practice. But the minority ruling of Chief Justice J S Khehar and Justice S Abdul Nazeer underlined the primacy of Muslim personal law and said the practice enjoyed constitutional protection and was beyond the scope of judicial scrutiny. They were of the view that Parliament should consider an “appropriate” law to deal with the issue of talaq-e-biddat.
Justice Joseph, who disagreed that triple talaq had constitutional protection, reiterated the Shamim Ara ruling in which it was held that triple talaq lacked legal sanctity: “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 395-page judgment, on a clutch of petitions by Muslim women challenging the validity of instant triple talaq, comprised three separate rulings — Chief Justice Khehar wrote for himself and Justice Nazeer, Justice Nariman for himself and Justice Lalit while Justice Joseph came out with his own order. The verdict was immediately welcomed by the government, political parties, activists and the petitioners, with Prime Minister Narendra Modi hailing it as “historic” and saying it has granted equality to Muslim women.
Justice Joseph said: “I find it extremely difficult to agree with the learned Chief Justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law… on the statement that triple talaq is an integral part of the religious practice, I respectfully disagree. Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.”
He disagreed with the minority verdict which held that though triple talaq was part of religion, its operation can be stayed (injuncted) under Article 142 (extraordinary power of the SC) for six months to enable the State to frame a law to deal with it. “I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right can be injuncted,” he said.
Justice Nariman too wrote that triple talaq did not satisfy the test laid down by the Supreme Court to decide whether a practice was integral to the practice of a faith. “Applying the test of manifest arbitrariness… it is clear that 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…”
“…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. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognise and enforce triple talaq, is within the meaning of the expression ‘laws in force’ in Article 13(1) and must be struck down as being void to the extent that it recognises and enforces triple talaq,” Justice Nariman wrote.
PTI adds: With triple talaq being set aside, now Sunni Muslims, among whom triple talaq was prevalent, will not be able to take recourse to this mode as it would be “void ab initio” (illegal at the outset). They are now left with two other modes of securing divorce — talaq hasan and talaq ahsan after the apex court set aside the talaq-e-biddat.
Under talaq ahsan, a Muslim man can divorce his spouse by pronouncing talaq once every month in three consecutive months and this would be signified by menstruation cycles. As per talaq hasan, divorce can be given by pronouncing talaq “during successive tuhrs (menstruation cycle)” with no intercourse during any of the three tuhrs.