A five-judge bench of the Supreme Court on Tuesday in a split verdict ruled that the practice of instant triple talaq in the Muslim community is unconstitutional. The bench, headed by Chief Justice of India J S Khehar, set aside the practice by a majority of 3:2.
CJI Khehar ruled that triple talaq enjoys the status of fundamental rights as it is a part of Muslim personal law. He was in favour of putting the practice aside for a period of six months allowing Parliament to legislate on it. CJI Khehar and Justice Nazeer, in their minority verdict, asked political parties to set aside their differences and introduce a new law on the practice, taking into account concerns of Muslim bodies and the Sharia law.
Meanwhile, Justices Joseph, Nariman and Lalit said that triple talaq must be struck down as it goes against the constitution and is unacceptable. Justice Nariman said the Muslim Personal Law (Shariat) Application Act of 1937 “recognises and enforces triple talaq” and so it falls within the definition of law in force. “Triple Talaq is manifestly arbitrary” and was violative of Article 14 (the Right to Equality) and did not enjoy the protection of Article 25(1) of the Constitution, he said.
Justice Kurian ruled that triple talaq goes against the tenets of the Quran, and hence violates Shariat law. “It is extremely difficult to agree with the CJI that triple talaq is integral to the practice of Islam,” he said. Justice Nariman and Justice Lalit set it aside, terming it unconstitutional.
In reaction to the verdict, Shayara Bano, the main petitioner said, “I welcome and support the judgment. It is a historic day for Muslim women. In the Muslim community, the condition of women needs to be understood. This judgment needs to be accepted and the law must be made as soon as possible.”
Here is everything you need to know about the practice of instant triple talaq:
Different view of marriage for Muslims
Unlike in Christianity or Hinduism, the view of marriage is different for Muslims. Under Muslim law, marriage is not seen as a sacrament but as a civil contract. The contract is accepted between the two parties on the basis of mutual consent, after the utterance of ‘qabul’.
What is instant triple talaq?
Instant triple talaq or talaq-e-bidat is a practice that was challenged in the court. It is different from the practice of “talaq-ul-sunnat”, which is considered to be the ideal form of dissolution of marriage contract among Muslims.
Under the latter form, once the husband pronounces talaq, the wife has to observe a three-month iddat period covering three menstrual cycles during which the husband can arbitrate and re-conciliate with the wife. In case of cohabitation between the couple, during these three months, the talaq is revoked. However, when the period of iddat expires and the husband does not revoke the talaq either expressly or by consummation, the talaq is irrevocable and final.
In the practice of talaq-e-biddat, when a man pronounces talaq thrice in a sitting, or through phone, or writes in a talaqnama or a text message, the divorce is considered immediate and irrevocable, even if the man later wishes to re-conciliate. The only way for the couple to go back to living together is through a nikah halala, which requires the woman to get remarried, consummate the second marriage, get divorced, observe the three-month iddat period and return to her husband. The practice of talaq-e-biddat has been viewed as abhorrent in theology but upheld as valid by law.’Declaring the practice of talaq-e-biddat as “unconstitutional” may not balance out the gender parity among Muslims, because men still reserve the right to talaq without resorting to legal course of action.