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.