Chief Justice of India J S Khehar, while writing the minority ruling on the challenge to triple talaq on Tuesday 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”. While writing for himself and Justice S Abdul Nazeer, the CJI said that 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”, as per Indian Express.
According to the report, two judges also said that judiciary should 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.
Two judges also 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, as per the paper.
“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,” Chief Justice of India J S Khehar and Justice S Abdul Nazeer also said, while maintaining thet “personal law has constitutional protection.”
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Both judges also concluded that The Muslim Personal Law (Shariat) Application Act, 1937 was not a law in force within Article 13(3)(b) of the Constitution, but was done to “preserve Muslim personal law — Shariat, as it existed from time immemorial”, the report said. The order also 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,” Indian Express report added.