Majority judgment holds that practice of such instant and irrevocable talaq is ‘manifestly arbitrary’.
In an historic judgment, the Supreme Court on Tuesday set aside talaq-e-biddat, a practice of divorce through instant triple talaq among Muslims, declaring it “void, illegal and unconstitutional”. A five-judge constitutional bench held, in a majority 3:2 verdict, that the practice of such instant and irrevocable talaq was “manifestly arbitrary and violative” of the Constitution and is not protected by Article 25 (freedom of religion). Observing that triple talaq was against the basic tenets of the Quran, and hence unacceptable, the judges in three separate judgments across 395 pages said: “In view of the different opinions recorded by a majority of 3:2, the practice of ‘talaq-e-biddat’ — triple talaq is set aside.” Justices RF Nariman, Kurian Joseph, and UU Lalit held that the practice of divorce through triple talaq is “manifestly arbitrary and violative” of the Constitution and must be struck down. However, Chief Justice J S Khehar and justice S Abdul Nazeer favoured a six-month injunction and legislation by the government as had happened in other countries. Nariman argued talaq-e-biddat “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”. Moreover, he opined this form of talaq was merely permissive and not an absolute religious practice and, so, does not deserve the protection of Article 25, a view supported by Lalit.
Nariman observed that it was “not possible for the court to fold its hands when petitioners [Muslim women] come to court for justice”. He said triple talaq in all its three forms — talaq-e-biddat, talaq ahsan and talaq hasan — was “recognised and enforced” under Section 2 of the Shariat Act of 1937. “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 recognizes and enforces Triple Talaq,” Nariman stated. Kurian held that instant talaq was against the tenets of the Quran. “What is banned in Quran cannot be good in Shariat. What is banned in theology cannot be good in law,” he said.
Kurian noted that merely being around for 1,400 years did not make a practice eligible for protection under Article 25. He also differed with the chief justice that triple talaq as a personal law is integral to religious belief. The bench, which consisted of judges from different religious communities — Sikh, Christian, Parsi, Hindu and Muslim — had heard seven pleas. This included five separate petitions filed by Muslim women challenging the prevalent practice of triple talaq in the community. Khehar, who headed the bench, held that talaq-e-biddat is an integral part of Article 25 (freedom of religion), followed for over 1,400 years by the Hanafis and has become a part of religious practice. He held that instant talaq does not violate Articles 14, 19 and 21 of the Constitution.
Invoking Article 142 to injunct Muslim men from divorcing through talaq-e-biddat, the chief justice said, “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”. Joseph and Nariman gave separate judgments against the validity of instant talaq, with Lalit supporting the latter judgment. The verdict was welcomed by the government, political parties and activists, with Prime Minister Narendra Modi hailing it as “historic”. “Judgement of the SC on triple talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment,” Modi tweeted.
BJP president Amit Shah said it was the “beginning of a new epoch for women to live with self-respect”. Terming it a welcome step, finance minister Arun Jaitley said he hoped aberrations in personal laws which infringe constitutional guarantees can now be rectified. Congress leader Salman Khurshid too welcomed the judgment, saying “it is a good decision”. He, however, said the reasoning behind the decision was as important as the decision itself and one should see it before coming to any conclusion. The AIMPLB said that it would chalk out its future course of action at its working committee meeting on September 10 in Bhopal, an official of the body said.