New Delhi: The Supreme Court on Tuesday by a majority verdict held the triple talaq practice of instant divorce among the Muslim community as “unconstitutional”, “arbitrary” and “not part of Islamic faith”.
A five-judge constitutional bench by a 3:2 majority judgement said there is no constitutional protection for triple talaq as it is arbitrary and “whimsical” as it leaves no scope for conciliation and violates Muslim women’s rights.
“In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside,” the five-judge bench said in their order.
Justices Kurian Joseph, Rohinton Fali Nariman and Uday Umesh Lalit held that triple talaq is not integral to Islam, is bad in law and lacks approval of the Shariat.
However, Chief Justice J.S. Khehar also speaking for Justice S. Abdul Nazeer held that triple talaq was integral to the Muslim faith and enjoyed constitutional protection.
Chief Justice Khehar in his judgement urged parliament to pass a law to deal with the issue.
He, however, injuncted Muslim men from pronouncing instant triple talaq for next six months within which he implored the political parties to shed their difference and enact a law.
Saying that the Holy Quran attributed “sanctity and permanence to matrimony” and only in “unavoidable situations” it permits talaq, but not before attempts for reconciliation are made, Justice Joseph said: “In triple talaq, this door is closed; hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.”
“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,” he said in his judgment differing with CJI Khehar and Justice Nazeer.
Pronouncing the minority judgment, Chief Justice Khehar said: “Talaq-e-biddat’ is integral to the religious denomination of Sunnis belonging to the Hanafi school. The same is a part of their faith, having been followed for more than 1,400 years, and as such, has to be accepted as being constituent of their ‘personal law’.”
Chief Justice Khehar also speaking for Justice Nazeer said that being a part of ‘personal law’, it has a “stature equal to other fundamental rights… The practice cannot therefore be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention.”
Referring to the advances in Muslim personal law the world over including by theocratic Islamic States, the Chief Justice in his judgment directed the Central government to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’.
“We would therefore implore the legislature, to bestow its thoughtful consideration, to this issue of paramount importance. We would also beseech different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation,” he said.
The Chief Justice in his judgment injuncted Muslim husbands from pronouncing instant triple talaq for the next six months.