The Supreme Court on Tuesday held triple talaq being practised by the Muslim community as “unconstitutional”, “arbitrary” and “not part of Islam”. A five judge constitutional bench by a 3:2 majority judgement said there is no constitutional protection for triple talaq.
Justices Kurian Joseph, Rohinton Fali Nariman and Uday Umesh Lalit held that triple talaq is not integral to Islam, is banned in law and lacks approval of the Shariat. However, Chief Justice JS Khehar and Justice S Abdul Nazir, in a minority judgment, said triple talaq is integral to Islamic practices and enjoys constitutional protection.
Here is the full text:
CJI Khehar and Justice Nazeer: ‘Talaq-e-biddat’ does not violate the parameters expressed in Article 25 of the Constitution. The practice is not contrary to public order, morality and health. The practice also does not violate Articles 14, 15 and 21 of the Constitution, which are limited to State actions alone.
Talaq-e-biddat’, is a matter of ‘personal law’ of Sunni Muslims, belonging to the Hanafi School. It constitutes a matter of their faith. It has been practiced by them, for at least 1400 years. We have examined whether the practice satisfies the constraints provided for under Article 25 of the Constitution, and have arrived at the conclusion, that it does not breach any of them. We have also come to the conclusion, that the practice being a component of ‘personal law, has the protection of Article 25 of the Constitution.
We have arrived at the conclusion, that the legal challenge raised at the behest of the petitioners must fail, on the judicial front. Be that as it may, the question still remains, whether this is a fit case for us to exercise our jurisdiction under Article 142, “…for doing complete justice …” in the matter. The reason for us to probe the possibility of exercising our jurisdiction under Article 142 arises only for one simple reason, that all concerned are unequivocal, that besides being arbitrary the practice of ‘talaq-e-biddat’ is gender discriminatory.
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.
Justice Nariman and Justice Lalit: Given the fact that Triple talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place.
In our opinion, therefore, the 1937 Act, in so far as it seeks to recognize 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.
Justice Joseph: On the statement that triple talaq is an integral part of the religious practice, I respectfully disagree. Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible.
Hence, there cannot be any Constitutional protection to such a practice and thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq.
When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights. I believe that reconciliation between the same is possible, but the process of harmonizing different interests is within the powers of the legislature. Of course, this power has to be exercised within the constitutional parameters without curbing religious freedom guaranteed under the Constitution of India. However, it is not for the Courts to direct for any legislation.