The Supreme Court which by a 3:2 majority decision struck down triple talaq as “unconstitutional”, “arbitrary” and “not part of Islam”, had differing arguments by the judges.

Justice Kurian Joseph, while disagreeing with Chief Justice of India J.S. Khehar that triple talaq was integral to Muslim faith, said: “Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.”

He disagreed with the Chief Justice that triple talaq enjoyed constitutional protection under Article 25.

Referring to CJI’s order injuncting Muslim men from resorting to triple talaq after holding that it integral to Islamic faith and enjoying constitutional protection, Justice Joseph said: “I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right can be injuncted.”

Article 142 of the Constitution provides for plenary powers of the Supreme Court for doing complete justice.

Justice Fali Nariman, also speaking for Justice U.U. Lalit, said that triple talaq 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” and thus must be held to be violative of the fundamental rights under the Constitution’s Article 14.

“Marriage in Islam is a contract, and like other contracts, may under certain circumstances, be terminated. There is something astonishingly modern about this – no public declaration is a condition precedent to the validity of a Muslim marriage nor is any religious ceremony deemed absolutely essential, though they are usually carried out.”

Holding that triple talaq is violative of the Muslim woman’s fundamental right of equality before law, he said: “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.”

“Triple talaq is a form of talaq which is itself considered to be something innovative, namely, that it is not in the Sunna (the Prophet’s practices), being an irregular or heretical form of talaq.”

The minority judgment said that ‘Talaq-e-biddat’ “does not violate the parameters expressed in Article 25, not being contrary to public order, morality and health or violating Articles 14, 15 and 21 “which are limited to State actions alone”.

It further said that triple talaq could not be set aside on the ground of violating the concept of the constitutional morality .

Referring to international conventions and declaration, the minority judgment said that they are of no avail as “the practice of ‘talaq-e-biddat’, is a component of ‘personal law'”, and has the protection of Article 25.

However, it said that reforms in personal laws to get rid of socially unacceptable practices in different religions have come about by legislative intervention, and the same legislative course needs to be taken with reference to the practice of ‘talaq-e-biddat’, for it to be set aside.

He said that if legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-e-biddat’ (instant triple talaq) or alternatively, 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.

Chief Justice Khehar and Justice S. Abdul Nazeer, in the minority judgment said: “The factual and the legal position noticed in the foregoing paragraph clearly brings out, that the practices of ‘Sati’, ‘Devadasi’ and ‘polygamy’ were abhorrent, and could well be described as sinful.

“They were clearly undesirable and surely bad in theology. It is however important to notice, that neither of those practices came to be challenged before any court of law. Each of the practices to which our pointed attention was drawn, came to be discontinued and invalidated by way of legislative enactments.

“The fact, that about 90% of the Sunnis in India, belong to the Hanafi school, and that, they have been adopting ‘talaq-e-biddat’ as a valid form of divorce, is also not a matter of dispute.”

Expressing themselves satisfied that the practice has to be considered integral to the religious denomination in question, it said they were of the view, that since has had the sanction and approval of the religious denomination which practiced it, and as such, there can be no doubt that it is a part of their ‘personal law’, which enjoys constitutional protection.

Justice Joseph however said: “… the Constitutional democracy of India cannot conceive of a legislation which is arbitrary.”

“The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality.”

“In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.”

“Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.”

“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.”

First Published | 23 August 2017 8:59 AM
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