Triple talaq — the personal law by which Muslim men can instantaneously divorce their wives by uttering talaq thrice — “is not integral to religious practice and violates constitutional morality,” the panel of Supreme Court judges said.
verdict was delivered in a 3:2 majority by a 5-judge bench of all faiths — Chief Justice of India J S Khehar (Sikh), Justices Kurian Joseph (Christian), Rohinton Nariman (Parsi), Uday Lalit (Hindu) and S A Abdul Nazeer (Muslim).
While Chief Justice J S Khehar and Justice S Abdul Nazeer wanted to put triple talaq on hold for six months till the government made a law on this, Justices Kurian Joseph, R F Nariman and U U Lalit ruled the practice was “manifestly arbitrary and violative of the Constitution”. It should be struck down, they said.
“In view of the different opinions recorded by a majority of 3:2, the practice of ‘talaq-e-biddat’ or triple talaq is set aside,” the five-judge constitution bench said in a 395-page order.
The Constitution so far has held that the 1400-year-old triple talaq is legal for Muslims, but many aggrieved women, divorced by letter, on SMS, Whatsapp and even Skype challenged the controversial practice.
Victims including Shayara Bano, whose husband used triple talaq to divorce her by letter in 2015, had approached India’s highest court to ask for a ruling.
The three judges in favour of banning triple talaq said the practice was against the basic tenets of Islam.
The apex court referred to the abolition of triple talaq in Islamic countries and asked why independent India could not get rid of it. More than 20 Muslim countries, including neighboring Pakistan and Bangladesh, have banned the practice.
These judges called triple talaq called the practice ‘bad in law’.
The minority verdict by CJI Khehar and Justice Nazeer said triple talaq may be “sinful”, but the court could not interfere in personal laws considered a fundamental right.
They instead favoured to keep on hold the practice for six months, asked political parties to set aside differences and help the Centre in coming out with a legislation.
The judges in the minority verdict said if the Centre did not bring a law within six months, then its injunction on triple talaq would continue.
CJI Khehar and Justice Nazeer also expressed hope the Centre’s legislation would take into account concerns of Muslim bodies and the Sharia law.
The Centre had earlier told the bench that it would come out with a law to regulate marriage and divorce among Muslims if triple talaq was held invalid and unconstitutional by the apex court.
The government said all three forms of divorce among the Muslim community — talaq-e-biddat, talaq hasan and talaq ahsan, as “unilateral” and “extra-judicial”.
It argued all personal laws must conform to the Constitution and rights of marriage, divorce, property and succession had to be treated in the same class.
The Centre said triple talaq was neither integral to Islam, nor a “majority versus minority” issue but an “intra-community tussle” between Muslim men and deprived women.
The Bench held sittings during summer vacation to decide the validity of triple talaq. It was hearing a batch of petitions filed by Muslim Women’s Quest for Equality. The hearing was completed in six days.
The petitioners had questioned the validity of triple talaq and had argued that it infringed with Muslim women’s fundamental right to equality.
In opposition to that, the All India Muslim Personal Law Board submitted a draft ‘nikhanama’ (marriage agreement), which said the bridegroom would not resort to instantaneous triple talaq to seek divorce. The AIMPLB said a resolution to this effect had been passed and sent to all the kazis in the country.
The AIMPLB had asserted that triple talaq may be sinful but it was a practice in existence for close to 1400 years. “We don’t want the court to enter into a slippery slope. Court should not venture into the area and interpret something, which is not in its domain. Personal law, customs and faith cannot be tested under the garb of fundamental rights,” the Muslim board had said.
Through its senior counsel Kapil Sibal, AIMPLB had cautioned the court from deciding this issue as it could lead to a backlash in the Muslim community, which might see its rights being infringed upon and therefore resort to supporting practices like polygamy and oral divorce.