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What the Supreme Court Bench Had to Say While Striking Down Instant Triple Talaq

Different opinions emerged from the five-judge constitution bench.

The Supreme Court on Tuesday set aside triple talaq as unconstitutional. Credit: Reuters

The Supreme Court on Tuesday set aside triple talaq as unconstitutional. Credit: Reuters

New Delhi: In a landmark judgment, the Supreme Court on Tuesday set aside the instant triple talaq or talaq-e-biddat system of divorce followed by Sunni Muslims under personal law as unconstitutional.

A five-judge bench comprising Chief Justice J.S. Khehar and Justices Kurian Joseph, Rohinton F. Nariman, Uday U. Lalit and S.A. Abdul Nazeer, in a 395-page verdict by a majority of 3:2, held that instant triple talaq is unconstitutional, arbitrary and unreasonable. In a batch of petitions, the affected Muslim women had challenged the validity of instant triple talaq on the grounds that it violated their fundamental right to equality.

While the majority judgment was written by Justice Nariman for himself and Justice Lalit, Justice Joseph wrote a concurring judgment to set aside the practice of triple talaq. Chief Justice Khehar wrote a judgment for himself and Justice Nazeer arguing that triple talaq should be upheld as it has been practiced for 1,400 years, but wanted a stay on the operation of triple talaq for six months.

The chief justice said the practice of triple talaq has to be considered integral to the religious denomination in question; it is part of their personal law and cannot be tinkered with by the court. Any change in personal law can be done only through parliamentary legislation, the minority opinion said.

What the majority said

Justice Nariman said triple talaq does not fall within the sanction of the Quran. Even assuming that it forms part of the Quran, Hadis or Ijmaa, it is not something that is “commanded”. Talaq itself is not a recommended action and therefore, he argued, triple talaq will not fall within the category of sanction ordained by the Quran. While the practice is permissible in the Hanafi jurisprudence, that very jurisprudence castigates triple talaq as being sinful, he wrote.

Justice Nariman said a practice that is manifestly arbitrary is obviously unreasonable and, being contrary to the rule of law, would violate Article 14 of the constitution. If an action is found to be arbitrary and unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground. Pointing out that triple talaq is sanctioned under the Muslim Personal Law (Shariat) Application Act, 1937, Justice Nariman said it is constitutionally invalid. He said,

“Divorce breaks the marital tie which is fundamental to family life in Islam. Not only does it disrupt the marital tie between man and woman, but it has severe psychological and other repercussions on the children from such marriage.

…After the advent of Islam, divorce was permitted to a man if his wife by her indocility or bad character renders marital life impossible. In the absence of good reason, no man can justify a divorce for he then draws upon himself the curse of God. Indeed, Prophet Mahomed had declared divorce to be the most disliked of lawful things in the sight of God. The reason for this is not far to seek. It is clear, therefore, that Triple Talaq forms no part of Article 25(1) of the Constitution.

…This being the case, the submission on behalf of the Muslim Personal Board that the ball must be bounced back to the legislature does not at all arise in that Article 25(2)(b) would only apply if a particular religious practice is first covered under Article 25(1) of the Constitution.

…If a constitutional infirmity is found, Article 14 will interdict such infirmity. Positively speaking, it should conform to norms, which are rational, informed with reason and guided by public interest, etc. Applying the test of manifest arbitrariness to the case at hand, it is clear that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq. 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. It is clear that this form of 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.

…In our opinion, therefore, the 1937 Shariat Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) of the Constitution and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.”

Justice Joseph, supporting Justice Nariman’s judgment, said, “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.”

“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.”

He said the simple question that needs to be answered in this case is only whether triple talaq has any legal sanctity.

“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. Therefore, in any case, after the introduction of the 1937 Shariat Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice. When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights.”

The minority view

The chief justice said the practice of talaq-e-biddat is a constituent of personal law and hence has a stature equal to other fundamental rights conferred in part three of the constitution.

“The practice which is in existence and accepted by all for over 1,400 years cannot therefore be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention. Reforms to ‘personal law’ in India, with reference to socially unacceptable practices in different religions, have come about only by way of legislative intervention.”

Chief Justice Khehar, however, wanted the practice to be stayed for six months. He said till such time as legislation on the matter is considered,

“We are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-ebiddat’ (three pronouncements of ‘talaq’, at one and the same time) – as one, 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.

…The practice of ‘talaq-e-biddat’ being a constituent of ‘personal law’ has a stature equal to other fundamental rights, conferred in Part III of the Constitution. The practice cannot therefore be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention. Reforms to ‘personal law’ in India, with reference to socially unacceptable practices in different religions, have come about only by way of legislative intervention. Such legislative intervention is permissible under Articles 25(2) of the Constitution. The said procedure alone need to be followed with reference to the practice of ‘talaq-e-biddat’, if the same is to be set aside.

…International conventions and declarations are of no avail in the present controversy, because the practice of ‘talaq-e-biddat’, is a component of ‘personal law’ the whole nation seems to be up in arms. There is seemingly an overwhelming majority of Muslim-women, demanding that the practice of talaq-e-biddat’ which is sinful in theology, be declared as impermissible in law. The Union of India, has also participated in the debate. It has adopted an aggressive posture, seeking the invalidation of the practice by canvassing, that it violates the fundamental rights enshrined in Part III of the Constitution, and by further asserting, that it even violates constitutional morality.

…During the course of hearing, the issue was hotly canvassed in the media. Most of the views expressed in erudite articles on the subject, hugely affirmed that the practice was demeaning. Interestingly even during the course of hearing, learned counsel appearing for the rival parties, were in agreement, and described the practice of ‘talaq-e-biddat’ differently as, unpleasant, distasteful and unsavory. The position adopted by others was harsher, they considered it as disgusting, loathsome and obnoxious. So religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice, which constitutes personal law.”

  • Anjan Basu

    I quite understand — and endorse – why the Supreme Court decided that the barbaric practice of the ‘Triple Talaq’ is unconstitutional. What I fail to understand, however, is why the court needed to go into whether TT was in consonance with Islam. Are the courts in a secular country required, or competent, to go into the merits or otherwise of religious practices? To me, this looks as absurd as when the Supreme Court was approached with the request that the court adjudicate on the Mandir/ Masjid dispute at Ayodhya.

    • Anjan Basu

      I now freely confess to have misunderstood the underlying constitutional issue here. The judges needed to go into the validity of the TT in terms of Islamic religious tenets because, simultaneously with mandating fundamental rights, our constitution also guarantees to adherents of every faith the freedom to pursue their own religious practices. So, the Supreme Court felt called upon to examine the issue of the religious sanction of the practice of Triple Talaq as well. My apologies for a hasty and misplaced intervention!

  • kujur bachchan

    The judgement is pronounced. Whether it is good or bad, time only will tell.

    What, however, shine through the whole 395 page long legal interpretations, conclusions, observations and judgements of the five-judge bench are certain observations made and conclusions drawn – forthright; appreciative of the concerns, fears and motives of the various stakeholders and; with foresight – by Hon’ble CJI Shri JS Khehar and Hon’ble Justice Shri S. Abdul Nazeer. These are as follows.

    “Paragraph 190:
    (7) The practice of ‘talaq-e-biddat’ being a constituent of ‘personal law’ has a stature equal to other fundamental rights, conferred in Part III of the Constitution. The practice cannot therefore be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention.
    (8) Reforms to ‘personal law’ in India, with reference to socially unacceptable practices in different religions, have come about only by way of legislative intervention. Such legislative intervention is permissible under Articles 25(2) and 44, read with entry 5 of the Concurrent List, contained in the Seventh Schedule of the Constitution. The said procedure alone need to be followed with reference to the practice of ‘talaq-e-biddat’, if the same is to be set aside.

    Paragraph 191: The whole nation seems to be up in arms…….. The Union of India, has also participated in the debate. It has adopted an aggressive posture, seeking the invalidation of the practice by canvassing, that it violates the fundamental rights enshrined in Part III of the Constitution, and by further asserting, that it even violates constitutional morality. During the course of hearing, the issue was hotly canvassed in the media. Most of the views expressed in erudite articles on the subject, hugely affirmed that the practice was demeaning. Interestingly even during the course of hearing, learned counsel appearing for the rival parties, were in agreement, and described the practice of ‘talaq-e-biddat’ differently as, unpleasant, distasteful and unsavoury. ….

    Paragraph 192: We have arrived at the conclusion, that ‘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 practised by them, for at least 1400 years……. 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….

    Paragraph 193. Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion. The Constitution allows the followers of every religion, to follow their beliefs and religious traditions. The Constitution assures believers of all faiths, that their way of life, is guaranteed, and would not be subjected to any challenge, even though they may seem to others (-and even rationalists, practicing the same faith) unacceptable, in today’s world and age. The Constitution extends this guarantee, because faith constitutes the religious consciousness, of the followers. It is this religious consciousness, which binds believers into separate entities. The Constitution endevours to protect and preserve, the beliefs of each of the separate entities, under Article 25. …

    Paragraph 195: …. that most of the prayers made to the Court (-at least on first blush) were persuasive enough, to solicit acceptance. Keeping in mind, that this opportunity had presented itself, so to say, to assuage the cause of Muslim women, it was felt, that the opportunity should not be lost. We are however satisfied that, that would not be the rightful course to tread. We were obliged to keep reminding ourselves, of the wisdoms of the framers ofthe Constitution, who placed matters of faith in Part III of the Constitution. Therefore, any endeavour to proceed on issues canvassed before us would, tantamount to overlooking the clear letter of law. We cannot nullify and declare as unacceptable in law, what the Constitution decrees us, not only to protect, but also to enforce. The authority to safeguard and compel compliance, is vested under a special jurisdiction in constitutional Courts (-under Article 32, with the Supreme Court; and under Article 226, with the High Courts). Accepting the petitioners prayers, would be in clear transgression of the constitutional mandate contained in Article 25. 196. Such a call of conscience, as the petitioners desire us to accept, may well have a cascading effect. We say so, because the contention of the learned Attorney General was, that ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ were also liable to be declared unconstitutional, for the same reasons as have been expressed with reference to ‘talaq-e-biddat’. According to the learned Attorney General, the said forms of talaq also suffered from the same infirmities as ‘talaq-e-biddat’. The practices of ‘polygamy’ and ‘halala’ amongst Muslims are already under challenge before us. It is not difficult to comprehend, what kind of challenges would be raised by rationalists, assailing practices of different faiths on diverse grounds, based on all kinds of enlightened sensibilities. We have to be guarded, lest we find our conscience traversing into every nook and corner of religious practices, and ‘personal law’. Can a court, based on a righteous endeavour, declare that a matter of faith, be replaced – or be completely done away with. In the instant case, both prayers hascribed in the Quran and the ‘hadiths’. The prayer is also for setting aside the practice, by holding it to be unconstitutional. The wisdom emerging from judgments rendered by this Court is unambiguous, namely, that while examining issues falling in the realm of religious practices or ‘personal law’, it is not for a court to make a choice of something which it considers as forward looking or non-fundamentalist. It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’, must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be (-including self-proclaimed rationalists, of the same faith). Article 25 obliges all Constitutional Courts to protect ‘personal laws’ and not to find fault therewith. Interference in matters of ‘personal law’ is clearly beyond judicial examination. The judiciary must therefore, always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem. It is therefore, that this Court had the occasion to observe, “….. However laudible, desirable and attractive the result may seem … an activist Court is not fully equipped to cope with the intricacies of the legislative subject and can at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading it to awaken, march and reach the goal. ….

    Paragraph 197: We have arrived at the conclusion, that the legal challenge raised at the behest of the petitioners must fail, on the judicial front. ………. There can be no doubt, and it is our definitive conclusion, that the position can only be salvaged by way of legislation. …..

    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. When the British rulers in India provided succor to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind. Measures have been adopted for other religious denominations even in India, but not for the Muslims. We would therefore implore the legislature, to bestow its thoughtful consideration, to this issue of paramount importance……”

    As many would agree with me, the Hon’ble CJI and Hon’ble Justice Nazeer are acutely aware of the pitfalls of treading in the quagmire of the religious diversity of India, where each of us wears religion on his or her sleeve. Further, the Hon’ble CJI and Hon’ble Justice Nazeer wanted to remind the government of their deplorable failure to bring the issue before the legislature. Most Importantly, the Hon’ble CJI and Hon’ble Justice Nazeer, did clearly detect the blatantly aggressive game of subterfuge being played by majoritarian groups, with overt and covert support of the government, in canvassing for the petitioners’ case; and they were not at all amused. They could also foresee definite possibility of the Triple Talaq case being made a precedent by the majoritarians to demand more such judicial intrusions into minority religious practices.