Calling it ‘illegal’ and unconstitutional’, the Supreme Court on Tuesday banned triple talaq – the practice that allows Muslim men to instantaneously divorce their wives by uttering talaq (divorce) thrice.
Triple talaq “is not integral to religious practice and violates constitutional morality,” the panel of Supreme Court judges said.
Tuesday’s landmark verdict was delivered in a 3:2 majority by a 5-judge bench of all faiths — Chief Justice 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 were in favour of putting on hold for six months the practice of triple talaq, asking the government to come out with a law in this regard, Justices Kurian Joseph, R F Nariman and U U Lalit held it as “violative of the Constitution”.
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.
The top court 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.
Justice Nariman, Lalit and Joseph said triple talaq was unconstitutional, and opposed the view of Chief Justice J S Khehar and Justice Nazir. The latter held that talaq-e-biddat was not in violation of Articles 14, 15, 21 and 25 of the Constitution and that it was an integral part of the Sunni community practised for 1400 years.
The judges in favour of banning triple talaq called the practice ‘bad in law’.
While Justice Khehar held matters of personal law could not be touched by a constitutional court law, or its constitutionality tested, Justice Nariman differed. Reading out a separate judgement, Justice Nariman said triple talaq was a part of the 1934 Act and should always be tested on constitutionality. He declared it unconstitutional.
Justice Kurien said triple talaq was not an essential part of Islam and enjoyed no protection of Article 25.
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 (AIMPLB) 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.