In a landmark verdict, the Supreme Court today put the curtains down on an old practice of ‘triple talaq’ among Muslims and set it aside on several grounds including that it was against the basic tenets of the Holy Quran and violated the Islamic law Shariat.
A five-judge Constitution bench, by a majority of 3:2 in which the Chief Justice J S Khehar was in minority, said in a one line order: “In view of the different opinions recorded by a majority of 3:2, the practice of ‘talaq-e-biddat’ triple talaq is set aside.”
The two separate judgements totalling 395 pages, written for the majority by Justices Kurian Joseph and R F Nariman, did not concur with the minority view of the CJI and Justice S A Nazeer that ‘triple talaq’ was a part of religious practice and the government should step in and come out with a law.
The three judges, Justices Joseph, Nariman and U U Lalit, expressly disagreed with the CJI and Justice Nazeer on the key issue whether triple talaq was fundamental to Islam.
The verdict was immediately welcomed by the government, political parties, activists and the petitioners, with Prime Minister Narendra Modi hailing it as “historic” and saying it has granted equality to Muslim women.
Legal luminary Soli Sorabjee said “it is a progressive judgement which has protected the rights of the women and now no Muslim man can divorce his wife through this method.”
With triple talaq being set aside, now Sunni Muslims, among whom triple talaq was prevalent, will not be able to take recourse to this mode as it would be “void ab initio” (illegal at the outset).
They are now left with two other modes of securing divorce – ‘talaq hasan’ and ‘talaq ahsan’ after the apex court today set aside the ‘talaq-e-biddat’ or triple talaq.
Under ‘talaq ahsan’, a Muslim man can divorce his spouse by pronouncing ‘talaq’ once every month in three consecutive months and this would be signified by mensuration cycles.
As per ‘talaq hasan’, divorce can be given by pronouncing talaq “during successive tuhrs (mensuration cycle)” with no intercourse during any of the three tuhrs.
Writing the majority judgement, Justice Joseph said “I find it extremely difficult to agree with the CJI that the practice of triple talaq has to be considered integral to religious denomination in question and that the same is part of their personal law.” This view was shared by Justices Nariman and Lalit who were part of the majority.
Referring to the verses of the Holy Quran, Justice Joseph said, “They are clear and unambiguous as far as talaq is concerned. 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.”
Justice R F Nariman, whose views were concurred with by Justice U U Lalit, was in agreement with Justice Joseph saying “this form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 (right to equality) of the Constitution of India.”
Upholding the NDA government’s view that the practice was against fundamental rights like equality and dignity, Justice Joseph referred to the four sources of Islamic law — Quran, Hadith, Ijma and Qiyas.
He said the Holy Quran is the “first source of law” and pre-eminence has to be given to it.
“That means, sources other than the Holy Quran are only to supplement what is given in it and to supply what is not provided for. In other words, there cannot be any Hadith, Ijma or Qiyas against what is expressly stated in the Quran. Islam cannot be anti-Quran,” Justice Joseph said.
Justice Nariman, in his separate judgement, said “It is clear that Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it.”
He referred to the fact that triple talaq is “instant and irrevocable” and leaves no scope for reconciliation between the husband and wife by two arbiters from their families which is essential to save the marital tie and was not in sync with the Holy Quran.
“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,” he said.
Disposing six pleas including a suo motu petition titled ‘Muslim Women’s Quest For Equality’, Justice Joseph relied on the 2002 apex court verdict in the Shamim Ara case in which it was held that “triple talaq lacked legal sanctity”.
It referred to various High Court verdicts and rejected the plea of parties like All India Muslim Personal Law Board (AIMPLB) that the Shamim Ara case did not create a legal precedent.
“Talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters one from the wife’s family and the other from the husband’s; if the attempts fail, ‘talaq’ may be effected.
“In the light of such specific findings as to how triple talaq is bad in law on account of not following the Quranic principles, it cannot be said that there is no ratio decidendi (the rule of law on which a judicial decision is based) on triple talaq in Shamim Ara case,” Justice Joseph said.
He dealt extensively with the fervent plea of AIMPLB that the triple talaq was integral to Islam as it was in practice for the last 1,400 years.
“Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible,” Justice Joseph, in his 26-page judgement, said.
“Hence, there cannot be any constitutional protection to such a practice and thus, my disagreement with the CJI is for the constitutional protection given to triple talaq,” he said.
Justice Joseph disagreed with the minority verdict which held that though triple talaq was part of the religion, its operation can be stayed (injuncted) by it under Article 142 (extra-ordinary power of the SC) for six months to enable the State to frame a law to deal with it.
“I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right can be injuncted,” he said.
Relying on the Shamim Ara verdict, he said, “I expressly endorse and reiterate the law declared in Shamim Ara. 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.”