New DelhiIn a historic verdict, the Supreme Court of India on Tuesday brought the curtains down on the 1,400 year old practice of ‘triple talaq’ among Muslims.
A five-judge constitution bench, by a majority of 3:2 in which Chief Justice J S Khehar was in minority, said the practice of “Talaq-e-biddat’ triple talaq is set aside”.
The practice of triple talaq was “manifestly arbitrary” as the marital tie could be broken “whimsically” by a Muslim man and it must be held to be violative of fundamental right of equality, the Supreme Court said.
One of the two separate majority judgements, penned by Justice R F Nariman, said the provision of the Muslim Personal Law (Shariat) Application Act, 1937 must be struck down as being void to the extent that it recognises and enforces the practice of triple talaq.
Justice Nariman, whose views were concurred with by Justice U U Lalit, said that subordinate legislation could be struck down on the ground that it was arbitrary and violative of Article 14 (right to equality) of the Constitution.
“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 in his 93-page judgement.
“This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India,” he said.
The majority judgement also said that applying the test of manifest arbitrariness in this case, “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”.
It referred to the fact that the Hanafi school of Shariat law, which itself recognises this form of talaq, has said that though lawful, it is sinful.
“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,” the verdict said.
In a historic verdict, the apex court today put the curtains down on the 1,400 year old practice of ‘triple talaq’ among Muslims.
The five-judge Constitution bench, by a majority of 3:2 in which Chief Justice J S Khehar was in minority, said the practice of “‘talaq-e-biddat’ – triple talaq is set aside”.
The two separate judgements, written for majority by justices Kurian Joseph and Nariman, did not concur with the CJI and Justice S A Nazeer that ‘triple talaq’ was a part of religious practice and the government should step and come out with a law.
Most disliked of lawful things: SC
The Holy Prophet (Pbuh) had declared divorce to be the most disliked among the lawful things in the eyes of God as it broke the marital tie which is fundamental to family life in Islam, the Supreme Court today said.
Justice R F Nariman, who wrote one of the two separate majority judgements, said divorce not only disrupted the marital tie between man and woman, but had severe psychological and other repercussions on the children from such marriage.
Justice Nariman, whose views were concurred with by Justice U U Lalit, noted that marriage in Islam was a contract, and like other contracts, it could be terminated under certain circumstances.
“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,” he said.
“Apparently, before the time of Prophet Muhammed (Pbuh), the pagan Arab was absolutely free to repudiate his wife on a mere whim, but after the advent of Islam, divorce was permitted to a man if his wife by her indocility or bad character rendered marital life impossible,” Justice Nariman said.
In the absence of good reason, no man can justify a divorce “for he then draws upon himself the curse of God.
“Indeed, Prophet Muhammed 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. Divorce breaks the marital tie which is fundamental to family life in Islam,” Justice Nariman said.
The five-judge Constitution bench, by a majority of 3:2 in which Chief Justice J S Khehar was in minority, said the practice of talaq-e-biddat” triple talaq is set aside”.
Religion pitted against constitution
When issues like ‘triple talaq’ come to the forefront, the discourse often takes the form of pitting religion against constitutional rights, the Supreme Court said today.
Justice Kurian Joseph, who penned a separate majority judgement, said the process of harmonising different interests was within the powers of the legislature and this power has to be exercised within the constitutional parameters without curbing religious freedom guaranteed under the Constitution.
“However, it is not for the courts to direct for any legislation,” he said in his 26-page judgement.
“When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights. I believe that a reconciliation between the same is possible, but the process of harmonising different interests is within the powers of the legislature,” he said.
Justice Joseph also noted in his verdict that to freely profess, practice and propagate religion of one’s choice is a fundamental right guaranteed under the Constitution.
He, however, disagreed with the views of Chief Justice J S Khehar and Justice A Abdul Nazeer that the practice of ‘triple talaq’ has to be considered integral to the religious denomination and it was part of their personal law.
“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 (Muslim Personal Law (Shariat) Application) 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,” he said.
“Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible,” Justice Joseph said.
He also said, “I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right, can be injuncted.”
The two separate judgements, written for majority by Justices Kurian Joseph and R F Nariman, did not concur with the CJI and Justice Nazeer that ‘triple talaq’ was a part of religious practice and the government should step and come out with a law.
AIMPLB convenes special session
The All India Muslim Personal Law Board (AIMPLB) will chalk out its future course of action with regard to the Supreme Court’s verdict on triple talaq in its working committee meeting slated on September 10 in Bhopal, an official of the body said.
The meeting was convened earlier and its agenda was issued yesterday, member of the Board’s working committee Zafaryab Jilani said.
“The working committee meeting in Bhopal on September 10 will take a decision on the future course of action on today’s Supreme Court verdict after studying it in detail,” he said.
Besides, other issues will also be taken up in the meeting with the verdict being the most prominent one, said Jilani, who is also a senior counsel.
He said that the hearing on the Babri mosque case is also on the agenda of the Bhopal meeting.
To a question, Jilani said it will not be appropriate to comment on the apex court’s decision without studying it in detail.
Indication of new India
Union Law Minister Ravi Shankar Prasad on Tuesday hailed the Supreme Court’s judgement striking down triple talaq, saying that it was an indication of an emerging new India.
He also said the apex court judgement would become a beacon to the world.
Speaking to CNN News 18 news channel, Prasad said: “A great sense of personal fulfilment. But we need to salute the Muslim women today who fought for it.”
“Their courage I need to compliment but what would I say it is an indication of new emerging India.”
He also said that by a majority the Supreme Court very clearly and categorically held that it is whimsical, arbitrary, unreasonable and violative of Article 14 of the Constitution.
“It is a new statement of empowerment of women of India,” he said.
Asked if the country would see the new codes, he said: “As of now triple talaq goes. The court has declared it to be like that. Whatever future initiatives are to be taken, we will consider it… but let me tell you today, this judgement is going to become a beacon to the world.”
Triple talaq case: Chronology of events
The Supreme Court by a majority verdict today declared that triple talaq was void, illegal and unconstitutional.
Following is the chronology of events:
Oct 16, 2015: SC bench asks chief justice of India to set up an appropriate bench to examine if Muslim women face gender discrimination in divorce cases while dealing with a case of Hindu succession.
Feb 5, 2016: SC asks then Attorney General Mukul Rohatgi to assist it on the pleas challenging constitutional validity of ‘triple talaq’, ‘nikah halala’ and polygamy.
Mar 28: SC asks Centre to file report of a high-level panel on ‘Women and the law: An assessment of family laws with focus on laws relating to marriage, divorce, custody, inheritence and succession’.
SC impleads various organisations, including All India Muslim Personal Law Board (AIMPLB), as parties in the suo motu matter.
Jun 29: SC says ‘triple talaq’ among Muslims will be tested on “touchstone of constitutional framework”.
Oct 7: For the first time in India’s constitutional history, Centre opposes in SC these practises and favours a relook on grounds like gender equality and secularism.
Feb 14, 2017: SC allows various interlocutory pleas to be tagged along with the main matter.
Feb 16: SC says a five-judge constitution bench would be set up to hear and decide the challenge to ‘triple talaq’, ‘nikah halala’ and polygamy.
Mar 27: AIMPLB tells SC pleas were not maintainable as the issues fall outside judiciary’s realm.
Mar 30: SC says these issues are “very important” and involve “sentiments” and says a constitution bench would start hearing it from May 11.
May 11: SC says it would examine whether the practise of triple talaq among Muslims is fundamental to their religion.
May 12: SC says the practise of triple talaq was the “worst” and “not desirable” form of dissolution of marriages among Muslims.
May 15: Centre tells SC that it will bring new law to regulate marriage and divorce among the Muslim community if triple talaq struck down.
SC says it would examine whether triple talaq was an essential part of religion under Article 25 of Constitution.
May 16: AIMPLB tells SC that matters of faith cannot be tested on grounds of constitutional morality, says triple talaq a matter of faith for last 1,400 years.
Equates the issue of triple talaq with the belief that Lord Rama was born in Ayodhya.
May 17: SC asks AIMPLB whether a woman can be given an option of saying ‘no’ to triple talaq at the time of execution of ‘nikahnama’.
Centre tells SC triple talaq is neither integral to Islam nor a “majority versus minority” issue but rather an “intra-community tussle” between Muslim men and deprived women.
May 18: SC reserves verdict on triple talaq.
May 22: AIMPLB files affidavit in SC saying it would issue an advisory to ‘Qazis’ to tell bridegrooms that they will not resort to triple talaq to annul their marriage.
AIMPLB lists out in SC guidelines for married couples.
These include “social boycott” of those Muslims who resort to triple talaq and the appointment of an arbitrator to settle marital disputes.
Aug 22: SC by majority verdict of 3:2 rules that divorce through triple talaq is void, illegal and unconstitutional and against basic tenets of Quran.
Three judges favour putting on hold for six months the practise, asking the government to come out with a law in this regard.
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