In split verdict, SC strikes down validity of ‘triple talaq’ divorce

In a split verdict, a five-judge bench of the Supreme Court today set aside talaq-e-biddat or instant and irrevocable divorce as a "manifestly arbitrary" practice,  not protected by Article 25 of the Constitution, which guarantees freedom of religion.

A five-judge bench headed by Chief Justice J S Khehar had reserved its verdict on 18 May, six days after the hearing began on 11 May. Today, two judges (Justices Fali S Nariman and U U Lalit) set it aside terming it unconstitutional, while Justice Kurian Joseph wrote a separate judgement setting it aside as being against the teachings of Quran.

Chief Justice Khehar and Justice Abdul Nazeer continued to back triple talaq. Khehar held that talaq-e-biddat is an integral part of Article 25 (freedom of religion), has been followed for over 1,400 years by the Hanafis, and has become a part of religious practice.

Khehar held that instant talaq does not violate Articles 14, 19 and 21 of the Constitution, and left it to the legislature to decide a law within six months. Invoking extraordinary jurisdiction under Article 142, the Chief Justice injuncted Muslim men from divorcing their wives using instant talaq. This view was endorsed only by Justice S Abdul Nazeer in the minority judgment.

Reading out the final order of the court at the end of the judgment pronouncement session, Chief Justice Khehar addressed the courtroom and concluded that "by majority of 3:2, talaq-e-biddat is set aside".

The apex court heard several pleas filed by Muslim women who had challenged the practice of instant triple talaq, where a man divorces his wife by pronouncing the word 'talaq' thrice.

During the hearings, the court had clarified that it would only deliberate on whether the practice of triple talaq is part of an ''enforceable'' fundamental right to practice religion among Muslims, and would not go into the practice of polygamy.

Prime Minister Narendra Modi took to Twitter to call the verdict historic. He said that the judgment grants equality to Muslim women and is a powerful measure for women's empowerment.

Union Minister for Women and Child Welfare Maneka Gandhi also welcomed the verdict and said, ''It's a good judgement and it's another step towards gender justice and gender equality.''

Two major Muslim bodies - The All India Muslim Women Personal Law Board and the All India Shia Personal Law Board also welcomed the verdict, terming it a victory of Islam and Muslim women in the country.

In his judgment, Justice Nariman observed that it is "not possible for the court to fold its hands when petitioners [Muslim women] come to court for justice."

He ruled that since the Shariat Act had recognised triple talaq, it was no longer a personal law that could remain free of the fetters of the fundamental rights rigour but a statutory law, which comes under the ambit of Article 13(1) of the Constitution.

Article 13 defines 'law' and says that all laws, framed before or after the Constitution, shall not be violative of the fundamental rights.

Justice Nariman said talaq-e-biddat  allows a Muslim man to "whimsically and capriciously"  divorce his wife. The practice is "manifestly arbitrary" and does not enjoy the protection of Article 25. Moreover, he noted, instant talaq was merely permissive and not an absolute religious practice, and so does not deserve the protection of Article 25. His views were supported by Justice Lalit.

Against the tenets of Quran
In his judgment, Justice Kurian held that instant talaq was against the tenets of Quran.  "What is banned in Quran cannot be good in Shariat. What is banned in theology cannot be good in law," he observed.

Justice Kurian differed with Chief Justice Khehar, saying that just because a practice has been around for 1,400 years it does not make become eligible for protection under Article 25.

He also differed with the Chief Justice that triple talaq as a personal law is integral to religious belief. He said the practice should not violate public health, morality and order.

Reading his minority judgment first, Chief Justice Khehar observed that talaq-e-biddat was widely accepted by Sunnis.

"The practice [biddat] cannot be set aside on the violation of constitutional morality through a judicial order," he held.

Any change in talaq-e-biddat can be done by way of legislation. The fact that international law and theocratic countries have dropped talaq-e-biddat do not matter as biddat is a part of personal law in India and comes under the protection of Article 25, he said.

However, invoking Article 142 to injunct Muslim men from divorcing through talaq-e-biddat, the Chief Justice said the fact that even the Muslim world has shed talaq-e-biddat and there is no excuse for India to lag behind. He appealed to political parties and lawmakers to set aside their individual gains and give "thoughtful consideration" to frame a suitable law.

The issue was whether talaq-e-biddat was violative of the fundamental and human rights of gender equality and dignity of Muslim women.

On October 16, 2015, the Supreme Court questioned if Muslim personal law practices of marriage and divorce reduce women to mere chattels. In a rare move, it registered a suo motu public interest litigation (PIL) petition titled 'In Re: Muslim Women's Quest for Equality' to examine if arbitrary divorce, polygamy and nikah halala (where a Muslim divorcee marries a man, divorces him to get re-married to her former husband) violate women's dignity.

The court rued having missed the opportunity to address the question of gender inequality in both the Shah Bano and Danial Latifi cases. In the Shah Bano case, the court merely pushed the government to frame a uniform civil code. In the Latifi case, it upheld the right of Muslim women to maintenance till re-marriage.

There are three forms of talaq  - Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable. Biddat – pronouncing divorce in one go by the husband – is irrevocable. Biddat is considered 'sinful' but permissible in Islamic law.

The All India Muslim Personal Law Board (AIMPLB) holds that for the Hanafis, who make more than 90 per cent Sunnis in India, triple talaq is a matter of faith followed for 1,400 years.