The Supreme Court in its minority verdict lamented on Tuesday that the Centre was “unfortunately” trying to pass the buck on to the judiciary to do away with the practice of triple talaq among Muslims, instead of labouring on enacting a law in this regard.
The minority judgement by Chief Justice JS Khehar and Justice SA Nazeer said the practice of triple talaq, known as talaq-e-biddat, has been done away with by way of legislations in a large number of egalitarian countries with sizeable Muslim population, and even by theocratic Islamic States.
The two judges accepted the position taken by the All India Muslim Personal League Board (AIMPLB) that it was not within the realm of judicial discretion to set aside a matter of “faith and religion” and that only a legislative will could salvage the situation.
“There can be no doubt, and it is our definitive conclusion, that the position can only be salvaged by way of legislation. We understand that it is not appropriate to tender advice to the legislature to enact law on an issue. However, the position as it presents in the present case, seems to be a little different.
“Herein, the views expressed by the rival parties are not in contradiction. The Union of India has appeared before us in support of the cause of the petitioners. The stance adopted by the Union of India is sufficient for us to assume that the Union of India supports the petitioners’ cause. Unfortunately, the Union seeks at our hands, what truly falls in its own,” the two judges said.
{{/usCountry}}“Herein, the views expressed by the rival parties are not in contradiction. The Union of India has appeared before us in support of the cause of the petitioners. The stance adopted by the Union of India is sufficient for us to assume that the Union of India supports the petitioners’ cause. Unfortunately, the Union seeks at our hands, what truly falls in its own,” the two judges said.
{{/usCountry}}The minority verdict asked the government to frame a law in this regard within six months after taking into account progress made in Muslim Personal Law ‘Shariat’ in various other Islamic countries.
It said till the time a new legislation is enacted, the practice of divorce through triple talaq, known as ‘talaq-e- biddat’ would not be in operation.
The two judges said when the British rulers in India provided succour to the Muslims by legislation and when remedial measures have been adopted by the Muslim world, they do not find any 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. We would also beseech different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation,” it said.
The Centre had earlier argued in the apex court that a new law to regulate marriage and divorce among the Muslim community would be brought, if all forms of divorce including triple talaq are struck down.
It had said 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.
Former Attorney General Mukul Rohatgi, in his rebuttal to the arguments favouring the 1,400 year-old practice of triple talaq, had made a strong pitch for judicial scrutiny on grounds including violation of fundamental rights like right to equality and gender justice and said that the apex court cannot shy away.