SC strikes down instant triple talaq, says practice is unconstitutional

Hindustan Times | ByAshok Bagriya and Bhadra Sinha
Aug 23, 2017 08:11 AM IST

The Supreme Court has by a 3:2 majority decision struck down instant triple talaq as “unconstitutional”, “arbitrary” and “not part of Islam”.

The Supreme Court banned on Tuesday a controversial Islamic practice of instant divorce as arbitrary and unconstitutional, in a landmark verdict for gender justice that will stop Muslim men calling off a marriage on a whim.

Sand artist Sudarsan Pattnaik makes a sand sculpture carrying the message “Triple Talaq A Historic Judgement” at Puri beach of Odisha on Tuesday.(PTI)
Sand artist Sudarsan Pattnaik makes a sand sculpture carrying the message “Triple Talaq A Historic Judgement” at Puri beach of Odisha on Tuesday.(PTI)

In a split verdict, three of the five all-male judges on the case said the practice of saying “talaq”, or divorce, three times in one go – sometimes even over email and WhatsApp – violated women’s right to equality and was not integral to Islam.

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The dissenting note came from Chief Justice of India JS Khehar and justice S Abdul Nazeer, who argued instant talaq should be suspended and the government asked to bring a law to regulate the practice within six months. The majority verdict overrides the minority view.

“What is bad in theology is bad in law as well,” said justice Kurian Joseph, who was part of the majority view.

Debate over the law had pitted an unlikely coalition of Muslim women, Prime Minister Narendra Modi and his BJP which wanted the practice quashed, against some Muslim groups which contended the state had no right to interfere in religious matters.

Tuesday’s verdict comes as a shot in the arm of the BJP, which can showcase it to moderate voters as a vindication of the party’s stand on gender justice, as well as to counter accusations of Muslim groups that it was backing the issue only to malign Islam.

“This is a historic day for Muslim women. No Muslim women will have to go through the harassment that I suffered,” Shayara Bano, a 35-year-old divorced Muslim woman whose petition two years ago helped end instant talaq, told Hindustan Times.

“I am happy that my 11-year-old daughter will not have to face such regressive practice when she grows up.”

“Progressive, secular judgment”

Muslim men in India can still divorce using two other forms of talaq that have a three-month cooling off period. Muslim women usually divorce using a practice called Khula. Instant talaq, or “talaq-e-biddat”, is banned in 22 Muslim-majority countries, including Pakistan, for being sinful and arbitrary.

Tuesday’s bench of five judges were from India’s major faiths -- Hinduism, Christianity, Islam, Sikhism and Zoroastrianism.

In rare agreement, top political and religious groups welcomed Tuesday’s verdict, which was described by Prime Minister Modi as historic and a “powerful measure for women empowerment”.

The opposition Congress called it “a progressive, secular judgment for equal rights of Muslim women in India”.

The All India Muslim Personal Law Board, a non-governmental body that lobbies for the application of Islamic civil laws and opposes any ban on triple talaq, also welcomed the verdict, saying it “accords protection to Muslim personal laws”.

“As far as talaq-e-biddat is concerned we had already submitted to the court that the practice, though has basis in religious texts and belief, is not the best way of pronouncing talaq,” the board said in a statement.

“The Supreme Court verdict cannot be misused by the government to try to interfere with personal laws through legislation”.

Former attorney general Mukul Rohatgi, who had represented the government in the case, said the verdict “will go a long way in ensuring justice to Muslim women.” Rohatgi had asked the court to scrap all forms of triple talaq.

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