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Triple Talaq debate: Decoding SC’s split verdict on controversial tradition

Three of the five judges held that the instant divorce practiced in Islam did not have roots in the Quran and hence, could not be protected under the fundamental right to freedom of religion guaranteed by Constitution

india Updated: Aug 23, 2017 13:52 IST
Bhadra Sinha
Bhadra Sinha
Hindustan Times, New Delhi
triple talaq,triple talaq in India‬,Supreme Court ruling on triple talaq
Muslim girls at a market in old Delhi. Tuesday’s verdict banning instant triple talaq came on a petition filed by Muslim women. (PTI photo)

A controversial Islamic practice that allowed men to divorce their wives by saying the word talaq (divorce) in one go has been banned by the Supreme Court.

The verdict, on Tuesday, was split, with three of the five judges calling the practice arbitrary and unconstitutional, and the other two insisting it was up to lawmakers to deal with it. All the judges, each belonging to a different faith but all of them men, agreed that the practice was discriminatory and undesirable.

Following are the highlights of the views from both groups of judges, and the core issues that were the basis for their divergent views:

Majority view: Justices Kurian Joseph, RF Nariman and UU Lalit

*The practice violates the fundamental right to equality

*The section in the Muslim personal law recognising it is unconstitutional

*It is not integral to Islamic personal law and hence, cannot be protected under right to freedom of religion

Minority view: Chief justice JS Khehar, justice SA Nazeer

*It an age-old practice that is integral to people who follow Islam. Hence, it is protected by the right to freedom of practising a religion of choice

*It is discriminatory

*It can be banned only by intervention of the legislature, not the judiciary

The basis of their differences in opinion can largely be classified into the following:

ISLAMIC ROOTS

The judges who held the majority view said the practice was “bad in theology”.

Justice Joseph traced the teachings of Quran to say that instant triple talaq was never prescribed in the holy book. He also said the 1937 law that sanctioned it was meant to discontinue practices that were against Sharia.

“Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible,” Joseph said, disagreeing with the chief justice, who noted that “Talaq-e-biddat’ is a matter of ‘personal law’ of Sunni Muslims belonging to the Hanafi school and constitutes a matter of their faith...”.

ARTICLE 14 VERSUS 25

The difference in how the two sides regarded instant triple talaq’s place in Islam opened it up to being tested on the basis of constitutional protections.

“...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,” Nariman and Lalit said. They held that the practice hence violated Article 14 of the constitution, which guarantees right to equality for all.

The was distinct from justice Khehar and Nazeer’s view, who said that since instant talaq was practiced for 1,400 years by Sunni Muslims, “it satisfied the constraints under Article 25 of the Constitution”. Article 25 protects the fundamental right to freedom of religious practices.

THE COURT’S PREROGATIVE?

Justices Khehar and Nazeer held that it was not up to the judiciary “to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’ must be perceived, as it is accepted, by the followers of the faith.”

They therefore wanted the practice to be dealt with by lawmakers.

“When the British rulers in India provided succour to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India to lag behind,” they said, saying parliament can be given six months to draw up a law to deal with the tradition. Till those six months, the practice can be suspended, they ruled.

Justice Joseph, who was disagreed, expressed his “serious doubt” over Khehar injuncting a practice that he himself declared to be a Fundamental Right.

First Published: Aug 23, 2017 13:17 IST