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Supreme Court sets aside instant triple talaq in split verdict

Judgment on triple talaq is historic, says Prime Minister Narendra Modi

MJ Antony & Aditi Phadnis  |  New Delhi 

Illustration by Ajay mohanty
Illustration by Ajay Mohanty

The Supreme Court on Tuesday declared that the centuries-old practice of instant triple talaq among the was unconstitutional.

The five-judge Constitution bench presided over by Chief Justice J S Khehar delivered a split verdict 3:2 in three separate judgments. The order seeks to overturn the conventional belief that it is the community itself, not Parliament or courts, which should reform religious or personal law.

The majority judges ruled that the divorce allowed for a Muslim man by pronouncing talaq (talaq-e-biddat) thrice violated the Constitutional provisions. In two separate judgments, they reviewed earlier laws and high court judgments to strike down triple talaq as unauthorised by the Quran, the holy book of Islam.

However, the chief justice, along with Justice Nazeer, was in a minority, upholding the practice of triple talaq as part of the personal law of the Muslims and, therefore, protected by Article 25 of the Constitution. Putting the onus on Parliament, the two dissenting members of the bench, in a 270-page judgment, urged the government to pass a law on the subject within six months; till then there would be an injunction on talaq. However, as it is merely a minority view, it has no authority.

Kamini Jaiswal, a senior advocate at the Supreme Court, while welcoming the overall decision of the apex court, has expressed disappointment on the minority verdict. “Allowing triple talaq on the grounds of Article 25, while leaving it open to the government to restrict it through legislation, seems counterproductive. Wouldn’t the making of any such law be hit by the very same fundamental right that was used to uphold it?” Jaiswal argued.



All political parties and leaders from minority communities welcomed the apex court order, including Kapil Sibal, the lawyer for the All India Muslim Personal Law Board (AIMPLB) which argued against judicial intervention in triple talaq. Sibal said, “We hail the judgment. It protects personal laws and at the same time deprecates the practice of triple talaq.” 
Former chief election commissioner SY Qureishi said, “AIMPLB lost an opportunity to introduce this reform itself.” 

Congress party leader and senior lawyer P Chidambaram said the judgment was a resounding affirmation of gender justice and of equality of spouses. “Triple talaq was a distortion of original Quranic legal principles. Good it has been declared unconstitutional,” he said. Justice Kurian Joseph, in his separate judgment along with the majority, stated that the practice of triple talaq did not have the protection of Article 25 of the Constitution guaranteeing freedom of religion. “Merely because a practice has continued for long, that itself cannot make it valid if it has been expressly declared to be impermissible.” He also underlined that the court cannot direct lawmakers to pass a legislation.

The common judgment of Justice Nariman and Justice Lalit stated, after quoting religious texts and scholarly interpretations, that triple talaq was “an irregular and heretical form of talaq”. Muslim theologists themselves have dubbed it as sinful, inviting the wrath of god.

The bench heard seven appeals including of those women who were divorced on phone, by speedpost or electronic methods. Breaking the norm, the bench had heard the case during the vacation. The judges — Chief Justice Khehar, Justice Kurian Joseph, Justice Rohinton Nariman, Justice Uday Lalit and Justice S Abdul Nazeer--belonged to five different religious strains. There was no woman though. It was a 400-page judgment, the longest being that of the dissenters.

The All-India Muslim Personal Law Board had vehemently opposed the court interfering in the personal law of Muslims. The husbands had questioned the maintainability of the writ petitions as the issues were not justiciable. The court rejected their objections. The Modi government, through the Attorney General and other law officers, had supported the cause of the Muslim women. Prime Minister as well as BJP President Amit Shah hailed the order. Shah said it was not “a matter of winning and losing”. But, sources said the party was likely to make this the main point of campaign in the general elections of 2019.

However, community leaders made it clear that it would be extremely difficult to implement. “We have to respect the judgment. It is going to be a great Herculean task to implement this on ground”, said Majlis e Ittehadul Muslimeen leader Asaduddin Owaisi. Member of the AIMPLB, Zafaryab Jilani said: “We have respected SC’s judgments in the past, today’s judgement on Triple Talaq will also be considered by us”.

In its 2014 manifesto, the BJP had promised a Uniform Civil Code (UCC). Several analysts commented that the Modi-led NDA government might have won the case for Muslim women. But this victory came nowhere near fulfilling the UCC promise.

First Published: Wed, August 23 2017. 02:45 IST