Triple Talaq discriminatory, not unconstitutional: SC minority verdict

The Supreme Court in its minority verdict today held that triple talaq among the Muslims was an integral part of religion and faith that cannot be declared as unconstitutional, but "gender discriminatory" practice can be done away by way of legislation.
The minority verdict pronounced by Chief Justice J S Khehar and Justice S A Nazeer asked the government to frame a law in this regard in 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.

"Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing 'talaq-e-biddat' as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of 6 months.
"If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining talaq-e-biddat (three pronouncements of talaq in one go)- as one, or alternatively, if it is decided that the practice of talaq-e-biddat be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate," CJI Khehar and Justice Nazeer said.

The judges, in their minority 272-page verdict, said the instant case presented a situation where the top court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution which provides it inherent powers to enforce its orders or decrees.

The minority verdict said 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 as it has been practised by them for at least 1,400 years.
"We have examined whether the practice satisfies the constraints provided for under Article 25 of the Constitution, and have arrived at the conclusion, that it does not breach any of them. We have also come to the conclusion, that the practice being a component of 'personal law', has the protection of Article 25 of the Constitution," it said.

However, they said that the only reason for exercising its jurisdiction under Article 142 was due to the reason that the practice of 'talaq-e-biddat' was gender discriminatory.
The judges in minority also concurred with the All India Muslim Personal Law Board's submission that "legislative will" only could salvage the situation of gender inequality.
They said that reforms to 'personal law' in India, with reference to socially unacceptable practises like -- Sati, Devadasi and Polygamy -- in different religions, have come about only by way of legislative intervention.
"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," the minority verdict said.

The top court by a majority verdict today set aside the practice of divorce through triple talaq among Muslims, saying the practice was void, illegal and unconstitutional.
It held that triple talaq went against the basic tenets of Quran and thus impermissible.