Triple Talaq verdict: A new dawn for Muslim women, freedom from instant indignity

In a historic decision, the Supreme Court on Tuesday called the controversial practice of 'talaq-e-biddat', which allows Muslim men to divorce their wives instantly by uttering "talaq" thrice, "manifestly arbitrary" and declared it illegal.

The majority judgement of a five-judge bench came as a huge victory for lakhs of Muslim women who had long argued that instant talaq violated their right to equality.

Pronouncing the final order of the bench, Chief Justice of India JS Khehar announced: "By majority of 3:2, 'talaq-e-biddat' is set aside."

Judges from five different religious backgrounds — Hindu (Justice UU Lalit), Sikh (CJI Khehar), Christian (Justice Kurian Joseph), Parsi (Justice Rohinton Nariman) and Muslim (Justice S Abdul Nazeer) — formed the five-judge Constitution bench.

While Justices Joseph, Nariman and Lalit ruled against instant talaq, CJI Khehar and Justice Nazeer ruled in favour of the practice, holding that it was being followed for over 1,400 years by the Hanafis and had become a part of religious practice.

CJI Khehar and Justice S Abdul Nazeer, in their minority judgement (which is not binding), put the onus of passing a new legislation on to the legislature, hoping it would do so within six months.

In the meantime, they ordered a stay on instant triple talaq for six months. They said if a legislation banning instant triple talaq completely is not placed before Parliament within six months, the stay on the practice would continue till the House enacted or rejected the law.

The minority judges opined: "It would not be appropriate for this court to record a finding, whether the practice of 'talaq-e-biddat' is or is not affirmed by 'hadiths', in view of the enormous contradictions in the 'hadiths', relied upon by the rival parties."

"The practice of 'talaq-e-biddat' being a constituent of 'personal law' has a stature equal to other Fundamental Rights. The practice cannot therefore be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention."

The minority judgment also held that instant talaq did not violate Articles 14, 19 and 21 of the Constitution.

However, CJI Khehar also observed that in view of the fact that even the Muslim world had shed talaq-e-biddat, there was no excuse for independent India to lag. He appealed to political parties and legislators to set aside their individual gains and give "thoughtful consideration" to frame a suitable law.

Triple talaq is banned in 22 Muslim-majority countries, including Pakistan and Saudi Arabia.

While Justice Nariman penned the majority judgment, Justice Joseph wrote a separate concurring one. Justice Nariman said triple talaq in all three forms — talaq-e-biddat, talaq ahsan and talaq hasan — was "recognised and enforced" under Section 2 of the Shariat Act of 1937. Due to this very reason, he added, triple talaq was no longer a personal law but a statutory law, which fell under Article 13(1) of the Constitution. Under Article 13, no law can be violative of the Fundamental Rights.

Justice Joseph said triple talaq was not sanctioned by Quran and hence could not form part of the Fundamental Right to religion. He also added that what is not true in theology couldn't be sanctioned by practice or law.

The five-judge bench, which sat for six days during the summer vacations, was constituted to decide the validity of triple talaq after a batch of petitions were filed by Muslim women challenging the legality of the same.

At the end of the hearings, the All India Muslim Personal Law Board (AIMPLB) had submitted that the issue was outside the judiciary's realm.

The AIMPLB had asked the court not to interfere in what was essentially the religious matter of the Muslim community. The then Attorney-General, Mukul Rohatgi, had asserted that the issue could not be seen as discrimination between majority and minority communities.

During hearings, the Centre had also argued against the practice, terming it "unreasonable, unfair and discriminatory" and assuring the court that it would bring in a new law to regulate marriage and divorce among Muslims if the practice of triple talaq was declared unconstitutional.

However, the apex court had decided to restrict itself to the validity of triple talaq and had refused to go into other issues of polygamy and nikah halala, which requires a female divorcee to marry someone else, consummate the marriage and then get a divorce to remarry her previous husband,under the Muslim personal law.

Earlier this year, the Allahabad High Court had held triple talaq unconstitutional and violative of basic human rights of Muslim women.

What the judgement means

Only instant talaq gone

Talaq-e-biddat that allowed the husband to pronounce talaq thrice in one sitting is now illegal. The other two forms of talaq — Talaq-e-Hasan and Talaq-e-Ahsan — remain valid. They allow the husband to pronounce talaq three times spread over three monthly courses. The divorce is revocable during those months.

What the order will lead to 

The Supreme Court’s judgement reasserts Muslim women’s right to equality. If Muslim men divorce their wives by letter, telephone, text, WhatsApp messages and Skype, it will be held illegal. The verdict will improve the condition of women who face atrocities due to instant triple talaq.

Minority view not binding 

Of the five judges, two — CJI JS Khehar and Justice S Abdul Nazeer — upheld the validity of instant talaq. But this is not binding. The views of three other judges override that. Initially, there was confusion among journalists about the ruling because CJI Khehar started reading out the minority judgement first.

Personal Law upheld 

The Supreme Court not only left the two other forms of divorce untouched, but also refused to go into other contentious issues of polygamy and nikah halala. This went on to enthuse even the All India Muslim Personal Law Board which said the order has protected Personal Law.

No new legislation as of now

CJI Khehar and Justice Nazeer, in their minority judgement, also suspended instant talaq for six months, asking the government to bring in legislation. This will also not be binding. Government officials still ruled out the need for bringing any legislation in the light of the overriding verdict.