In a majority 3:2 judgment, a five-judge Bench of the Supreme Court on Tuesday set aside talaq-e-biddat or instant and irrevocable talaq as a "manifestly arbitrary" practice, which is not protected by Article 25 (freedom of religion) of the Constitution.
Justices Kurian Joseph and Rohinton Fali Nariman gave separate judgments against the validity of instant talaq , and Justice U.U. Lalit has supported Justice Nariman's judgment. This makes up the triumvirate of judges who ruled against instant talaq .
Chief Justice J.S. Khehar, who led the Bench, held that talaq-e-biddat is an integral part of Article 25 (freedom of religion). He said it had been followed for over 1,400 years by the Hanafis and become a part of religious pratice. He held that instant talaq does not violate Articles 14, 19 and 21 of the Constitution, and passed it on to the legislature within six months to decide a law. Invoking extraordinary jurisdiction under Article 142, the Chief Justice injuncted Muslim men from divorcing their wives using instant talaq . This view was endorsed only by Justice S. Abdul Nazeer, thus, making it the minority judgment.
Reading out the final order of the court at the end of the judgment pronouncement session, Chief Justice Khehar addressed the courtroom and concluded that "by majority of 3:2, talaq-e-biddat is set aside."
In his judgment, Justice Nariman observed that it is "not possible for the court to fold its hands when petitioners [Muslim women] come to court for justice."
He said triple talaq in all its three forms — talaq-e-biddat , talaq ahsan and talaq hasan — was "recognised and enforced" under Section 2 of the Shariat Act of 1937.
He explained that since the Shariat Act had recognised triple talaq , it was no longer a personal law to remain free of the fetters of the fundamental rights rigour but a statutory law which comes under the ambit of Article 13(1) of the Constitution.
Article 13 defines 'law' and says that all laws, framed before or after the Constitution, shall not be violative of the fundamental rights.
Justice Nariman said talaq-e-biddat allowed a Muslim man to "whimsically and capriciously" divorce his wife. The practice is "manifestly arbitrary" and does not enjoy the protection of Article 25. Moreover, he noted, instant talaq was merely permissive and not a absolute religious practice, and so, does not deserve the protection of Article 25, again. This view was supported by Justice Lalit.
Against the tenets of Quran
In his judgment, Justice Kurian held that instant talaq was against the tenets of Quran. "What is banned in Quran cannot be good in Shariat. What is banned in theology cannot be good in law," he observed.
Justice Kurian differed with Chief Justice Khehar that just because a practice has been around for 1,400 years does not make it eligible for protection under Article 25.
He also differed with the Chief Justice that triple talaq as a personal law is integral to religious belief. He said the practice should not violate public health, morality and order.
'Instant talaq can be done away through legislation'
Reading his minority judgment first, Chief Justice Khehar observed that talaq-e-biddat was widely accepted by Sunnis. He rejected the contention that talaq-e-biddat ceases to be personal law and has attained statutory status under the Shariat Act of 1937.
"The practice [ biddat] cannot be set aside on the violation of constitutional morality through a judicial order," he held.
Any change in talaq-e-biddat can be done by way of legislation. The fact that international law and theocratic countries have dropped talaq-e-biddat do not matter as biddat is a part of personal law in India and come under the protection of Article 25, he said.
However, invoking Article 142 to injunct Muslim men from divorcing through talaq-e-biddat , the Chief Justice said the fact that even the Muslim world has shed talaq-e-biddat and there is no excuse for independent India to lag behind. He appealed to political parties and lawmakers to set aside their individual gains and give "thoughtful consideration" to frame a suitable law.
The issue was whether talaq-e-biddat was violative of the fundamental and human rights of gender equality and dignity of Muslim women.
On October 16, 2015, the Supreme Court questioned if Muslim personal law practices of marriage and divorce reduce women to mere chattels. In a rare move, it registered a suo motu public interest litigation (PIL) petition titled ‘In Re: Muslim Women’s Quest for Equality’ to examine if arbitrary divorce, polygamy and nikah halala (where a Muslim divorcee marries a man, divorces him to get re-married to her former husband) violate women's dignity.
The court rued missing the opportunity to address the question of gender inequality in both the Shah Bano and Danial Latifi cases. In the Shah Bano case, the court merely goaded the government to frame a Uniform Civil Code. In the Latifi case, it upheld the right of Muslim women to maintenance till re-marriage.
For the first time, Muslim women and organisations joined forces with the court's initiative. However the Constitution Bench decided to confine itself to examining triple talaq and not polygamy and nikah halala . The arguments later narrowed to instant talaq or talaq-e-biddat .
Three forms of talaq
There are three forms of talaq — Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq ). Ahsan and Hasan are revocable. Biddat — pronouncing divorce in one go by the husband — is irrevocable. Biddat is considered ‘sinful’ but permissible in Islamic law. The All India Muslim Personal Law Board (AIMPLB) holds that for the Hanafis, who make more than 90% Sunnis in India, triple talaq is a matter of faith followed for 1,400 years.
For over 65 years, women have remained extremely vulnerable. “Muslim women want to have a life equal to that of another woman, say a Christian or a Hindu wife," the government had argued in court.
The Centre had claimed that instant talaq was not fundamental to Islam. It promised to bring a new divorce law for Muslim men in case the court strikes down Ahsan, Hasan and Biddat .
The government argued that Muslim marriage and divorce is codified under Section 2 of the Shariat Act of 1937 and came within the ambit of 'law' under Article 13 of the Constitution. Hence, they should abide by the principles of dignity and non-discrimination.
The AIMPLB had countered that triple talaq is a matter of faith like the Hindu belief that Ayodhya is Lord Ram's birthplace. Courts and government should leave reform to the community. They quoted the Bombay High Court's unchallenged decision in the Narasu Appa Mali case that personal law should not be tinkered with.
''Where will Muslim men go for divorce if you [court] strike down talaq and Parliament refuses to pass a new law?'', the AIMPLB asked.
Justice Kurian had ignited a spark by suggesting an alternative that a Muslim bride, at the time of the wedding, should be allowed to lay down a condition in the nikah nama that she would not be subjected to instant talaq in case the marriage hits a rough patch.
Days after the court reserved the case for judgment, the AIMPLB filed an affidavit informing that they would issue a public advisory to qazis to advise bridegrooms against instant talaq and also add a condition in the nikah nama to exclude instant talaq . The AIMPLB even threatened a social boycott of those who resort to instant talaq .