No, no, no: SC on instant triple talaq

August 23, 2017 12:00 am | Updated 04:56 am IST - NEW DELHI

3:2 split verdict termed practice ‘manifestly arbitrary’; CJI Khehar held it was part of right to religion

A historic 3:2 majority judgment, delivered on Tuesday by a multi-faith Constitution Bench, set aside instant talaq as a “manifestly arbitrary” practice not protected by Article 25 (freedom of religion) of the Constitution.

On the five-judge Bench, Justices Kurian Joseph and Rohinton Fali Nariman gave separate judgments against the validity of instant talaq. Justice U.U. Lalit supported Justice Nariman’s view that instant talaq given by a Muslim man “capriciously and whimsically,” without an attempt at reconciliation, was “manifestly arbitrary and violative of Article 14 (right to equality).”

The triumvirate of Justices Kurian, Nariman and Lalit overwhelmed the minority verdict pronounced by Chief Justice of India J.S. Khehar and endorsed by Justice S. Abdul Nazeer, the juniormost judge on the Bench.

1,400-year-old practice

Chief Justice J.S. Khehar held that talaq-e-biddat , as a personal law practice, was an integral part of Article 25 (freedom of religion). Ninety per cent of Muslims in India follow the practice. It was constitutionally protected as a fundamental right, he said.

The Chief Justice reasoned that talaq-e-biddat was in vogue for over 1,400 years, and this made instant talaq a “matter of religious faith,” which cannot be tested on the touchstone of Article 14. He held that personal laws like instant talaq were an 'exception' to the Constitution's avowed aim to protect gender equality.

But Justice Nariman countered that Section 2 of the Muslim Personal Law (Shariat) Application Act of 1937 has already recognised triple talaq as a statutory right and not a fundamental right.Instant talaq was no longer a personal law to remain free from the rigours of the fundamental rights as it comes under the ambit of Article 13 of the Constitution, he said. Article 13 mandates that any law, framed before or after the Constitution, should not be violative of the fundamental rights.

Objecting to the Chief Justice's line of reasoning, Justice Kurian, in his separate verdict, held that “merely because a practice ( talaq-e-biddat ) has continued for long (over 1,400 years), that by itself cannot make it valid”.

No Koranic injunction

The Chief Justice had reasoned that instant talaq cannot be invalidated just because the Koran does not expressly provide for or approve of it. Talaq-e-biddat , though bad in theology, was considered good in law, he held. To this, Justice Kurian countered that “Islam cannot be anti-Koran... An attempt for reconciliation and if it succeeds, then revocation are the Koranic essential steps before talaq attains finality. In triple talaq, this door is closed. Triple talaq is against the basic tenets of the Holy Koran and consequently, it violates Shariat.”

Justice Kurian also referred to Section 2 of the Shariat Act, observing that the statute had put an end to the “unholy, oppressive and discriminatory customs and usages in the Muslim community. After Shariat Act, no practice against the tenet of Islam is permissible.”

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