At last the barbaric instant Triple Talaq is gone. In a path-breaking verdict, the Supreme Court on Tuesday banned the draconian practice of instant ‘triple talaq’ among Sunni Muslims and set it aside on several grounds including that it was against the basic tenets of the Holy Quran and violated the Islamic law Shariat. The five-judge Constitution bench, by a majority of 3:2 in which the Chief Justice J S Khehar found himself in a minority, said in a one line order: “In view of the different opinions recorded by a majority of 3:2, the practice of ‘talaq-e-biddat’ – triple talaq is set aside.”
With triple talaq being set aside, now Sunni Muslims, among whom the practice was prevalent, will not be able to take recourse to this mode as it would be “void ab initio” (illegal at the outset).
The three judges, Justices Kurien Joseph, R F Nariman and U U Lalit banned the triple talaq terming it as unconstitutional, leading to the ban of instant triple talaq performed by Muslim husbands to divorce wives quickly. Chief Justice JS Khehar and Justice S A Nazeer sought for a law to ban this age old religious practice and stayed the practice immediately, seeking for a law to prevent this custom.
As the majority judgment suggested for a ban on triple talaq, the government is not bound to pass a law as suggested by minority view of the two judges. But the minority judgment has given an opportunity for the government to bring law to rectify the age old practices in the Muslim community.
With triple talaq being set aside, now Sunni Muslims, among whom the practice was prevalent, will not be able to take recourse to this mode as it would be “void ab initio” (illegal at the outset). They are now left with two other modes of securing divorce – ‘talaq hasan‘ and ‘talaq ahsan‘ after the apex court today set aside the ‘talaq-e-biddat’ or triple talaq.
Under ‘talaq ahsan’, a Muslim man can divorce his spouse by pronouncing ‘talaq’ once every month in three consecutive months, which would be signified by menstruation cycles. As per ‘talaq hasan’, divorce can be given by pronouncing talaq “during successive tuhrs (menstruation cycles)” with no intercourse during any of the three tuhrs.
Writing the majority judgment, Justice Joseph said: “I find it extremely difficult to agree with the CJI that the practice of triple talaq has to be considered integral to a religious denomination in question and that the same is part of their personal law.” This view was shared by Justices Nariman and Lalit who were part of the majority.
Referring to the verses of the Holy Quran, Justice Joseph said, “They are clear and unambiguous as far as talaq is concerned. The Holy Quran has attributed sanctity and permanence to matrimony. “However, in an unavoidable situation, talaq is permissible. But an attempt for reconciliation, and if it succeeds, then revocation, are the Quranic essential steps before talaq attains finality.
“In triple talaq, this door is closed. Hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.” Justice R F Nariman, whose views were concurred with by Justice U U Lalit was in agreement with Justice Joseph saying “this form of Talaq must, therefore, be held to be violative of the fundamental right contained in Article 14 (right to equality) of the Constitution of India.”
Upholding the NDA government’s view that the practice was against fundamental rights like equality and dignity, Justice Joseph referred to the four sources of Islamic law — Quran, Hadith, Ijma, and Qiyas.
Justices Nariman and Lalit, in a separate judgment, said: “It is clear that Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it.” They referred to the fact that triple talaq is “instant and irrevocable” and leaves no scope for reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie and was not in sync with the Holy Quran.
“It is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it,” they said.
Detailed 395 page Judgment is published below:
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