PUNE/NEW DELHI: In a landmark judgement, Supreme Court by a majority of 3:2, on Tuesday, ruled that practice of divorce through triple talaq in one sitting among Muslims is ‘void’, ‘illegal’ and ‘unconstitutional’. The court held that triple talaq is against the basic tenets of the Holy Quran. The court ban on triple talaq will be there till the government enacts a law. The judgement was delivered by a five-judge bench headed by Chief Justice of India JS Khehar and comprising Justices RF Nariman, UU Lalit, Kurian Joseph and Abdul Nazir.
The three judges (Justices Nariman, Lalit and Joseph) said triple talaq was unconstitutional and un-Islamic. However, two judges (Justices Nazeer and Khehar) gave a dissenting judgement. The apex court decision came on a bunch of petitions challenging the practice of triple talaq.
KNOW THE PETITIONERS
The judgement came two years after Shayara Bano (36) from Uttarakhand first approached the apex court after her husband of 15 years sent her a letter with talaq written thrice and left her. Petitions of four other women - Ishrat Jahan (31) from West Bengal, Gulshan Parveen (30) of Uttar Pradesh, MBA graduate Aafreen Rehman (28) of Rajasthan and Atiya Sabri of Uttar Pradesh were tagged with Bano’s petition.
The Mumbai-based Bharatiya Muslim Mahila Andolan (BMMA) is the sixth petitioner in the case.
THE INTERPRETATION OF QURAN, HADITH BY SC
To reach a conclusion, the judges went through the Holy Quran and various Hadiths. The judges referred to verses from the Quran which are related to talaq. Apart from the religious texts, the judges also pondered over previous laws related to Muslim personal law as well as those of different religions including abolition of Sati and Devdasi practices.
HIGHLIGHTS OF THE JUDGEMENT
- Religion is a matter of faith, and not of logic.
- Practice of ‘talaq-e-biddat’ done away by way of legislation in a large number of egalitarian states with sizeable Muslim population and even by theocratic Islamic States.
- Marriage in Islam is a contract, and like other contracts, may under certain circumstances, be terminated.
- Even All India Muslim Personal Law Board (AIMPLB), the main party that opposed petitioners’ challenge, filed an affidavit saying they will advise Muslims to state in nikahnama that they will not use triple talaq for divorce.
- All parties were unanimous that despite the practice of ‘talaq-e-biddat’ being considered sinful, it was accepted amongst Sunnis of the Hanafi school, as valid in law and has been in practice for about 1,400 years.
- Not appropriate for SC to record finding whether practice of ‘talaq-e-biddat’ is, or is not, affirmed by ‘Hadiths’, in view of the enormous contradictions in the ‘Hadiths’.
- Not for a court to determine whether religious practices were prudent or progressive or regressive.
- Reforms to ‘personal law’ in India, with reference to socially unacceptable practices in different religions, have come about only by way of legislative intervention.
THE JUDGES’ ORDER
Justice Nazeer and Justice Khehar: “We hereby direct the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’. We hope the contemplated legislation will take into consideration advances in Muslim ‘personal law’, as have been corrected by legislation the world over. 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 India to lag behind. Measures have been adopted for other religious denominations, but not for Muslims. We would also beseech different political parties to keep individual political gains apart.”
Justice Nariman and Justice Lalit: “Given the fact that triple talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. 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. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India.”
Justice Joseph: “What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”