REPORTS & ESSAYS


  • Extracts from the Triple Talaq Judgment

    SabrangIndia staff

    August 23, 2017

    From Shahbano to Shayara Bano, it’s a great leap forward for Muslim women in India.

    Image courtesy: Sabrang

     

    "It is not for a court to determine whether religious practices were prudent or progressive or regressive"
    – Justices JH Khehar and S Abdul Nazeer

     

    “What is bad in theology is also bad in law”
    -Justice Joseph Kurian

     

     

    "Triple talaq is manifestly arbitrary and therefore violative of the fundamental right contained under Article 14" 

    -Justices Rohinton Fali Nariman and Uday Umesh Lalit

    By a majority decision of 3:2, a constitutional bench of the Supreme Court today declared the practice of instant triple talaq among Muslims as “manifestly arbitrary”, "void", “bad in law” and "unconstitutional".

    Justices JH Khehar (chief justice) and S Abdul Nazeer held that the practice of triple talaq (talaq-e-biddat) enjoyed the status of a fundamental right as it came under protection of Article 25 of the Indian Constitution (Right to Freedom of Religion).

    Justice Kurian Joseph set aside the practice on the ground that it was against the teachings of the Quran.

    Justices RF Nariman and UU Lalit held that it violated Articles 14 (Right to Equality) of the Constitution.

    Urging Parliament to enact a law to deal with the issue, Justice Khehar barred Muslim men from pronouncing instant triple talaq for next six months within which time he implored the political parties to shed their difference and bring in a new law. He added that once the legislation process is initiated, the bar on instant triple talaq will continue till the enactment, failing which the injunction will cease to be operative.

    The major political parties have welcomed the verdict saying it will empower Muslim women.

     “Judgment of the Hon’ble SC on Triple Talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment,” Prime Minister Narendra Modi tweeted.

    Here, in summary, are the justices in their own words, culled out of the 395 page judgment:

    Justices JH Khehar and S Abdul Nazeer

    "It is not for a court to determine whether religious practices were prudent or progressive or regressive".

    “Despite the decision of the Ahmed Rashid Case on the subject of talaq-e-biddat [triple talaq] by the Privy Council, the issue needs a fresh examination, in view of the subsequent developments in the matter…

    “All the parties were unanimous that despite the fact of talaq-e-biddat being considered sinful, it was accepted among Sunni Muslims belonging to the Hanafi school, as valid in law, and has been in practice among them…

     “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…

    “Talaq-e-biddat is integral to the religious denomination of Sunnis belonging to the Hanafi school. The same is part of their faith, having been followed for more than 1400 years, and as such has to be accepted as being constituent of part of their ‘personal law’…

    “The contention of the petitioners, that the questions/subjects covered by the Muslim Personal Law (Shariat) Application Act, 1937, ceased to be ‘personal law’, and got transformed into ‘statutory law’ cannot be accepted and is accordingly rejected…

    “Talaq-e-biddat does not violate the parameters expressed in Article 25 of the Constitution. The practice is not contrary to public order, morality and health. The practice also does not violate Articles 14, 15 and 21 of the Constitution, which are limited to state actions alone…

    “The practice of talaq-e-biddat being a constituent of ‘personal law’ has a stature equal to other fundamental rights, conferred in Part III of the Constitution. The practice, therefore, cannot be set aside, on the ground of being violative of the concept of constitutional morality, through judicial intervention…

    “Reforms in ‘personal law’ in India, with reference to socially unacceptable practices in different religions have come about only by way of legislative intervention. Such legislative intervention is permissible under Articles 25(2) and 44 read with Entry 5 of the Concurrent list, contained in the Seventh Schedule of the Constitution. The said procedure alone needs to be followed with reference to the practice of talaq-e-biddat, if the same is to be set aside…

    “International conventions and declarations are of no avail in the present controversy, because the practice of talaq-e-biddat is part of ‘personal law’ and has the protection of Article 25 of the Constitution…  

    “It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’, must be perceived, as it is accepted, by the followers of the faith. And not how another would like it to be (including self-proclaimed rationalists, of the same faith). Article 25 obliges all Constitutional courts to protect ‘personal laws’ and not to find fault therewith…

    “The judiciary must therefore always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem…

    “We understand that it is not appropriate to tender advice to the legislature to enact law on an issue. However, the position as it presents in this case seems to be a little different… The stance adopted by the Union of India supports the petitioners; cause. Unfortunately, the Union seeks at our hands what truly falls on its own…

    “We would therefore implore the legislature to bestow thoughtful consideration to this issue of paramount importance. We would also beseech political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation…

    “Till such time as the matter is considered, we are satisfied in injuncting Muslims husbands from pronouncing talaq-e-biddat… The instant injunction in the first instance will be operative for a period of six months and a positive decision emerges towards redefining talq-e-biddat as one or alternatively if it is decided that the practice of ‘talaaq-e-biddat’ be done away altogether, the injunction will continue, till legislation is finally enacted. Failing which the injunction will cease to operate.    
    Justice Joseph Kurian: 

    “What is bad in theology is also bad in law”

    “What is bad in theology was once good in law but after Shariat has been declared as the personal law, whether what is Quranically wrong can be legally right is the issue to be considered in this case. Therefore the simple question that needs to be answered in this case is whether triple talaq has any legal sanctity…

    “This court in Shamim Ara v. State of UP and Another has held, though not in so many words, that triple talaq lacks legal sanctity. Therefore, it terms of Article 141, Shamim Ara is the law that is applicable in India…

    “[Quranic verses on divorce are] instructive verses and do not require any interpretation. They are clear and unambiguous as far as talaq is concerned. The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt at 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…

    “The above view has been endorsed by various High Courts, finally culminating in Shamim Ara by this court which has since been taken as the law for banning triple talaq… It has to be particular noted that [the] conclusion by the bench in Shamim Ara is made after ‘respectful agreement’ with Jiauddin Ahmed (Guwahati High Court] that ‘talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters – one from the wife’s family and the other from the husband’s; if the attempts fail, talaq may be affected’…    

    “Shamim Ara has since been understood by various high courts across the country as the law deprecating triple talaq as it is opposed to the tenents of the Holy Quran. Consequently, triple talaq lacks the approval of Shariat…

    “Therefore, I find it extremely difficult to agree with the learned chief justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law….

    “[T]his court has done its part in Shamim Ara. I expressly endorse and re-iterate the law declared in Shamim Ara. What is said to be bad in the Holy Quran cannot be good in the Shariat, and in that sense, what is bad in theology is also bad in law…”

    Justices Rohinton Fali Nariman and Uday Umesh Lalit:

    "Triple talaq is manifestly arbitrary and therefore violative of the fundamental right contained under Article 14 of the Constitution"

    “Triple talaq alone is the subject matter of challenge – other forms of talaq are not. The neat question that arises before this court is, therefore, whether the 1937 Act [Muslim Personal Law (Shariat) Application Act, 1937) can be said to recognize and enforce the rule of law to be followed by the courts in India and if not whether Narasu Appa (Supra) which states that personal laws are outside Article 13(1) of the Constitution is correct in law…

    “Marriage in Islam is a contract, and like other contracts, may under certain circumstances, be terminated. There is something astonishingly modern about this – no public declaration is a condition precedent to the validity of a Muslim marriage nor is any religious ceremony deemed absolutely essential, though they are usually carried out…
    “[T]he 1937 Act is a pre-constitutional legislative measure which would fall directly within article 13(1) of the Constitution of India…

    “[A]ll forms of talaq recognized and enforced by Muslim personal law in India are recognized and enforced by the 1937 Act. This would necessarily include triple talaq when it comes to the Muslim personal law applicable to Sunnis in India. Therefore it is extremely difficult to accept the position of the All India Muslim Personal Law Board [to the contrary]…

    “As such we have concluded that the 1937 Act is a law made by the legislature before the Constitution came into force, it would fall squarely within the expression “laws in force” in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency…  

    “It has been agued somewhat faintly that triple talaq would be an essential part of the Islamic faith and would, therefore, be protected by Article 25 of the Constitution of India….

    “[I]t 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…

    “According to Javed (supra), therefore, this would not form part of any essential religious practice. Applying the test stated in Acharya Jagdishwarananda (supra) it is equally clear that the fundamental nature of Islamic religion, as seen through and Indian Sunni Muslim’s eyes, will not change without this practice…

    “We have already seen that though permissible in Hanafi jurisprudence, yet, that very jurisprudence castigates triple talaq as sinful. It is clear, therefore, that triple talaq forms no part of Article 25(1)…

    “And this brings us to the question as to when petitions have been filed under Article 32 of the Constitution of India, is it permissible for us to state that we will not decide an alleged breach of fundamental right, but will send it back to the legislature to remedy such a wrong…

    “It is at this point that it is necessary to see whether a fundamental right has been violated by the 1937 Act in so far as it seeks to enforce triple talaq as a rule of law in the courts in India…

    “It is clear that this form of [triple] 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 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…

    “In our opinion, therefore, the 1937 Act in so far as it seeks to recognize and enforce triple talaq is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces triple talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being arbitrary, we do not find the need to go into the ground of discrimination in these cases…”   

     

    First published by Sabrang

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