Posted on 23.08.17 by Disha Chaudhry
On 22.08.2017, the 5 Judge Bench of the Supreme Court of CJI J.S. Khehar, Abdul Nazeer J., Rohinton Nariman J., U.U. Lalit J., and Kurien Joseph J. pronounced its decision in the Triple Talaq Case, declaring that the practice was unconstitutional by a 3:2 majority.
Triple Talaq or Talaq-e-Biddat, a practice that allowed for a Muslim man to instantaneously and irrevocable divorce his wife by saying the word ‘talaq’ three times successively was challenged before Supreme Court as being violative of Muslim women’s Right to equality among other constitutional freedoms. The the five judge Constitutional Bench of the Supreme Court heard the matter on 11.05.2017 and after having six days of arguments from both sides, reserved the case for judgement.
The decision dated 22.08.2017 though by a narrow majority has struck down the practice as unconstitutional, further directing the Parliament to take legislative measures to the said effect, the said verdict has been reached with a clear divergence of opinions, that of Rohinton Nariman and U.U. Lalit JJ. holding that Talaq-e-Biddat is regulated by the Muslim Personal Law (Shariat) Application Act, 1937, as contrasted with the decision furthered by Kurien Joseph J. While the former two judges have held the practice to be unconstitutional owing to its manifestly arbitrary nature that permits a muslim man to bring into effect a unilateral termination of marriage rather capriciously and whimsically with no scope for reconciliation, thus violating Article 14 of the Constitution, Kurien Joseph J. on the other hand, in his concurring but separate opinion records that the reason the practice lacks legal sanction is because it is against the tenets of the Quran. To quote ” What is held to be bad in the Holy Quran cannot be good in Shariat and, what is bad in theology is bad in law as well”
Notably, the dissenting minority opinion of CJI Khehar and Abdul Nazeer J. traces the the elevation of Personal Law to the status of fundamental rights in the Constituent Assembly Debates on Articles 25 and 44, holding that the practice of Triple Talaq is not regulated by the Shariat Act of 1937, but is an intrinsic part of personal law, thus enjoying constitutional protection under Article 25. Further, the remedy against the gender discriminatory practice of Talaq-e-Biddat lies not in challenging its constitutionality but by way of legislative action. To this effect, the minority opinion further proposed that Triple Talaq be made inoperative for 6 months in which time the Pariamnet must frame a law on the said aspect. However, given that the majority opinion has explicitly outlawed Triple Talaq, the aforesaid directive holds no force.
Copy of the Judgment: Supreme Court of India Judgment WP(C) No.118 of 2016 Triple Talaq
For a detailed reading of the proceedings, arguments, and submissions in the case see:
Day 1 of Arguments
Day 2 of Arguments
Day 3 of Arguments
Day 4 of Arguments
Day 5 of Arguments
Day 6 of Arguments
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