New Delhi: The Supreme Court on Tuesday held that “triple talaq” form of divorce in the Muslim community has no sanction in Holy Quran and was bad in law.
Justice Kurian Joseph, who was part of the majority judgment striking down triple talaq, in his separate verdict said, “What is bad in theology was once good in law but after Shariat was declared as the personal law, whether what is Quranically wrong can be legally right is the issue to be considered in this case”.
He said that the simple question that needs to be answered in this case is only whether triple talaq has any legal sanctity.
The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq (divorce) 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, it is against the basic tenets of the Holy Quran and consequently, it violates Shariat.
Therefore, in any case, after the introduction of the 1937 Shariat Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice. When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights.
After the advent of Islam, divorce was permitted to a man if his wife by her indocility or bad character renders marital life impossible. In the absence of a good reason, no man can justify divorce for he then draws upon himself the curse of God. Indeed, Prophet Muhammad had declared divorce to be the most disliked of lawful things in the sight of God. The reason for this is not far to seek. It is clear, therefore, that triple talaq forms no part of Article 25(1) of the Constitution.
This being the case, the submission on behalf of the Muslim Personal Board that the ball must be bounced back to the legislature does not at all arise. Article 25(2)(b) would only apply if a particular religious practice is first covered under Article 25(1) of the Constitution. If a constitutional infirmity is found, Article 14 will interdict such infirmity. Positively speaking, it should conform to norms, which are rational, informed with reason and guided by public interest, etc.
Applying the test of manifest arbitrariness to the case at hand, it is clear that triple talaq is a form of talaq, which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq. 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. 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.
This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. “In our opinion, therefore, the 1937 Shariat Act, insofar as it seeks to recognise and enforce triple talaq, is within the meaning of the expression “laws in force” in Article 13(1) of the Constitution and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq” Justice Nariman added.
CJI JS Khehar
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 cannot therefore be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention.
Reforms to ‘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) 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.
The CJI said that international conventions and declarations are of no avail in the present controversy because the practice of ‘talaq-e-biddat’ is a component of ‘personal law’ the whole nation seems to be up in arms against.
There is seemingly an overwhelming majority of Muslim women, demanding that the practice of talaq-e-biddat’, which is sinful in theology, be declared as impermissible in law. The Union of India has also participated in the debate. It has adopted an aggressive posture, seeking the invalidation of the practice by canvassing, that it violates the fundamental rights enshrined in Part III of the Constitution, and by further asserting, that it even violates constitutional morality.
He said that during the course of hearing, the issue was hotly canvassed in the media. Most of the views expressed in erudite articles on the subject, hugely affirmed that the practice was demeaning.
Interestingly even during the course of hearing, learned counsel appearing for the rival parties, in agreement described the practice of ‘talaq-e-biddat’ differently as, unpleasant, distasteful and unsavoury.
The position adopted by others was harsher and they considered it as disgusting, loathsome and obnoxious. So religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice, which constitutes personal law, he added....