LAW MANTRA     (Think Beyond Others)

TRIPLE TALAQ: UNCONSTITUTIONAL, UNCONSTITUTIONAL, UNCONSTITUTIONAL

The Supreme Court today struck down the validity of instant triple talaq by a majority of 3:2 of the five-judge bench of the Supreme Court is that triple talaq, pronounced in one sitting coming into effect instantaneously, is “set aside”.

 

Out of these three judges, two (Justice Rohinton F. Nariman and Justice Uday U. Lalit) also held that this form of talaq was violative of fundamental right mentioned in Article 14, not on the ground of equality within the meaning of discrimination. Justice Joseph set it aside on ground that it is against the teachings of Quran.

The Supreme Court on Tuesday set aside the practice of instant triple talaq saying it was violative of Article 14 and 21 of the Indian Constitution. The apex court held that the triple talaq was against the basic tenets of Quran. “In view of the different opinions recorded by a majority of 3:2, the practice of ‘talaq-e-biddat’ – triple talaq is set aside,” a five-judge constitution bench said in a 395-page order.

 

While Chief Justice J S Khehar and Justice S Abdul Nazeer were in favour of putting on hold for six months the practice of triple talaq and asking the government to come out with a law in this regard, Justices Kurian Joseph, R F Nariman and U U Lalit held it as violative of the Constitution.

During the hearings, the court had clarified that it would only deliberate whether the practice of ‘triple talaq’ is part of an “enforceable” fundamental right to practice religion among Muslims and not on the practice of polygamy. The bench, which includes Justices Kurian Joseph, R F Nariman, U U Lalit and S Abdul Nazeer, while deliberating the issue, heard several pleas filed by Muslim women who had challenged the practice of instant triple talaq, where a man divorces his wife by pronouncing the word ‘talaq’ thrice.

 

The interesting part is that Justice Joseph holds that the Central Law of 1937 referring to talaq is ‘not legislation regulating Talaq’ and he has agreed on this with two other Judges (Chief Justice Khehar and Justice SA Abdul Nazeer).

Consequently, the majority view is that this form of Talaq-e-Biddat remains part of personal law. If there is no legislation, Part III of the Constitution i.e., Fundamental Rights, shall not be invoked to invalidate personal law. This can be read as majority view of three judges. Minority of two judges held that the 1937 Act would also be read to recognise and enforce triple talaq and shall be understood as “law in force” and proceeded to invoke the arbitrariness principle emanating from Article 14.

To fit in the concept of arbitrariness as a ground, a judgment was cited, which was argued by (Justice Nariman while being senior counsel) for setting aside of an amending Act relating to manufacture and production in Andhra Pradesh (as reflected at page 356 of the judgement), but the same was rejected by the then three judges.

In terms of the present judgment, Justice Nariman (with Justice Lalit) held that this judgment of three judges was ‘no longer good law’ in view of the earlier five-judge judgment in Ajay Hasia case of 1981 where it was held that arbitrary and unreasonable action of “an authority” under Article 12 would be violative under Article 14.

The Ajay Hasia case was regarding the procedure of admission in educational institution. This majority judgment does not discuss the issue in case – if a lady is given triple talaq, though wrongly, and she accepts it, will it become a non-arbitrary action and non-violative of fundamental rights emanating from the principles laid down under Article 14 merely because the lady has accepted this form of talaq.

This issue was argued at length. If the court had to consider the issue of something being sinful but lawful in theology by saying that the sinful act cannot be good in law, then the very concept of talaq is undesirable practice as per the Islamic theology and hence, that will not justify Talaq-e-Ahsan and Talaq-e-Hasan, thus divorce in Islam itself would be have to be struck down.

If that is the case, then it would mean that the very concept of marriage in Islam, which is a contract, will change to that of sacrament. Thus nullifying the very basis for the outcome of Islam as a reformative religion and putting such religiously historic reform on an equal pedestal with sacramental marriages, which the entire world is moving away from, including our country

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