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What happens when the country’s top five judges cannot agree on an issue that has massive social and political ramifications? You get a 395-page court document that includes three different judgements which contradict each other on terminological definitions (talaq e-biddat, triple talaq or instant talaq?), what constitutes Shariat and whether personal law can be regulated by the Constitution.
What we do know, however, is that majority rules, and in this case three judges – Justice Rohinton Fali Nariman, Justice Uday Umesh Lalit and Justice Kurian Joseph –agreed that triple talaq be struck down.
In fact, Justice Nariman’s judgement goes a step further and terms the practice of triple talaq “unconstitutional”. Justice Kurian, however, has refrained from ruling on the constitutional validity of the practice.
In a surprise development, Chief Justice of India JS Khehar was the dissenting judge whose view was endorsed by Justice Abdul Nazeer. Their contention was that triple talaq is an established aspect of Sunni personal law and that it is up to the legislature to enact reforms.
The crucial difference in the two views is whether the legislature needs to frame a law banning Triple Talaq.
Here is a brief summary of what the the three judgements say:
Judgment 1: ‘Triple Talaq is Unconstitutional, Is Struck Down’
Extracts from Justice Rohinton Fali Nariman’s judgement, endorsed by Justice Uday Umesh 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…
What it means: ‘No Provision for Triple Talaq in the Holy Quran’
There is no provision for instant divorce in the Quran, as the Holy book ordains that talaq must be for a reasonable cause and preceded by attempts at reconciliation between husband and wife.
...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.
What it means: ‘Unilateral divorce violates Article 14 of the Indian Constitution’
Article 14 of the Indian Constitution grants equality to any person before the Law without discrimination on grounds of religion, race, caste, sex or religion. That a Muslim man can unilaterally break a marriage without any attempts at saving it, is arbitrary and therefore, violates the woman’s rights guaranteed under Article 14 of the Constitution.
In our opinion, therefore, the 1937 Act, insofar 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 manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.
What it means: ‘The Supreme Court has the right to strike down Triple Talaq’
According to Justice Nariman, Shariat, including provisions of talaq, applies to Indian Muslims because of the 1937 Act, which means it should be subject to the same scrutiny as other laws made by the government. This empowers the court to strike down Triple Talaq for violating the constitution.
Judgment 2: ‘Parliament Must Draft Muslim Divorce Law Within 6 Months’
Extracts from Chief Justice JS Khehar’s judgement, endorsed by Justice Abdul Nazeer.
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. ..
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.
What it means: ‘Courts cannot decide on the validity of instant divorce’
Chief Justice JS Khehar says it would be inappropriate for the courts to get into the question of the validity of ‘talaq-e-biddat’ or instant divorce because of the contradictions in the ‘hadiths’. Hadiths are essentially reports of traditions of the Prophet which are also supposed to be part of Islamic canon.
This is where, Justice Khehar and Justice Nariman differ. Justice Khehar rejects the opinion that the 1937 Act elevates Muslim Personal Law to Statutory Law. This is why, he reasons, the court cannot pass judgment on the constitutional validity of instant divorce.
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.
What it means: ‘Personal Law not up for judicial intervention’
It is important to note that the 1937 Act does not specify the terms of divorce for Muslims, it merely states that the subject is governed by Muslim Personal Law.
Justice Khehar reasons that since ‘talaq-e-biddat’ or instant divorce is part of Muslim personal law, it enjoys the same constitutional status as any other fundamental right and is not subject to judicial intervention.
We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’. We hope and expect, that the contemplated legislation will also take into consideration advances in Muslim ‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States.
We would therefore implore the legislature, to bestow its thoughtful consideration, to this issue of paramount importance. We would also beseech different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation.
What it means: ‘The Parliament must enact a Muslim divorce law’
Justice Khehar’s judgment directs the legislature to follow the example of other theocratic Islamic states (Pakistan banned triple talaq in 1961) and correct the Shariat by drafting a Muslim divorce law. Justice Khehar even asks different political parties to keep their differences aside to frame a law.
Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat’ 271 as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months. ...Failing which, the injunction shall cease to operate.
What it means: 'Triple Talaq barred for a period of six months during which the government is to draft a law’
Justice Khehar set a six-month deadline for the framing of a law, during which the Union government would be mandated to draft and enact a Muslim divorce law. Failing this, the injunction would lapse.
However, it must be noted that this was a minority judgement and the ruling of Rohinton Fali Nariman and Joseph Kurian will be the final word on the issue, for now.
Judgment 3: ‘Triple Talaq Invalid’
Extracts from Justice Kurian Joseph’s judgement.
…The freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the learned Chief Justice. However, on the statement that triple talaq is an integral part of the religious practice, I respectfully disagree. Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.
What it means: ‘Just because Triple Talaq is an integral part of religion, cannot make it valid’
Justice Kurian Joseph holds that after the introduction of the 1973 Act, no practice against the Quran is permissible. Therefore, there can be no constitutional protection for the practice of triple talaq.
When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights. I believe that a reconciliation between the same is possible, but the process of harmonizing different interests is within the powers of the legislature. Of course, this power has to be exercised within the constitutional parameters without curbing the religious freedom guaranteed under the Constitution of India. However, it is not for the Courts to direct for any legislation.
What it means: ‘It is not for the courts to direct any legislation’
Unlike Justice Khehar who explicitly calls on the legislature to frame a Muslim divorce law, Justice Rohinton recognizes the need to harmonize religion and constitutional rights, but refrains from asking the legislation to make the effort.
Read the full judgment here:
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