SC strikes down instant triple talaq

PM Modi, AIMPLB welcome verdict; Centre to issue advisory to states, rules out need for a new law; Congress, BJP, others hail judgement

IANS/PTI
New Delhi, Publish Date: Aug 22 2017 11:04PM | Updated Date: Aug 23 2017 1:51AM
SC strikes down instant triple talaqFile Photo

The Supreme Court on Tuesday brought the curtains down on a 1,400 year old practice of 'triple talaq' among Muslims and set it aside on several grounds including that it was against the basic tenets of the Holy Quran and violated the Islamic law Shariat.

A five-judge Constitution bench, by a majority of 3:2 in which the Chief Justice J S Khehar was in minority, said in a one line order: “In view of the different opinions recorded by a majority of 3:2, the practice of 'talaq-e-biddat' – triple talaq is set aside.”

The three separate judgements totalling 395 pages, written for the majority by Justices Kurian Joseph and R F Nariman, did not concur with the minority view of the CJI and Justice S A Nazeer that 'triple talaq' was a part of religious practice and the government should step in and come out with a law.

The three judges, Justices Joseph, Nariman and U U Lalit, expressly disagreed with the CJI and Justice Nazeer on the key issue whether triple talaq was fundamental to Islam.

Legal luminary Soli Sorabjee said "it is a progressive judgement which has protected the rights of the women and now no Muslim man can divorce his wife through this method."

With triple talaq being set aside, now Sunni Muslims, among whom triple talaq was prevalent, will not be able to take recourse to this mode as it would be "void ab initio" (illegal at the outset). They are now left with two other modes of securing divorce—'talaq hasan' and 'talaq ahsan' after the apex court on Tuesday set aside the 'talaq-e-biddat' or triple talaq.

Under 'talaq ahsan', a Muslim man can divorce his spouse by pronouncing 'talaq' once every month in three consecutive months and this would be signified by menstruation cycles.

As per 'talaq hasan', divorce can be given by pronouncing talaq "during successive tuhrs (menstruation cycle)" with no intercourse during any of the three tuhrs.

Writing the majority judgement, Justice Joseph said: "I find it extremely difficult to agree with the CJI that the practice of triple talaq has to be considered integral to religious denomination in question and that the same is part of their personal law." This view was shared by Justices Nariman and Lalit who were part of the majority.

Referring to the verses of the Holy Quran, Justice Joseph said, "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 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, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.”

Justice R F Nariman, whose views were concurred with by Justice U U Lalit, was in agreement with Justice Joseph saying "this form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 (right to equality) of the Constitution of India."

Upholding the NDA government's view that the practice was against fundamental rights like equality and dignity, Justice Joseph referred to the four sources of Islamic law—Quran, Hadith, Ijma and Qiyas. He said the Holy Quran is the "first source of law" and pre-eminence has to be given to it.

"That means, sources other than the Holy Quran are only to supplement what is given in it and to supply what is not provided for. In other words, there cannot be any Hadith, Ijma or Qiyas against what is expressly stated in the Quran. Islam cannot be anti-Quran," Justice Joseph said.

Justice Nariman, in his separate judgement, said: "It 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."

He referred to the fact that triple talaq is "instant and irrevocable" and leaves no scope for reconciliation between the husband and wife by two arbiters from their families which is essential to save the marital tie and was not in sync with the Holy Quran.

"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," he said.

Disposing six pleas including a suo motu petition titled 'Muslim Women's Quest For Equality', Justice Joseph relied on the 2002 apex court verdict in the Shamim Ara case in which it was held that "triple talaq lacked legal sanctity".

It referred to various High Court verdicts and rejected the plea of parties like All India Muslim Personal Law Board (AIMPLB) that the Shamim Ara case did not create a legal precedent.

"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 effected. In the light of such specific findings as to how triple talaq is bad in law on account of not following the Quranic principles, it cannot be said that there is no ratio decidendi (the rule of law on which a judicial decision is based) on triple talaq in Shamim Ara case," Justice Joseph said.

He dealt extensively with the fervent plea of AIMPLB that the triple talaq was integral to Islam as it was in practice for the last 1,400 years.

"Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible," Justice Joseph, in his 26-page judgement, said.

"Hence, there cannot be any constitutional protection to such a practice and thus, my disagreement with the CJI is for the constitutional protection given to triple talaq," he said.

Justice Joseph disagreed with the minority verdict which held that though triple talaq was part of the religion, its operation can be stayed (injuncted) by it under Article 142 (extra-ordinary power of the SC) for six months to enable the State to frame a law to deal with it.

"I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right can be injuncted," he said.

Relying on the Shamim Ara verdict, he said, "I expressly endorse and reiterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well."

 

PM, AIMPLB WELCOME VERDICT  

Prime Minister Narendra Modi hailed the Supreme Court judgement on triple talaq as "historic" and said it grants equality to Muslim women. He said the judgement will serve as a “powerful measure for women empowerment.”

"Judgement of the Hon'ble SC on Triple Talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment," the prime minister tweeted.

The All India Muslim Personal Law Board (AIMPLB), a representative body of the Muslims, said it welcomes the Supreme Court judgment on triple talaq as it vindicates the organisation's stand and "accords protection to Muslim personal law".

"As a representative body, we welcome the judgment...The majority (comprising Chief Justice JS Khehar and Justice Abdul Nazir, with Justice Kurian Joseph agreeing) has accorded personal laws the status of a fundamental right being protected under the right to practise religion contained in Article 25,” the body said in a statement.

“This is a huge victory for us as the judgment vindicates our stand and ensures the fundamental right of citizens of this country to freely profess and practice their religious faith/beliefs,” it said.

The AIMPLB said the judgment will “ensure non-interference by the courts in matters of practices emanating from religious texts and belief systems” of different communities.

It said that as far as the practice of talaq-e-biddat, or administering divorce in one sitting is concerned, the Board had already submitted to the court that the practice of three pronouncements of talaq in one sitting “though has a basis in religious texts and belief, but is not the best way and...is seldom resorted to.”

“For a long time, we ourselves have taken steps to discourage this practice through community reform programmes and Model Form of Nikahnama issued by the Board.  In the affidavit filed on May 22 this year, we had already informed the Supreme Court about our stand for issuing instructions to the Maulvis/Qazis to incorporate conditions in the Nikahnama to provide for the option to the marrying parties to exclude the option of pronouncing talaq in one sitting, in case of divorce taking place,” it said.

The Muslim body said that it will examine the issues emanating out of implementation of the judgment and will work to resolve the same.

The AIMPLB pointed out that the reference to Parliament by Chief Justice J.S. Khehar and Justice Abdul Nazir to address the issue of talaq-e-biddat is “inconsequential being the minority view on this point.”

“The Supreme Court verdict therefore cannot be misused by the government to try to interfere with personal laws through legislation,” it said.

AIMPLB Member Kamal Farooqui called the judgment “historic.”

“The Muslim Personal Law Board has been successful in safeguarding the personal laws. It is a historic judgment,” Farooqui told IANS.

“As for triple talaq, we will study the judgment in detail. But we ourselves had tried to discourage it. We gave an affidavit in the Supreme Court to this effect. Also, we had issued an advisory and suggested to Muslims that in the nikah contract it should be written that talaq would not be administered in one sitting,” Farooqui added.

 

CENTRE RULES OUT NEED FOR NEW LAW

The central government virtually ruled out the need for a new law on triple talaq, indicating that existing laws, including the one dealing with domestic violence, were sufficient.

“The government will consider the issue in a structured manner. A prima-facie reading of the judgement makes it clear that the majority (of the five-member bench) has held it (the practice of instant triple talaq) as unconstitutional and illegal,” Law Minister Ravi Shankar Prasad said.

He was responding to a series of questions by reporters as to whether the government would bring out a law against triple talaq as favoured by two judges.

Asked how the SC verdict striking down the practice of triple talaq would be implemented and why a statute is not necessary for the order's enforcement, a senior government functionary explained that a marriage will not be annulled if the husband resorts to instant triple talaq.

“After the Supreme Court order, if a husband gives instant triple talaq, it will not be considered valid. His obligation towards the marriage will remain... The wife is also free to drag such a person to police and file a complaint of harassment or domestic violence,” the functionary said, indicating penal provisions are present to check the practice.

 

‘ENSURE COMPLIANCE’

The Centre is all set to send an advisory to all states asking them to ensure compliance of the Supreme Court order declaring triple talaq void, illegal and unconstitutional.

“An advisory asking the states to keep close watch on the situation will be issued soon,” a home ministry spokesperson said.

The home ministry will be asking the state governments to take appropriate action and ensure compliance of the Supreme Court order, the spokesperson said. 

 

Congress, BJP, others hail verdict

Leaders across the political spectrum, social activists and top jurists hailed as a victory of "gender equality" and a "giant step" for women the landmark Supreme Court verdict banning the practice of instant divorce among Muslims.

BJP chief Amit Shah said the verdict marked the beginning of a new epoch of equality and self-respect for Muslim women in the country.

Muslim women, who had knocked the doors of the Supreme Court opposing triple talaq, were elated at the verdict, saying they have emerged "victorious" and now feel protected.

However, some women petitioners opined that the victory in its true sense would be achieved once a law comes into force, making the practice punishable.

Farah Faiz, Zakia Suman, Noorjehan Niaz and the All India Muslim Women Personal Law Board (AIMWPLB) variedly described the verdict as a "moment of big victory," "big relief" and "half the battle won."

"The court has given a direction to the government to frame a law. We have won half the battle. We will be victorious in the true sense only once the law is framed so as to make this practice punishable. There is no remedy for women against the practice till a law is framed," Faiz, also the President of Rashtrawadi Muslim Mahila Sangh, said.

Finance and Defence minister Arun Jaitley said the verdict is the law of the land now and a great victory for those who believe that personal laws must be progressive.

Congress vice-president Rahul Gandhi while welcoming the verdict congratulated the women who fought for justice.

Chief Congress spokesperson Randeep Surjewala said the verdict was an "affirmation of women's rights" and would give them relief from discrimination.

Union Minister of Women and Child Development Maneka Gandhi hailed the judgement as a "giant step" for women, adding that it's about time that women were given the right to equality.

Minister of State for Information and Broadcasting Rajyavardhan Rathore tweeted that it was a "huge step forward" for women's rights.     Minority Affairs Minister Mukhtar Abbas Naqvi said, "We should not adopt a rigid attitude, but choose a reformist approach towards social evil.

Syed Ahmed Bukhari, the Shahi Imam of the Jama Masjid in Delhi, blamed the AIMPLB over the triple talaq issue, saying it should have acted in a way to avoid the matter reaching the Supreme Court and find a solution to the contentious issue.

Eminent jurist Soli Sorabjee said the verdict was progressive, protecting the rights of the women, and that now no Muslim man can divorce his wife through the controversial divorce practice.

Shiv Sena MP Sanjay Raut said nobody should see the verdict through the "prism of religion". The All India Muslim Women Personal Law Board and All India Shia Personal Law Board described the verdict as a victory of Islam and Muslim women in the country.