In a landmark verdict, the Supreme Court on Tuesday put 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 two 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.
The verdict was immediately welcomed by the government, political parties, activists and the petitioners, with Prime Minister Narendra Modi hailing it as “historic” and saying it has granted equality to Muslim women.
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 today 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 mensuration cycles.
As per ‘talaq hasan’, divorce can be given by pronouncing talaq “during successive tuhrs (mensuration 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.”