SUPREME COURT VERDICT ON TRIPLE TALAQ

BY- AKSHITA MATHUR

SEEDLING SCHOOL OF LAW AND GOVERNANCE, JAIPUR NATIONAL UNIVERSITY, JAIPUR


 

Triple talaq is a form of divorce that was practised in India, whereby a Muslim man could legally divorce his wife by pronouncing “Talaq” (Arabic word for divorce) three times. The pronouncement could be oral or written, or in recent times delivered by electronic means such as telephone, SMS, email or social media.The man did not need to cite any cause for the divorce and the wife need not have been present at the time of pronouncement. After a period of iddat, during which it was ascertained whether the wife is pregnant, the divorce became irrevocable. In the recommended practice, a waiting period was required before each pronouncement of talaq, during which reconciliation was attempted. However, it had become common to make all three pronouncements in one sitting. While the practice was frowned upon, it was not prohibited.

Dating from the 8th Century AD and not mentioned in the Quran, triple talaq divorces often conflict with countries legal systems. India has become the 23rd country to outlaw them, joining places as far apart as Egypt, Sri Lanka, the United Arab Emirates and Malaysia. This type of verbal divorce is practiced around the world but as it is illegal in so many countries, it is hard to say exactly how common it is.Under some interpretations of Islamic law, a man can divorce his wife and get back together with her – but only twice. After the third divorce, the marriage is completely over and cannot be started again without an intervening marriage to someone else. That is the reason the word “talaq” is used three times.

SUPREME COURT VERDICT ON TRIPLE TALAQ-

The Supreme Court on 24th August 2017 barred “instant triple talaq” under which women have been divorced over email, whatsapp or phone calls. This talaq is banned in 22 Muslim majority countries since it is considered improper and undesirable. In a 3-2 majority verdict, the court called the practice un-Islamic.

The majority of the bench said that “Talaq-e-biddat” (instant divorce) is manifestly arbitarary which allows a Muslim man to break down marriage whimsically, “ the majority view of the bench said. It was held that it cannot be considered as integral part of personal law and cannot have constitutional protection. It is against Quran and violates the Shariat.

In a landmark judgement of Shayara Bano v. Union of India, the SC invalidated the practice of triple talaq. The judgement could be disected in three completely different rationales-

  • Justice Khehar highlighting the fact that the practice did not derive its validity from Shariat Act,1937 and therefore is a religious custom and ought to be protected under Article 25 of Constitution of India. Therefore Justice Khehar decided not to declare the practice unconstitutional permanently and suspended its operation for six months and directed the legislature to come with a law relating to this.
  • In the opinion of Justice Kurian Joseph, the judiciary must examine the practice in Quranic law. He invalidated the practice with a logic that “what is bad in theology is bad in law”. He also overruled the judgement of Sarabai v. Babiabai wherein it was said that triple talaq is “good in law” though bad in theology. His opinion is not looked upto by the society for a simple reason that theology should not be a parameter to judge what is good or bad in law.
  • Coming to the third opinion of Justice Rohinton Nariman, which has been agreed by Justice UU Lalit as well is the most progressive one. He put to to use the test of Article 14 of Indian Constitution which deals with right to equality on a reason that operation of Shariat grands practice of triple talaq and hence allows to be checked under the constitution. He overruled the judgement of SC in State of Andhra Pradesh v. Mcdowell which said that “arbitrariness” is not a ground for striking down anything. Therefore Justice Nariman acknowledged that the practice flows from Shariat Act and by doing so he accepted the fact that he can examine its validity only because it flows from Shariat Act and not otherwise. This means that a religious custom which is violative per se of a fundamental right but isnot a part of staute can be accorded protection under Article 25 of the Constitution.

 

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