SC strikes down instant triple talaq, tells Centre to make law in 6 months
In a major victory for women's rights, the Supreme Court of India struck down instant triple talaq or talaq-biddat while declaring it unconstitutional. In a 3:2 majority verdict the court held that the practise was unconstitutional and it violates fundamental rights of a woman as it irrevocably ends marriage without any scope of reconciliation.
The CJI and Justice Abdul Nazeer had said that the practise could not be barred. It had directed the centre to come up with a legislation within six months. However the other three judges on the Bench Justices Kurian Joseph, R F Nariman and U U Lalit declared the practise as unconstitutional. The practise of triple talaq is now held unconstitutional due to a 3:2 majority.
The majority observed that triple talaq violates fundamental rights of a woman as it irrevocably ends marriage without any scope of reconciliation.
Justice Nariman while dissenting with the CJI said triple talaq is a disapproved form of divorce. Even Hanafi law says triple talaq is sinful. 1937 Act recognizes triple talaq and therefore does not violate Article 13...Triple Talaq won't fall within confines of Article 13(1)...It is not possible for court to fold his hands when petitioners come to court. Court has to declare whether practice is legal or not.
Justice Kurian Joseph who also dissented with the CJI said that there are four sources of Islamic law. Only the Quran is the first source of law, therefore sources other than the Quran are supplement to what is in it. Therefore, there can be nothing more than what is written in the Quran.
Quran attributes permanence to matrimony. Triple talaq is against tenets of Quran, therefore, violates Shariat. As held in Shamimara, talaq must be after having tried to resolve issues.
Triple talaq not a part of sharia. Freedom of religion is absolute. However, triple talaq being a part of religion is what I disagree with. After 1937 Act, no practice deviating from Quran is valid. I expressly endorse and uphold the law in Shamimara. What is bad in theology is bad in law. What is bad in Quran can't be good in Shariat, Justice Kurian also said.
Justice Khehar observed that practise cannot be abolished hastily. It needs to be carefully observed, the court also said. The court held that Talaq-e-biddat is not in violation of articles 14, 15 and 21 of the Indian Constitution. The court said Talaq-e-biddat is an integral part of the Sunni community and has been practiced since 1000s of years.
Despite Rashid Ahmed decision by privy council the issue needs fresh examination. All parties were unanimous that triple talaq is a heinous practice. It won't be appropriate for the court to observed whether practice is valid as per hadith due to variations in the school, Chief Justice of India, J S Khehar observed.