Triple talaq: Islam cannot be anti-Quran says SC
Instant triple talaq was struck down by a 3:2 majority on Wednesday. Justice Kurian Joseph who was part of the majority while striking down the practise observed that Islam cannot be anti-Quran.
Justice Joseph made his point in 26 pages out of the 395 page verdict. Justice Jopesh and Justices R F Nariman and U U Lalit were on the same page while delivering the verdict. Chief Justice J S Khehar authored the minority judgment for himself and Justice Abdul Nazeer.
Justice Joseph held that triple talaq is against the tenets of the holy Quran. He said that the practise is violative in nature. He cited the two judge Bench Shamin Ara vs the state of Uttar Pradesh verdict in which it was held that triple talaq lacked legal sanctity.
"Islam cannot be anti-Quran," he said while adding that Quran has to be the primary source of Islamic law and that hadith, ijma or qiyas were to only supplement Quran.
"I make an attempt to see what the Quran states on talaq," he said while citing from the three chapters in the Quran that describes talaq.
"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."
"To freely profess, practice and propagate religion of one's choice is a fundamental right guaranteed under the Indian Constitution" but anything which is against the tenets of Quran could not be accorded protection of the law.
"Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible...there cannot be any Constitutional protection to such a practice. 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," Justice Joseph said.
What Shias follow:
Justices Nariman and Lalit while quoting from the Hanafi school of jurisprudence said Shia Muslims do not have the practice of triple talaq. They reached the conclusion that even Hanafi jurisprudence castigates triple talaq as being "sinful" and therefore, it forms no part of Article 25(1) as an essential religious practice.
Justices Nariman and Lalit said that triple talaq in one go 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 (equality) of the Constitution of India. 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."
Justices Nariman and Lalit however said that there is no need to ask Parliament to legislate on triple talaq as it is not an integral part of religion and is just a practise which itself is considered to be something innovative. Such a practice, the judges held, must pass the musters of Article 13, whereby all laws in derogation to the fundamental right are to be declared bad.