Triple talaq struck down: Who consented and who dissented in SC
In a major victory for women's rights, the Supreme Court of India struck down triple talaq 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 Chief Justice of India J S Khehar and Justice Abdul Nazeer had refused to strike down the practise of triple talaq. They had said that triple talaq is a fundamental right and hence cannot be struck down. Instead they directed the centre to come up with a law within six months.
The judges who dissented and struck down triple talaq were Justices Kurian Joseph, R F Nariman and U U Lalit.
CJI Khehar and Justice Abdul Nazeer:
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.
If the centre wants the same banned then it would need to come up with a legislation.
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.
Justices Kurian, Nariman and Lalit:
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 said Justice Nariman.
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.