Five-Judge Constitution bench delivers verdict by 3:2 majority
Reactions:
Elated at the verdict: Petitioners
We welcome verdict: Rahul
Beginning of new epoch: Shah
Will chalk out action: AIMPLB
Progressive verdict: Soli Sorabjee
NEW DELHI, Aug 22:
In a landmark verdict, the Supreme Court today 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 three 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.
Legal luminary Soli Sorabjee said “it is a progressive judgement which has protected the rights of the women and now no Muslim man can divorce his wife through this method.”
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.”
Upholding the NDA Government’s view that the practice was against fundamental rights like equality and dignity, Justice Joseph referred to the four sources of Islamic law — Quran, Hadith, Ijma and Qiyas.
He said the Holy Quran is the “first source of law” and pre-eminence has to be given to it.
“That means, sources other than the Holy Quran are only to supplement what is given in it and to supply what is not provided for. In other words, there cannot be any Hadith, Ijma or Qiyas against what is expressly stated in the Quran. Islam cannot be anti-Quran,” Justice Joseph said.
Justice Nariman, in his separate judgement, said “It is clear that Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it.”
He referred to the fact that triple talaq is “instant and irrevocable” and leaves no scope for reconciliation between the husband and wife by two arbiters from their families which is essential to save the marital tie and was not in sync with the Holy Quran.
“It is clear that this form of Talaq 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,” he said.
Disposing six pleas including a suo motu petition titled ‘Muslim Women’s Quest For Equality’, Justice Joseph relied on the 2002 Apex Court verdict in the Shamim Ara case in which it was held that “triple talaq lacked legal sanctity”.
It referred to various High Court verdicts and rejected the plea of parties like All India Muslim Personal Law Board (AIMPLB) that the Shamim Ara case did not create a legal precedent.
“Talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters — one from the wife’s family and the other from the husband’s; if the attempts fail, ‘talaq’ may be effected.
“In the light of such specific findings as to how triple talaq is bad in law on account of not following the Quranic principles, it cannot be said that there is no ratio decidendi (the rule of law on which a judicial decision is based) on triple talaq in Shamim Ara case,” Justice Joseph said.
He dealt extensively with the fervent plea of AIMPLB that the triple talaq was integral to Islam as it was in practice for the last 1,400 years.
“Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible,” Justice Joseph, in his 26-page judgement, said.
“Hence, there cannot be any Constitutional protection to such a practice and thus, my disagreement with the CJI is for the constitutional protection given to triple talaq,” he said.
Justice Joseph disagreed with the minority verdict which held that though triple talaq was part of the religion, its operation can be stayed (injuncted) by it under Article 142 (extra-ordinary power of the SC) for six months to enable the State to frame a law to deal with it.
“I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right can be injuncted,” he said.
Relying on the Shamim Ara verdict, he said, “I expressly endorse and reiterate the law declared in Shamim Ara. 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.”
Meanwhile, the Centre is all set to send an advisory to all states asking them to ensure compliance of the Supreme Court order declaring Triple Talaq void, illegal and unconstitutional.
“An advisory asking the States to keep close watch on the situation will be issued soon,” a Home Ministry spokesperson said today.
The Home Ministry will be asking the State Governments to take appropriate action and ensure compliance of the Supreme Court order, the spokesperson said.
Prime Minister Narendra Modi today hailed the Supreme Court judgement on triple talaq as “historic” and said it grants equality to Muslim women.
He said the judgement will serve as a powerful measure for women empowerment.
“Judgement of the Hon’ble SC on Triple Talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment,” the Prime Minister tweeted.
BJP president Amit Shah described the Supreme Court verdict on triple talaq as historic and said it had given the right to crores of Muslim women in the country to live with equality and dignity.
He also hailed Prime Minister Narendra Modi for taking a stand on the issue before the Apex Court.
“We welcome the verdict. The Supreme Court has given a historic decision. This verdict has given the right to crores of women to live with equality and dignity,” Shah told reporters.
He described the judgment as the “beginning of a new epoch for women to live with self-respect”.
Hailing the Supreme Court ruling which declared as unconstitutional the practice of divorce through triple talaq among Muslims, Finance Minister Arun Jaitley today said the verdict is the law of the land now and a great victory for those who believe that personal laws must be progressive.
Stating that many parts of the Islamic world have rejected the triple talaq practice, he said it left women remedy-less if a husband took advantage of it to cover his own wrong and terminate the marriage.
Jaitley hoped that others will take a cue from the judiciary and “will also walk on the same progressive path and will ensure that personal laws in India continue to remain progressive and also such aberrations in those laws which infringe constitutional guarantees can now be rectified”.
The Congress also welcomed the Supreme Court’s verdict setting aside the practice of divorce through ‘talaq-e-bidat’ among Muslims, saying it was an “affirmation of women rights” and would give them relief from discrimination.
Congress Vice President Rahul Gandhi welcomed the Supreme Court verdict setting aside instant triple talaq and congratulated the women who fought for justice.
“Welcome the Supreme Court decision setting aside instant Triple Talaq. I congratulate the women who fought for justice,” he said on Twitter.
The Congress party has welcomed the Supreme Court’s verdict setting aside the practice of divorce through ‘talaq- e-bidat’ among Muslims, saying it was an “affirmation of women rights” and would give them relief from discrimination.
Chief Congress spokesperson Randeep Surjewala said the apex court quashed the practice of instant triple talaq or ‘talaq-e-bidat’, which by itself was “an aberration and adulteration” of talaq.
The All India Muslim Personal Law Board (AIMPLB) for its part said it will chalk out its future course of action at its working committee meeting in Bhopal on September 10 while Maulana Mohammed Shafique Qasmi, the Imam of Nakhoda Masjid in Kolkata, said the AIMPLB and experts of Sharia law should be consulted before formulating a new law.
“Muslim Law is our own personal law and it has nothing to do with any other community. It should be left to us to decide on it,” Zafaryab Jilani, a member of the working committee of the board, said.
Muslim women, who had knocked the doors of the Supreme Court opposing triple talaq, were elated at the verdict, saying they have emerged “victorious” and now feel protected.
However, some women petitioners opined that the victory in its true sense would be achieved once a law comes into force, making the practice punishable.
Farah Faiz, Zakia Suman, Noorjehan Niaz and the All India Muslim Women Personal Law Board (AIMWPLB) variedly described the verdict as a “moment of big victory,” “big relief” and “half the battle won.”
“The court has given a direction to the Government to frame a law. We have won half the battle. We will be victorious in the true sense only once the law is framed so as to make this practice punishable. There is no remedy for women against the practice till a law is framed,” Faiz, also the President of Rashtrawadi Muslim Mahila Sangh, said.
But the Government virtually ruled out the need for a new law on triple talaq, indicating that existing laws, including the one dealing with domestic violence, were sufficient.
“The Government will consider the issue in a structured manner. A prima facie reading of the judgement makes it clear that the majority (of the five member bench) has held it (the practice of instant triple talaq) as unconstitutional and illegal,” Law Minister Ravi Shankar Prasad said.
Union Minister of Women and Child Development Maneka Gandhi hailed the judgement as a “giant step” for women, adding that it’s about time that women were given the right to equality.
Minister of State for Information and Broadcasting Rajyavardhan Rathore tweeted that it was a “huge step forward” for women’s rights.
Minority Affairs Minister Mukhtar Abbas Naqvi said, “We should not adopt a rigid attitude, but choose a reformist approach towards social evil.
Syed Ahmed Bukhari, the Shahi Imam of the Jama Masjid in Delhi, blamed the AIMPLB over the triple talaq issue, saying it should have acted in a way to avoid the matter reaching the Supreme Court and find a solution to the contentious issue.
Eminent jurist Soli Sorabjee said the verdict was progressive, protecting the rights of the women, and that now no Muslim man can divorce his wife through the controversial divorce practice.
Senior RSS functionary Indresh Kumar today termed the Supreme Court’s judgement on triple talaq as historic, saying it had “shut the mouths of Islamic fundamentalists” and a proper law should be framed on it.
Kumar, who is the patron-in-chief of RSS affiliated Muslim Rashtriya Manch (MRM), said the Government should set up special centres for Muslim women and their children affected by this “wrong” practice, so that they could get education and become self dependent.
“Today is a historic day for the country and especially for the women. The Supreme Court has today resolved the biggest social problem of nine crore Indian Muslim women by pronouncing judgement on the issue of triple talaq,” he told reporters.
AIMIM chief Asaduddin Owaisi said it would be a “herculean task” to implement the Supreme Court order on triple talaq due to “practical difficulties”.
He, however, claimed the Judges had ruled that personal laws could not be challenged as they fall under the ambit of fundamental rights which was a “welcome” step.
“We have to respect the judgement. But there are various practical difficulties that will arise. It is going to be a herculean task to implement it on the ground,” he added.
“Triple talaq is a very contentious issue and that is why even in the Supreme Court there was no unanimity,” the Hyderabad MP said.
“The… Opinion that the personal laws cannot be challenged under the ambit of fundamental rights is very important which one must keep in mind,” the All India Majlis- e-Ittehadul Muslimeen (AIMIM) chief said.
The Left parties also welcomed the Supreme Court verdict holding the practice of divorce through triple talaq among Muslims as “unconstitutional”.
The CPI said the ruling “vindicates” its stated position towards opposing “instant” triple talaq.
It also asked the Government to show “political will” towards ensuring passage of women’s reservation bill.
In a statement, the CPI(M) said, “The Politburo welcomes the Supreme Court verdict treating arbitrary and instant triple talaq as unconstitutional, delivered by a majority judgement of the five-member bench.”
CPI national secretary D Raja said the Government should consider reforms in all personal laws. (PTI)
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