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3 Judges, 2 Reasons in Triple Talaq Case: Un-Islamic Vs Unconstitutional

Authored by Justice Kurian Joseph and Justice Rohinton F Nariman, for himself and for Justice Uday U Lalit, these two Supreme Court judgments on triple Talaqarrived at the same conclusion but the judges treaded diverse paths.

Utkarsh Anand | CNN-News18

Updated:August 22, 2017, 10:12 PM IST
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3 Judges, 2 Reasons in Triple Talaq Case: Un-Islamic Vs Unconstitutional
A Muslim bride waits for the start of her marriage ceremony in Ahmedabad. Representative image/ Reuters
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New Delhi: Three judges, by a majority, struck down the practice of triple talaq as being unconstitutional but on completely different grounds.

Authored by Justice Kurian Joseph and Justice Rohinton F Nariman, for himself and for Justice Uday U Lalit, these two judgments arrived at the same conclusion but the judges treaded diverse paths. The first judgment in the majority held it to be un-Islamic whereas the other declared triple talaq to be unconstitutional.

Of the 395-page verdict, Justice Joseph used only 26 pages to hold that “triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.”

He cited the judgment by a two-judge bench in Shamim Ara Vs State of Uttar Pradesh, in which it was held that instantaneous triple talaq lacks legal sanctity. But Justice Joseph was in disagreement with Justices Nariman and Lalit that 1937 Shariat Act regulated triple talaq.

Instead, Justice Joseph charted the course of reading from Quran in the wake of the arguments that the holy book sanctified all forms of talaq. “Islam cannot be anti-Quran,” maintained the judge as he held that Quran had to be the primary source of Islamic law and that hadith, ijma or qiyas (discretions of Prophet Muhammad as described by his followers) were to only supplement Quran.

“I make an attempt to see what the Quran states on talaq,” said Justice Joseph in his verdict while citing from the three chapters in the Quran (Suras) that talks about talaq.

The judge then went on to rule as: “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 Joseph said that “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,” held Justice Joseph.

In his judgment, Justice Joseph however agreed with the views of the two other judges in the majority that the practice of triple talaq cannot be considered integral to the religious denomination in question.

Justices Nariman and Lalit, in their scrutiny of the argument that triple talaq forms an essential religious practice, quoted from Hanafi school of jurisprudence, followed by the majority of Sunni Muslims in India. 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.

The two judges said that there is no need to ask the Parliament to legislate on triple talaq since it is not an integral part of the religion but it is just a practice which is “itself 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.

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.

They hence held: “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.”

Therefore, these two judges tested the validity of triple talaq chiefly on the basis that Shariat Act recognizes and enforce triple talaq– a proposition Justice Joseph did not accept.

But all three agreed with the ratio in 2002 Shamim Ara judgment, thereby granting it more force, that no form of divorce could be valid under the Quran if it is not for a reasonable cause and attempts of reconciliation are not made.

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| Edited by: Ashish Yechury
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