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No Form of Talaq Can be Valid Without Reasons & Conciliatory Efforts: SC

The chief difference between talaq-e-biddat and the other two forms is that the former practice involved pronouncement of talaq three times and it is supposed to break down a marriage irrevocably. The other two forms are, however, revocable during a period of three months.

Utkarsh Anand | CNN-News18

Updated:August 23, 2017, 5:39 PM IST
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No Form of Talaq Can be Valid Without Reasons & Conciliatory Efforts: SC
The Supreme Court on Tuesday struck down triple talaq terming it 'unconstitutional'. (Network18 Creatives)
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New Delhi: A split verdict by the Supreme Court in the triple talaq case has given force to a judgment delivered by a smaller bench of the Court 15 years ago.

Three judges on Tuesday endorsed and affirmed the 2002 judgment by a two-judge bench in Shamim Ara Vs State of Uttar Pradesh, buttressing the point that divorce among Muslims is not valid if it is not validated with reasons or without attempts of reconciliation between the couple.

What was struck down by a 3:2 majority by the Constitution Bench on Tuesday was instant triple talaq – talaq-e-biddat. The other two forms of talaq, namely talaq-e-ahsan and talaq-e-hasan were not challenged and hence not ruled upon.

The chief difference between talaq-e-biddat and the other two forms is that the former practice involved pronouncement of talaq three times and it is supposed to break down a marriage irrevocably. The other two forms are, however, revocable during a period of three months.

When a two judge bench adjudicated upon a petition relating to alimony of a woman who was divorced through instant triple talaq, Justice R C Lahoti said that in order to be valid, talaq has to be pronounced as per the Quaranic injunction. The judge described “pronounce” as “to proclaim, to utter formally, to declare… to articulate”.

This judgment supported the views taken by a Division Bench of the Gujarat High Court, as it further held: “The correct law of talaq as ordained by the Holy Quran is that 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.”

Therefore, the 2002 SC judgment, categorically laid down that for any talaq to become effective under the tenets of Quran, two conditions must be met. One, that talaq must be for a reasonable cause and second, that it must be preceded by an attempt of reconciliation between the husband and the wife by arbiters.

While denouncing instant triple talaq, Justices Kurian Joseph, Rohinton F Nariman and Uday U Lalit, affirmed the ratio of Shamim Ara’s judgment, thereby tacitly endorsing the fact that all forms of talaq must fulfill the two conditions enumerated in the 2002 judgment.

“This Court in Shamim Ara Vs State of UP has held, though not in so many words, that triple talaq lacks legal sanctity. Therefore, in terms of Article 141, Shamim Ara is the law that is applicable in India,” said the judge, dissenting with the views taken by CJI J S Khehar and S A Nazeer that this verdict had no ratio decided.

“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 on triple talaq in Shamim Ara… Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and re-iterate the law declared in Shamim Ara,” said Justice Joseph.

Justices Nariman and Lalit also relied upon Shamim Ara’s judgment in striking down the instant triple talaq. “Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place,” they held.

The two judges further emphasized that the Privy Council’s ruling in Rashid Ahmad case, wherein it was held that such triple talaq is valid even if it is not for any reasonable cause, “no longer holds good after Shamim Ara”.

“This being the case, 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,” said Justices Nariman and Lalit.

Thus, the majority judgment has not only declared the instant triple talaq to be un-Islamic and unconstitutional, it has also conveyed the top court’s view that talaq, irrespective of its form, has to be for reasons and only after conciliatory efforts.

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| Edited by: Sanchari Chatterjee
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