A five-judge Constitution Bench of the Supreme Court by 3:2 majority struck down triple talaq, saying the practice was void, illegal and unconstitutional. The apex court held that the triple talaq was against the basic tenets of Quran.
The SC said “triple talaq violates fundamental right of Muslim women as it irrevocably ends marriage”.
The ruling came on petitions filed by some Muslim women challenging the practice of triple talaq on the ground that it violated their right to equality, right to non-discrimination and right to live with human dignity.
There have been cases in which Muslim men in India have divorced their wives by issuing the so-called triple talaq by letter, telephone and, increasingly, by text message, WhatsApp and Skype.
Justices Kurian Joseph, R F Nariman and U U Lalit said triple talaq violated the fundamental right of Muslim women as they are subjected to arbitrary irrevocable divorce through this practice.
Justices Nariman and Lalit held triple talaq being unconstitutional, and struck down that part of 1937 Sharia Law that allowed it to be recognised practice among Muslims following Hanafi school.
Justice Kurien Joseph has said Triple Talaq is not an essential religious practice, neither a Quranic tenant so it cannot be protected under Article 25 as an exercise of practice of religion. Supporting the view, Justice Lalit and Justice Nariman held that personal law is also law within Article 13 and can be and is subjected to fundamental rights, adding that instant Triple talaq violates Article 14 which enshrines equality.
Article 13 defines ‘law’ and says that all laws, framed before or after the Constitution, shall not be violative of the fundamental rights.
Chief Justice J S Khehar and justice S Abdul Nazeer held triple talaq to be part of fundamental right to religion of Muslims and said it was not unconstitutional.
Chief Justice J.S. Khehar, who led the Bench, held that talaq-e-biddat is an integral part of Article 25 (freedom of religion). He said it had been followed for over 1,400 years by the Hanafis and become a part of religious pratice. He held that instant talaq does not violate Articles 14, 19 and 21 of the Constitution, and passed it on to the legislature within six months to decide a law. Invoking extraordinary jurisdiction under Article 142, the Chief Justice injuncted Muslim men from divorcing their wives using instant talaq. This view was endorsed only by Justice S. Abdul Nazeer.
Interestingly, all five judges on the bench belonged to five different faiths — Hinduism, Islam, Christianity, Sikhism and Zoroastrianism.
However, noting that there was gender bias in the Muslim law and the fact that Muslim personal law has been reformed the world over, including Islamic countries such as Saudi Arabia and Pakistan, the CJI and Justice Nazeer exercised their powers under Article 142 of the Constitution to restrain Muslim husbands from pronouncing triple talaq.
The SC put six-month stay on practice of Muslim men giving their wives instant divorce through triple talaq. The SC bench has asked Parliament to make a new law on triple talaq issue in six months. If law doesn’t come in force in six months, then SC’s injunction on triple talaq will continue.
The Muslim family affairs in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937 (Muslim Personal Law), one of the first acts to be passed after the Government of India Act, 1935 became operational, introducing provincial autonomy and a form of dyarchy at the federal level. It replaced the so-called “Anglo-Mohammedan Law” previously operating for Muslims, and became binding on all of India’s Muslims.
Three Types of Divorce in Islamic Law:
Under Islamic law, there are three types of divorce: Talaq-e-Ahsan, Talaq-e-Hasan and Talaq-e-Biddat.
Talaq-e-Ahsan is the most ideal way of dissolving a marriage. ‘Ahsan’ means best or most proper. Under Talaq-e-Ahsan, the husband must pronounce divorce in a single sentence when the wife is in a state of ‘purity’, that is, not menstruating. The wife has to observe a period of iddat , a period of waiting and abstinence, after talaq is pronounced. The iddat period is three monthly courses for menstruating women and in case of pregnant women, till the time of delivery.
If the couple resumes cohabitation or intimacy, within the period of iddat, the pronouncement of divorce is treated as having been revoked. Therefore, ‘talaq-e-ahsan’ is revocable. Conversely, if there is no resumption of cohabitation or intimacy, during the period of ‘iddat’, then the divorce becomes final and irrevocable, after the expiry of the iddat period.
Under Talaq-e-Hasan, which is a ‘proper’ way to divorce but not as good as Ahsan, the husband pronounces talaq three times spread over three monthly courses.
After the first pronouncement of divorce, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked.
The distinction between ‘talaq-eashan’ and ‘talaq-e-hasan’ is, that in the former there is a single pronouncement of ‘talaq’ followed by abstinence during the period of ‘iddat’, whereas, in the latter there are three pronouncements of ‘talaq’, interspersed with abstinence.
Talaq-e-biddat, which has been banned by this Supreme Court judgement, is considered undesirable and a ‘sinful’ in Islam, yet considered valid under Sharia law. This kind of instant divorce is not the norm within Islam, but a rarity.
Biddat means sinful innovation – this form was introduced by Ommeyad kings in order to circumvent the law. Under this form of divorce, the husband pronounces talaq thrice in one sitting. Divorce is instant and becomes irrevocable immediately when it is pronounced, irrespective of iddat. Thus, once pronounced, it cannot be revoked.
List of Countries where Triple Talaq is Illegal:
Pakistan
Bangladesh
Sri Lanka
Turkey
Cyprus
Syria
Jordan
Egypt
Tunisia
Algeria
Iran
Iraq
Malaysia
Brunei
UAE
Indonesia
Iraq
Shah Bano Case:
Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844), commonly referred to as the Shah Bano case, was a controversial maintenance lawsuit in India, in which a supreme court judgment favoring maintenance given to an aggrieved divorced Muslim woman was overruled by the then Congress government.
Shah Bano, a 62-year-old Muslim mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. She filed a criminal suit in the Supreme Court of India, in which she won the right to alimony from her husband. However, she was subsequently denied the alimony when the Indian Parliament reversed the judgement under pressure from Islamic orthodoxy.
The judgement in favour of the woman in this case evoked criticisms among Muslims some of whom cited Qur’an to show that the judgement was in conflict with Islamic law.
It triggered controversy about the extent of having different civil codes for different religions, especially for Muslims in India.
This case caused the Congress government, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted the judgment of the Supreme Court and restricted the right of Muslim divorcées to alimony from their former husbands for only 90 days after the divorce (the period of Iddah in Islamic Law).
However, in the later judgements including Daniel Latifi case and Shamima Farooqui versus Shahid Khan case, the Supreme Court of India interpreted the act in a manner reassuring the validity of the case and consequently upheld the Shah Bano judgement and The Muslim Women (Protection of Rights on Divorce) Act 1986 was nullified.
Many Muslims including All India Shia Personal Law Board supported the Supreme Court’s order to make the right to maintenance of a divorced Muslim wife absolute.