The Supreme Court on August 22, 2017 held triple talaq as unconstitutional. Three of the five judges on the Constitution Bench — Justices Rohinton F Nariman, Uday U Lalit and Kurian Joseph — called the practice as un-islamic and arbitrary and disagreed with the view that triple talaq was an integral part of religious practice. But the minority ruling of Chief Justice JS Khehar and Justice Abdul S Nazeer underlined the primacy of Muslim Personal Law and said the practice enjoyed constitutional protection and was beyond the scope of judicial scrutiny. The Triple Talaq Bill thrice passed by the Lok Sabha over a period of 19 months received the approval of the Rajya Sabha on July 29, 2019. The Muslim Women (Protection of Rights of Marriage) Act, 2019, makes the practice of triple talaq a penal offence. The practice of instant triple talaq by Muslim men will be punishable by a jail term of three years.
Instant Triple Talaq
Instant triple talaq or talaq-e-bidat is a practice that was challenged in the court. It is different from the practice of “talaq-ul-sunnat”, which is considered to be the ideal form of dissolution of marriage contract among Muslims.
Talaq-ul-sunnat consists of talaq-e-ahsan and talaq-e-hasan. Talaq-e-Ahsan is the ‘most proper’ form of talaq in which the husband expresses divorce in single sentence. And then has to wait till the iddat period is over. Iddat period for a woman who has been divorced by her husband is usually three monthly periods and during this time, she cannot marry another man. If before the completion of iddat, the husband resumes co-habitation with his wife or says that, the divorce is revoked. In case the woman is pregnant, the iddat period lasts until she gives birth. The waiting period for a woman after menopause is three months.
Talaq-e-Hasan is the ‘proper’ form of talaq. In this form, three successive pronouncements of talaq are made by the husband in three successive tuhrs (when the woman is not menstruating). In case of a non-menstruating woman, its pronouncement may be made after the interval of a month or thirty days between the successive pronouncements. This form of talaq can be revoked any time before the third pronouncement.
In the practice of talaq-e-biddat, when a man pronounces talaq thrice in a sitting, or through phone, or writes in a talaqnama or a text message, the divorce is considered immediate and irrevocable, even if the man later wishes to re-conciliate. The only way for the couple to go back to living together is through a nikah halala, which requires the woman to get remarried, consummate the second marriage, get divorced, observe the three-month iddat period and return to her husband. The practice of talaq-e-biddat has been viewed as abhorrent in theology but upheld as valid by law. Declaring the practice of talaq-e-biddat as “unconstitutional” may not balance out the gender parity among Muslims, because men still reserve the right to talaq without resorting to legal course of action.
The Supreme Court Judgement
The issues in the case were so complicated that there are as many as three judgments. Chief Justice of India J S Khehar authored one opinion, with which Justice S Abdul Nazeer agreed. The second opinion was authored by Justice Kurian Joseph. The third judgment was written by Justice Rohinton F Nariman on behalf of himself and of Justice Uday U Lalit. Justice Kurian agreed with Justice Khehar on some points, and with Justice Nariman on others. Let us understand the judgments and reasons for the different opinions. All the opinions have clearly stated that they are dealing just with instant triple divorce, and not with other forms of divorces under Muslim Personal Law.
Justice Nariman: He held that instant irrevocable triple talaq not preceded by the efforts at reconciliation is unconstitutional, as it is contrary to the right to equality, which includes the right against arbitrariness. The basis of his decision is the recognition of triple divorce by the Shariat Act, 1937. The Act laid down that in matters of talaq, gift, will, inheritance etc., “the rule of decision where parties are Muslims shall be Muslim Personal Law”. He quoted the 1932 decision of the Privy Council in which triple divorce was held as valid under Sharia to conclude that since instant triple divorce is “manifestly arbitrary”, the Shariat Act, to the extent it recognised triple divorce, is ultra vires the Constitution.
He has struck down Section 2 of the Shariat Act, which recognises and enforces triple divorce. All parent laws, subordinate legislation and executive orders are subject to fundamental rights, and must be struck down if they are not compatible. Justice Nariman dissented with the judgment of the CJI on the issue of the judiciary not being the right forum to dispose of such matters. The Supreme Court cannot refuse to decide when approached by a litigant under Article 32 against the violation of his/her fundamental rights, and put the ball in Parliament’s court, he said.
Justice Khehar: His judgment is the most detailed — 272 pages — and a major milestone in the history of freedom of religion in India. For the first time in Indian judicial history, freedom of religion subject to restrictions given in Articles 25 and 26 has been held to be “absolute”. After quoting Constituent Assembly debates on Articles 25 and 44, the CJI held that personal law is part of the freedom of religion, which courts are duty-bound to protect. He also said courts are not supposed to find fault with provisions of personal law, which are based on beliefs, not logic. Personal law, he said, is beyond judicial scrutiny.
The CJI explicitly said that accepting the petitioner’s prayer to hold triple talaq unconstitutional would amount to negating freedom of religion. He equated triple divorce to fundamental rights. Disagreeing with Justice Nariman, he observed that since the recognition of Muslim Personal Law by the Shariat Act of 1937 does not give it statutory status, and because Muslim Personal Law is not ‘law’ as held by the Supreme Court, the Shariat Act, or triple talaq under it, cannot be held unconstitutional.
Justice Joseph: The third and most important judgment was delivered by Justice Joseph who fully endorsed the CJI’s opinion on freedom of religion, thereby ensuring its majority. He agreed with Justice Nariman on triple divorce not being an essential part of Muslim Personal Law. But he disagreed with Justice Nariman on the interpretation of the Shariat Act — concurring, rather, with Justice Khehar’s opinion that the Shariat Act is not a legislation regulating triple divorce.
Triple Talaq In Other Countries
The Supreme Court, in its judgment cited laws from 19 countries including Pakistan and Egypt which have abolished the practice. The panel referred the book ‘Muslim Law in India and Abroad’ by Tahir Mahmood and Saif Mahmood. The Arab States that have abolished the triple talaq includes Algeria, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Sudan, Syria, Tunisia, United Arab Emirates and Yemen along with Southeast Asian countries like Indonesia, Malaysia and Philippines. Pakistan, Bangladesh and Sri Lanka also have enacted laws against the Muslim divorce practice.
In Algeria, divorce cannot be established except by a judgment of the court preceded by an attempt at reconciliation for a period not exceeding three months.
In Egypt, a Talaq pronounced under the effect of intoxication or compulsion shall not be effective. A conditional Talaq which is not meant to take effect immediately shall have no effect if it is used as an inducement to do some act or to abstain from it. A Talaq accompanied by a number, expressly or impliedly, shall not be effective except as a single revocable divorce. Symbolic expressions of talaq, i.e., words which may or may not bear the implication of a divorce, shall not effect a divorce unless the husband actually intended it.
Gender Justice
The majority of Muslims would welcome a formal end to the practice of triple talaq, but would be unhappy that the courts have interfered in what they have been led to believe is a matter of their faith. The five-member Constitution bench did not reach a unanimous decision on the matter. The three judges who supported quashing triple talaq did not follow the same logic to reach that decision. Two held this provision of the Muslim personal law to be arbitrary and, therefore, violative of the Constitution. One held the provision to be bad in law because the overwhelming purport of quranic injunctions on divorce is for fair treatment of the woman.
The two judges who gave the minority view that it requires legislation rather than a court decision to remove triple talaq also strongly disapproved of the practice. Triple talaq is the third and most undesirable form of divorce, even in the eyes of those who deem the practice to be legal. But the first two i.e. talaq-e-ahsan and talaq-e-hasan also fail the test of gender equity: they give men the unilateral right to divorce their wives, even if over an extended period of time that offers scope for reconciliation, rather than instantaneously.
The judges have thrown the door open for challenging the two remaining methods of divorce in the Muslim Personal Law on grounds of violating the right to equality. The chief justice, one of the authors of the minority view, stated that the first two methods of divorce, talaq-e-ahsan and talaq-e-hasan, too privilege the male and, thus, violate the right to equality, while calling upon the legislature to find a remedy by changing the law.
Champions of gender justice can challenge talaq-e-ahsan and talaq-e-hasan, on grounds of discrimination against women. Denying women democratic rights in the name of protecting religious custom weakens democracy and erodes minority rights