New Delhi: In a win for gender justice and the rule of law, the Supreme Court on Tuesday declared the Islamic practice of triple talaq unconstitutional.
In a 3-2 majority verdict, the top court struck down the age-old practice under which a Muslim man could divorce his wife by uttering the word “talaq" thrice.
Justices Kurian Joseph, Rohinton F. Nariman and U.U. Lalit ruled for scrapping of the practice; the minority judgement by Chief Justice J.S. Khehar and S. Abdul Nazeer upheld the validity of the practice and sought to shift the onus to Parliament to bring in a legislation governing Muslim marriages and divorce within six months.
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“Triple talaq is a form of talaq that 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," held justices Nariman and Lalit, whose views formed part of the majority judgement.
The 395-page ruling held the practice to be “violative of the fundamental right under Article 14 (equality before law) of the Constitution of India".
“I welcome the verdict and today is historic for Muslim women as they don’t need to worry anymore. I would appeal to political parties to not politicize the issue." said Shayara Bano, the Muslim woman who first approached the court over the issue.
The ruling was welcomed by Prime Minister Narendra Modi. “Judgment of the Hon’ble SC on triple talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment," he posted on Twitter.
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Signalling political consensus, Randeep Surjewala, Congress chief spokesperson, said, “We welcome the court’s judgement on triple talaq. "
The verdict added that the provisions of Muslim Personal Law (Shariat) Application Act, 1937, insofar as they seek to recognize and enforce triple talaq, must be struck down as being void.
A similar view by Justice Kurian criticized triple talaq, deeming it to be against the “basic tenets of the Holy Quran and consequently, it violates Shariat".
Kurian also disagreed with the minority judgement by CJI, Khehar where he stated that triple talaq has to be considered integral to the religious denomination in question and was part of their personal law.
“This is a path breaking verdict that is progressive and the court has rightly struck down the practice of triple talaq," said Mukul Rohtagi, former Attorney General who had previously represented the Centre on the case.
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The minority view led by CJI, Khehar, however, held triple talaq to not be in violation of the provisions of the Constitution under challenge - Article 25 (freedom of religion), Article 14 (right to equality), Article 15 (prohibition of discrimination) and Article 21 (right to life)- which were limited to state actions alone.
Khehar said that it was a matter of ‘personal law’ of Sunni Muslims belonging to the Hanafi school which had been in practice for at least 1400 years. Justice Kurian disagreed saying merely because a practice had continued for long by itself cannot make it valid if it has been expressly declared to be impermissible.
The court’s ruling was restricted to the constitutional validity of triple talaq and it did not go into other issues of polygamy and nikah halala under Muslim personal law.
The five-judge bench comprised of judges of differing religious backgrounds-- Hindu (Justice U.U Lalit), Sikh (CJI J.S. Khehar), Christian (Justice Kurian Joseph), Parsi (Justice Rohington F, Nariman) and Muslim (Justice S. Abdul Nazeer)
Anuja contributed to the story.