August, 2017: Supreme Court strikes down triple talaq

A five-judge constitutional bench by a 3:2 majority judgment said there is no constitutional protection for triple talaq as it is arbitrary and "whimsical" as it leaves no scope for conciliation and violates Muslim women's rights.

Justices Kurian Joseph, Rohinton Fali Nariman, and Uday Umesh Lalit held that triple talaq is not integral to Islam, is bad in law and lacks approval of the Shariat. 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 held that triple talaq was integral to the Muslim faith and enjoyed constitutional protection. Chief Justice Khehar in his judgment urged parliament to pass a law to deal with the issue. He, however, injuncted Muslim men from pronouncing instant triple talaq for next six months within which he implored the political parties to shed their difference and enact a law.

Saying that the Holy Quran attributed "sanctity and permanence to matrimony" and only in "unavoidable situations" it permits talaq, but not before attempts for reconciliation are made, Justice Joseph said: "In triple talaq, this door is closed; hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.""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," he said in his judgment differing with CJI Khehar and Justice Nazeer.

Pronouncing the minority judgment, Chief Justice Khehar said: "Talaq-e-biddat' is integral to the religious denomination of Sunnis belonging to the Hanafi school. The same is a part of their faith, having been followed for more than 1,400 years, and as such, has to be accepted as being constituent of their 'personal law'."

Chief Justice Khehar said that being a part of 'personal law', it has a "stature equal to other fundamental rights... The practice cannot, therefore, be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention."

Referring to the advances in Muslim personal law the world over including by the theocratic Islamic States, the Chief Justice in his judgment directed the Central government to consider appropriate legislation, particularly with reference to 'talaq-e-biddat'. He implored the legislature, to bestow its thoughtful consideration, to this issue of paramount importance.