Triple talaq has stature equal to fundamental right: Minority judgment


New Delhi : Contending that the practice of instant triple talaq was a constituent of the personal law and had a stature equal to other fundamental rights, the minority judgment of the Supreme Court on Tuesday held it as not violative of the Constitution and cannot invoke judicial intervention.

However, it injuncted Muslim husbands from practicing instant divorce as a means of severing their matrimonial relationships for a period of six months subject to a legislative process being initiated in that period for making a law on the issue.

Writing the minority judgment, Chief Justice J.S. Khehar said it would not be appropriate for this court to record a finding whether the practice of talaq-e-biddat is, or is not, affirmed by hadiths (Prophet’s sayings) in view of the enormous contradictions in the hadiths relied upon by the rival parties.

“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’.”

He rejected “the contention of the petitioners that the questions/subjects covered by the Muslim Personal Law (Shariat) Application Act, 1937, ceased to be ‘personal law’, and got transformed into ‘statutory law’, cannot be accepted”.

“Talaq-e-biddat does not violate the parameters expressed in Article 25 of the Constitution. The practice is not contrary to public order, morality and health. The practice also does not violate Articles 14, 15 and 21 of the Constitution, which are limited to State actions alone.

“The practice of talaq-e-biddat being a constituent of personal law has a stature equal to other fundamental rights, conferred in Part III of the Constitution. The practice cannot therefore be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention.”

The minority judgment observed that the whole nation seems to be up in arms and that there was seemingly an overwhelming majority of Muslim women, demanding that the practice of talaq-e-biddat “which is sinful in theology, be declared as impermissible in law”.

“The Union of India has also participated in the debate. It has adopted an aggressive posture, seeking the invalidation of the practice by canvassing that it violates the fundamental rights enshrined in Part III of the Constitution and by further asserting that it even violates constitutional morality.

“During the course of hearing, the issue was hotly canvassed in the media. Most of the views expressed in erudite articles on the subject, hugely affirmed that the practice was demeaning. Interestingly even during the course of hearing, learned counsel appearing for the rival parties, were in agreement, and described the practice of talaq-e-biddat differently as, unpleasant, distasteful and unsavoury. The position adopted by others was harsher, they considered it as disgusting, loathsome and obnoxious. Some even described it as being debased, abhorrent and wretched.”

The judges said that they had arrived at the conclusion that talaq-e-biddat is a matter of ‘personal law’ of Sunni Muslims belonging to the Hanafi school.

“It constitutes a matter of their faith. It has been practiced by them, for at least 1,400 years. We have examined whether the practice satisfies the constraints provided for under Article 25 of the Constitution, and have arrived at the conclusion, that it does not breach any of them. We have also come to the conclusion, that the practice being a component of ‘personal law’, has the protection of Article 25 of the Constitution.”

The judgment said that religion is a matter of faith, and not of logic and it was not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion.

“The Constitution allows the followers of every religion to follow their beliefs and religious traditions. The Constitution assures believers of all faiths, that their way of life, is guaranteed, and would not be subjected to any challenge, even though they may seem to others (-and even rationalists, practicing the same faith) unacceptable, in today’s world and age. The Constitution extends this guarantee, because faith constitutes the religious consciousness, of the followers. It is this religious consciousness, which binds believers into separate entities. The Constitution endeavours to protect and preserve, the beliefs of each of the separate entities, under Article 25.

“We cannot accept the petitioners’ claim because the challenge raised is in respect of an issue of ‘personal law’ which has constitutional protection.”

The judges said it was not for a court to determine whether religious practices were prudent or progressive or regressive.

“Religion and ‘personal law’ must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be (-including self-proclaimed rationalists of the same faith). Article 25 obliges all Constitutional Courts to protect ‘personal laws’ and not to find fault therewith. Interference in matters of ‘personal law’ is clearly beyond judicial examination. The judiciary must therefore, always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem.”

The judges said the stance adopted by the Union Government supports the petitioners’ cause and observed: “Unfortunately, the union seeks at our hand, what truly falls in its own”.

Referring to the All India Muslim Personal Law Board affidavit in which it has undertaken to issue an advisory through its website to advise those who enter into matrimonial alliance to agree in nikah naama that their marriage would not be dissolvable by talaq-e-biddat, they said even the AIMPLB is on board to assuage the petitioners’ cause.

“In view of the position expressed above, we are satisfied that this is a case which presents a situation where this court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution. We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to talaq-e-biddat.

“We hope and expect that the contemplated legislation will also take into consideration advances in Muslim ‘personal law and shariat, as have been corrected by legislation the world over, even by theocratic Islamic States. When the British rulers in India provided succour to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind. Measures have been adopted for other religious denominations even in India, but not for the Muslims. We would therefore implore the legislature, to bestow its thoughtful consideration, to this issue of paramount importance. We would also beseech different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation.

Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining talaq-e-biddat as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.”



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