A five-judge Supreme Court Bench, headed by Chief Justice of India J.S. Khehar, on Tuesday set aside talaq-e-biddat or instant talaq as manifestly arbitrary.
While Justice U.U Lalit, Justice Joseph and Justice Nariman held triple 'talaq' as unconstitutional, CJI Khehar and Justice Abdul Nazeer declared it was constitutional.
In a 3:2 majority judgment, Justices Kurian Joseph and Rohinton Fali Nariman gave separate judgments against the validity of "irrevocable" divorce of instant talaq. Justice U.U. Lalit supported Justice Nariman's judgment. This makes the triumvirate of the majority of three judges who ruled against instant talaq.
Chief Justice J.S. Khehar, who led the Bench, held that talaq-e-biddat is an integral part of Article 25 (freedom of religion). That it has been followed for over 1,400 years by the Hanafis and has become a part of religious pratice.
He also 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 was endorsed only by Justice S. Abdul Nazeer, thus, making it the minority judgment.
Reading out the final order of the court at the end of the judgment pronouncement session, Chief Justice Khehar addressed the courtroom and concluded that "by majority of 3:2, talaq-e-biddat (instant talaq) is set aside.
On October 16, 2015, the Supreme Court questioned if Muslim personal law practices of marriage and divorce reduce women to mere chattels. In a rare move, it registered a suo motu public interest litigation (PIL) petition titled ‘In Re: Muslim Women’s Quest for Equality’ to examine if arbitrary divorce, polygamy and nikah halala (where a Muslim divorcee marries a man, divorces him to get re-married to her former husband) violate women's dignity.
The court rued missing the opportunity to address the question of gender inequality in both Shah Bano and Danial Latifi cases. In the Shah Bano case, the court merely goaded the government to frame the Uniform Civil Code. In the Latifi case, it upheld the right of Muslim women to maintenance till re-marriage.
Many Muslim women and organisations joined forces with the court's initiative. However, the Constitution Bench decided to confine itself to examining triple 'talaq' and not polygamy and nikah halala.
For over 65 years, women, who comprise approximately 8% of the population under the 2011 census, have remained extremely vulnerable. “Muslim women want to have a life equal to that of another woman, say a Christian or a Hindu wife," the government had argued in court.
The Centre claimed that instant 'talaq' is not fundamental to Islam. It promised to bring a new divorce law for Muslim men in case the court strikes down the three forms of 'talaq' — 'Ahsan, Hasan and Biddat'.
The government argued that Muslim marriage and divorce is codified under Section 2 of the Shariat Act of 1937 and came within the ambit of ‘law’ under Article 13 of the Constitution. Hence, they should abide by the principles of dignity and non-discrimination.
The All India Muslim Personal Law Board (AIMPLB) had countered that triple 'talaq' is a matter of faith like the Hindu belief that Ayodhya is Ram's birthplace. Courts and government should leave reform to the community. They quoted the Bombay High Court's unchallenged decision in Narasu Appa Mali case that personal law should not be tinkered with.
''Where will Muslim men go for divorce if you [court] strike down 'talaq' and Parliament refuses to pass a new law?'', the AIMPLB asked.
Justice Kurian Joseph, a judge on the Constitution Bench, ignited a spark by suggesting an alternative that a Muslim bride, at the time of the wedding, should be allowed to lay down a condition in the 'nikah nama' that she would not be subjected to instant 'talaq' in case a marriage hits a rough patch.
Days after the court reserved the case for judgment, the AIMPLB filed an affidavit informing that they would issue a public advisory to 'qazis' to advise bridegrooms against instant 'talaq' and also add a condition in the 'nikah nama' to exclude instant 'talaq'. The AIMPLB even threatened social boycott of Muslim men who resort to instant 'talaq'.
