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SC strikes down instant triple talaq, says practice is unconstitutional

A historic 3:2 majority judgment delivered by a multi-faith Constitution bench of the Supreme court, set aside instant talaq as a manifestly arbitrary practice not protected by Article 25 (freedom of religion) of the Constitution.

On the five-judge bench, Justices Kurian Joseph and Rohinton Fali Nariman gave separate judgments against the validity of instant talaq. Justice U.U. Lalit supported Justice Nariman’s view that instant talaq given by a Muslim man capriciously and whimsically, without an attempt at reconciliation, was manifestly arbitrary and violative of Article 14 (right to equality).

What Chief Justice J.S. Khehar held in his judgement:

  • Alaq-e-biddat, as a personal law practice, was an integral part of Article 25 (freedom of religion). Ninety per cent of Muslims in India follow the practice and it was constitutionally protected as a fundamental right
  • The Chief Justice reasoned that talaq-e-biddat was in vogue for over 1,400 years, and this made instant talaq a matter of religious faith, which cannot be tested on the touchstone of Article 14
  • He held that personal laws like instant talaq were an exception to the Constitution's aim to protect gender equality
  • The Chief Justice had reasoned that instant talaq cannot be invalidated just because the Koran does not expressly provide for or approve of it. As, Talaq-e-biddat though bad in theology, was considered good in law

What Justice Nariman held in his judgement :

  • Section 2 of the Muslim Personal Law (Shariat) Application Act of 1937 has already recognised triple talaq as a statutory right and not a fundamental right
  • Thus, instant talaq was no longer a personal law to remain free from the rigours of the fundamental rights as it comes under the ambit of Article 13 of the Constitution
  • Article 13 mandates that any law, framed before or after the Constitution, should not be violative of the fundamental rights

What Justice Kurian held in his judgement:

  • Objecting to the Chief Justice's line of reasoning, Justice Kurian, in his separate verdict, held that merely because a practice (Talaq-e-biddat ) has continued for long (over 1,400 years) cannot make it valid
  • Justice Kurian also referred to Section 2 of the Shariat Act, observing that the statute had put an end to the unholy, oppressive and discriminatory customs and usages in the Muslim community. After Shariat Act, no practice against the tenet of Islam is permissible
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