Triple ‘No’ for Triple Talaq – Historic Judgement by Apex Court

Even in this straight case of rendering justice to the sufferings of Married Indian Muslim women under Triple Talaq for more than 65 years in the Independent India, our Learned Supreme Court judges had not said in one voice – No To Triple Talaq. Hence out of 5 Supreme Court Judges, only 3 said an emphatic No, while the remaining 2 – by their dissent/separate judgment had not joined with the majority of the judges. 

Hindu, Parse and Christian Judges had said No to Triple Talaq, while Sikh and Muslim Judges had said almost Yes to Triple Talaq.  The Hindu News paper had perhaps ridiculed the distorted judgments with the phrase: United against triple talaq, divided on legal points.

For the majority of 3 Judges the practice of Instant Divorce System prevalent in Muslim Personal Law was void, illegal, unconstitutional, retrograde, discriminatory for women, unworthy, bad in law, violates constitutional morality, unworthy of protection under Article 25 – Religious Freedom and against the fundamental right contained in Article 14 – equality before Law.

For the minority of 2 Judges, the practice of Instant Divorce was part of right to religion, an integral part of Article 25 – freedom of religion, a fundamental right, a matter of religious faith not to be tested on the touchstone of Article 14 – equality before Law. The two dissenting judges had gone to the extent of suggesting to invoke extraordinary powers of the Supreme Court under Article 142 to injunct Muslim husbands from committing instant talaq for the next six months and the government in the meantime to frame a law addressing the issue of triple talaqs especially instant talaq. 

Further Chief Justice J.S.Khehar’s observations were rather unwarranted and unjustifiable when he said: “Call of conscience may have cascading effect. Already there were demands to make ahasan and hasan to be declared unconstitutional apart from Halala and polygamy. I apprehend that rationalists may make inroads into personal laws and it is the duty of the judges to exercise absolute restraint and not activism in matters of religious faith.” 

Hence instead of powerful Five Nos to Triple Talaq, the nation in general and Indian Muslims’ Sisters in particular had to satisfy only with Three Nos to Triple Talaq. But, since the majority judgement was in favour of ending the Instant Talaq, that type of Talaq is now  unlawful and punishable under law and hence that  is quite sufficient to put an end to this Type of Triple Talaq.

On October 16, 2015, Constitution Bench of the Supreme Court by its rare suo moto public interest litigation petition titled  “Muslims’s Women’s quest for Equality” had taken it upon itself to examine whether arbitrary divorce, polygamy and nikah halala – (Where a Muslim woman divorcee is eligible to get married again to her former husband, only if she married another man and consummated the second marriage and  got divorced!) – violate women’s dignity.

But, the Supreme Court had confined itself to deal with only one issue for the present – Viz Triple Talaq in general and Talaq-e-bidat in particular – instant and irrevocable divorce – leaving other two forms of Talaq – viz. Talaq ahasan and Talaq hasan to be taken up later at the appropriate time and leaving them to the Government to frame suitable rules therefor.  

All India Muslim Personal Law Board (AIMPLB) argued that the challenging such practices among Muslims were not maintainable as the issue fell outside the realm of judiciary. Muslim Personal Law Board had argued that the Muslim marriage is essentially a contract – a contract to legalize sex between two people of opposite gender, but the law governing marriage and divorce in Muslims is sacrosanct due to the fact it is based on Quran and Hadith/Hadees and hence it cannot come for scrutiny under jurisprudence. 

Quran is the holy book, while Hadith/Hadees refers to the saying/ruling of Prophet.  

As it is a contract, one can break the contract only after duly spelling the reasons for the break. As Talaq means only ‘I Divorce’, the word does not contain any reasons for Divorce and hence even under Contract Act, Talaq loses its meaning and becomes void and non-enforceable. As a citizen and a human being, wife is quite entitled to know the reasons for the divorce from her husband as a natural justice and fair play.

Khehar had supported Muslim Personal Law Board argument by observing that Instant Talaq cannot be invalidated just because the Koran does not expressly provide or approve of it and that Talaq-e-biddat, though bad in theology, was considered good in law.  But this was countered by Kurian thus: What is bad in theology is bad in law as well.

It was quite unfortunate that Khehar and Nazeer had said: ‘Triple Talaq is an integral part of Islam as 90% Indian Muslims practice it and is 1400 year old practice based on religious faith. And religious faith is a fundamental right.”

By this historical verdict, there is no reason for All India Muslim Personal Law Board and all those who supported its regressive opinion that even an unworthy practice should not be dislodged by judicial verdict, to contend that their faith has been unduly secularized.

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 all Muslims should abide by the principles of dignity and non-discrimination.  When the personal laws of various religions had undergone drastic changes since Independence giving equal rights, independence, liberty and share on properties for Indian Women, the same could not be said about Muslim Women who lack far behind their other religious sisters like Hindus, Christian, Sikhs, Jains and Parsis. 

Vote Bank Politics had prevented many including so called progressive leftists and rationalists from taking up the Muslims Women Cause to redress their grievances – their Tolerance level in this case is of Himalyan Height

Nikah Halala as practiced by Muslims was sanctified by Quaran as follows:

[Quran 2:230] If he divorces her (for the third time), it is unlawful for him to remarry her, unless she marries another man, then he divorces her. The first husband can then remarry her, so long as they observe God's laws. These are God's laws; He explains them for people who know.

But in the eyes of law of the land, this Halala practice is unlawful, sinful, immoral and the practice is most undignified to our Muslim sisters to say the least.

Unfortunately, the Muslims Clerics had a strange argument that even if the practice is considered ‘sinful’ but permissible in Islamic Law, then the practice should be allowed unhindered. And behold! If the practice is permissible as per Quaran, then it will be well nigh impossible to stop this ‘unholy’ practices.

Even in the present Supreme Court Judgement about Instant Triple Talaq, line of argument was that Triple Talaq is against the basic tenets of the Holy Koran and consequently, it is bad in theology and by logical inference, it is equally bad in law as well.

As Nikha Halala is permissible under Holy Koran itself, it may take many decades to change this practice. Unless and until the Muslims themselves realize the injustice and come forward to make amends, there is no hope for our affected Muslims Sisters in the near future. One soothing factor may be that there may not be many cases of Nikah Halala.

The success of abolishing this Triple Talaq should go to five muslim women affected by the talaq-e-bidat who took up the case with the judiciary with active support of Zakia Soman, co-founder of Bharatiya Muslim Mahila Andolan, a mass organization of Muslim women in India.

“It’s one step at a time; we cannot expect a drastic momentum. Talaq-e-bidat is the most barbaric of practices. Once it is outlawed, gradually reform in all aspects of Muslim personal law can happen. This is the reason why we have been demanding a comprehensive, codified Muslim personal law,” said Zakia Soman.

For this historic achievement of abolishment of Instant Triple Talaq, E-Touch honour the three Judges, Five Muslim Women, Muslim Women’s Quest for Equality (MWQE), Khuran Sunnath Society (KSS) and Bharatiya Muslim Andolan with bouquets and crown of flowers. 

At the same time, E-Touch condemn other 2 judges for their dissent judgement and crown them with crown of thorns.

All Cheers for our Muslim Sisters and Muslim Mothers and New India will liberate them further to breathe air of freedom and worry-free  happy married life.