This three-month procedure was the method approved by the Quran and the Prophet. Some traditions (Hadith) say that the Prophet disapproved of, but did not forbid, instantaneous Triple Talaq, (Talaq-e-Biddat), which became effective instantaneously without the three-month period for reconciliation. Thus, instantaneous Triple Talaq was born in remembered tradition, without Quranic mention. Some later texts even consider it sinful. Nevertheless, it has been part of the Muslim divorce law.
The Supreme Court’s decision leaves two forms of talaq – Talaq-e-Ahsan and Talaq-e- Hasan untouched. Talaq-e-biddat or instantaneous triple talaq has been set aside. Thus, in effect, it is the practice of divorce by the consecutive utterance of talaq three times that has been deemed invalid. However, a man continues to be free to utter talaq three times over three months, in order for the divorce to be effective.
The judges in the majority use contrasting, and sometimes contradictory, approaches to invalidate Triple Talaq. Justice Kurian Joseph holds “that in extremely unavoidable circumstances, talaq is permissible. But an attempt for reconciliation and, if it succeeds, revocation, are the Quranic essential steps before talaq attains finality. In Triple Talaq, this door is closed, so Triple Talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat”. He goes on to hold that that the practice of instantaneous Triple Talaq is not integral to Islam.
Justice Nariman (writing for himself and Justice Lalit) agrees with Justice Joseph in stating that instantaneous Triple Talaq is not integral to Islam. However, he goes a step ahead. It must be noted here that those backing instantaneous Triple Talaq had argued that personal law does not come under the ambit of law under Article 13 of the Constitution. Therefore, its validity could not be tested on the touchstone of Fundamental Rights. Repelling this argument, Justice Nariman holds that instantaneous Triple Talaq has been recognised by the Muslim Personal Law (Shariat) Application Act, 1937. It has thus been incorporated via a legislation and “would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency.
He then goes on to hold that “this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.”
In the minority, Justice Khehar upholds instantaneous Triple Talaq on the ground that it is an essential religious practice of Islam. Crucially, both Justice Khehar (who wrote the minority opinion for himself and Justice Nazeer) and Justice Joseph expressly disagree with Justice Nariman’s invocation of Article 13. It is, thus, clear that the majority has set aside instantaneous Triple Talaq on the ground that it is not an “essential religious practice” in Islam.
This leaves us with some troubling questions. Foremost among these is the desirability of judges of a secular court, in a secular country, to decide a case on a reading of religious texts, rather than statutory/constitutional provisions. The second issue is the continued refusal of the court to test personal laws on the basis of constitutional values.
One of the key arguments of the petitioners before the court was that all laws, including personal religious laws, should meet the yardstick of the fundamental rights chapter of the Constitution. This argument ran contrary to a 65-year-old decision of the Bombay High Court in State of Bombay v Narasu Appa Mali, where the Court had held that personal laws are not subject to fundamental rights. Justice Nariman’s opinion does indicate that “in a suitable case it may be necessary to have a re-look at this judgment”. However, the court stops short of examining personal law on the basis of the Constitution.
This is problematic for a number of reasons. Refusal to test personal laws on the touchstone of fundamental rights means that the validity of religious laws will continue to be decided on a judge’s interpretation of religious texts. Thus questions like the Jain practice of Santhara, entry of women into the Haji Ali Dargah or the Sabarimala temple will be decided on the basis of religion and not the constitutional principles of equality and non-discrimination which our Republic holds dear. Secondly, it leads to an anomalous situation, in as much personal law, when codified is amendable to a fundamental rights infringement challenge. However, the same law in an uncodified form is immune to constitutional scrutiny.
Thus, while the judgment has definitely buried instantaneous Triple Talaq, it has revived the question of exactly how much courts should judge personal religious beliefs against the anvil of the Constitution.
Disclaimer: Views expressed are personal. They do not reflect the view/s of Business Standard.