By Paras Nath Singh
The Supreme Court has finally pronounced a much awaited judgment, after keeping it reserved for more than three months. The Court has set-aside the practice of ‘talaq-e-biddat’- triple talaq by the majority of 3:2. Judgment runs into a total of 403 pages comprising three separate judgments. Chief Justice Khehar and Justice Abdul Nazeer, both, have written for themselves. Justice Rohinton Nariman has written judgment for himself and Justice U U Lalit, while Justice Kurian Joseph has written judgment for himself, wherein he has agreed with the judgment of CJI in part, and also that of judgment by Justice Rohinton.
Chief Justice Khehar (minority judgment) has held that Triple Talaq is an integral part of the religion. The same is part of faith, having been followed for more than 1400 years, and as such, has to be accepted as being constituent of ‘personal law’ thereby enjoying constitutional protection. He has also rejected the argument of petitioners that Triple Talaq is covered by the Muslim Personal Law (Shariat) Application Act, 1937, ceased to be ‘personal law’, and got transformed into ‘statutory law’. Hence, the same does not come within the meaning of “law” under Article 13 of the Constitution so that this practice can be tested on the touchstone of Fundamental Rights in Part III of the Constitution. He has further held that Triple Talaq does not violate any riders such as public order, morality and health in Article 25. On this plinth, in the operative part of his judgment, he has invoked Article 142 to direct Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’ and issues an injection on the practice of Triple Talaq for six months. It is interesting to note that minority judgment by CJI and Justice Abdul Nazeer is self contradictory. They averred Triple Talaq is fundamental to Islam yet stayed the same for six months in order to give time to Government to consider legislation in the matter. The vital question of law here is whether exercise of Fundamental Rights can be put on hold even in exercise of power under Article 142? Justice Kurian Joseph in his separate judgment has seriously doubted the same. Judgment by CJI, therefore, is sans merit or authority in its favour.
In his brief judgement, Justice Kurian reiterates the findings in Shamin Ara case wherein ‘instantaneous triple talaq’ was held invalid under Islamic law. He disagrees with CJI that Triple Talaq is an integral part of religious practice. He, however, has agreed with the CJI that the 1937 Act is not a legislation regulating talaq which is in disagreement with the view taken by Justice Rohinton. Justice Kurian ends stating what is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.
Coming to the judgment rendered by Justice Rohinton (for himself & Justice U U Lalit). He is of the view that plain reading of Section 2 is that, after 1937, the shariat was accorded statutory sanction in India. He, therefore, holds that all forms of Talaq recognized and enforced by Muslim personal law are recognized and enforced by the 1937 Act. This would necessarily include Triple Talaq when it comes to the Muslim personal law applicable to Sunnis in India. After having reached to this conclusion, he has examined this practice on the touchstone of Part III since the same 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 reaches to a conclusion that fundamental right has been violated by the 1937 Act insofar as it seeks to enforce Triple Talaq as a rule of law in the Courts in India. This being the case, it is clear 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. This form of Talaq, must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution.
The court has once again missed a golden opportunity to examine whether personal laws can be tested for violation of fundamental rights. There was no reason for the court to not do this. The Court has, therefore, failed to discharge obligations cast upon it under the Constitution. There is nothing efficacious in the judgment which can be celebrated, except that the majority has somehow set-aside Triple Talaq. Judgment is far away from the Constitutional values, and gender equality. It further makes it vivid that religious belief and practices can override constitutionally guaranteed fundamental rights. The judgment, therefore, is not at all a progressive one, as being projected by media and some writers. It has left a sense of disappointment.
It may be noted that issues like Halala and Polygamy are still to be heard by the Court. One may expect the debate to reopen again on the issue of Personal Laws when these practices would be examined by the Court along-with a case of women’s entry in Sabrimala Temple.
[Paras Nath Singh is B.A.LL.B (Hons.), AMU, Aligarh, and LL.M. from National Law University, Odisha. He can be contacted on his Mobile # +91 81717 83272 or reached at firstname.lastname@example.org]