Syyed Mansoor Agha makes an objective study of the August 22 verdict pronounced by the highest palladium of justice on the issue of triple or instant talaq.
On Tuesday, August 22, 2017, a 5-judge Constitution bench of the Supreme Court of India delivered the much awaited judgment on the legality of ‘Talaq-e-bidat’ better known as ‘Triple Talaq’ or ‘Instant Talaq’. Running over 395 pages, the bench of three different opinions on the issue delivered a complex, layered and split verdict and said in one line order: “In view of the different opinions recorded by a majority of 3:2, the practice of ‘talaq-e-bidat’ – triple talaq is set aside.”
The Facts
The issue of ‘triple talaq’ is a perfect example of ‘making a mountain out of a molehill’. The data collected and analysed by GRDDP, an NGO headed by Dr. Abu Saleh Sharif shows that the incidence of ‘triple talaq’ in India is numerically insignificant – among 313 divorce cases only one is of oral instant talaq. (CRDDP surveyed 20,671 respondents – 16,860 men and 3,811 women – across India between March and May, 2017.)
Data based on census – 2011, show that divorce rate among Muslims is slightly higher than that among other communities. The reason is obvious. An estranged Muslim husband neither resorts to kill his unwanted spouse nor requires abandoning her to live a hanged life. Right to divorce is there. The judgment has not interfered in this right. The indifferent spouse will only have to have patience and follow the Qur’ānic injunctions. Even after the court’s order, talaq will remain there. It will again be a hyperbolic claim that the Supreme Court’s order will usher in desired family reforms. Need for awareness in the society shall remain paramount duty of religious leaders and community organisations.
The dubious hype given to the issue of Talaq by politicians, up to the P.M. and hue and cry of media abusing the community, has all long been motivated. In the process of this un-holy campaign, the adversaries of diversity and cordiality in the society succeeded in creating distortions and diverting the attention of the nation from real political, social, moral, economic and educational issues and the issues of health and hygiene and erosion of sobriety and honesty in the society and the declining work culture. Unfortunately the targeted community also got trapped in the web.
The Case
The case under review was born out of an unrelated matter regarding the denial of inheritance rights to a Hindu woman under a 2005 amendment to the Hindu Succession Act (Prakash and Ors versus Phulavati and Ors, October 16, 2015). The woman had won her right in the High Court but lost in the Supreme Court on a technical ground. At the end of the judgment, the Bench of Justices Adarsh K Goel and Anil R Dave passed an order as part II that Muslim law too is discriminatory, for which a separate PIL be initiated.
The court wanted to examine the issue in the light of ‘fundamental rights of women under Articles 14, 15 and 21 and international conventions and covenants.’ It further observed, “Article 21 included right to live with dignity, which supports the plea that a Muslim woman could invoke fundamental rights in such matters. In Javed vs. State of Haryana, a Bench of three judges observed that practice of polygamy is injurious to public morals and can be superseded by the State just as practice of ‘sati’.” This part of the judgment is spread over 600 words in eight paragraphs. So the PIL was initiated.
In the meanwhile another case filed by one Shayara Bano came up. She also wanted to get instant talaq and polygamy along with halala declared unconstitutional. Bano left her matrimonial house at her own and refused to go back. The aggrieved husband then moved the court for the restitution of his conjugal rights but she did not budge. Ultimately he divorced her in one go and married another woman. These two cases with some others were clubbed. The hearing started on 11 May, 2017, concluded on 18 May and on 22 August judgment was pronounced and interestingly welcomed by almost all stake holders irrespective of their known contradictory stands and pleas in the court.
Major Milestone
CJI J S Khehar authored one opinion (272 pages), which Prof Mustafa Faizan, VC of NALSAR University of Law, Hyderabad called a ‘major milestone on freedom of religion’. He wrote, “For the first time in Indian judicial history, freedom of religion subject to restrictions given in Articles 25 and 26 has been held to be ‘absolute’. After quoting Constituent Assembly debates on Articles 25 and 44, the CJI held that personal law is part of the freedom of religion, which courts are duty-bound to protect. He also said courts are not supposed to find fault with provisions of personal law, which are based on beliefs, not logic. Personal law, he said, is beyond judicial scrutiny.” Justice Joseph Kurian endorsed this part of his judgment so this becomes majority view and binding in future.
“The CJI explicitly said that accepting the petitioner’s prayer to hold triple talaq unconstitutional would amount to negating freedom of religion. He equated triple divorce to fundamental rights.” “He observed that the Shariat Act, or triple talaq under it, cannot be held unconstitutional,” noted Prof. Faizan.
Justice Khehar also turned down the central government’s argument citing international conventions, saying, “such conventions, if they were contrary to fundamental rights, cannot be implemented. The CJI also refused to strike down triple divorce as violative of public order, health and morality, or for being contrary to other fundamental rights such as the right to equality or the right to live with human dignity.”
He refused to interfere in the matter but devised a way out by banning triple talaq for six months and that Parliament if it wants should bring a law within that period. Justice Abdul Nazeer endorsed this judgment. This remained a minority judgment; therefore it does not make an ‘order’ or ‘instruction’ to Government for framing a law.
Unconstitutional, un-Islamic
Justice Rohinton Nariman in his 96-page judgment held that since irrevocable triple talaq circumvents the efforts of reconciliation as directed in the Qur’ān, and is arbitrary in the nature therefore cannot be protected. He disagreed with the CJI that ‘talaq-e-bidat’ is essential part of Shari’ah and observed that “the duties or obligations of a Muslim can be divided in five categories, viz., Farz, which must be obeyed and Wajib, which is slightly less important; Mustahab, or recommendatory; Jaiz, which is permissible, and to which religion is indifferent; Makruh, or unworthy; and finally, Haram, or forbidden. Instant triple talaq, he said, is either in category 3 (permissible) or, probably, in category 4, which is undesirable.”
He wrote, “Since it is not obligatory or recommended, and is rather sinful or undesirable, it cannot meet the ‘essentiality test’, and is, thus, not protected by Article 25 (freedom of religion).” He further argued, “Triple talaq, which is irrevocable and is valid under Muslim Personal Law even when the husband assigns no reason for his action, is arbitrary, and therefore, unconstitutional.” Justice U.U. Lalit endorsed his views and struck down validity of Triple Talaq.
Justice Joseph View
Justice Kurian Joseph fully endorsed the CJI’s opinion on freedom of religion, thereby ensuring its majority. But he agreed with Justice R. Nariman on triple divorce not being an essential part of Muslim Personal Law. He referred from the holy Qur’ān and said, “Holy Qur’ān nowhere endorses irrevocable instant talaq therefore triple talaq is not a part of Shari’ah, and cannot be enforced under the Shariat Act-1937.” Justice Joseph ruled, “What is sinful in theology must be held bad in law as well.”
In his remarkably brief judgment (26 Pages) Justice Joseph said, “Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.” He said, “Hence, there cannot be any constitutional protection to such a practice and thus, my disagreement with the CJI is for the constitutional protection given to triple talaq,” he said.
Justice Joseph also stressed upon that the legislature, while enacting laws on gender justice, must give due weightage to freedom of religion. His view nailed the issue. His endorsement of CJI and Justice A. Nazeer observation on freedom of religion and rights under Articles 25 and 26, being “absolute” makes majority view of the Constitution bench and shall be binding. His endorsement against talaq-e-bidat has nailed main issue.
The outcome
The judgment did not even mention the issues of polygamy as referred by the Bench of Justices Adarsh K Goel and Anil R Dave and issue of halala as demanded by Shayara Bano. The judges also did not give weight to the pleas forwarded by Solicitor General against the practice. Yet our P.M. sees his victory. Muslim Personal Law Board that spearheaded a movement in favour of the practice instantly welcomed the verdict. Jamiat Ulema-i-Hind that had also pitched for the validity of ‘Talaq-e-bidat’ in the court held the verdict ‘against the Shariat’ but profusely appealed to the Muslims to avoid triple talaq.
Dr. Tahir Mahmood, said, “All’s well that ends well.” Some people have reacted angrily swayed by unadequate media reports. If anybody still resorts to triple talaq, will get no relief from the court and shall have to bear maintenance of (divorced) wife and her children and their right not to be thrown out of the house. He may also be held guilty of contempt of court. So far as position of theologians is concerned, that shall not be affected by any edict of the court or the law. Hopefully they will also preach now to avoid ‘talaq-e-bidat’.