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Why The Instant Triple Talaq Verdict Is A Broken One

On the point of law, the judgment suffers from some serious technical issues.

25/08/2017 9:51 AM IST | Updated 25/08/2017 1:36 PM IST
Danish Siddiqui / Reuters

After a long wait, a five-judge bench of the Supreme Court has finally delivered it's judgment on the validity of triple talaq. A 3:2 majority agreed to hold triple talaq as unconstitutional. The minority opinion delivered by Chief Justice of India (CJI) Jagdish Singh Khehar and agreed upon by Justice Abdul Nazeer is a detailed judgment running in more than 250 pages. The judgment of the CJI was dissented against by justices Kurian Joseph, Rohinton Nariman and Uday Umesh Lalit. Justice Kurian Joseph delivered a separate opinion dissenting with the CJI and Justice Nazeer.

This is perhaps the most significant judgment to have been delivered by the Supreme Court in recent times. In the current politically charged times when minorities, especially Muslims, have deep distrust with the government and other institutions, it was a very brave thing to do.

In no way should it be construed that the judgment has taken away the right to divorce from Muslim men. It also does not disallow triple talaq, but only instant triple talaq.

Before venturing into a critique of the verdict, there are a few things that need to be clarified. The Supreme Court has only held Talaq-ul Biddah (instant triple talaq) as unconstitutional. In no way should it be construed that the judgment has taken away the right to divorce from Muslim men. It also does not disallow triple talaq, but only instant triple talaq.

Now, much appreciation has been given to the verdict and rightly so. However, on the point of law, the judgment suffers from some serious technical issues.

The first question that comes to mind is—does the judgment conclusively hold instant triple talaq to be arbitrary and unconstitutional? CJI Khehar and Justice Nazeer do not believe so, while Justice Joseph only find instant triple talaq against Quran and not integral to the Islamic faith and, therefore, not part of its personal law. Justice Nariman, also speaking for Justice Lalit, holds instant triple talaq to be arbitrary and thus unconstitutional but fails to give any reason for the same. The judgment of Justice Nariman declares that the Muslim Personal Law (Shariat) Application Act 1937 "insofar as it seeks to recognise and enforce triple talaq" is ultra vires Article 13 of the Constitution). The problem here is that the Shariat Act does not specifically mention triple talaq among the subjects in which Muslim law shall be the rule of decision for the courts; it uses only the word "talaq" and clarifies that it includes khula (talaq at wife's instance) and mubarat (divorce by mutual consent), etc, but does not enumerate triple talaq as a form of divorce.

Even though the operative order holds triple talaq to be unconstitutional by a majority of 3:2, the question that arises is whether it can be used as a precedent.

Thus, even though the operative order holds triple talaq to be unconstitutional by a majority of 3:2, the question that arises is whether it can be used as a precedent.

The Supreme Court did not go into the question of whether personal law is subject to the Constitution. The Chief Justice speaking for himself and Justice Nazeer give personal law the status of a fundamental right. This inference is problematic at many levels, especially since it closes the door of court to any challenge of an immoral practice in the name of personal laws.

The ratio of the judgment is far from clear. On one hand, CJI Khehar and Justice Nazeer hold that instant triple talaq is not unconstitutional and provide elaborate reasoning for the same, while justices Nariman and Lalit contend that it is unconstitutional without ascribing any reason for the same. In such a scenario, the opinion of Justice Joseph becomes important. However, he merely holds instant triple talaq to be unIslamic and therefore not part of Muslim Personal law. He relies heavily on the 2002 judgment of the court in the case of Shamim Ara and holds it to be a good law. This position is in consonance with the arguments of the All India Muslim Personal Law Board (AIMPLB), which stated that the exercise of constituting a Constitution bench to ascertain the validity of the instant triple talaq was futile as the judgment of Shamim Ara which in fact was the law of land prior to the present judgment takes away the arbitrariness and gives time for conciliation in case of triple talaq. The problem with this view is that in the case of Shamim Ara, the pronouncement of talaq was in question and not the validity of Triple talaq. In Shamim Ara, the court agrees with the judgment of Justice V.R. Krishna Iyer in the case of A. Yousuf Rowther who quotes J. Baharul Islam in the case of Rukia Khatun wherein it was held that there should be a reasonable cause for pronouncement of talaq and the same should be preceded by attempts at conciliation. Clearly, the Shamim Ara judgment does not deal with the validity of instant triple talaq.

The very fact that the abolition of instant triple talaq has come through the court and not through elected representatives will dilute the impact.

The stand of the Supreme Court in this case is far from clear. The only clarity is that the court has by a ratio of 3:2 held that instant triple talaq is unconstitutional.

The question that now arises is what will be the impact of this judgment? Law is not a great agent of social control and we must accept its limitations in bringing about social change. A very pertinent example of the same would be the Hindu Code, which changed the law but has not changed the situation of Hindu women drastically. This verdict will not have any major effect on Muslim society except that the politics of the AIMPLB may just get strengthened. If people in the family and society consider that divorce has taken place, the court's declaration would not drastically change the ground situation. The court cannot force warring couples to live together if the husband believes that he has pronounced talaq on his wife. The Muslim community may just continue following the practice that has been prevalent since last 1300 years.

A judgment cannot change an antiquated practice howsoever wrong and immoral it may be. The very fact that the abolition of instant triple talaq has come through the court and not through elected representatives will dilute the impact.

The Muslim community is answerable by faith only to Allah in matters of personal conduct. Marriage, divorce, inheritance etc are matters of personal conduct and rules for the same are provided in the Holy Quran which is the supreme law for any Muslim. The fact that is, even though instant triple talaq is unIslamic and contrary to the Islamic beliefs of egalitarianism and equality will not by itself change the ground realities.

If the letter and spirit of the judgment is to be followed, much responsibility lies on AIMPLB and other Muslim religious organisations. Indian Muslims even today unfortunately rely more on the diktats of the clergy rather than their own reading.

Instant triple talaq has been in practice for centuries. The real change must come from within the community. In this step, the measures taken by the AIMPLB, although rather late, are welcomed. The surprising part of the judgment is that both the majority and minority opinions discussed the 1951 Narasu Appa Mali case—where it was held that personal laws cannot be held under scrutiny for violating fundamental rights—even though they had refused to interfere with the same during the hearing.

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