DECLARATION AND CONCLUSION OF THE SUPREME COURT IN THE TRIPLE TALAQ MATTER

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Muslims in India are categorized into two main sects, Shias and Sunnis. India comprises of a majority of Sunnis who recognize the practice of ‘Talaq-e-biddat’ i.e. Triple Talaq, whereby, a Muslim man may arbitrarily and whimsically break his marital ties without making any attempt of reconciliation with his wife. Recently on 22.08.2017, the Supreme Court of India in a judgment, Shayara Bano Vs. Union of India, by a majority of 3:2, has set aside this arbitrary and discriminative practice of Triple Talaq in India based on the following logic and reasoning.

The Supreme Court has discussed herein that the Muslim Personal Law (Shariat) Application Act, 1937 (the “1937 Act”) was enacted to bring to an end all the unholy, oppressive and discriminatory customs and usages in the Muslim community. The Court reasoned that the said 1937 Act also defies the tenets of Quran by upholding several customs and usages which include Triple Talaq. The 1937 Act has recognized and enforced all forms of Talaq including Triple Talaq and thus, Triple Talaq has been held to be a legal form of divorce in India, as applicable to Sunnis.

In the recent Judgment mentioned above, the Supreme Court has arrived at the following conclusion:

1. Article 25(1) of the Constitution of India:

It has been brought to the notice of the Supreme Court that most of the Muslims in India belong to the Hanafi school of Sunni Muslims, which has always supported the practice of Triple Talaq in India. But at the same time, this School has also described Triple Talaq as a sinful form of divorce. The Supreme Court has, therefore, held that Triple Talaq does not form a part of the Fundamental Rights provided under Article 25(1) of the Constitution i.e. Freedom of conscience and free profession, practice and propagation of religion.

2. Article 14 of the Constitution of India:

The Supreme Court has discussed that in the practice of Triple Talaq, an instant, irrational and irrevocable Talaq is given by a Muslim husband to his wife, where no attempt is made to reconcile, which is essential to save the marital tie. In various cases, the Supreme Court has negated statutory laws on the ground of being arbitrary i.e. when they are ‘not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favoritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment’ and therefore violative of Article 14 of the Constitution. In view of the above, the Supreme Court has held Triple Talaq to be violative of Article 14 of the Constitution.

3. Article 13 of the Constitution of India:

The Supreme Court has, further, discussed that as the 1937 Act is a pre-Constitutional law, it would be covered by the expression “laws in force” in Article 13(3)(b) of the Constitution and would be declared void, by virtue of Article 13(1) of the Constitution, if found to be inconsistent with the Fundamental Rights laid down in Part III of the Constitution, to the extent of such inconsistency. Therefore, since Triple Talaq has been held to be violative of Article 14 of the Constitution, the Supreme Court has declared Section 2 of the 1937 Act to be void to the extent that it recognizes and enforces Triple Talaq.

 

Harini Daliparthy

Legal Associate

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