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The Islamic practice of instant triple talaq permits Sunni Muslim men to enact divorce with their wives, simply by pronouncing talaq, meaning divorce, three times. Despite, many Islamic countries have banned it and the Supreme Court finding it unconstitutional in the past, Chief Justice J. S. Khehar concluded that talaq-e-biddat constitutes a matter of faith for Sunni Muslims of the Hanafi school and has been practiced by them for at least 1,400 years.

India has two primary ways of dealing with religious matters. The Constitution protects the personal law of religious communities, allowing them to carry on practices as per their traditions without the interference of the courts. But where religious law has been codified by legislatures, such as through the Shariat Act of 1937, it becomes open to constitutional questions and the test of fundamental rights.

In a majority 3:2 Judgment, a Five-Judge Bench of the Supreme Court on 22nd August 2017, set aside talaq-e-biddat as a “manifestly arbitrary” practice, which is not protected by Article 25 (Freedom of Religion) of the Constitution in the case of Shayara Bano vs. Union of India and others (22.08.2017)

Justices Kurian Joseph and Rohinton Fali Nariman gave separate Judgments against the validity of talaq-e-biddat.

Justice Nariman’s Judgment says, talaq-e-biddat allowed a Muslim man to “whimsically and capriciously” divorce his wife. The practice is “manifestly arbitrary” and does not enjoy the protection of Article 25. Furthermore, Justice Nariman opined, talaq-e-biddat was merely permissive and not a absolute religious practice, and so, does not deserve the protection of Article 25, again. This view was supported by Justice U.U. Lalit.

Justice U. U. Lalit further stated that the 1937 Shariat Act is a law made by the legislature before the Constitution came into force, and would fall squarely within the expression “laws in force” under Article 13(3)(b). Therefore, it would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution.

Justice Kurian Joseph, in his Judgment, concurs with Justice Nariman on the ‘arbitrariness aspect’ stating that,“However, on the pure question of law that a legislation, be it plenary or subordinate, can be challenged on the ground of  arbitrariness, I agree with the illuminating exposition of law by Nariman, J. I am also of the strong view that Constitutional democracy of India cannot conceive of a legislation which is arbitrary.

The minority view of Chief Justice of India J. S. Khehar, who led the Bench, held that talaq-e-biddat is an integral part of Article 25 (Freedom of Religion). He said it had been followed for over 1,400 years by the Hanafis and become a part of religious pratice. He held that instant talaq does not violate Articles 14, 19 and 21 of the Constitution, and has passed it on to the Legislature to decide a law invoking extraordinary jurisdiction within six months of the Judgment.

The opinion of Justice J.S. Khehar and Justice S. Abdul Nazeer is that, “Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months,

If it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.”

Chief Justice J.S. Khehar’s dissenting opinion concluded that instant talaq-e-biddat did not come under codified, statutory law – as argued by the Petitioners calling for it to be struck down – and instead accepted the All India Muslim Personal Law Board’s contention that it was personal religious law, and could not be changed by the court.

Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion,” the dissenting opinion says. “We cannot accept the Petitioners’ claim, because the challenge raised is in respect of an issue of ‘personal law’ which has constitutional protection.

We hope and expect, that the contemplated legislation will also take into consideration advances in Muslim ‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States. When the British rulers in India provided succor to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind,” the dissenting opinion said. “We would also beseech different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation.

Ultimately, however, this opinion was only supported by two of the Five Judges on the Bench and so, rather than leaving talaq-e-biddat to the Legislature, the Supreme Court of India has decided to strike down talaq-e-biddat as unconstitutional regardless of the above dissenting opinions of two Judges that it comes under personal law.

Taruna Verma

Senior Associate

The Indian Lawyer

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