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In a landmark judgment of Shayara Bano versus Union of India (22.08.2017), the Supreme Court set aside the Triple Talaq system of divorce followed by Sunni Muslims under personal law as unconstitutional.

The affected Muslim women in a bunch of petitions had challenged the validity of instant Triple Talaq on the grounds that it violated their fundamental right to equality. A five-judge bench, taken from different religious backgrounds, comprising Chief Justice J.S. Khehar and Justices Kurian Joseph, Rohinton F. Nariman, Uday U. Lalit and S.A. Abdul Nazeer, in a 395-page verdict by a majority of 3:2, held that instant Triple Talaq is unconstitutional, arbitrary and unreasonable.

Justices Kurian Joseph, UU Lalit and RF Nariman delivered the majority Judgment. Justice Nariman’s view is that Triple Talaq does not fall within the sanction of the Quran. Even assuming that it forms part of the Quran, Hadis or Ijmaa, it is not something that is “commanded”. Talaq itself is not a recommended action and therefore, he argued, Triple Talaq will not fall within the category of sanction ordained by the Quran. While the practice is permissible in the Hanafi jurisprudence, that very jurisprudence criticizes Triple Talaq as being sinful.

A practice that is clearly arbitrary is obviously unreasonable and, being contrary to the rule of law, would violate Article 14 of the Constitution. If an action is found to be arbitrary and unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground. Pointing out that Triple Talaq is sanctioned under the Muslim Personal Law (Shariat) Application Act, 1937, Justice Nariman said it is constitutionally invalid.

Justice Joseph’s view on the said point is as follows:

“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.”

He further held the simple question that needs to be answered in this case is only whether Triple Talaq has any legal sanctity.

“The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality. In Triple Talaq, this door is closed, hence, Triple Talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat. Therefore, in any case, after the introduction of the 1937 Shariat Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice. When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights.”

Sanchayeeta Das

Legal Associate

The Indian Lawyer

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