The Triple Talaq case: Deconstructed
Early last year, Shayara Bano, a 35-year-old Muslim woman from Uttarakhand and a mother of two, approached the Supreme Court of India demanding that the divorce she received from her husband through the mode of triple talaq (talaq-e-biddat) – a unilateral utterance of the word “talaq/divorce” thrice by a Muslim husband leading to instantaneous irrevocable divorce – should be declared as invalid as it violates her fundamental rights to equality, life and dignity of women guaranteed by the Indian Constitution.
After Shayara, stories of other women who were affected by triple talaq also started coming to the forefront and the approached the Supreme Court of India for relief. One of them is of IshratJahan, who was divorced over the phone by her husband who uttered the word ‘talaq’ thrice and took custody of her children.
Petitions of Shayara and Ishrat received strong opposition from the All India Muslim Personal Law Board that claims to be a representative body of the Muslim community in India. They argued that the court shall exercise judicial restraint and not interfere in their matter of religion.
On 22 August 2017, the Supreme Court of India delivered the much-awaited judgment in the Triple Talaq case. The Supreme Court of India by a majority of 3:2 held the practice of triple talaq to be invalid in the following words:
“In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside.”
The 395-page judgment of the Supreme Court of India is an outcome of arguments being presented to a specially constituted bench presided by five judges: one Sikh by faith, one Parsi, one Hindu, one Christian and one Muslim over six days for 4.5 hours each day.
Lets us have a look at what did the Supreme Court exactly say on the opposing claims of the right to equality of Muslim women and the right to religious freedom of the Muslim community.
The minority judgment- where right to religious freedom of the Muslim community triumphs
The minority judgment was delivered by Chief Justice of India Jagdish Kehar (who is soon to retire) and Justice Abdul Nazeer. The judges in the minority judgment justified the practice of triple talaq/ talaq-e-biddat by ruling that such practice forms part of the fundamental right to religious freedom under Article 25 of the Indian Constitution. It reads as follows:
“‘Talaq-e-biddat’ is integral to the religious denomination of Sunnis belonging to the Hanafi school. The same is a part of their faith, having been followed for more than 1400 years, and as such, has to be accepted as being constituent of their ‘personal law’…‘Talaq-e-biddat’, does not violate the parameters expressed in Article 25 of the Constitution. The practice is not contrary to public order, morality and health. The practice also does not violate Articles 14, 15 and 21 of the Constitution, which are limited to State actions alone…Since we have held that Muslim ‘personal law’ – ‘Shariat’ is not based on any State Legislative action, we have therefore held, that Muslim ‘personal law’ –‘Shariat’, cannot be tested on the touchstone of being a State action…We cannot accept the petitioners’ claim because the challenge raised is in respect of an issue of ‘personal law’ which has constitutional protection…Accepting the petitioner’s prayers would be in clear transgression of the constitutional mandate contained in Article 25 (fundamental right to religion)…Article 25 obliges all Constitutional Courts to protect ‘personal laws’ and not to find fault therewith. Interference in matters of ‘personal law’ is clearly beyond judicial examination. The judiciary must, therefore, always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem…”
The minority judgment by Chief Justice of India Jagdish Singh Kehar and Justice Abdul Nazeer acknowledged that the practice of triple talaq has negative consequences for women and passed the buck to the All India Muslim Personal Board (a male dominated Muslim representative independent body) and the Parliament. The minority judgment reads as follows:
“The whole nation seems to be up in arms. There is seemingly an overwhelming majority of Muslim-women, demanding that the practice of ‘talaq-e-biddat’ which is sinful in theology, be declared as impermissible inlaw...the AIMPLB has undertaken to issue an advisory through its website, to advise those who enter into a matrimonial alliance, to agree in the ‘nikah-nama’, that their marriage would not be dissolvable by ‘talaq-e-biddat’. The AIMPLB has sworn an affidavit to prescribe guidelines, to be followed in matters of divorce, emphasizing that ‘talaq-e-biddat’ be avoided…We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’...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.”
The majority judgment - where right to equality of women triumphs
The majority judgment was delivered by Justice Rohinton Nariman and Justice U.U. Lalit in a common judgment along with Justice Kurian Joseph in a separate judgment.
The majority judgment delivered by Justice Rohinton Nariman and Justice U.U. Lalit held that triple talaq violates Muslim women’s fundamental right to equality and life and cannot be protected under the fundamental right to religious freedoms. It reads as follows:
“…it is clear that Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it… therefore, this would not form part of any essential religious practice…it is equally clear that the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice…Triple Talaq forms no part of Article 25(1) (right to religious freedom)…it is clear that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq…this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it…In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.”
Justice Kurian Joseph in his judgment interpreted The Quran to come to the conclusion that triple talaq is not an essential practice of Islam and thus not protected under Article 25 of the Indian Constitution that guarantees the right to religious freedom. It reads as:
“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…I find it extremely difficult to agree with the learned Chief Justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law…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.”
(For details on what went on in the Supreme Court over the 6 days click here and for summary on stands of the various contesting parties click here)
Meher Dev is a women’s rights lawyer in New Delhi. Recently, she worked on the Triple Talaq case with Senior Advocate Ms. Indira Jaising and represented Bebaak Collective an NGO advocating for Muslim women’s rights
Early last year, Shayara Bano, a 35-year-old Muslim woman from Uttarakhand and a mother of two, approached the Supreme Court of India demanding that the divorce she received from her husband through the mode of triple talaq (talaq-e-biddat) – a unilateral utterance of the word “talaq/divorce”...
Early last year, Shayara Bano, a 35-year-old Muslim woman from Uttarakhand and a mother of two, approached the Supreme Court of India demanding that the divorce she received from her husband through the mode of triple talaq (talaq-e-biddat) – a unilateral utterance of the word “talaq/divorce” thrice by a Muslim husband leading to instantaneous irrevocable divorce – should be declared as invalid as it violates her fundamental rights to equality, life and dignity of women guaranteed by the Indian Constitution.
After Shayara, stories of other women who were affected by triple talaq also started coming to the forefront and the approached the Supreme Court of India for relief. One of them is of IshratJahan, who was divorced over the phone by her husband who uttered the word ‘talaq’ thrice and took custody of her children.
Petitions of Shayara and Ishrat received strong opposition from the All India Muslim Personal Law Board that claims to be a representative body of the Muslim community in India. They argued that the court shall exercise judicial restraint and not interfere in their matter of religion.
On 22 August 2017, the Supreme Court of India delivered the much-awaited judgment in the Triple Talaq case. The Supreme Court of India by a majority of 3:2 held the practice of triple talaq to be invalid in the following words:
“In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside.”
The 395-page judgment of the Supreme Court of India is an outcome of arguments being presented to a specially constituted bench presided by five judges: one Sikh by faith, one Parsi, one Hindu, one Christian and one Muslim over six days for 4.5 hours each day.
Lets us have a look at what did the Supreme Court exactly say on the opposing claims of the right to equality of Muslim women and the right to religious freedom of the Muslim community.
The minority judgment- where right to religious freedom of the Muslim community triumphs
The minority judgment was delivered by Chief Justice of India Jagdish Kehar (who is soon to retire) and Justice Abdul Nazeer. The judges in the minority judgment justified the practice of triple talaq/ talaq-e-biddat by ruling that such practice forms part of the fundamental right to religious freedom under Article 25 of the Indian Constitution. It reads as follows:
“‘Talaq-e-biddat’ is integral to the religious denomination of Sunnis belonging to the Hanafi school. The same is a part of their faith, having been followed for more than 1400 years, and as such, has to be accepted as being constituent of their ‘personal law’…‘Talaq-e-biddat’, does not violate the parameters expressed in Article 25 of the Constitution. The practice is not contrary to public order, morality and health. The practice also does not violate Articles 14, 15 and 21 of the Constitution, which are limited to State actions alone…Since we have held that Muslim ‘personal law’ – ‘Shariat’ is not based on any State Legislative action, we have therefore held, that Muslim ‘personal law’ –‘Shariat’, cannot be tested on the touchstone of being a State action…We cannot accept the petitioners’ claim because the challenge raised is in respect of an issue of ‘personal law’ which has constitutional protection…Accepting the petitioner’s prayers would be in clear transgression of the constitutional mandate contained in Article 25 (fundamental right to religion)…Article 25 obliges all Constitutional Courts to protect ‘personal laws’ and not to find fault therewith. Interference in matters of ‘personal law’ is clearly beyond judicial examination. The judiciary must, therefore, always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem…”
The minority judgment by Chief Justice of India Jagdish Singh Kehar and Justice Abdul Nazeer acknowledged that the practice of triple talaq has negative consequences for women and passed the buck to the All India Muslim Personal Board (a male dominated Muslim representative independent body) and the Parliament. The minority judgment reads as follows:
“The whole nation seems to be up in arms. There is seemingly an overwhelming majority of Muslim-women, demanding that the practice of ‘talaq-e-biddat’ which is sinful in theology, be declared as impermissible inlaw...the AIMPLB has undertaken to issue an advisory through its website, to advise those who enter into a matrimonial alliance, to agree in the ‘nikah-nama’, that their marriage would not be dissolvable by ‘talaq-e-biddat’. The AIMPLB has sworn an affidavit to prescribe guidelines, to be followed in matters of divorce, emphasizing that ‘talaq-e-biddat’ be avoided…We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’...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.”
The majority judgment - where right to equality of women triumphs
The majority judgment was delivered by Justice Rohinton Nariman and Justice U.U. Lalit in a common judgment along with Justice Kurian Joseph in a separate judgment.
The majority judgment delivered by Justice Rohinton Nariman and Justice U.U. Lalit held that triple talaq violates Muslim women’s fundamental right to equality and life and cannot be protected under the fundamental right to religious freedoms. It reads as follows:
“…it is clear that Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it… therefore, this would not form part of any essential religious practice…it is equally clear that the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice…Triple Talaq forms no part of Article 25(1) (right to religious freedom)…it is clear that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq…this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it…In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.”
Justice Kurian Joseph in his judgment interpreted The Quran to come to the conclusion that triple talaq is not an essential practice of Islam and thus not protected under Article 25 of the Indian Constitution that guarantees the right to religious freedom. It reads as:
“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…I find it extremely difficult to agree with the learned Chief Justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law…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.”
(For details on what went on in the Supreme Court over the 6 days click here and for summary on stands of the various contesting parties click here)
Meher Dev is a women’s rights lawyer in New Delhi. Recently, she worked on the Triple Talaq case with Senior Advocate Ms. Indira Jaising and represented Bebaak Collective an NGO advocating for Muslim women’s rights
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