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Big win for Muslim women as SC sets aside 'triple talaq'

Ashish Tripathi, DH News Service, New Delhi, Aug 23 2017, 1:13 IST

Terms it arbitrary, unconstitutional

Muslim women celebrate the Supreme Court's decision on triple talaq in Mumbai on Tuesday. PTI

Muslim women celebrate the Supreme Court's decision on triple talaq in Mumbai on Tuesday. PTI

In a big win for Muslim women in their fight for equality, the Supreme Court on Tuesday struck down a controversial practice of instant divorce by Muslim men as arbitrary and unconstitutional.

The apex court set aside a 1400-year-old practice as being violative of their fundamental right.

By a majority judgement of 3:2, the apex court's five judge Constitution bench struck down Talaq-e-Biddat (instant pronouncement of talaq thrice).

The judgement will end the practice of saying 'talaq' or divorce three times in one go, sometimes even over email, WhatsApp and letters, as it violated women’s right to equality. It was found to be against the tenets of Islam.

Other forms of divorce like Talaq-e-Ahsan (single pronouncement followed by a period of abstinence) and Talaq-e-Hasan (three pronouncements interspersed with abstinence) will continue.

Prime Minister Narendra Modi hailed the verdict as “historic”. “It grants equality to Muslim women and is a powerful measure for women empowerment,” he said.

Chief Justice of India (CJI) J S Khehar and Justice S Abdul Nazeer were in minority. Justices Kurian Joseph, R F Nariman and U U Lalit were in disagreement and declared it as illegal. There were three separate judgements running into 395 pages.

Acting on a batch of petitions by affected Muslim women, Justices Nariman and Lalit held, “This (instant) 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.”

Justice Khehar and Justice Nazeer also injuncted Muslim husbands from pronouncing triple talaq and asked the Legislature to consider passing a law.

They, however, found Talaq-e-Biddat a matter of 'personal law’ of Sunni Muslims, belonging to the Hanafi school.

“The practice being a constituent of ‘personal law’ has a stature equal to other fundamental rights. It, therefore cannot be set aside, on the ground of being violative of the concept of the constitutional morality, through judicial intervention,” the CJI, who authored the minority judgement, said.

In his judgement, Justice Kurian Joseph said, “Triple talaq is an integral part of the religious practice, I respectfully disagree. Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.”

In their judgement, Justices Nariman and Lalit noted, given the fact that triple talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to have the marital tie, cannot ever take place.

“This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 (equality) of the Constitution,” they held.

DH News Service

* Majority judgement, 3:2, strikes down Talaq-e-Biddat or instant talaq

* Talaq-e-Ahsan (single pronouncement followed by abstinence) and Talaq-e-Hasan (three pronouncements interspersed with abstinence) will continue

* Chief Justice of India J S Khehar and Justice S Abdul Nazeer were in minority

* Justices Kurian Joseph, R F Nariman and U U Lalit declared triple talaq illegal

* Court gave three separate judgements running into 395 pages

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