Monday, August 21, 2017

Supreme Court declares triple talaq unconstitutional, strikes it down by 3:2 majority

The Supreme Court (SC) on Tuesday held the Muslim practice of triple talaq unconstitutional and struck it down by 3:2 majority.

The SC said triple talaq violates the fundamental rights of Muslim women as it irrevocably ends marriage without any chance of reconciliation.

Triple talaq , or verbal divorce, is practiced by some in the Muslim community to instantly divorce their wives by saying talaq three times.

Justices Rohinton Nariman, Uday Lalit and Joseph Kurien ruled that triple talaq is unconstitutional. Justice Joseph said what cannot be true in theology cannot be protected by law. He added that triple talaq is not recognised by Koran and hence it couldn't be a practice to be protected under the right to religion.

Justice Abdul Nazeer and Chief Justice JS Khehar upheld the validity of triple talaq. CJI Khehar asked the government to bring legislation in six months to govern marriage and divorce in the Muslim community. He added that talaq-e-biddat is an integral part of the Sunni community and has been practiced for a 1000 years, reported ANI.

The ball is now in Parliament's court. It is to be noted that the Centre had during the course of hearings earlier this year told the bench that it will come out with a law to regulate marriage and divorce among Muslims if 'triple talaq' is held invalid and unconstitutional by the apex court.

In February this year, the SC said a Constitution bench would be set up to hear and decide on whether 'triple talaq', the oral divorce practice some Muslims follow, is constitutionally valid. The bench reserved its verdict on May 18 after a six-day marathon hearing during the summer vacation.

Shayara Bano, a 35-year-old woman, challenged the practice in 2016, a year after her husband of 15 years divorced her via triple talaq. Petitions of four other Muslim women - Aafreen Rehman, Gulshan Parveen, Ishrat Jahan and Atiya Sabri - were tagged with Bano's plea.

Some Muslim groups see the issue as a matter of religious right while others, including the Centre, termed it unconstitutional.
The bench had asked All India Muslim Personal Law Board (AIMPLB) why a "custom which is theologically sinful" was "part of the practice of a community". The question was asked after AIMPLB took the stand that triple talaq might be sinful yet it was a religious practice dictated by Sharia.

Main Points:

A five-judge constitution bench of the Supreme Court on Tuesday termed practice of triple talaqas unconstitutional with 3-2 majority.

Here are key points of the judgment:

1. After reading separate judgments, the 5-judge bench of the Supreme Court ruled in 3:2 majority that triple talaq is void and illegal.

2. CJI J S Khehar and Justice Nazeer said triple talaq is a fundamental right while 3 other judges - Justices Kurian Joseph, R F Nariman and U U Lalit - said it is not a fundamental right.

3. Justice Nariman, Justice Lalit and Justice Kurien said triple talaq was unconstitutional.

4. The SC put six-month stay on practice of Muslim men giving their wives instant divorce through triple talaq.

5. The SC bench has asked Parliament to make a new law on triple talaq issue in six months.

6. If law doesn't come in force in six months, then SC's injunction on triple talaq will continue.

7. The SC bench referred to abolition of triple talaq in Islamic countries and asked why can't Independent India get rid of it.

Full Judgement

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