Consequent to the Supreme Courts' decision on the legality of instant triple talaq, hasty reporting and political expediency seem to have altered the essence of what has been laid down. Since the judgment was not unanimous, the same has to be viewed with surgical precision.
Let us cull out what the five-judge bench actually held in the judgment:
While chief justice of India Jagdish Singh Khehar and justice S. Abdul Nazeer held instant triple talaq to be constitutional, justice Rohinton Fali Nariman and justice Uday Umesh Lalit held it to be unconstitutional, and justice Kurian Joseph held the Islamic divorce practiced in India as illegal.
Since the judgment panel are divided on its constitutionality, all that has been held in the majority is that the practice of instant triple talaq is illegal.
A brief history of instant triple talaq
The origins of the practice of instant triple talaq can be traced back to the time of the caliphate of Umar. During the lifetime of prophet Muhammad and up until the early period of the Caliphate of Umar, three utterances of talaq on one occasion used to be taken together as only one utterance.
However, it was witnessed by caliph Umar that in spite of the fact that a system had been laid down, which permitted the husband to withdraw his first or even second talaq, a lot of men still wanted to rush into the divorce and make it final as early as possible. He felt that if they were bent on being hasty, a rule should be imposed on them binding them to a final divorce on the utterance of talaq three times in a row. The rule was meant to protect the interests of women and to teach such men a lesson, and make them see their fallacy in trying to rush into a delicate matter, which required considerable thought and consideration. He then proceeded to impose such a rule.
Judicial pronouncements on instant triple talaq
This is not the first time that the courts have dealt with this issue. The issue of instant triple talaq has long since been dealt with by the courts, which have held it to be against the basic tenets of the Holy Quran and consequently in violation of the Sharia law.
Most notable is the case of Shamim Ara vs. the state of UP, in 2002, wherein the Supreme Court held that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife.
Justice Badar Durrez Ahmed later relied upon the Shamim Ara verdict in two other judgments, including the case of Masroor Ahmed vs. State (NCT of Delhi), and held that merely the pronouncement of talaq iws not enough and that reasonable cause must be shown that attempts of reconciliation had taken place after the pronouncement of talaq.
Also, as recently as in 2016, the Kerala High Court has referred to the Shamim Ara judgment in the case of Oyoor Nazeer vs. Shemeema and disapproved instant triple talaq.
Therefore, the courts have frowned upon the practice of instant triple talaq way before the latest judgment. Thus, as regards the validity of instant triple talaq, the Supreme Court did not have anything new to say in its recent judgment.
History of present litigation
The present case on instant triple talaq originated on October 16, 2015, when a two-judge bench of the Supreme Court, comprising justice Anil Dave and justice A.K Goel, while pronouncing a judgment on the applicability of the Hindu Succession Act, 1956 (amended in 2005), referred to injustices faced by Muslim women.
The Supreme Court then went on to question the Muslim personal law practices of marriage and divorce. Following this, the court registered a suo motu public interest litigation (PIL) to examine whether the practices of arbitrary divorce (instant triple talaq), polygamy and nikah halala violated women’s dignity. The bench further asked the chief justice of India to set up an appropriate bench to examine if Muslim women face gender discrimination in cases of divorce.
Thereafter, five different writ petitions were filed by women who had been divorced through instant triple talaq, communicated either through WhatsApp, social media or letters.
Although the suo motu proceedings were initiated by the Supreme Court on the aspect of gender justice, it is to be noticed that this aspect does not find any material mention in the judgment. And the same is a complete deviation from the very reason why the suo motu PIL was initiated by the SC in the first place.
Triple talaq politics
The fact that instant triple talaq is un-Islamic and against the Quranic principle is almost undisputed. In such a scenario, the community leaders, particularly in north India, ought to have shouldered the responsibility and courage to say that this system being has to be done away with.
This would have taken the wind out of the sails from people who seek to raise the issue with ulterior motives. But rather than doing the same, they chose to defend this practice before the Supreme Court, thereby giving a definite political edge to those political parties who wanted to take up the cause of Muslim women.
The “Muslim Women” make up for a huge constituency; so, they played their cards well. I can only sound a note of caution that if the community leaders don’t rise to the occasion, similar incidents will happen in the Babri case also.
Bright spot in the judgment
The brightest spot, indisputably, is the banning of instant triple talaq. However, for a law student, the law laid down has to be deciphered from a reading of all the three dictums. The issue as to whether the court has tested the Muslim personal law on the touchstone of Article 14 of the Constitution is what we have to ascertain.
Justice Kurian Joseph’s dictum says thus: “I wholly agree with the learned chief justice that the 1937 Act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman, J. that the 1937 Act is a legislation regulating triple talaq and hence, the same can be tested on the anvil of Article 14.”
Therefore, the majority view as far as courts’ interference in personal laws is concerned, the tried and tested rule of non-interference has been sustained. Justice Nariman takes cognizance of Section 2 of the 1937 Act to give triple talaq a statutory flavor, after which he proceeds to examine whether the same is arbitrary or not.
What is important here to note is that justices Khehar, Nazeer and Kurian Joseph have taken a view that the 1937 Act was to regulate the custom and usages prevalent in the Muslim community and therefore, that cannot be stretched to give a statutory flavor to triple talaq. Their view is not to venture into the constitutionality of personal laws.
Therefore, the foundation of justice Nariman’s dictum that Section 2 of the 1937 Act gives a statutory flavor to triple talaq is a minority view. Being a minority view, whether the directions to hold the same unconstitutional can be held to be a majority view point has to be discussed further. The reasoning, which helped justice Nariman to reach the conclusion has been reduced to a minority on a careful analysis of the judgment. In such a situation, whether justice Nariman’s reasoning and conclusions will hold good is the point to ponder.
To conclude, it could safely be said that the Supreme Court has said talaq to interference in the personal laws. The personal laws have been given the protection they are entitled to under Article 25 of the Constitution. If the judgment is not properly understood, it would have repercussions in other pending cases like the right to entry of women to Sabarimala, etc.
(The author is a senior Supreme Court lawyer)