The marathon hearing of the triple Talaq case by what has been aptly described as an “inter-faith” bench was concluded on May 18. I have been wondering why the court needed more than three-and-a-half months to decide an issue concerning a customary practice which amounts to a blanket violation of the international human rights law and clearly flies in the face of the Constitution. The cat is now out of the bag. The learned CJI had to pen 272 pages to conclude that the abominable custom of triple Talaq is an “essential religious practice” of Muslims and enjoys protection of religious-liberty clauses of the Constitution. While the Muslim judge on the bench simply approved the learned CJI’s views, Kurian Joseph wrote a separate 27-page judgment and Rohinton Nariman another running into 96 pages which U.U. Lalit endorsed. Constituting the majority judgment of the court, these had to prevail and the order of the court at the end of the 395-page split verdict had to be, “In view of the different opinions recorded by a majority of 3:2 the practice of triple Talaq is set aside”.
It may be a case of the proverbial all’s well that ends well, but it leaves some curious questions to be answered. “There can be no doubt, and that is our definitive conclusion, that the position can be salvaged only by legislation,” says the minority judgment, adding that “unfortunately the Union seeks at our hands what clearly falls in its own”. It then proceeds to “direct” the Union of India to consider appropriate legislation. It is, to say the least, paradoxical to declare a religious practice to be constitutionally protected and then “direct” the state to legislate against it. Does the learned CJI mean that an essential religious practice, even though protected by the Constitution, can also be done away with by legislation?
Decoding the Supreme Court Verdict on Instant Triple Talaq
Toward the end of his judgment the learned CJI said “till such time as legislation is considered we are satisfied in injuncting Muslim husbands from pronouncing Talaq-e-Bidat for severing their matrimonial relationship”, adding that the injunction will initially remain operative for six months, would stand vacated if legislative process for “redefining” triple Talaq commences earlier, but if the said process contemplates abolishing the practice, will remain in force till this is finally done.
First, how could the court impose an injunction on the exercise of an essential religious practice protected by the Constitution? And, then, what will this injunction mean, and how will it be enforced? What will be the legal status of a triple Talaq pronounced in violation of the injunction? Will it effect a single revocable Talaq — this is how triple Talaq has been “redefined” in Muslim countries which the minority judgment cites — or will it effect an instant divorce as usual but the violator would be liable to be punished for contempt of court? I feel, with due deference to the learned authors of the minority judgment, it smacks of a confused thinking and reflects an aspiration for reform without bearing the brunt for it.
The reasoning and conclusions of the other two judgments sound immensely rational and convincing. Kurian Joseph’s assertion that the apex court’s ruling in Shamim Ara (2002), reiterated in several later cases saying that a Talaq by a Muslim husband can have legal effect only if pronounced in full compliance with the true Islamic procedure for it (by implication of which triple Talaq has no legs to stand on), “is the law applicable in India” qualifies to be seen as the most sensible and hence highly appreciable observation found in the 395 pages of all the judgments read together.
The judgment of R.F. Nariman and U.U. Lalit declares that the Muslim Personal Law (Shariat) Application Act 1937 “insofar as it seeks to recognise and enforce triple Talaq” is ultra vires Article 13 of the Constitution (pronouncing all old laws in force that violate the fundamental rights to be void). I must point out that the Shariat Act does not specifically mention triple Talaq among the subjects in which Muslim law shall be the rule of decision for the courts; it uses only the word “Talaq” and clarifies that it includes Khula (Talaq at wife’s instance) and Mubarat (divorce by mutual consent), etc, but does not enlist triple Talaq as a form of divorce. Yet it is good that this separate judgment of the two learned judges does not leave any room even for arguing that “Talaq” implies triple Talaq.
Coming to the final order of the court based on the majority view, one may ask what will be the effect of “setting aside” the practice of triple Talaq? Will it be a nullity and effect no divorce at all, or will it effect a single Talaq with a cooling off period of about three months during which the man can revoke it and, failing that, the parties can directly remarry (without the so-called Halala)? A clue is found in Kurian Joseph’s judgment which asserts that the decisive law in India is as set out in Shamim Ara to the effect that a Talaq to be legally recognised must have been pronounced in a step-by-step compliance with the true Islamic procedure. As per that procedure, Talaq coupled with the word “three” or repeated thrice would count only as a single revocable divorce. How I wish the bench had just reiterated Shamim Ara, unanimously, approving this implication of the very sensible ruling given 15 years ago.
The writer is former chair, National Minorities Commission and member, Law Commission of India. The article first appeared in the Indian Express and is bein reproduced here with the permission of the author