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Supreme Court strikes down triple talaq

LiveMint logoLiveMint 22-08-2017 Priyanka Mittal

New Delhi: Striking a blow for women and the rule of law, the Supreme court on Tuesday declared the Islamic practice of triple talaq unconstitutional. In a majority judgement 3-2, the court struck down the age old practice under which a Muslim man can divorce his wife by uttering the word ‘talaq’ thrice.

“Triple talaq is manifestly arbitrary and whimsical in nature—must be struck down as void.” said Justice Rohinton F. Nariman while pronouncing the verdict. He added that just because it was being practised for years it could not be held valid.

Justices Kurian Joseph, Rohinton F. Nariman and U.U Lalit ruled for the scrapping of the practice; the minority judgement by chief justice J.S. Khehar and S. Abdul Nazeer upheld the validity of the practice but shifted the onus to the Parliament to bring in a legislation governing Muslim marriages and divorce within six months.

The court’s ruling was restricted to the constitutional validity of triple talaq and it did not go into other issues of polygamy and nikah halala under the Muslim personal law. Nikah halala requires a female divorcee to marry someone else, consummate the marriage and then get a divorce to remarry her previous husband.

Muslims and people practicing other minority religions are allowed to regulate matters such as marriage, divorce and inheritance through their own civil codes.

The court had taken up the matter for hearing over six consecutive days in the summer break this year. Judges from different religious backgrounds, Hindu (Justice U.U Lalit), Sikh (CJI J.S. Khehar), Christian (Justice Kurian Joseph), Parsi (Justice Rohington F, Nariman) and Muslim (Justice S. Abdul Nazeer) formed the five-judge constitution bench that was constituted to address the controversial issue.

The court’s verdict arose out of a batch of six petitions challenging triple talaq, nikah halala and polygamy under Muslim personal law. This included a plea—Muslim women’s quest for equality—which the court took up on its own accord.

During the course of the hearings, the top court observed that the practice of triple talaq was the worst and not a desirable form of dissolution of marriage, even though there were schools of thought terming it as legal.

The petitioners were joined by the central government which also challenged the practise, calling it ‘unreasonable, unfair and discriminatory’ and said that it went against the principle of gender justice. It added that gender equality and dignity of women were constitutional values and could not be compromised with.

Going a step further, it submitted before the court in May that it would bring in a new law to regulate marriage and divorce among Muslims if the practice of triple talaq was declared unconstitutional by the court.

Senior advocate Kapil Sibal, appearing on behalf of the All India Muslim Personal Law Board, one of the petitioners, had argued that the court could not interfere in the personal laws of a community.

Explaining the procedure to be followed under triple talaq, Senior advocate Salman Khurshid who was asked by the court to assist in the matter had said, “Divorce cannot come into effect immediately after someone says talaq thrice. Representatives of both parties will try for a reconciliation and a qazi (priest) is informed if it fails,”

On 9 May, the Allahabad high court held that the practice of triple talaq was unconstitutional and violated the basic human rights of Muslim women.

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