10 pointers to Supreme Court’s verdict on Triple Talaq

A five-judge constitution bench of the Supreme Court on Tuesday set aside the ‘Instant’ Triple Talaq practised by a certain sect of Muslims in India. The apex court’s order read:

In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside.

The Supreme Court order was hailed as ‘historic’ by the Prime Minister and as ‘progressive’ by most political parties as well as Muslims. There was also relief that the apex court had refrained from declaring all form of ‘Talaq’ unconstitutional. Indeed, the most common forms of Talaq, Talaq-e-ahsan and Talaq-e-hasan, the court acknowledged, are legitimate parts of the Muslim Personal Law.

It was the sinful form of divorce—the talaq-e-biddat—which the court ruled is unconstitutional and void. This is the form which finds no mention in the Quran.

Lawyer and activist Flavia Agnes said from Mumbai, “All the judges have different views. Two judges (Nariman and Lalit) said it is unconstitutional. Since the 1937 Act recognises and enforces triple talaq, so it is a law in force. That makes it subject to Constitutional validity. Justice Kurien Joseph has said it is un-Islamic and hence it will go. What he has said and what was stated in the Shamim Ara case in 2002 on instant triple talaq is similar.”

“What the judges haven’t said is what will happen if a man pronounces instant triple talaq? Where will the woman go? What about her rights? That problem hasn’t been solved yet,” she added.

The court recorded in its verdict the following:

• Under the Islamic law, divorce is classified into three categories. Talaq understood simply, is a means of divorce, at the instance of the husband. ‘Khula’ is another mode of divorce, this divorce is at the instance of the wife. The third category of divorce is ‘mubaraat’ – divorce by mutual consent.

• Talaq, namely, divorce at the instance of the husband, is also of three kinds – ‘talaq-e-ahsan’, ‘talaq-e-hasan’ and ‘talaq-e-biddat’. The petitioner’s contention before this Court is, that ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ are both approved by the ‘Quran’ and ‘Hadith’. ‘Talaq-e-ahsan’ is considered as the ‘most reasonable’ form of divorce whereas, ‘talaq-e-hasan’ is also considered as ‘reasonable’.

• It was submitted, that ‘talaq-e-biddat’ is neither recognisd by the ‘Quran’ nor by ‘Hadith’ and as such is (not) to be considered as sacrosanct to Muslim religion. The controversy which has arisen for consideration before SC is with reference to ‘talaq-e-biddat’.

• ‘Talaq-e-biddat’ is effected by one definitive pronouncement of ‘talaq’ such as, “I talaq you irrevocably” or three simultaneous pronouncements, like “talaq, talaq, talaq”, uttered at the same time, simultaneously. In ‘talaq-e-biddat’, divorce is effective forthwith. The instant talaq, unlike the other two categories of ‘talaq’ is irrevocable at the very moment it is pronounced. Even amongst Muslims ‘talaq-e-biddat’, is considered irregular.

• According to the petitioner, there is no mention of ‘talaq-e-biddat’ in the Quran. It was however acknowledged, that the practice of ‘talaq-e-biddat’ can be traced to the second century, after the advent of Islam. It was submitted, that ‘talaq-e-biddat’ is recognised only by a few Sunni schools. Most prominently, by the Hanafi sect of Sunni Muslims. It was however emphasised, that even those schools that recognised ‘talaq-e-biddat’ described it, “as a sinful form of divorce”.

10 pointers to the Supreme Court verdict:

1. Supreme Court of India declared the practice of instant Triple Talaq as unconstitutional by 3:2 majority. Justices Kurian Joseph, UU Lalit and RF Nariman delivered the majority Judgment. Chief Justice Khehar and Justice Abdul Nazeer dissented.
2. Instant triple talaq or Talaq-e-biddat is when a man pronounces talaq thrice in a single sitting without the waiting period or iddat.
3. Instant triple talaq is generally a disapproved form of divorce which is not in the Quran but forms a part of the Shariah Law.
4. All India Muslim Personal Board had stated, even in its affidavit, that instant triple talaq should be discouraged as much as possible. They had issued advisories also to this effect. The Supreme Court has upheld this by setting aside the practice of instant triple talaq.
5. The other two forms of talaq – talaq-e-ahsan and talaq-e-hasan – will continue. talaq-e-ahsan - The husband pronounces talaq to his wife (in a single sentence) in state of purity (tuhr) and waits for period of iddat (90 days). This type of talaq is revocable during the period of iddat.
   talaq-e-hasan - There must be three successive pronouncements of talaq, but it has to be pronounced thrice over three consecutive intervals of 30 days. It can be revoked before the third pronouncement. After third pronouncement, it becomes irrevocable.
6. Personal laws cannot be set aside on the ground of ‘judicial morality’ as these laws acquire the status of a fundamental right.
7. Kapil Sibal’s stand that personal laws must not be meddled with has been vindicated.
8. Shayara Banu filed a writ petition in the Supreme Court against instant triple talaq.
9. Justice Kurien Joseph said that since instant triple talaq is bad in theology, it is bad in law. Triple talaq is an illegal practice since it is contrary to the Quran.
10. Justice Nariman recorded that the forms and procedures prescribed for Talaq in the Quran were astonishingly ‘modern’