Supreme Court declares instant Triple Talaq unconstitutional, says Parliament must bring law

Though CJI penned down a separate judgment, it is in minority and asked the government to bring out legislation in six months time and till that time the practice of triple talaq is barred.

Published: 23rd August 2017 08:30 AM  |   Last Updated: 23rd August 2017 10:07 AM   |  A+A-

Muslim women flashing victory sign at a college after Supreme Court announced a ban on triple talaq in Bengaluru on Tuesday. | (Nagaraj Gadekal | EPS)

By Express News Service

NEW DELHI: After 32-year long battle, justice denied to Shah Bano will now be delivered to Shayara Bano — the two iconic victims of triple talaq. The instant divorce system, practiced predominantly by Sunni Muslim men, was declared unconstitutional by the Supreme Court in a landmark verdict on Tuesday. With this, India has now joined the list of 19 countries that have already banned the practice.

Despite the Supreme Court ruling in her favour in 1985, Shah Bano was denied alimony by her husband who fathered her five children as the Centre overturned the verdict. The case marked the beginning of the movement against triple talaq. Today, decades later, her family has welcomed the verdict, but with caution. “Though not in the spirit of Shariat (Islamic law), the verdict is certainly befitting for jahil (uneducated and illiterate),” said Bano’s daughter Siddiqua Begum.

A five-judge multi-faith bench banned the 1,400-year-old practice on 3:2 majority. Interestingly, Chief Justice JS Khehar did not rule for triple talaq to be struck down by the court. He, along with Justice Abdul Nazeer, observed the practice does not violate Articles 14, 15 and 21, meaning the government should step in and come out with a law on the subject.

“Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship,” the dissenting judges said. “The instant injunction, shall in the first instance, be operative for a period of six months. If it is decided that the practice be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.”

Writing the majority judgement, Justice Kurien Joseph said, “I find it extremely difficult to agree with the CJI that the practice of triple talaq has to be considered integral to religious denomination in question and that the same is part of their personal law.” Citing the Holy Quran, he said, “They are clear and unambiguous as far as talaq is concerned. The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation, and if it succeeds, then revocation, are the Quranic essential steps before talaq attains finality. In triple talaq, this door is closed.”

The ruling will have a direct impact on Sunni Muslims, who favoured this practice. They are now left with two other ways of securing divorce — ‘talaq hasan’ and ‘talaq ahsan’. Under ‘talaq ahsan’, a Muslim man can divorce his spouse by pronouncing ‘talaq’ once every month in three consecutive months. As per ‘talaq hasan’, divorce can be given by pronouncing talaq “during successive tuhrs (mensuration cycle)” with no intercourse during the period.

Shayara Bano, one of the petitioners in the case and victims of the practice, is elated with the outcome. “Now Muslim women cannot be turned out of the house at someone’s whims and fancies,” she said reacting to the verdict. “But it is still a long road ahead for reforms. We need to raise awareness against practices like polygamy and nikah halala.”

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