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In news: A 5 judge constitution bench termed the triple talaq practice as unconstitutional with a 3-2 majority. Talaq-e-biddat or instant and irrevocable talaq was called “manifestly arbitrary” practice and is not protected by Article 25 (freedom of religion) of the Constitution.
Triple talaq in all its three forms — talaq-e-biddat, talaq ahsan and talaq hasan — was “recognised and enforced” under Section 2 of the Shariat Act of 1937. Ahsan and Hasan are revocable. Biddat — pronouncing divorce in one go by the husband — is irrevocable. Biddat is considered ‘sinful’ but permissible in Islamic law.
Thus, since Shariat Act had recognised triple talaq, it was no longer a personal law to remain free of the fetters of the fundamental rights rigour but a statutory law which comes under the ambit of Article 13(1) of the Constitution.
Article 13 defines ‘law’ and says that all laws, framed before or after the Constitution, shall not be violative of the fundamental rights.
Three sets of judgment
Minority judgement of CJI and other justice which said believed that court had no right to tinker with religious personal laws, which enjoy special protection in the constitution.
The majority judgement said that the practice was against the teachings of the Quran and, therefore, violated Muslim personal law.
The final judgement talks about the state of abandoning the triple talaq pronounced in one go.
The Muslim personal law board has welcomed the decision and said that it was not supportive of the instant triple divorce. It had inserted a clause to curtail this right of men long back while providing a model nikahnama. There was also an advisory that all the people doing the triple divorce in one go will be boycotted socially. The maulvis and kazis were advised that they must tell this at time of nikah. However, the enforcement have been not strong enough.
It is true that there is lower incidence among the muslims. But the fact remains that a muslim girl grows with the consciousness that the unrestrained right is available to the men and after her marriage, the husband can turn her out of the marital home for any reason.
This feeling still persists among muslim women that they don’t have equal rights of divorce and thus gender equality is still long battle to be won.
Implications of verdict
It is a progressive judgment. This judgement shouldn’t be politicised for regressive agendas on either sides of political debate. All that the constitution says is that one form of divorce available to muslim men is not permitted henceforth. So it is not that other forms of divorce are not available. The repetition of talaq over three month period is valid and law will accept it.
Rights under art 25 (1) as far as religious freedom is concerned are not available only to minorities but all.
The state’s right to intervene in anybody’s rights or at least religious rights is equal across the board when it comes to legislative mechanisms being used to user in social welfare.
The reason why triple talaq has been rendered unconstitutional atleast by majority judgement say that triple talaq is not seen as an essential part of practice of islam and therefore it is not an essential part of the faith. Thus it cannot seek the benediction of article 25 (1) so far as religious freedoms are concerned. Therefore there is no need for a separate law for it to be banned or forbidden.
The six months injunction is part of minority judgement. The majority judgement essentially holds the practice of triple talaq to be unconstitutional.
Impact on Indian society
It will have a positive effect on Indian national life. The courts have intervened that this particular practice and form of divorce which was otherwise protected under the shariat act of 1937, to that extent and provision, the shariat act is unconstitutional and thus there will be no more triple talaq.
There is a balance between being progressive and abiding by constitutionalism because the biggest fear in these kind of judgements are severe complexities that creep in wherein justice is tried to be done at expense of constitution and its interpretation. But it hasn’t happened in this case. The court has abided by the constitution and come out with a categorical finding.
This judgement is important also for a general right of a citizen to approach the court and strike down irrational law related to religious belief. However, it should be present as some part of the religious act or law.
This would be useful in a second challenge to sec 377 of IPC because every law which is arbitrary is liable to be struck down. This is true importance of the judgment.
Connecting the dots:
Triple talaq verdict has been hailed as a progressive judgement. Analyse your opinion regarding the same.
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