In a majority 3:2 judgment, a five-judge Bench of the Supreme Court on Tuesday set aside talaq-e-biddat or instant and irrevocable talaq as a "manifestly arbitrary" practice, which is not protected by Article 25 (freedom of religion) of the Constitution.
Chief Justice J.S. Khehar, who led the Bench, held that talaq-e-biddat is an integral part of Article 25 (freedom of religion). He said it had been followed for over 1,400 years by the Hanafis and become a part of religious pratice. He held that instant talaq does not violate Articles 14, 19 and 21 of the Constitution, and passed it on to the legislature within six months to decide a law. Invoking extraordinary jurisdiction under Article 142, the Chief Justice injuncted Muslim men from divorcing their wives using instant talaq. This view was endorsed only by Justice S. Abdul Nazeer, thus, making it the minority judgment.
In his judgment, Justice Nariman observed that it is "not possible for the court to fold its hands when petitioners [Muslim women] come to court for justice."He said triple talaq in its entire three forms — talaq-e-biddat, talaqahsan and talaqhasan — was "recognised and enforced" under Section 2 of the Shariat Act of 1937.
He explained that since the 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.
Justice Nariman said talaq-e-biddat allowed a Muslim man to "whimsically and capriciously" divorce his wife. The practice is "manifestly arbitrary" and does not enjoy the protection of Article 25. Moreover, he noted, instant talaq was merely permissive and not an absolute religious practice, and so, does not deserve the protection of Article 25, again. This view was supported by Justice Lalit.
In his judgment, Justice Kurian held that instant talaq was against the tenets of Quran. "What is banned in Quran cannot be good in Shariat. What is banned in theology cannot be good in law," he observed.
Justice Kurian differed with Chief Justice Khehar that just because a practice has been around for 1,400 years does not make it eligible for protection under Article 25.
He also differed with the Chief Justice that triple talaq as a personal law is integral to religious belief. He said the practice should not violate public health, morality and order.
Justice Kurian had ignited a spark by suggesting an alternative that a Muslim bride, at the time of the wedding, should be allowed to lay down a condition in the nikahnama that she would not be subjected to instant talaq in case the marriage hits a rough patch.