Validity of triple talaq
Shayara Bano v. Union of India
The Supreme Court of India had a occasion to decide the question of legal sanctity of practice of triple talaq among Muslim. The specific question before the court was whether the practice of triple talaq is constitutional or not. The Honourable Court through its majority opinion held that;
“Tripple talaq lacks legal sanctity. Islam can not be anti-quran. Holy Quran has attributed permanence to matrimony However, In extremely unavoidable situations talaq is permissible. But an attempt for reconciliation and if succeeds, then revocation are Quranic essential steps before talaq attains finality. In tripple talaq this door is closed. hence, tripple talaq is against basic tenets of Holy Quran and consequently it violates Shariat. “
Shayara Bano v. Union of Indoa, (2017)9 SCC 1: AIR 2017 SC 4609
It is important to note that people supporting the practice of triple talaq were relying upon a premise that muslim law of divorce is governed by Muslim Personal Law (Shariat) Application Act, 1937. What they forget is Shariyat Act does not lay down any procedure or grounds for dissolution of Muslim marriage. Rather they make Shriyat applicable as rule of decision in matters enumerated in Section 2 of Shariat Act 1937. The word Shariat is a generic name given for muslim personal law which is based upon Quran.
The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible.
Shayara Bano v. Union of Indoa, (2017)9 SCC 1: AIR 2017 SC 4609 at Para 24
When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.
Shayara Bano v. Union of Indoa, (2017)9 SCC 1: AIR 2017 SC 4609 at Para 246
There was another interesting question before the apex court of India as to whether the practice of tripple talaq is protected under Article 25 of the Constitution i.e. fundamental right of freedom of religion. Honourable Court answered this by saying that “all forms of talaq recognised and enforced by muslims personal law are recognised and enforced by 1937 Act. Section 2 does recognise and enforce tripple talaq. Since 1937 is a preconstitutional law and hence any pre-constitutional law which is inconsistent with Part III of the constitution would be hit by Article 13(1)”.
Moreover, the rights under Article 25 are subject to public order, morality and health and all other provisions of Part III. The language of Article 25 clause 1 starts with the expression “subject to public order and health and other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion”
A plain reading of Article 25 clause 1 reveals that right to practice religion has been made subject to other provision of Part III of the constitution. Therefore, it means that Article 14 which is present in part III will have upper hand and prevail over any fundamental right to practice, profess and propagate religion. Therefore, any religious right has to be in conformity with Article 14. In other words any religious practice including triple talaq must be reasonable and not arbitrary. Triple talaq (talaq-e-biddat) having instantaneous effect shuts the door of reconciliation between spouse and give absolute power to Muslim husbands to denounce his wife at any time without assigning any reasons. Therefore, such practice is violative of Article 14 and hence law related to talaq-e-biddat recognised under Section 2 of Shariat Application Act, 1937 is void under Article 13(1) of the Constitution of India.