Majority vs minority: How the judges were divided over triple talaq

NEW DELHI: In a historic verdict, the Supreme Court on Tuesday brought the curtains down on the 1,400-year-old practice of 'triple talaq' among Muslims.

A five-judge constitution bench, by a majority of 3:2 in which Chief Justice J S Khehar was in minority, said the practice of "'talaq-e-biddat' (triple talaq) is set aside".

The majority judgement pronounced by Justices Kurian Joseph, R F Nariman and U U Lalit did not concur with the CJI and Justice Nazeer's opinion that 'triple talaq' was a part of religious practice and the government should step in and come out with a law.

Religious law vs the Constitution

Minority verdict: Chief Justice J S Khehar and Justice S A Nazeer held that 'talaq-e-biddat' is a matter of 'personal law' of Sunni Muslims belonging to the Hanafi school and constitutes a matter of their faith as it has been practised by them for at least 1,400 years.

"We have examined whether the practice satisfies the constraints provided for under Article 25 of the Constitution, and have arrived at the conclusion, that it does not breach any of them. We have also come to the conclusion, that the practice being a component of 'personal law', has the protection of Article 25 of the Constitution," CJI Khehar and justice Nazeer said.

Majority verdict: Justice Kurian Joseph, who penned a separate majority judgement, disagreed with the CJI that the practice of triple talaq has to be considered integral to religious denomination.

"Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 (Muslim Personal Law (Shariat) Application) 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," he said.

This view was endorsed by Justices Nariman and Lalit as well.

Judicial action vs legislative intervention

Minority verdict: CJI Khehar and justice Nazeer noted that triple talaq among the Muslims was an integral part of religion and faith that cannot be declared as unconstitutional, but "gender discriminatory" practice can be done away by way of legislation.

They asked the government to frame a law in this regard in six months and, till the time a new legislation is enacted, the practice of divorce through triple talaq, known as 'talaq-e- biddat' would not be in operation.

Majority verdict: Justice Kurian Joseph said the process of harmonising different interests was within the powers of the legislature and this power has to be exercised within the constitutional parameters without curbing religious freedom guaranteed under the Constitution.

"However, it is not for the courts to direct for any legislation," he said in his 26-page judgement.

Triple talaq is "instant and irrevocable"

Justice Nariman, in his separate judgement, said triple talaq is "instant and irrevocable" and leaves no scope for reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie and was not in sync with the Holy Quran.

"It is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it," he said.

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