The practice of triple talaq was last week declared unconstitutional in a New Delhi Supreme Court judgment.

An instant, irrevocable and unilateral form of divorce, triple talaq is the controversial practice whereby a Muslim man instantly dissolves marital ties and responsibilities to his wife by pronouncing ‘talaq’ three times.

The Supreme Court, led by India’s Chief Justice Jagdish Singh Khehar, heard from five Muslim women and the ‘Muslim Women’s Quest for Equality’ before banning the practice in a 3-2 majority verdict on Tuesday.

The Supreme Court found that the “manifestly arbitrary” practice was not an essential religious feature warranting constitutional protection and violated fundamental rights guaranteed by the Indian constitution.

Legal issues at stake

Family law in India is governed by the various religions’ personal laws. Much of what was religious customary law was codified into various statues, including the Muslim Personal Law (Shariat) Application Act, 1937.

The issue before the Supreme Court was a constitutional conflict between Islamic personal law, enforceable under the 1937 Act, and fundamental rights guaranteed in Part III of the Indian Constitution.

The court heard evidence that the practice of triple talaq is violative of Article 14, ensuring equality before law; Article 15 which prohibits discrimination and Article 21, which secures the right to life and personal liberty.

As per Article 13 of the Indian Constitution, any “law” that violates a fundamental right is void: “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void”.

However the Muslim Personal Board claimed that the practice could not be touched by a constitutional court.

The Court’s Findings

The Personal Muslim Board cited a landmark Bombay High Court judgment State of Bombay v. Narasu Appa Mali, AIR 1952 BOM 84 to argue that Islamic personal laws, could not be subjected to these fundamental rights by a constitutional court.

The petitioner’s basis for triple talaq being unconstitutional was that it was enforced through Section 2 of the 1937 Personal Law Act which is subject to Article 13.

The Muslim Personal Board argued that triple talaq was not part of personal law under the 1937 Act and therefore could not be found to be unconstitutional.

To argue that the 1937 Act was not meant to enforce Muslim Personal Law, their counsel drew from the non-obstante clause in Section 2, “Application of Personal law to Muslims—Notwithstanding any custom or usage to the contrary“, to argue that the Act was only meant to “do away with custom or usage which is contrary to Muslim personal law”. This “constricted” interpretation which saw the non-obstante clause as governing the scope of the act was dismissed by one Supreme Court Justice as a case of “the tail wagging the dog”.

Therefore, the Supreme Court found that all forms of talaq recognised and enforced by Muslim Personal Law are recognised and enforced by the 1937 Act. As the 1937 Act is a law made before the constitution was made it fell well within the bounds of the “laws in force” voidable by Article 13. As triple talaq was indeed inconsistent with constitutional fundamental rights, it was found to be unconstitutional.

Religious freedom

A further issue the Court had to address was whether triple talaq was a religious practice protected in the Indian Constitution by Article 25, which provides the right to religious freedom.

Applying an essentialism doctrine, the court weighed up the importance of triple talaq to Islam, considering that, “what is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion.”

The two dissenting judges held that triple talaq was a rule of law protected by Article 25. However the majority judgment and the concurring judgment by Justice Joseph held that while triple triple talaq forms part of Islam, it does not form an essential part of Islam. Denounced internationally and forbidden in a large number of Muslim theocratic countries, the court found that as such, the practice “cannot be considered sacrosanctal to the tenets of the Muslim religion”.

Conclusion

This case was a victory for fundamental rights. However the tensions between constitutional and personal law has not been fully clarified.This judgment has thoroughly thrown into question the guidance offered by Bombay v. Narasu Appa Mali, which in future judgments will have to be re-explored in the light of this decision. Whether this judgment has brought India any closer to abolishing personal laws and adopting a uniform civil code, remains to be seen.

You can see the judgment in full here.

What is talaq?

Talaq is a unilateral means of divorce at the instance of the husband rather than the wife or by mutual consent. The most ‘proper’ kinds of talaq include a waiting period of abstinence with the initial pronouncement of talaq revoked if conjugal relations resume in this period. There can either be a single, revocable pronouncement of talaq followed by this waiting period as in ‘talaq-e-ashan’, or three successive pronouncements throughout this period as in ‘talaq-e-hasan’.

The third kind, ‘talaq-e-biddat’, or triple talaq, is effected by the husband pronouncing a definitive pronouncement of talaq or three times simultaneously so that the marriage might be dissolved both immediately.

There is no mention of ‘talaq-e-biddat’ in the Qu’ran but its practice can be traced back to the second century.

The triple talaq is banned in more than 20 countries, including Shi’a, Sunni, Islamic and non-Islamic majority states. It is outlawed in the following Islamic theocracies: Packistan, Bangladesh, Iraq, Libya, Algeria, Morocco, Kuwait, Sudan, Tunisia, Yemen and the UAE, it is also banned in secular Islamic states Egypt, Syria, Jordan, Lebanon, Sri Lanka, as well as Indonesia, Malaysia and the Philippines.

Thea Dunne