Indian Supreme Court in a 3:2 judgement, strikes down triple talaq divorce among Indian Muslims as unconstitutional

Last updated on 24-Aug-2017

24th Aug. 2017 Update-Note: I had made a mistake in my reading of small excerpts of the judgement in presuming that the Indian Supreme Court Chief Justice's words about injuncting triple talaq for six months during which he instructed Indian parliament to enact law on it, was part of an overall judgement. It was not so, according to The Hindu reports I read today. It was part of the minority (2 judges) judgement which got overruled by the majority (3 judges) judgement! The majority judgement struck down triple talaq way of divorce for Muslim men in India as unconstitutional! ... My apologies to readers who may have got misled with previous contents of this post. Note that I have changed the post title as well. 

The Hindu, a mainstream South Indian newspaper, stated in an article on 23rd Aug. 2017, "The Centre is all set to send an advisory to the states, asking them to ensure compliance with the Supreme Court order declaring triple talaq void illegal and unconstitutional.", http://www.thehindu.com/todays-paper/tp-national/centre-to-send-advisory-to-states/article19542601.ece.

So that makes it clear that as of now in India, triple talaq is illegal, and that the govt. is taking steps to ensure that all states of India comply with this changed legal status of triple talaq. end 24th Aug. 2017 Update-Note.

This is a very sensitive matter in the Indian context. Here's an article on it: "Muslim men in India could once divorce their wives by saying three words. Until now.", https://www.washingtonpost.com/world/muslim-men-in-india-could-once-divorce-their-wives-by-saying-three-words-until-now/2017/08/22/93ccb4f6-871a-11e7-9ce7-9e175d8953fa_story.html, dated 22nd Aug. 2017

One of the Muslim women who were happy with the Supreme Court's verdict, Zeenat Ali Siddiqui, is reported to have said: "Thousands, millions of women are crying at home" [Ravi: she meant with joy, I think].. "Narendra Modi has ended the practice of men throwing their women out from trivial reasons like making the lentils too sour" ... "When this happens to women, they are looked at with an evil eye. I know how it feels, because it has happened to me." [Ravi: Narendra Modi did not do it, though the Indian central govt. Attorney General argued against triple talaq in this case, I believe. It was the Indian Supreme Court that did it with a split verdict of 3 judges to 2.]

But the All India Muslim Personal Law Board was not happy with it. Its member, Kamal Faruqui, is reported to have said, "We don't see this as a favorable verdict. Triple talaq is a part of our religion and of sharia."

Note that the article states that triple talaaq as a way for Muslim men to divorce their Muslim wives is not allowed in some other Muslim countries in the world as well.
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More on the Indian Supreme Court Triple Talaq (Talaaq) judgement

The Supreme Court bench that ruled on this had five judges from five different religions! Justices Rohinton F. Nariman (Parsi), Uday U. Lalit (Hindu) and Kurian Joseph (Christian) struck down the triple talaaq divorce practice (talaaq word being said three times in quick succession by the husband; same procedure not available to wife) as unconstitutional.

Note that this triple talaaq practice in India among Muslims is said to be 1,400 years old!!

The two other justices, Chief Justice J.S. Khehar (Sikh) and Justice S. Abdul Nazeer (Muslim), dissented with the majority view of the bench. They were of the view that this religious practice enjoyed protection under Indian constitution and that this matter was beyond judicial scrutiny. Parliament could deal with the matter with an appropriate law. They are quoted as saying, "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". Note that article 25 of the Indian constitution deals with freedom of religion, https://indiankanoon.org/doc/631708/.

The dissenting view of these two justices seems to have held that triple talaaq is integral to Indian Muslim religious practice (and therefore is protected by freedom of religious practice under Indian constitution). But this minority view of the judges has been overruled by the majority view.

Justice Kurian Joseph (of the majority view) is reported to have stated: "I find it extremely difficult to agree with the learned Chief Justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law."

Justices RF Nariman and UU Lalit (judgement written by Justice Nariman), of the majority view, are reported to have written, "Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, 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. This form of Talaq must, therefore, be held to be violative of the (393?) fundamental right contained under Article 14 of the Constitution of India."

Here is a link which claims to have some small parts of the actual judgement text (which is reported to be 395 pages long), http://www.livelaw.in/supreme-court-said-triple-talaq-judgment-read-judgment/. [I tried searching the Supreme Court of India website for the judgement, http://supremecourtofindia.nic.in/judgments, but it seems to not have been uploaded yet.]

Two other articles on the matter:
In 3-2 verdict, SC walks fine line, strikes down instant triple talaq, http://indianexpress.com/article/india/triple-talaq-verdict-supreme-court-muslim-divorce-instant-triple-talaq-ban-4808897/, 22nd Aug. 2017

Majority vs minority: How the judges were divided over triple talaq, http://timesofindia.indiatimes.com/india/majority-vs-minority-how-the-judges-were-divided-over-triple-talaq/articleshow/60178540.cms, 22nd Aug. 2017