A five-judge constitution bench of the Supreme Court on Tuesday the 21st Aug 2018 found itself split on triple talaq, with 3 opposed and 2 towards maintaning status quo.
Bench constituted judges from a varied ethnic background. Chief Justice J S Khehar is a Sikh, Justice S. Abdul Nazeer is a Muslim, Justices Kurian Joseph and R F Nariman are Christians, and Justice U U Lalit a Hindu.
Judgments of 5 Judges were read separately.
CJI J S Khehar and Justice Nazeer said triple talaq is a fundamental right and suggested to retain the status quo.
According to The Hindu, “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.”
Justice Nariman, Lalit and Kurien, on the other hand, thought that triple talaq is unconstitutional. Justice Kurian, however, suggested “an alternative that a Muslim bride, at the time of the wedding, should be allowed to lay down a condition in the nikah nama that she would not be subjected to instant talaq in case the marriage hits a rough patch.”, reported The Hindu. This option is part of Islamic Sharia, and is available to the girl getting married, though not a common practiced in the subcontinent, mainly due to a lack of knowledge.
“Reading out the final order of the court at the end of the judgment pronouncement session, Chief Justice Khehar addressed the courtroom and concluded that "by majority of 3:2, talaq-e-biddat is set aside.", reported The Hindu.
The SC put six-month stay on practice of Muslim men giving their wives instant divorce through triple talaq, and asked Parliament to make a new law on triple talaq issue in in six months. If law doesn't come in force in six months, then SC's injunction on triple talaq will continue.
In the mean time, All India Muslim Personal Law Board (AIMPLB) has “filed an affidavit informing that they would issue a public advisory to qazis to advise bridegrooms against instant talaq and also add a condition in the nikah nama to exclude instant talaq. The AIMPLB even threatened a social boycott of those who resort to instant talaq.”, reported The Hindu.
