NEW DELHI: In a historic decision, a five-judge constitution bench of the Supreme Court by 3:2 majority struck down triple Talaq, or instant divorce, practice as unconstitutional.
Justices Nariman and Lalit held triple talaq being unconstitutional, and struck down that part of 1937 Sharia Law that allowed it to be recognised practice among Muslims following Hanafi school.
Chief Justice JS Kesar and justice S Abdul Nazeer held triple talaq to be part of fundamental right to religion of Muslims and said it was not unconstitutional.
But, Justices Kurian Joseph, R F Nariman and U U Lalit said triple talaq violated the fundamental right of Muslim women as they are subjected to arbitrary irrevocable divorce through this practice.
CJI Khehar and Justice Nazeer, even while holding triple talaq to be valid, ordered a stay on this practice for six months to enable legislature bring a law banning this practice.
They said if a legislation banning triple talaq completely is placed before Parliament within six months, the stay on the practice would continue till Parliament enacted or rejected the law.
But, justices Joseph, Nariman and Lalit through different reasonings reached the conclusion that triple talaq was unconstitutional.
Justice Joseph said triple talaq was not sanctioned by Quran and hence could not form part of the fundamental right to religion.
He said what is not true in theology cannot be sanctioned by practice or law.
Justices Nariman and Lalit held triple talaq being unconstitutional, and struck down that part of 1937 Sharia Law that allowed it to be recognised practice among Muslims following Hanafi school.
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Here are key points of the judgment:
1. After reading separate judgments, the 5-judge bench of the Supreme Court ruled in 3:2 majority that triple talaq is void and illegal.
2. Chief Justice J S Khehar and Justice Nazeer said triple talaq is a fundamental right while 3 other judges - Justices Kurian Joseph, R F Nariman and U U Lalit - said it is not a fundamental right.
3. Justice Nariman, Justice Lalit and Justice Kurien said triple talaq was unconstitutional.
4. The SC put six-month stay on practice of Muslim men giving their wives instant divorce through triple talaq.
5. The SC bench has asked Parliament to make a new law on triple talaq issue in six months.
6. If law doesn't come in force in six months, then SC's injunction on triple talaq will continue.
7. The SC bench referred to abolition of triple talaq in Islamic countries and asked why can't Independent India get rid of it.
8. The SC said "triple talaq violates fundamental right of Muslim women as it irrevocably ends marriage".
9. Justice Joseph said what cannot be true in theology cannot be protected by law.
10. Justices Nariman and Lalit also said that triple talaq granting instant divorce is unconstitutional.