In a landmark ruling, the Supreme Court of India declared the Islamic practice under which a Muslim man could divorce his wife instantaneously by uttering ‘divorce’ thrice as unconstitutional.
In a 3-2 majority verdict, the Court struck down the age-old practice under which a Muslim man could divorce his wife by uttering the word “talaq” thrice; whereas the minority upheld the validity of the practice and sought to shift the onus to Parliament to bring in a legislation governing Muslim marriages and divorce within six months.
“….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 fundamental right contained under Article 14 of the Constitution of India”, the Court said, adding “In our opinion, therefore, the 1937 Act [Muslim Personal Law (Shariat) Application Act, 1937], insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.”
The Court said that all forms of Talaq recognized and enforced by Muslim personal law are recognized and enforced by the 1937 Act including Triple Talaq when it comes to the Muslim personal law applicable to Sunnis in India.
Referring to the holy Quran, Justice Kurian, in his separate ruling, said, “These instructive verses do not require any interpretative exercise. They are clear and unambiguous as far as talaq is concerned. The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality. In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.
“What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well”, Justice Kurian observed.