‘1,400 yrs of practice won’t make it right’

Three of the five judges on a multi-faith Supreme Court bench held on Tuesday that the practice of instant triple talaq was unconstitutional.

Justices Kurian Joseph, RF Nariman and UU Lalit differed with Chief Justice of India JS Khehar and Justice SA Nazeer to declare that instant triple talaq or talaq-e-biddat was not integral to Islamic personal law and hence did not come under the purview of Constitutional protection that allows Indians to practise their own faith and religion.

Giving reasons for his conclusion, Justice Joseph traced the teachings of Quran to rule instant triple talaq was never prescribed in the holy book. The judge referred to the Muslim Personal Law (Shariat ) Application Act, 1937, which he said was introduced to discontinue anti-Shariat practises.

“Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible,” the judge said, contesting CJI’s observation that the triple talaq was prevalent for over 1,400 years and, therefore, was an essential part of Islam.

Justices Nariman and Lalit echoed Justice Joseph’s views on talaq-e-bidda not being integral to Islamic law.

Rejecting the All India Muslim Personal Law Board’s (AIMPLB) argument that the Act was not a law and could not be tested on constitutional principles, the bench held that it violated Article 14 (right to equality). And since, Section 2 of the Act enforced triple talaq, the judges struck down the provision as being void .