‘Discriminatory but integral part of faith’

Justice JS Khehar and Justice SA Nazeer refused to declare unconstitutional the age-old practice of instant divorce among Muslims, terming it “an integral part of religion and faith”.

Both judges, in minority in the five-judge bench, however, declared talaq-e-biddat as “gender discriminatory”, a practice that can be done away by way of legislation.

On this ground, the judges exercised their discretionary power and directed the government to enact a new legislation to end the practice.

The verdict also lamented that the Centre was “unfortunately” trying to pass the buck on to the judiciary to do away with the practice of triple talaq among Muslims, instead of “labouring” to bring a law.

The bench gave the government six months to frame a law after taking into account the progress made in Muslim Personal Law in Islamic countries, including theocratic states.

Until a new legislation is enacted, the practice of divorce through triple talaq will not be used to end marriages.

“Talaq-e-biddat’ is a matter of ‘personal law’ of Sunni Muslims belonging to the Hanafi school and constitutes a matter of their faith as it has been practised by them for at least 1,400 years, the court said. Therefore, it satisfied the constraints under Article 25 of the Constitution.

The judges agreed with the All India Muslim Personal Law Board’s submission that “legislative will” was the recourse to end gender inequality, if any, and not through judicial intervention.