Supreme Court Scraps Unconstitutional ‘Triple Talaq’, Asks Parliament To Make Law 

NEW DELHI: In a judgment of far-reaching impact, Supreme Court on Tuesday struck down triple talaq terming it “unconstitutional". The constitutional bench, headed by the Chief Justice JS Khehar, delivered a spilt verdict (3:2) invalidating the practice as part of the Muslim Personal Law. The majority judgment came from three judges — Justice Rohinton Nariman, Justice Kurien Joseph and Justice UU Lalit.

However, CJI JS Khehar and Justice S Abdul Nazeer give dissenting judgment. Justice JS Khehar put the ball into the government's court and has asked the Centre to come up with a law in six months. Until this time, the practice of triple talaq has a stay over it.

Justice Rohinton Fali Nariman: It is a disapproved form of divorce. Even Hanafi law says triple talaq is sinful. 1937 Act recognizes triple talaq and therefore does not violate Article 13...Triple Talaq won’t fall within confines of Article 13(1)...It is not possible for court to fold his hands when petitioners come to court. Court has to declare whether practice is legal or not.

Justice Kurian Joseph: There are four sources of Islamic law. Only the Quran is the first source of law, therefore sources other than the Quran are supplement to what is in it. Therefore, there can be nothing more than what is written in the Quran… Quran attributes permanence to matrimony. Essential steps required before talaq. Triple talaq against tenets of Quran, therefore, violates Shariat. As held in shamimara, talaq must be after having tried to resolve issues. Triple talaq not a part of sharia, therefore, Kurian does not agree with CJI that it’s part of personal law.

CJI Khehar: "Triple Talaq is important to sunnis of hanafi school, has to be accepted as important to their culture...Triple talaq does not violate article 25, 14 and 21 of the Constitution...Practice being constituent of personal law, it can't be set aside on ground of constitution morality by judicial intervention. Legislative intervention needs to be followed in respect of triple talaq if it has to be set aside... International conventions do not have any bearing on the subject as the practice is part of personal law. This is a case where court should exercise Article 142 and direct the Union to enact appropriate legislation keeping in mind advances in Muslim personal law."