India - United against triple talaq, divided on legal points

Krishnadas Rajagopal

While Chief Justice wanted to invoke Article 142 and seek legislation to end the practice, the majority verdict set it aside as ‘manifestly arbitrary’

Though he declared instant talaq a fundamental right, Chief Justice of India J.S. Khehar on Tuesday employed the Supreme Court’s rare and extraordinary jurisdiction under Article 142 to injunct Muslim husbands from divorcing their wives for the next six months through the same instant talaq.

The issue of Chief Justice Khehar employing Article 142 was raised by another judge on the Bench. “I have serious doubts as to whether, even under Article 142, the exercise of a fundamental right can be injuncted,” Justice Kurian observed.

Chief Justice Khehar issued the direction under Article 142 after observing that even theocratic Islamic States had corrected their Shariat to banish instant talaq.

In other countries

“When the British rulers in India provided succour to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind. Measures have been adopted for other religious denominations even in India, but not for Muslims. We would, therefore, implore the legislature, to bestow its thoughtful consideration, to this issue of paramount importance,” Chief Justice Khehar observed.

Moreover, the Chief Justice, who wrote the minority judgment for himself and Justice S. Abdul Nazeer, directed the government to frame a law to address the issue of Muslim women under the yoke of triple talaq, especially instant talaq. The minority verdict said social evils such as sati, infanticide and devadasi system were cast out by way of legislation and not by judicial orders.

However, the direction under Article 142 in the minority verdict failed to come alive as the majority of the judges on the Bench set aside instant talaq with immediate effect.

Gender equality

India is committed to gender equality and eradication of discrimination on the basis of sex, the minority verdict said. “We have not the least doubt, that the Indian state is committed to gender equality. This is the clear mandate of Article 14 (equality before law) of the Constitution. India is also committed to eradicate discrimination on the ground of sex. Articles 15 and 16 of the Constitution, prohibit any kind of discrimination on the basis of sex.”

“There is, therefore, no reason or necessity while examining the issue of ‘talaq-e-biddat’, to fall back upon international conventions.”