In a 3:2 majority, Supreme Court on Tuesday declared talaq-e-biddat or instant and irrevocable talaq as a “manifestly arbitrary” practice. According to the SC, it is not protected by Article 25 of the Constitution which provides freedom of religion.
Chief Justice J.S. Khehar, who led the Bench, said that talaq-e-biddat is an integral part of Article 25 (freedom of religion). He also said that instant talaq does not violate the Constitution, and said it is the responsibility of the legislature to decide a law within six months. This view was also endorsed by Justice S. Abdul Nazeer.
The Chief Justice, however, also said that even the Muslim world has shed talaq-e-biddat and there is no reason for an independent country like India to lag behind. He has appealed to political parties and lawmakers to set aside their individual profits and give frame a new, suitable law.
Justices Kurian Joseph, U.U. Lalit and Rohinton Fali Nariman gave separate judgments against the validity of instant talaq. According to Justice Nariman, talaq-e-biddat allows a Muslim man to “whimsically and capriciously” divorce his wife. The practice according to him is “manifestly arbitrary” and does not enjoy the protection of Article 25.
Justice Kurian differed with Chief Justice Khehar and said that just because a practice has been around for 1,400 years, this fact does not make it eligible for protection under Article 25 of the constitution. Justice Kurian also started an uproar by suggesting an alternative that a Muslim bride, should be allowed to lay down a condition in the nikah nama that, in case the marriage hits a rough patch she would not be subjected to instant talaq.
The All India Muslim Personal Law Board (AIMPLB) holds that triple talaq is a matter of faith followed for 1400 years. The Centre had always claimed that instant talaq was not fundamental to Islam and it has promised to bring a new divorce law for Muslim.