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Triple talaq banned: Know what the lone Muslim judge in SC said about talaq-e-biddat

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New Delhi: India’s Supreme Court in a historic judgment set aside the practice of triple talaq, saying it was illegal and not backed by Qur’an or the Islamic Shariah. The 3-2 majority judgment has asked India’s Parliament to formulate a law banning the practice.

The apex court judges have asked the Parliament to go for legislation in this regard. While the judgment is no surprise as there were enough indications that the court will ban the practice, the dissenting voice from judges is certainly surprising. The support for the triple or instant talaq has been rapidly shrinking among Muslims over the past couple of years. Even its use among the Muslim community is very low.

Three judges said that the verdict was against Islam while two judges said that it was not against shariah and that it had been followed for around 1400 years. Justices Kurian Joseph and Rohinton Fali Nariman gave separate judgments against the validity of instant talaq. Justice U.U. Lalit has supported Justice Nariman’s judgment.

Opposed to the three justices, the Chief Justice of India J.S. Khehar, contended that instant talaq or talaq-e-biddat is was an integral part of Article 25 (freedom of religion). The chief justice said that the talaq-e-biddat was in vogue for more than a millennia by the Hanafi Muslims, who make a majority in India. He said that the triple talaq had become a part of religious practice among a large number of Muslims across the country.

The chief justice also said that triple talaq that immediately renders the marriage void does is not against Articles 14, 19 and 21 of the Indian Constitution. He asked the Parliament to formulate a law within six months. Invoking extraordinary jurisdiction under Article 142, the Chief Justice injuncted Muslim men from divorcing their wives using instant talaq. This view was endorsed only by Justice S. Abdul Nazeer, thus, making it the minority judgment.

So by a majority judgment, where the lone Muslim judge and the chief justice held different view, the practice of triple talaq has been banned in India. Chief justice while the verdict said, “by majority of 3:2, talaq-e-biddat is set aside.”

Justice Nariman said it was “not possible for the court to fold its hands when petitioners [Muslim women] come to court for justice.” Chief Justice J.S. Khehar, who led the Bench, in a minority judgment said that the talaq-e-biddat or instant triple talaq was in fact an integral part of Article 25 (freedom of religion). The chief Justice of India contended that the practice is in vogue for the last 1400 years by the Hanafi Muslims. It must be kept in mind that the majority of 200 million Indian Muslims follow Hanafi school of thought. The Chief Justice said that talaq-e-Biddat had become an integral part of the Muslim religion as practiced by Hanafi Muslims. India’s Chief Justice in his minority judgment went on to add that the practice of triple talaq actually does not violate Articles 14, 19 and 21 of the Indian Constitution at the moment. The lone Muslim judge of the Bench Justice S. Abdul Nazeer endorsed the opinion of the Chief Justice.

Justice Abdul Nazeer differed and said while triple talaq “may be sinful”, the court can’t interfere in personal laws which have the status of fundamental right under the constitution.

Nonetheless, as the majority of the judges favored that it was against the tenets of Islam, they carried the day. The majority of the judges said that the triple talaq is against the basic tenets of Quran and thus not an integral part of Islam. The five judge bench said, “Talaq-e-Biddat (instant divorce) is manifestly arbitrary which allows a Muslim man to break down a marriage whimsically”.

There is no denying that the instant talaq is basically practiced by Hanafi Muslims. Muslims belonging to Salafi, Ahle Hadith and Shia schools of thoughts do not allow the practice of instant triple talaq. According to Salafi school of thought instant triple talaq will be taken only a single talaq. On the other hand, Shia Muslims believe that as triple talaq is illegal, it will be void and will not separate the couple.

Many organizations who have been supporting the triple talaq have turned against it. Muslim organizations belonging to mainstream Hanafi school of thoughts have started opposing it. A few months ago, Jamiat Ulama-e-Hind, a leading religious organization of Indian Muslims, in a huge program in Ajmer said that triple talaq in a single sitting was completely un-Islamic. While making a historic announcement during the religious congregation, Mahmood Madani, the general secretary of the Jamiat said that triple talaq in single sitting is completely un-Islamic practice and that it should be done away completely. The occasion was also important due to the fact that Barelwi and Deobandi presented a united face in the Ajmer conference.

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