The wife of an Aligarh Muslim University professor on Sunday accused her husband of seeking to divorce her through instant messaging platform WhatsApp. The woman, who had a week earlier approached the police alleging the professor was torturing her and that he had locked their house to prevent her from entering it, has also written to Prime Minister Narendra Modi and Uttar Pradesh Chief Minister Adityanath alleging her husband’s actions went against the Supreme Court’s recent judgment on triple talaq. Sanjay Hegde and Pranjal Kishore take a deep look at the Supreme Court’s judgment and explain why it falls short in several respects.

The Supreme Court’s recent judgments in Shayara Bano v Union of India and Ors, popularly known as the Triple Talaq case, has drawn both applause and criticism in equal measure. A bench of five judges “set aside” the practice of Talaq-e-Biddat, that is, instantaneous triple talaq. The Bench was split 3:2 on the question of validity of the practice. Justices Nariman and Lalit found it to be unconstitutional, while Justice Joseph found it illegal. Justices Kehar and Nazeer dissented. However, Justice Nariman (with Justice Lalit concurring) and Justice Joseph used different, even conflicting, reasoning to arrive at the “majority decision”.

To understand the judgment of the court, it is imperative to understand the questions that were before it. Fundamental to the understanding of the issue are the concepts of marriage by contract and the fundamental right to freedom of religion guaranteed under the Constitution. In Hindu and Christian religious law, a marriage is considered sacramental. By contrast, Muslim marriages are contracts, pure and simple. The question before the court was whether an instantaneous mode of termination of the marriage contract was an essential religious practice protected by the Constitution.

Forms of talaq

A dissolution of the contract of marriage by talaq, has three forms: Ahsan, Hasan and Talaq-e-Biddat . Talaq-e-Ahsan is considered the most acceptable form of talaq. Under this, the word “talaq” is repeated thrice, but divorce becomes effective after three months, if reconciliation does not happen or cohabitation does not resume. In Talaq-e-Hasan, talaq is pronounced once a month, over a period of three months. If cohabitation is not resumed during this period, divorce gets formalised after the third utterance in the third month. However, if cohabitation resumes after the first or second utterance of talaq, the parties are assumed to have reconciled and the first/second utterances of talaq are deemed invalid. The procedure for divorce is drawn up over three months in order to ensure that the parties have had time to reconcile, to check if the lady is pregnant, etc.

This three-month procedure was the method approved by the Quran and the Prophet. Some traditions (Hadith) say that the Prophet disapproved of, but did not forbid, instantaneous triple talaq, (Talaq-e-Biddat), which became effective instantaneously without the three-month period for reconciliation. Thus, instantaneous triple talaq was born in remembered tradition, without Quranic mention. Some later texts even consider it sinful. Nevertheless, it has been part of the Muslim divorce law.

The Supreme Court’s decision leaves two forms of talaq – Talaq-e-Ahsan and Talaq-e- Hasan untouched, while Talaq-e-Biddat has been set aside. Thus, in effect, it is the practice of divorce by the consecutive utterance of talaq three times that has been deemed invalid. However, a man continues to be free to utter talaq three times over three months, in order for the divorce to be effective.

The arguments

The judges in the majority used contrasting, and sometimes contradictory, approaches to invalidate triple talaq. Justice Kurian Joseph held that “in extremely unavoidable circumstances, talaq is permissible. But an attempt for reconciliation and, if it succeeds, revocation, are the Quranic essential steps before talaq attains finality. In triple talaq, this door is closed, so triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat”. He goes on to hold that that the practice of instantaneous triple talaq is not integral to Islam.

Justice Nariman (writing for himself and Justice Lalit) agreed with Justice Joseph in stating that instantaneous triple talaq is not integral to Islam. However, he went a step ahead. It must be noted here that those backing instantaneous triple talaq had argued that personal law does not come under the ambit of law under Article 13 of the Constitution. Therefore, its validity could not be tested on the touchstone of Fundamental Rights. Repelling this argument, Justice Nariman held that instantaneous triple talaq has been recognised by the Muslim Personal Law (Shariat) Application Act, 1937. It has thus been incorporated via a legislation and “would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency.”

He went on to say that “this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.”

In the minority, Justice Khehar upheld instantaneous triple talaq on the ground that it is an essential religious practice of Islam. Crucially, both Justice Khehar (who wrote the minority opinion for himself and Justice Nazeer) and Justice Joseph expressly disagree with Justice Nariman’s invocation of Article 13. It is, thus, clear that the majority has set aside instantaneous triple talaq on the ground that it is not an “essential religious practice” in Islam.

Troubling questions

This leaves us with some troubling questions. Foremost among these is the desirability of judges of a secular court, in a secular country, to decide a case on a reading of religious texts, rather than statutory or constitutional provisions. The second issue is the continued refusal of the court to test personal laws on the basis of constitutional values.

One of the key arguments of the petitioners before the court was that all laws, including personal religious laws, should meet the yardstick of the fundamental rights chapter of the Constitution. This argument ran contrary to a 65-year-old decision of the Bombay High Court in State of Bombay v Narasu Appa Mali, where the Court had held that personal laws are not subject to fundamental rights. Justice Nariman’s opinion does indicate that “in a suitable case it may be necessary to have a re-look at this judgment”. However, the court stops short of examining personal law on the basis of the Constitution.

This is problematic for a number of reasons. Refusal to test personal laws on the touchstone of fundamental rights means that the validity of religious laws will continue to be decided on a judge’s interpretation of religious texts. Thus questions like the Jain practice of Santhara, entry of women into the Haji Ali Dargah or the Sabarimala temple will be decided on the basis of religion and not the constitutional principles of equality and non-discrimination which our Republic holds dear. Secondly, it leads to an anomalous situation, in as much personal law, when codified is amendable to a fundamental rights infringement challenge. However, the same law in an uncodified form is immune to constitutional scrutiny.

Thus, while the judgment has definitely buried instantaneous triple talaq, it has revived the question of exactly how much courts should judge personal religious beliefs against the anvil of the Constitution.

This article first appeared on Business Standard.