The South Asia Law Discussion Group hosted Mr. Salman Khurshid, Senior Advocate, Supreme Court of India for a talk titled ‘Triple Talaq: Examining Faith’. The primary discussant was Dr. Chintan Chandrachud (Associate, Quinn Emanuel Urquhart & Sullivan, London). Mr. Khurshid reflected on the issue of triple talaq in light of the recent judgment of a Constitution Bench of the Supreme Court of India in the case of Shayara Bano v Union of India (‘Shayara Bano’).

Talaq in Islam: Decoded

At the outset, Mr. Khurshid tried to dispel the popular misperceptions surrounding triple talaq. In Islam, a man has the right to divorce his wife a total of three times in his lifetime. Talaq is the beginning of divorce, which culminates after three months (iddat period). What this means is that the man can take the pronouncement back before the completion of the iddat period, or within three months. If the man does not take the pronouncement back within three months, the marriage is dissolved. The man can still marry the woman afresh, provided she agrees. The process can be done a total of two times. The third time a man utters talaq, he can no longer take it back.

Further, the notion that in Islam talaq is unilateral is a false one. A woman also has the right to divorce her husband, by way of khula. Both the husband and the wife have to appoint parties for the purpose of reconciliation. It is an adjudicatory body which finally grants divorce after ascertaining that all attempts at reconciliation have failed and that the due maintenance has been paid by the husband to the wife and children.

To demonstrate how progressive Islamic law on divorce has been, Mr. Khurshid gave the example of the existence of the concept of divorce by mutual consent, centuries before any other system in the world offered it. According to him, the problem is that since sharia law has been twisted into something unrecognizable, it is easy to demonise it.

The judgment in Shayara Bano

Mr. Khurshid outlined the different opinions of the Court in Shayara Bano. The minority opinion, authored by Chief Justice Khehar (joined by Justice Nazeer) was that the practice of triple talaq has been a part of Islam for the past 1400 years, and hence is part of personal law which is protected under the fundamental rights guaranteed under the Constitution. However, it was also suggested that the Parliament outlaw the practice within six months, during which the practice would be injuncted.

The majority consisted of two opinions. Justice Joseph was of the view that the practice of instant triple talaq has no place in Islam. Justice Nariman (Justice Lalit concurring) held that since talaq under sharia law was part of the Muslim Personal Law (Shariat) Application Act 1937, it was subject to Part III of the Constitution, and amenable to be struck down as discriminatory.

The primary discussant, Dr. Chintan Chandrachud, added three points to the approach of the Court as well as the significance of the judgment. The first, was that the case presented a golden opportunity to the Court to strike down the decision of the Bombay High Court in State of Bombay v Narasu Appa Mali, wherein it had been held that uncodified personal law is not subject to scrutiny under Part III of the Constitution. Chandrachud noted that the decision in Narasu has resulted in a fascinating paradox in the system, which makes uncodified personal law superior to democratically enacted statutes. Judges have tried to adopt different approaches in order to side step the judgment. He used the example of Justice Nariman’s approach in Shayara Bano, which was to consider the practice of triple talaq as being codified personal law by virtue of Section 2 of the Muslim Personal Law (Shariat) Application Act 1937. However, it is important to overrule Narasu not just for the symbolic significance it carries, but also becauseNarasu has led to the Court spending time interpreting religious texts. Secondly, there is no clear majority in this case. It is not a 3:2 majority, rather it is 2:1:2. While the majority outcome is that the practice of triple talaq has been struck down, that is not the majority reasoning. Justices Joseph and Nariman arrive at the same conclusion through very different approaches. He then focused on the chosen remedy of imposing a six-month injunction on the practice, within which the Parliament was required to legislate on the practice of triple talaq. Chandrachud was of the view that there was no practical justification for the Court to have granted this remedy.

The aftermath of Shayara Bano and the way ahead

Mr. Khurshid outlined the developments which have taken place subsequent to the judgment. The Muslim Women (Protection of Rights on Marriage) Bill, 2017 introduced in the Lok Sabha in December, 2017 criminalises triple talaq that is instantaneous and irrevocable. However, when the practice has already been outlawed by the majority opinion of the Supreme Court, legislating on the same and making the act a punishable offence is akin to punishing an impossible act. The Bill also makes a provision for the payment of sustenance allowance by the husband to the divorced wife and children, which seem to contradict the provisions of the he Muslim Women (Protection of Rights on Divorce) Act, 1986, as well as the Constitution Bench judgment of the Supreme Court in Danial Latifi v Union of India, which provided for the payment of a one-time lump sum towards maintenance. Chandrachud questioned the very premise of the introduction of the Bill citing the statement of objects and reasons, according to which the Bill has been necessitated due to the decision in Shayara Bano being unable to deter the practice. However, the decision of the Court was not intended to have a deterrent effect. It just outlawed the practice.

The Court in Shayaradid not adjudicate on other important issues such as nikahhalala and polygamy. Mr. Khurshid urged that research be conducted on the figures on the actual prevalence of these practices before the debate is taken further. Further, there exists a huge area of interpretation (ijtihad) within which the provisions of the qurancould be read to conform to the standards of morality in a modern society. However, the crucial question which the remains for the Court to answer is what is faith, and how much does the Constitution accommodate it.