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TRIPLE TALAQ CASE BRIEF

WP ( C )No 116 of 2016


Petitioners Shaira Bano
Respondents- Jaimat Ulma Hind, All India Muslim Personal Law Board, Union of
India

A five-judge constitution bench headed by Chief Justice JS Khehar heard the issue for
six days during which various parties, including the central government, the All India
Muslim Personal Law Board, All India Muslim Women Personal Law Board, etc
made their submissions.

Majority Decision- R. F. Nariman , U .U Lalit , Joseph Kurien

Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any
attempt at reconciliation between the husband and wife by two arbiters from their
families, which is essential to save the marital tie, cannot ever take place. Also, as
understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid
even if it is not for any reasonable cause, which view of the law no longer holds good
after Shamim Ara (supra). This being the case, it is clear that this form of 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. This form of Talaq must, therefore, be held to be violative of the 393
fundamental right contained under Article 14 of the Constitution of India. In our
opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple
Talaq, is within the meaning of the expression laws in force in Article 13(1) and must
be struck down as being void to the extent that it recognizes and enforces Triple
Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent
indicated above on the narrower ground of it being manifestly arbitrary, we do not
find the need to go into the ground of discrimination in these cases, as was argued by
the learned Attorney General and those supporting him.

Dissenting Opinion CJI Kehar , Abdul Nazir

In view of the position expressed above, we are satisfied, that this is a case which
presents a situation where this Court should exercise its discretion to issue appropriate
directions under Article 142 of the Constitution. We therefore hereby direct the Union
of India to consider appropriate legislation, particularly with reference to talaq-e-
biddat. We hope and expect, that the contemplated legislation will also take into
consideration advances in Muslim personal law Shariat, as have been corrected
by legislation the world over, even by theocratic Islamic States. When the British
rulers in India provided succor 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 (see at IX Reforms to personal law in India), even in India, but not
for the Muslims. We would therefore implore the legislature, to bestow its thoughtful
consideration, to this issue of paramount importance. We would also beseech different
political parties to keep their individual political gains apart, while considering the
necessary measures requiring legislation. Till such time as legislation in the matter is
considered, we are satisfied in injuncting Muslim husbands, from pronouncing talaq-
e-biddat as a means for severing their matrimonial relationship. The instant
injunction, shall in the first instance, be operative for period of six months. If the
legislative process commences before the expiry of the period of six months, and a
positive decision emerges towards redefining talaq-ebiddat (three pronouncements
of talaq, at one and the same time) as one, or alternatively, if it is decided that the
practice of talaq-e-biddat be done away with altogether, the injunction would
continue, till legislation is finally enacted. Failing which, the injunction shall cease to
operate.