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Triple Talaq: custom to law and grounds of illegality

Why Triple Talaq declared illegal?

Triple talaq is one of the methods of divorce as recognized by Shariat Act, 1937. Supreme Court, in its recent judgment has declared Talaq ul Biddat illegal.

Various arguments were given in its favour like

  1. It will be an interference in religious matter of Muslims
  2. It is against the basics of Quran
  3. It is their method to discourage divorce, and so on

However, Supreme Court with majority judgment of 3-2 rejected these arguments and declared the age old practice as against dignity of females as well as against humanity.

Grounds of rejection:

  1. Practice of marriage and divorce have been codified as personal law under Section 2 of Shariat Act, 1937

This itself separated ‘divorce’ as subject matter from religion and hence it does not enjoy the protection of Article 25 of our Constitution i.e. Freedom of Religion.

  1. On the other hand, being a part of an Act, ‘Talaq’ has become a ‘law’ under Article 13 and any custom, usage or law, as is the mandate of Article 13, which is violative of fundamental rights, should be struck down by the apex court
  2. Even if talaq was an essential part of religion and protected under Article 25, the practice still has to be constitutionally moral.

Constitutional morality includes secularism, dignity and non-discrimination. So, based on the logic that ‘what is bad in theology is bad in law’, talaq failed the test of law also.

  1. No custom can be arbitrary. Talaq has to be tested on the touchstone of the fundamental rights of gender equality, gender justice, gender discrimination, human rights, dignity under Articles 14, 15, 21 and 51A of the Constitution. It again failed on this ground.
  2. Article 25 is also not without reasonable restrictions. So no matter whether a practice is essential to religion or not, talaq has to abide by the principles of gender equality and Justice.
  3. Historical evidences also were against ‘talaq’ being part of core Islam. Even Prophet Muhammad considered ‘Talaq ul Biddat’ as sin and opposed it. During his lifetime this form of divorce was never practiced.
  4. Moreover, maximum of Muslim world has themselves declared it banned method of divorce, how it can continue in a secular state like India.
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