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Triple Talaq verdict: When Chief Justice JS Khehar’s opinion was overruled

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7 years ago

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JS Khehar

[vc_row][vc_column][vc_column_text]Chief Justice of India, Jagdish Singh Khehar, whose term in office ends on August 27, may have headed the five-judge Bench of the Supreme Court that in its historic judgment, on Tuesday, banned the practice of instant triple talaq among Muslims but he, along with Justice S Abdul Nazeer, had favoured that the Union government and not the apex court should decide on the validity of Talaq-ul-Biddat

For a brief while on Tuesday morning, as the Supreme Court began pronouncing its historic verdict on the validity of Talaq-ul-Biddat, it felt as if the five-judge Bench headed by Chief Justice of India, JS Khehar, did not want to take responsibility of banning the highly controversial practice itself but instead have the Centre and Parliament decide on the move.

It was only when the final order was read out that it emerged that the verdict was split and instant triple talaq was to be banned immediately, and Chief Justice Khehar’s opinion of letting the government pass a law to this effect was in a minority- supported by only one other member of the Bench, Justice S Abdul Nazeer.

Here’s a glimpse of what different members of the 5-judge Bench said in their order on the landmark case.

Chief Justice JS Khehar and Justice S Abdul Nazeer

  • We have arrived at the conclusion, that ‘talaq-e-biddat’, is a matter of ‘personal law’ of Sunni Muslims, belonging to the Hanafi school. It constitutes a matter of their faith. It has been practiced by them, for at least 1400 years. We have examined whether the practice satisfies the constraints provided for under Article 25 of the Constitution, and have arrived at the conclusion, that it does not breach any of them. We have also come to the conclusion, that the practice being a component of ‘personal law’ has the protection of Article 25 of the Constitution.
  • We were obliged to keep reminding ourselves, of the wisdoms of the framers of the Constitution, who placed matters of faith in Part III of the Constitution… We cannot nullify and declare as unacceptable in law, what the Constitution decrees us, not only to protect, but also to enforce.
  • Such a call of conscience, as the petitioners (demanding ban on triple talaq) desire us to accept, may well have a cascading effect. We say so, because the contention of the learned Attorney General was, that ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ were also liable to be declared unconstitutional, for the same reasons as have been expressed with reference to ‘talaq-e-biddat’. According to the learned Attorney General, the said forms of talaq also suffered from the same infirmities as ‘talaq-e-biddat’. The practices of ‘polygamy’ and ‘halala’ amongst Muslims are already under challenge before us. It is not difficult to comprehend, what kind ofchallenges would be raised by rationalists, assailing practices of different faiths on diverse grounds, based on all kinds of enlightened sensibilities.
  • The wisdom emerging from judgments rendered by this Court is unambiguous, namely, that while examining issues falling in the realm of religious practices or ‘personal law’, it is not for a court to make a choice of something which it considers as forward looking or non-fundamentalist. It is not for a court to determine whether religious practices were prudent or progressive or regressive. Article 25 obliges all Constitutional Courts to protect ‘personal laws’ and not to find fault therewith. Interference in matters of ‘personal law’ is clearly beyond judicial examination. The judiciary must therefore, always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem.
  • A perusal of the consideration recorded by us reveals that the practice of ‘talaq-e-biddat’ has been done away with, by way of legislation in a large number of egalitarian States, with sizeable Muslim population and even by theocratic Islamic States… There can be no doubt, and it is our definitive conclusion, that the position can only be salvaged by way of legislation…The Union of India has appeared before us in support of the cause of the petitioners…Unfortunately, the Union seeks at our hands, what truly falls in its own.
  • 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.
  • 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 a 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-e-biddat’– 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.

Kurian

Justice Kurian Joseph

  • The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality.51 In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.
  • I find it extremely difficult to agree with the learned Chief Justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law.
  • I expressly endorse and re-iterate the law declared in Shamim Ara (another case in which triple talaq was declared invalid). What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.

Justices Rohinton F Nariman and UU Lalit

  • It is clear that this form of Talaq (Talaq-ul-Biddat) 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 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.

The final order signed by the 5-judge Bench:

In view of the different opinions recorded, by a majority of 3:2, the practice of ‘talaq-e-biddat’ – triple talaq is set aside.[/vc_column_text][/vc_column][/vc_row]

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Man attempting to cross India-Pakistan border in Rajasthan shot dead by BSF personnel

“We are investigating the case under these acts,” he added.

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15 hours ago

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December 25, 2024

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Border Security Force (BSF) personnel shot and killed an individual attempting to cross the India-Pakistan border in the Ganganagar district of Rajasthan late on Tuesday, according to police.

Jitendra Kumar, the station house officer at Kesrisinghpur police station, stated that the man was trying to breach the barbed wire fence when he was spotted by BSF personnel. “They advised him to leave the area, but when he continued to advance, the BSF personnel shot him,” said the SHO.

Sriganganagar Superintendent of Police Gaurav Yadav confirmed that the suspect was allegedly trying to enter Indian territory around midnight on December 24, 2024. Despite warnings from the BSF soldiers, he did not heed their calls, which resulted in the shooting.

The incident occurred near a village in the Kesarisinghpur area. Items recovered from the intruder included Pakistani currency notes, a cigarette packet, an identity card, and other belongings. Authorities are currently gathering more information about him.

Ongoing discussions are taking place between the armed forces and police officers regarding the incident. An FIR has been filed that includes charges of trespassing and violations of the Passports Act and the Foreigners Act, according to Kumar. “We are investigating the case under these acts,” he added.

This incident is one of several similar occurrences along the border. In August, the BSF apprehended an intruder named Jagsi Kohli, who had entered about 15 kilometers into Indian territory in Barmer after locals alerted authorities that he was asking for directions to Tharparkar, a district in Pakistan’s Sindh province.

In March of this year, another person attempting to cross the border in Ganganagar was shot by BSF personnel. There have been additional incidents reported in October 2022 and twice in March 2021, all resulting in fatalities among the intruders.

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Amit Shah, JP Nadda, Chandrababu Naidu among leaders at NDA meet in Delhi amid Ambedkar row

The alliance had decided to convene on the birthday of the late BJP leader, noted for successfully leading the first coalition government to complete its term.

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15 hours ago

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December 25, 2024

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Union Home Minister Amit Shah, BJP chief J.P. Nadda and Telugu Desam Party (TDP) president and Andhra Pradesh Chief Minister Chandrababu Naidu among leaders of the NDA met in New Delhi on Wednesday to discuss different issues including Shah’s comment on BR Ambedkar days ago in Rajya Sabha.

In attendance, apart from Shah, Nadda and Naidu, JD-U leader and Union minister Rajiv Ranjan Singh, Apna Dal (S) president and Union minister Anupriya Patel, as well as JD (S) leader and Union minister H.D. Kumaraswamy were present.

Also present were Jitan Ram Manjhi, leader of Bihar’s Hindustani Awam Morcha (S) and a minister in the Modi government, Rashtriya Lok Morcha (RLM) president Upendra Kushwaha, a Rajya Sabha MP, and Thushar Vellappally, president of Bharath Dharma Jana Sena.

While the specific agenda of the meeting was not officially disclosed, sources indicated that discussions revolved around good governance and various political issues—principles that were central to Vajpayee’s tenure as Prime Minister. The alliance had decided to convene on the birthday of the late BJP leader, noted for successfully leading the first coalition government to complete its term.

Following the meeting, Nadda shared on X, “Attended the NDA leaders’ meeting in New Delhi today. Under the visionary leadership of PM Narendra Modi, India is achieving unprecedented milestones and has positioned itself as a global superpower. The NDA government remains committed to realizing the vision of ‘Viksit Bharat@2047’, ensuring a brighter and more prosperous future for all.”

Sanjay Nishad, chief of the NISHAD Party in Uttar Pradesh, described the meeting as “informal” and focused on Vajpayee’s legacy. He emphasised the importance of unity among all alliance members heading into future elections, mentioning that they congratulated the BJP leaders for their electoral victories in Haryana and Maharashtra.

Nishad further outlined that the meeting addressed coalition strategies to ensure that Prime Minister Modi’s initiatives effectively reach the populace and that electoral promises are fulfilled. He raised the topic of providing reservations for the fishing community, stating, “I presented evidence on this issue, as it was a poll promise. They will follow up with us next week to discuss it.”

Responding to inquiries about whether Amit Shah’s controversial remarks on Ambedkar were discussed, Nishad said, “We are here for the welfare of the people. Our energy should focus on achieving success in that area, rather than engaging with negativity from opposition parties.”

The NDA meeting underscores the alliance’s commitment to the proposed simultaneous elections, with all members backing the initiative. A Joint Committee of Parliament, established to review two bills related to simultaneous polls, is set to convene on January 8.

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Manipur CM Biren Singh says state needs immediate peace, understanding between two communities

He claimed that the administration is responding quickly to the displaced people’s needs in areas such as education and agriculture.

Published

16 hours ago

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December 25, 2024

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Manipur Chief Minister N Biren Singh on Wednesday emphasised the urgent need for peace in the state, which has faced ethnic violence since May of last year, and called on two communities to reach a mutual understanding.

Speaking at the Good Governance Day event held at the state BJP headquarters, Singh expressed confidence that the BJP could restore stability to the northeastern state, highlighting the party’s commitment to coexisting harmoniously.

“What is happening in Manipur today has multiple causes. Those who seek to divide the state are now questioning the government’s actions… they are driven by a desire for power,” Singh remarked.

He mentioned several initiatives, such as ‘Meeyamgi Numit’ (People’s Day), designed to foster closer relationships between officials and the public. “We do not oppose any specific community. The BJP’s position is clear: we advocate for the idea of living together and have initiated efforts to strengthen ties between the police and the community,” he stated.

Singh added that the state government is diligently addressing the needs of internally displaced persons by establishing committees throughout the administrative framework. He claimed that the administration is responding quickly to the displaced people’s needs in areas such as education and agriculture.

“We have not made any mistakes. Our goal is to ensure the well-being of future generations. It is essential for both communities to remain calm. Rather than dwelling on the past, we should concentrate on the upcoming NRC process, capturing biometrics, and using 1961 as the foundation year for the Inner Line Permit,” Singh said.

He also highlighted the government’s commitment to acting within a democratic and constitutional framework, noting that achieving these goals will take time. “What we require now is immediate peace and a resolution of misunderstandings between the two communities,” he concluded.

The ongoing violence has resulted in the deaths of over 250 individuals and left thousands homeless due to clashes between the Meitei community and Kuki-Zo groups since last May.

“Only the BJP can save Manipur. BJP leaders possess strong values of nationalism and social justice, practicing reality-based politics in the nation’s interest. If I am not nominated for a ticket by the BJP, I will remain loyal to the party,” Mr. Singh added.

He also highlighted several unity-focused projects initiated by the BJP government, mentioning that a Unity Mall featuring stalls from all ethnic groups in the state will be constructed with an investment exceeding ₹140 crores.

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