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

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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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Delhi LG VK Saxena directs probe into remarks against Kangana Ranaut by Congress leader Supriya Shrinate

The Delhi Police will investigate who was behind the said social media post and whose mobile phone was used for the purpose.

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Delhi lieutenant governor Vinai Kumar Saxena today sought a detailed probe from Delhi Police commissioner Sanjay Arora in relation with the alleged defamatory social media post made by Congress’s Supriya Shrinate against actor-turned-politician Kangana Ranaut.

Reportedly, BJP candidate from New Delhi Bansuri Swaraj had given a complaint to the LG seeking probe and registration of an FIR against Shrinate for outraging the modesty of a woman. Subsequently, the Delhi LG has forwarded the complaint to the Delhi Police Commissioner, directing a scientific investigation in the matter and initiation of legal action, if necessary.

Reports said that the Delhi Police will also investigate who was behind the said social media post and whose mobile phone was used for the purpose. A major controversy erupted on Monday after an objectionable post from Supriya Shrinate’s social media handle against Kangana Ranaut, who has been announced as the BJP candidate from Himachal Pradesh’s Mandi.

Responding to the remarks, Kangana Ranaut said that they must free the daughters from the shackles of prejudices and must rise above the curiosity about their body parts. She added that people must refrain from using sex workers’ challenging lives or circumstances as some kind of abuse or slur. She concluded that every woman deserves her dignity. As the controversy intensified, the Congress leader asserted that someone else had posted the objectionable content from her handle. 

Meanwhile, the Election Commission on Wednesday issued a show cause notice to Congress leader Supriya Shrinate for her derogatory remarks against Kangana Ranaut. The Election Commission observed that the remarks are undignified and in a bad taste. The election body asked the Congress leader to respond to the commission by Friday. In the notice, the Election Commission stated that the statements made by the leader is prima facie violative of the Model Code of Conduct (MCC) being in force ahead of the Lok Sabha elections. 

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Bollywood actor Govinda joins Maharashtra Chief Minister Eknath Shinde’s Shiv Sena

Govinda on his official induction in the party by CM Eknath Shinde said he is joining Shiv Sena and it is a blessing from God. He said he thought he would not enter politics again. Govinda said Mumbai looks cleaner and better now.

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Bollywood actor Govinda joined Maharashtra chief minister Eknath Shinde’s Shiv Sena on Thursday ahead of the upcoming Lok Sabha elections in Maharashtra. In 2004 Govinda contested from Mumbai North Lok Sabha on a Congress ticket and earned the nickname of a giant slayer as he defeated BJP’s Ram Naik. He resigned from the party and said that he had decided to take a break from politics.

Govinda on his official induction in the party by CM Eknath Shinde said he is joining Shiv Sena and it is a blessing from God. He said he thought he would not enter politics again. Govinda said Mumbai looks cleaner and better now. He said his parents had a good relationship with Shiv Sena founder Balasaheb Thackeray.

Shiv Sena leader Krishna Hedge met the Bollywood actor at his residence in Juhu. Maharashtra CM Eknath Shinde said the actor’s joining the Shiv Sena does not come with a rider. Govinda said whatever work is assigned to him, he will do it to the best of the ability. He said he was a part of the 14th Lok Sabha and has returned to politics after 14 years.

Speaking about his role in politics, the actor said he would transform the film city of Mumbai. He did not reply when he was asked about contesting elections. Govinda said everybody has seen the same level of progress in Maharashtra in the last 2 years, as it has been seen in the country in the last 10 years. He said he is going to focus on the beautification of the state and work towards the growth of art and culture.

Rajya Sabha MP Milind Deora welcomed Govida into the party and said he has known the veteran Bollywood actor for almost 25 years. He recalled the 2004 election and said both of them had fought elections together.

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To browbeat, bully others is vintage Congress, says PM Modi after lawyers express concern over attempts to undermine judiciary

Lawyers, including Harish Salve and Bar Council chairperson Manan Kumar Mishra, wrote to CJI DY Chandrachud, alleging that a vested interest group is trying to put pressure on the judiciary and defame courts, particularly in cases of corruption involving politicians.

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PM Narendra Modi on Thursday launched a scathing attack on the Congress party after more than 600 lawyers and some bar associations across the country wrote to the Chief Justice DY Chandrachud, expressing concerns over attempts to undermine the judiciary’s integrity using political and professional pressure.

Taking to social media platform X, PM Modi wrote that to browbeat and bully others is vintage Congress culture. He recalled that five decades ago, the party itself had called for a committed judiciary, adding that they shamelessly want commitment from others for their selfish interests, but desist from any commitment towards the nation. He concluded that no wonder, 140 crore Indians are rejecting them.

Prime Minister Narendra Modi’s comments followed after lawyers, including Harish Salve and Bar Council chairperson Manan Kumar Mishra, wrote to CJI DY Chandrachud, alleging that a vested interest group is trying to put pressure on the judiciary and defame courts, particularly in cases of corruption involving politicians.

The lawyers said the tactics used by the vested interest group are damaging the courts and threatening democratic fabric. They stated that Chief Justice Chandrachud’s leadership is crucial in these tough times and the Supreme Court should stand strong, adding it is not the time to maintain dignified silence.

Without naming, the letter also targeted a section of lawyers and alleged they defend politicians by day and then try to influence judges through the media at night. Furthermore, they claimed that some elements are trying to influence who the judges are in their cases and spread lies on social media to put pressure on the judges to decide in a particular way.

In addition, the All Manipur Bar Association had also written to CJI DY Chandrachud highlighting the need to speak out against underhanded attacks on the judiciary on Wednesday. In its letter, the bar association said that it was extremely concerned about recent trends where vested interest groups were trying to defame the courts with frivolous logic and stale political agendas.

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