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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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Congress holds nationwide Sankalp Satyagraha in support of Rahul Gandhi

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March 26, 2023

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Congress on Sunday staged a nationwide “Sankalp Satyagraha” in support of former party President Rahul Gandhi’s disqualification from the Lok Sabha following his conviction and two-year prison sentence by a court in Gujarat’s Surat city in a 2019 criminal defamation case.

In national capital Delhi, the Congress kicked off its day-long protest at Rajghat and despite the Delhi Police denying permission for the protest, Congress top brass including chief Mallikarjun Kharge, general secretary Priyanka Gandhi Vadra, senior leaders KC Venugopal, P Chidambaram and Salman Khurshid took part in the Satyagraha.

Senior Congress leaders Jairam Ramesh, Mukul Wasnik, Pawan Kumar Bansal, Saktisinh Gohil, Jothimani, Pratibha Singh and Manish Chatrath were also present at the protest.

Several leaders of the party’s Delhi chapter also took part in the protest while a large number of party workers gathered outside the venue.

Addressing the protesters, Congress leader Priyanka Gandhi said that the son of a martyr who walked thousands of kilometers for national unity, can never insult the country, referring to her brother Rahul Gandhi and her father Rajiv Gandhi, who was assassinated in 1991.

Priyanka also accused Prime Minister Narendra Modi of “insulting” Kashmiri Pandits by questioning why the Gandhi family doesn’t use the Nehru surname.

In Jammu and Kashmir, the Congress held a day-long ‘Sankalp Satyagraha’ in Srinagar with former Jammu and Kashmir Pradesh Congress Committee (JKPCC) chief Ghulam Ahmad Mir accusing the PM Modi-led ruling BJP of taking “illegal and undemocratic” to hush the opposition.

Scores of Congress workers and leaders also staged protests in various Himachal Pradesh, Rajasthan, Telangana, Punjab, Haryana and Gujarat.

In Rajasthan, the party’s state unit chief Govind Singh Dotasra, minister Pratap Singh Khachariyawas and several other leaders participated in the protest at the Collectorate Circle.

Dotasra said the protest is against the Centre’s suppression of the opposition’s voice.

The Punjab and Haryana units of Congress also held a day-long satyagraha against the former Wayanad MP’s disqualification.

Both units held separate events at the state headquarters as part of the protest programme in which many senior leaders participated.

Talking to newsmen, Punjab Congress chief Amrinder Singh Raja Warring alleged that the action against Rahul Gandhi was taken because the BJP-led Centre was “scared” of his next speech in Parliament on the Adani issue.

In Gujarat, state Congress chief Jagdish Tahor, Leader of Opposition in the Assembly Amit Chavda and party leader Bharatsinh Solanki, along with Congress workers were detained by the police as they attempted to stage a protest at Ahmedabad’s Lal Darwaza.

The protesters were taken to the police stadium where they continued to shout slogans against PM Modi and the BJP.

In Jharkhand, senior Congress leaders including Jharkhand ministers—Rameshwar Oraon and Banna Gupta— assembled at Bapu Vatika at Morabadi ground in Ranchi to lodge their protest, claiming that the PM Modi’s BJP regime at the Centre is scared of Gandhi’s “vociferous voice” on Adani issue.

Meanwhile, the BJP tore into Congress for the satyagraha protest, accusing the grand old party of protesting against the nation’s Constitution the court’s verdict against Rahul Gandhi to justify his remarks against the “entire backward community” of the country.

Rahul Gandhi was disqualified from the Lok Sabha on Friday, a day after a Surat court convicted him in a 2019 defamation case and sentenced him to a two-year jail term. The disqualification will prevent 52-year-old Gandhi, a four-time MP, from contesting elections for eight years unless a higher court stays the conviction.

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Justice Pritinker Diwaker appointed Chief Justice of Allahabad High Court

Justice Diwaker started his legal career and was enrolled as an advocate in 1984.

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March 26, 2023

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Justice Pritinker Diwaker

Justice Printiker Diwaker on Sunday was appointed the Chief Justice of the Allahabad High Court. Uttar Pradesh Governor Anandiben Patel administered the oath of office to him at 11 am in the Chief Justice’s court.

The swearing-in-ceremony was attended by Chief Secretary Uttar Pradesh, Advocate General Ajay Mishra, Minister Suresh Khanna, Additional Advocate General MC Chaturvedi, Manish Goel, Neeraj Tripathi and other senior and junior lawyers.

The ceremony was also attended by the Justices of Allahabad and Lucknow benches and their family members and relatives of the Chief Justice and working judges of Madhya Pradesh.

Justice Diwaker started his legal career and was enrolled as an advocate in 1984. He was designated as Senior Advocate in 2005 after practising law in the Chhattisgarh High Court. Later, he also joined the Madhya Pradesh State Bar Council and became a member for seven years and a member of the Chhattisgarh State Bar Council for five years.

He was appointed as a judge of the Chhattisgarh High Court on March 31, 2009. In October 2018, he was transferred to the Allahabad High Court.

Justice Diwaker graduated from Jabalpur’s Durgawati University and dealt with criminal, civil, and constitutional matters during his legal career. He also worked as standing counsel for SBI, SAIL, Chhattisgarh Gramin Bank, Bank of Baroda, and others.

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UP man arrested for killing 16-year-old Jammu girl he eloped with: Police

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March 26, 2023

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A 16-year-old girl from Jammu was strangled to death, allegedly by a man from she had eloped and was living with in Uttar Pradesh’s Hapur, police said on Sunday.

According to the police, the accused, identified as Ashu, allegedly strangled 16-year-old Mahinur to death at his home in Bheem Nagar area of Hapur after an argument between the them.

The minor girl had eloped with the accused from Jammu a few months ago and was living with him in at his house in Hapur.

An official said that the victim’s father, Talib Ali—originally a resident of Assam, who has been living in Jammu for the past eight years— told the police that Ashu had come to Jammu four months ago where he befriended his daughter Mahinur and swayed her to come along and live with him in Hapur.

The official said that Ashu initially told the police that Mahinur had committed suicide, however, after the girl’s autopsy revealed that she was strangled to death leading to the case being investigated as a murder and the arrest of the accused who after interrogation confessed to killing the minor girl.

He said that a case under relevant sections of the Indian Penal Code (IPC) and the POCSO Act has been registered against the accused.

Mahinur’s murder is latest among the spree of murders of women committed by live-in partners that have rocked the country over the past few months.

The killings came in to the limelight after the infamous Shraddha Walkar murder case, who was allegedly murdered and then her body hacked to pieces by her live-in boyfriend in Delhi.

The accused, 28-year-old Aaftab Amin Poonawala, allegedly sawed Shraddha Walkar’s body into 35 pieces and kept them in a 300-litre fridge for almost three weeks at his residence in south Delhi’s Mehrauli before dumping them across the city over several days. Poonawala is currently in jail facing trial.

Shraddha was allegedly strangled, chopped into several pieces, and disposed of at different locations of a forest area in south Delhi for several months by Poonawala.

In another similar case, a 37-year-old Nurse, Neha, was slain by her live-in partner, in Maharashtra’s Palghar. As per the police, the accused, who was in a relationship with the victim for the past three years and living with her from the past six months, stuffed her body in bed storage and fled.

On Monday, the Supreme Court junked a plea seeking registration of live-in relationships in the country with the Centre, calling it a “hare-brained” idea.

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