“Bad in theology, good in law” The minority decision in the Triple Talaq case

In 1906, the Bombay High Court’s SL Batchelor held the practice of Talaq-e-Bidaat to be “good in law, though bad in theology”, while dismissing the plaint of a Muslim woman.

One hundred and eleven years later, a Constitution Bench of the Supreme Court has, in a historic judgment, set aside the practice of Triple Talaq as unconstitutional. The minority judgment delivered by Chief Justice JS Khehar and Justice Abdul Nazeer, however, chose to echo Batchelor’s sentiment in the case of Sarabai v. Rabiabai.

What follows is a brief summary of the minority decision rendered today by CJI Khehar and Nazeer J.

This was the longest of the three decisions, by quite some distance. Running into 272 pages, the judgment takes a deep dive into the Quranic verses as well as the Hadiths, or the pronouncements of Prophet Mohammed, on the issue of Triple Talaq.

The Privy Council case of Rashid Ahmad, and four subsequent high court decisions upholding the practice were relied on by the two judges. This, after they discredited the views expressed in Shamim Ara v. State of UP, noting that the observations made therein – which called for doing away with the practice – cannot be treated as ratio decidendi.

However, Khehar and Nazeer JJ did concede that the position in Rashid Ahmad warranted a relook.

They also sided with the aforementioned 1906 judgment in stating that the practice was bad in theology, but good in law, despite the fact that Sunni scholars had repeatedly condemned it as sinful. The fact that it had been in existence for 1400 years, and was integral to the religious denomination of Sunnis, impressed upon the two judges.

“All the parties [appearing before the Court] were unanimous, that despite the practice of ‘talaq-e biddat’ being considered sinful, it was accepted amongst Sunni Muslims belonging to the Hanafi school, as valid in law, and has been in practice amongst them.”

Most significantly, it was held that Triple Talaq forms a part of Muslim personal law, and was therefore under the aegis of Article 25 of the Constitution. Personal law, the judges concluded, have a stature equal to fundamental rights, and could not be deemed violative of the concept of the constitutional morality, through judicial intervention.

“‘Talaq-e-biddat’, does not violate the parameters expressed in Article 25 of the Constitution.  The practice is not contrary to public order, morality and health.  The practice also does not violate Articles 14, 15 and 21 of the Constitution, which are limited to State actions alone.”

Moreover, the Shariat Act of 1937 had a non-obstante clause in Section 2, which was inserted in order to negate the overriding effect of usages and customs over the Muslim ‘personal law’. Therefore, being a part of personal law, Triple Talaq,

“…cannot be required to satisfy the provisions contained in Part III – Fundamental Rights, of the Constitution, applicable to State actions, in terms of Article 13 of the Constitution.”

The minority view also referred to the case of Narasu Appa Mali, which sought to draw a distinction between personal law and custom having the force of law. It was held that the position in that case could not be overruled by the present Bench, since that decision was later affirmed by at least two five-judge Constitution Benches of the Supreme Court.

Khehar and Nazeer J also spoke on the lines of judicial overreach, holding that it was for Parliament to bring about a change in the law.

“We have to be guarded, lest we find our conscience traversing into every nook and corner of religious practices, and ‘personal law’.  Can a court, based on a righteous endeavour, declare that a matter of faith, be replaced – or be completely done away with… It is not for a court to determine whether religious practices were prudent or progressive or regressive.”

The minority view, therefore, left it open for Parliament to come up with a law governing Triple Talaq.

Khehar and Nazeer JJ ulitmately ordered an injunction on the practice for six months, something that Justice Kurian Joseph was apprehensive of in his judgment. He thought out loud,

“I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right can be injuncted.”