To clear the path ahead: 

To clear the path ahead: 

Context

• The latest ruling on instant talaq completely and unconditionally invalidates talaq-e-bid’and renders it bad in law.
• The Koranic procedure of talaq is the only way by which a Muslim husband will be able to divorce his wife from now on.

Achievement from the judgement

• The biggest achievement of Justices Nariman and Lalit is their harmonization of constitutional equality with Koranic egalitarianism.
• It was done by endorsing the Koranic law of talaq mentioned in Shamim Ara case and declaring talaq-e-bid’a to be “manifestly arbitrary” and violative of Article 14 because it allows a Muslim man to break the marriage “capriciously and whimsically” without attempting to save it through reconciliation.
• On these grounds, Section 2 of the 1937 Act was struck down as being void to the extent that it recognizes and enforces instant talaq.

Bad theology

• The purpose of the Shariat Act was to declare Shariah as the “rule of decision.”
• Any practice that goes against the Shariah cannot be legally protected.
• Talaq-e-bid’a falls outside the Shariah because it goes against its primary source, the Koran. Therefore, what is bad in theology is bad in law as well.

Constitutional protection to personal law

• The personal laws of all communities in India enjoy constitutional protection.
• As these laws are sourced from religious scriptures in most cases, the Apex Court cannot but uphold the right of individuals and groups to profess, practise and propagate everything that forms an essential part of their religious scripture, subject to the provisions of Article 25(1).
• It may be pointed out here that the Koranic procedure of talaq that was implicitly upheld in this judgment does not in any way violate any constitutional values.

The minority opinion

• They declared talaq-e-bid’a to be an essential part of the Hanafi faith and gave it protection under Article 25(1).
• This opinion is based on the flawed theological premise that a religious custom which has been in vogue for several centuries automatically becomes integral to the denomination that practises it.
• One fails to understand how after having declared instant triple divorce a fundamental right under Part III of the Constitution the judges could direct the state to bring a law against it.
• The minority view also failed to appreciate the fact that hadeeses quoted by the AIMPLB were comparatively less authentic than those cited in High Court judgments relied upon by the petitioners which were from the six most authentic Sunni hadees books ( Sihah Sitta ).

Implications of the verdict

• The biggest goal attainment for Muslim women is the realization that talaq-e-bid’a in any of his manifestations will not dissolve the marriage.
• It renders redundant not just halala but the incorporation of a platitudinous advisory against instant talaq in the nikahnama .
• There is also scope now to amend the 1937 Act, even without designating it as statutory law, to exclude talaq-e-bid’a from the definition of the word “talaq” mentioned in Section 2, and make the Koranic procedure of talaq gender-neutral.
• Indeed all provisions of the Shariah mentioned in the 1937 Act can be similarly redefined to bring them in conformity with the humanitarian teachings of the Koran and the Prophet.
• This judgment will also encourage legally and theologically informed Muslim intellectuals to establish mediation centres across India under the Alternative Dispute Resolution (ADR) mechanism to help Muslim couples amicably resolve their marital disputes.