Ratio of the Triple Talaq Judgment
By Anand Grover
An issue has arisen as to what is the ratio of the Triple Talaq (talaq-e-biddat) matter where the Supreme Court has spoken in different voices but at the end the all the judges have signed off on one sentence to the effect that “In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’—triple talaq is set aside”. The question is what is a majority of 3:2? Is it the constitutional invalidity or that triple talaq is not part of Islamic law?
Before we proceed to answer these questions, it is important to understand what is it that is meant by the ratio decidendi of a judgment. In the case of Krishena Kumar v. Union of India, the Supreme Court through Saikia J. held that “the ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which give rise to the decision.”To put it simply, the ratio decidendi of a judgment is the reasoning or principle upon which the decision is based.
Two issues were argued by the petitioners to set aside Triple Talaq. Firstly, the majority of the petitioners argued that Triple Talaq is unconstitutional by virtue of violation of Articles 14, 15 and 21. A different point of view was that Triple Talaq was not part of Islamic law, that is the sharia.
On the issue of constitutional validity, Chief Justice Khehar and Abdul Nazir J. held that Triple Talaq cannot be challenged as it had been in vogue for 1400 years and continues to be in force and forms part of sharia. They further held that it is not open to challenge on the grounds of violation of Fundamental Rights as it was part of personal law.Moreover, they even animated Triple Talaq to a fundamental right under Article 25.
Opposed to this was the judgment of Rohinton Nariman J. supported by UU Lalit J., who held that Triple Talaq came to be recognized in the Muslim Shariat (Application) Act, 1937, and thus ceased to be part of personal law.Therefore, Triple Talaq was open to challenge on the ground of violation of fundamental rights. Rohinton Nariman J. held that Triple Talaq is manifestly arbitrary and in violation of Article 14. Thus, two judges held that it was not open to challenge, whereas the other two held that it was open to challenge and was in violation of Article 14. Thus, there was a divide on this issue. The key to judgment on this was the decision of Kurian Joseph J. who despite holding that the exposition of arbitrariness under Article 13 by Rohinton Nariman J. was correct, further held that he did not agree with him that Triple Talaq was open to challenge on the ground of violation of fundamental rights.
Kurian Joseph J. thus agreed with Chief Justice Khehar’s finding that that sharia and triple talaaq was not open to challenge on the ground of violation of fundamental rights, stating, “I wholly agree with the Ld. Chief Justice that the 1937 act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman J. that the 1937 Act is a legislation regulating Triple Talaq and hence the same can be tested on Article 14”. He goes on to add, “However, on the pure question of law…that a legislation…can be challenged on the ground of arbitrariness, I agree with the illuminating exposition of law by Nariman J.” Therefore, on whether or not it could be challenged etc. the ruling is that three judges have held that it was not open to challenge against the two judges who held that it is. In the circumstances, the finding and the holding of the Shayara Bano case is that Triple Talaq is not open to challenge on the basis of constitutional validity.
On the second issue, whether Triple Talaq was part of Islamic law or not,Rohinton NarimanJ. clearly states that it is not. After quoting the Shaeem Ara judgment,which specifically holds that the judgments of the High Courts that Triple Talaq is not recognized in Islamic Law, he states “also as understood by the Privy Council in Rashid Ahmad (supra) such triple talaq is valid, even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Mara (supra).”On this issue, Kurian Joseph J.agrees with Rohinton Nariman J. and states “In triple talaq, this door (reconciliation) is closed. Hence, Triple Talaq is against the basic tenets of the Holy Quran, and consequently it violates Shariat”. He adds that this view, “has been endorsed by various High Courts, finally culminating in Shamim Ara” which has been taken as the law for banning Triple Talaq. He further notes that this approach has been followed by various High Courts. Therefore, Kurian Joseph J. comes to the conclusion that “on the statement that Triple Talaq is an integral part of religion… I respectfully disagree.” Finally, he reiterates the view and the law declared in Shameem Ara.Thus, on this issue the view taken by Rohinton Nariman J. is supported by UU Lalit J. and also Kurian Joseph J. On the other hand, Chief Justice Khehar and Abdul Nazir J. held that triple talaq is an integral part of the religion. Therefore on this issue there is 3:2 holding that triple talaq is not part of shariat. That is why finally the Court says, that triple talaq has to be set aside.
Anand Grover is a Senior Advocate, Supreme Court of India and represented Bebaak Collective in the matter. He is the founder-trustee of Lawyers Collective and heads the HIV/AIDS Unit.