Flavia Agnes: It's a balanced verdict

The long awaited Triple Talaq verdict is finally out. And it has been hailed as a historical verdict by all concerned - the lawyers who argued the case, the petitioners who had approached the court to challenge their arbitrary and instant triple talaq, to various Muslim women's groups who had intervened in the matter, and political leaders of various hues. It has secured the rights of Muslim women and brought gender parity within Islamic law of divorce.

This was an expected outcome of this marathon litigation. No one was going to hold triple talaq as valid or gender just. What was under contest was the best or the most appropriate manner of bringing reforms within Muslim Personal Law - the legislature, the courts or the Muslim religious leadership. On this important issue, the verdict is split.

The Chief Justice of India, Justice Khehar who presided over the five-judge bench held that though triple talaq is undesired, since personal laws constitute fundamental rights, the courts could not declare the law or strike down triple talaq. So he gave a six-month window and for the Parliament to declare the law. The only Muslim judge on the bench Justice Abdul Nazeer concurred.

Since the CJI had the prerogative of pronouncing his judgement first as he was chairing the five judge bench, this set out a flutter among the journalists and lawyers waiting on tenterhooks in the packed courtroom. But just a sense of gloom was beginning to descend, the other three judges on the bench - Justices Rohinton Nariman, Kurien Joseph and U U Lalit gave their verdict. They spoke more decisively and held triple talaq invalid. So it was a 3:2 verdict with the majority view holding triple talaq invalid.

But again their ground for holding so differed. While Justice Nariman and Lalit held that since the 1937 Sharia Application Act mentions the word 'talaq', talaq forms part of a statute and becomes "law in force". Hence there was no difficulty in declaring this practice unconstitutional.

But Justice Kurien Joseph differed. He did not agree that this provision could be tested against the fundamental rights as the court was dealing with personal laws. He stayed within the realm of Islam and examined whether it forms an essential core of the religious practice. Since the Supreme Court in its earlier ruling in Shamim Ara in 2002 had already held this practice invalid and also laid down the procedure for pronouncing talaq, he had no hesitation in coming to the conclusion that Triple Talaq is not a valid practice under Islamic law.

Where does this leave the Muslim Personal Law Board? Mr. Kapil Sibal who argued the matter for the Board has given a statement that he is happy with the verdict as the court has upheld the validity of personal laws. The AIMPLB has adopted a cautious approach and called for a meeting to discuss the implications of this judgement and decide the future course of action.

Flavia Agnes is a women's rights lawyer and co-founder of Majlis, a legal and cultural resource centre. Send your feedback to mailbag@mid-day.com