The Death of Draconian Triple Talaq: A LandMark Judgement in History of Indian judiciary

Posted by Saumitra Shrivastava
August 23, 2017

Self-Published

As I was walking back to my hostel, I got the news. Somebody shouted. Triple Talaq declared unconstitutional ! It didn’t amaze me. It didn’t make me happy. Instead it paused me for a while. Really? Is it possible? Judiciary really did this. Ended the century old practice in a blow. It made me realize the power of law. How words can have immense power upon our lives. The words which can hold a marriage void, and the words which could nullify effect of such words. During my three years at law school, after understanding the hopeless number of cases pending, instances of corruption in judiciary, people spending their entire lives for justice, as this amazing incident happened, I couldn’t feel more powerful during studying law.

How can such an immoral, gender-biased, arbitrary practice be in existence? How can you simply move out of marriage without mutual consent as if it is a teenage love-affair? Is she your wife or your keep?

The draconian rule is nullified.

The 272 page judgement is too long to make an instant comment. However upon reading the minority judgement, there arise several questions. How can this plainly gender-biased, irrational law could violate Article 14, 15 and 21?

The minority view suggested:

“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.”

They justified it by claiming that the fundamental right can be exercised merely against the State. However they fail to consider the fact that divorce, like marriage has legal consequences which are sanctioned by the state. Hence Article 14, 15 and 21 are clearly infringed in the present case.

Even if we consider the contractual aspect of Islamic marriage, the contract would be an invalid contract under section 23 of Indian Contract Act, 1872, on account of being in contravention with simultaneously public policy and defeating purpose of law of the land( fundamental rights).

Now the government has to make law within six months. I hope it doesn’t screw it up due to political ‘reasons'(like what happened in the unfortunate Shah Bano case) The practice is not valid in most Islamic countries (even Pakistan). The government shall consider this fact.

There can’t be a better day for Indian Judiciary.

 

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