I am happy that the Supreme Court has rendered substantial justice to the Muslim women of the country giving them the protection envisaged in the Constitution of India.
Chief Justice J.S. Khehar maintained that triple talaq being a personal law, was not unconstitutional. He was supported by Justice S. Abdul Nazeer. But the other three judges Justice Kurian Joseph, Justice Rohinton Fali Nariman and justice Uday Lalit took the view that triple talaq was unconstitutional, though on different reasoning.
According to Justice Kurian Joseph, the issue is not res integra because in 2002 the Supreme Court declared in Shamim Ara vs. State of UP that triple talaq lacks legal sanctity. So according to him, it had become the law of the land in India in terms of Article 141. He did not agree with the Chief Justice and Justice Nazeer that a fundamental right as found by them can be suspended.
In the separate judgment written by Justice Rohinton Nariman he took the view that triple talaq is contrary to Article 14 being a fundamental right and therefore it is unconstitutional, not because triple talaq is contrary to Shariat Law. This view is concurred by Justice Uday Lalit. I respectfully agree with the said view because even if triple talaq was recognised in the Shariat Law it would not have survived the constitutional vires on account of Article 13 of the Constitution which says that “any law which is in force immediately before the commencement of the Constitution shall be void to the extent it is inconsistent with the provisions of Part III of the Constitution”. Here a distinction was sought to be made between personal law and other laws. It is true that in one of the earlier judgments it was observed that personal law is outside the sweep of Article 13 of the Constitution But it had since been clarified in another judgment that personal law to the extent it involves only the religious practices and customs need be considered as not affected by Article 13, but any personal law involving legal rights would fall within the ambit of the said Article. In that view a person claiming the right to get rid of his legally wedded wife except due to a process recognised by law cannot be regarded as a mere personal law. A wife after solemnization of her marriage acquires certain legal rights including the right to get inheritance to the property of the husband who dies intestate. The children born in that wedlock also acquire legal rights under the laws recognised in that behalf. Such law in spite of being part of personal law would also fall within the sweep of Article 13.
According to me, right to freedom of religion is not absolute mainly for two reasons. Article 25 itself specifies that the said right is subject to four topics, namely, public order, public morality, public health and the other fundamental rights. The second is that Article 25 coupled with Article 19 recognise the right to freedom of conscience, which includes the right not to follow any particular religious faith. In other words, the rights contained in Article 25 can be claimed by both religious followers and those who do not believe in any religious faith. That apart, any practice or custom recognised in any religion which is contrary to Article 14 or any other fundamental right should have been treated as void. Article 13(3) specifically mentions that the law contemplated in that Article includes any custom or usage having force of law.
Now what remains after the judgment of the Constitutional Bench of the Supreme Court is how to protect the right of a husband who bonafide wants to get rid of his spouse on valid reasons. In this sphere I agree with the directions contained in the judgment of Justice J.S. Khehar supported by Justice Abdul Nazeer that the Parliament shall pass a statute to fill up this lacuna.