Expressing concern over practice of child marriage in the country, the top court said social justice laws in the country had not been implemented with the spirit they have been enacted. Photograph: (Zee News Network)
The five-judge constitution bench, comprising five judges of five faiths - Hinduism, Christianity, Islam, Sikhism and Zoroastrianism- was split 3:2 as it struck down triple talaq as unconstitutional.
The five judgements were read out separately. Three of the five judges overruled the senior-most judge, the Chief Justice of India JS Khehar.
The court has passed a six-month injunction against the Muslim instant divorce law, in which time it has asked Parliament to legislate on it and bring in a law.
Justices Kurien Joseph, Rohinton Fali Nariman and Udey Umesh Lalit held that triple talaq is not integral to Islam, is banned in law and lacks approval of the shariat (Islamic religious law).
"What is sinful under religion cannot be valid under law," the three judges said. They held triple talaq violated the right to equality because it was instant in nature, was irreversible and broke the marital tie.
Chief Justice Khehar and Justice S Abdul Nazir argued stating that while triple talaq may be "sinful", courts could not interfere with an Islamic personal law which enjoyed protection under the fundamental rights of the Indian constitution.
They argued that parliament and not courts should bring a law to end the practice.
Justice Joseph disagreed, stating, "There cannot be any Constitutional protection to such a practice."
While pronouncing the judgement, CJI Khehar, however, upheld the practice and said, "Talaq-e-biddat (instantaneous talaq) is not violative of articles 14, 15, 21 and 25 of the Constitution."
Chief Justice Khehar further used his power under Article 142 and directed the Union of India to form a proper legislature regarding talaq-e-iddat (talaq with a waiting period). The CJI asked Parliament to pass a law to deal with the issue.
He, however, injuncted Muslim men from pronouncing triple talaq for the next six months and asked political parties to shed their differences and enact a law.
The top court reportedly referred to the abolition of triple talaq in the Islamic countries and asked "why can't independent India get rid of it."