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Religious Rather Than Constitutional Test

A ‘Safe’ Judgment

The triple talaq judgment of the Supreme Court is a partial victory for Muslim women since it declares instantaneous triple talaq as unlawful, but not unilateral triple talaq. Even in the case of the former, it does not declare instantaneous triple talaq as unconstitutional but only unlawful and that is a significant difference. Indian courts, even in respect of legislated laws, have not been very encouraging when it comes to personal laws being challenged on the grounds of discrimination and dignity of women.

The only clarity about the “triple talaq judgment” in Shayara Bano v Union of India and Others is that instantaneous triple talaq has been struck down by the Supreme Court. This article attempts to throw some light on the judgment’s logic, meaning, and implications.

The immediate questions that come up are: Does the judgment ban only instant triple talaq or all kinds of talaq? Does it hold instantaneous triple talaq as constitutionally bad? Does the Supreme Court hold that personal laws can be tested on the anvil of constitutional law? Has the Supreme Court said anything new or has it merely repeated what it had stated in earlier judgments—especially in the case of Shamim Ara?1 Most importantly, what is the way forward?

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Updated On : 12th Sep, 2017

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