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The judgment is a victory for women in India, who no longer have to fear that they could be instantly divorced. This means that the use of the judgment in interpreting the interaction between personal law i. It is important to understand from the outset that personal law is the part of Muslim Law which is applicable in India and can be enforced through the courts Shariat law.
The following will unpick some of the contradictions between the judgments, and seek to provide some recommendations about how to think about them.
It is useful not the approach the judgments separately, but rather look at how all the different justices approached the same issue.
The justices disagree not only on the characterisation of triple talaq as being part of the personal law, but also on the consequences of the effect of such a characterisation. A more problematic issue is what the legal consequences of such a characterisation are and should be. The majority judgment does not expressly deal with this key issue because it does not need to; triple talaq is not part of personal law, and thus any weighing up of the practice with constitutional protections does not need to be considered.
The practice is already judged as illegal for being incompatible with Shariat law i. The majority suggest, however, if a matter falling within the scope of the Indian Constitution in relation to religion were to arise, it would be for the Government to enact legislation on such a matter and not for the courts to deal with it p.
This means that if a religious practice arose which was deemed to be part of Muslim personal law, the majority judgment would stand for the proposition that courts might not be able to interfere see penultimate paragraph, http: This is not such a good sign if in the future a practice contrary to the rights of any minority group were to be considered as being part of religious law.
The minority judgments, on the other hand, having accepted that triple talaq is a recognised practice in Muslim personal law, do not express clear views on the interaction between personal law and the Indian Constitution. Khehar J contradicts himself by stating on the one hand, that whatever the outcome of the classification of triple talaq, its compatibility with the Indian Constitution will be considered, and on the other hand, if the practice is classified as personal law, then the court may not be able to interfere with it p.
Nariman seems to also agree that triple talaq can be considered as being in violation of the Indian Constitution see p. This does not help clarify whether the courts could look into the matter if triple talaq were merely part of personal law.
The justices also use the classification of triple talaq within the scope of the Act in different ways to bolster their arguments. The majority judgment of Kurian J alludes to the declaratory nature of triple talaq under the Act; i. Thereby, the majority cleverly use Act as part of their argument that triple talaq, being contrary to the personal law applying to Muslims, is illegal p.
Khehar J, on the other hand, uses the lack of codification of triple talaq by the Act as justification for his proposition that the courts may not pass judgment on the constitutional validity of instant divorce p. Nariman, the other dissenting judge, disagrees and finds that the Act recognises and enforces triple talaq, and thus this justifies the courts being able to look at the practice and strike it down as being incompatible with the Constitution p.
Therefore, the extent to which the characterisation of triple talaq as statutory or part of personal law as a sustainable distinction for why a court might or might not be able to consider the compatibility of a religious practice with the Indian Constitution might be doubted in light of the disagreements between the judges.
A final issue which is considered differently by the justices is whether triple talaq is protected by Article 25 of the Indian Constitution which protects freedom of conscience and practice of religion.timberdesignmag.com is the Federal Government's premier electronic source for the Federal Acquisition Regulation (FAR).
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