A single-judge Bench of the Allahabad High Court has ruled that "triple talaq is illegal and violates the rights of Muslim women".
No personal law board is above the Constitution, Justice Suneet Kumar said in an apparent reference to the All India Muslim Personal Law Board (AIMPLB) which has stated that triple talaq is codified in the Sharia and hence cannot be interfered with, said in the written observation that - "Personal laws of any community cannot claim supremacy over rights granted to the individuals by the Constitution".
The judgment on this issue, which is both politically and communally sensitive, said that the practice of triple talaq as sanctioned under the Muslim personal law "is unconstitutional and violates the rights of Muslim women".
The judge made the observation while dismissing a petition seeking a restraint order against the police and the woman's mother from harassing the petitioner Hina (23) and her husband (53) who married the woman half his age after divorcing his first wife by pronouncing triple talaq.
The judgment on the petition was passed on 5 December but delivered on Thursday.
The judge said that the "instant divorce (triple talaq) is a cruel and most demeaning form of divorce practised by the Muslim community at large" and held "sundry clerics" responsible for the practice.
The judge left the legality of the marriage/divorce and rights of parties open as the triple talaq case was already before the Supreme Court.
Maulana Khalid Rashid Firangimahali said that he respected the court's verdict but will appeal against it after examining the order.
"Triple talaq is an integral part of Muslim Personal Law and the Constitution allows us to practice our faith. If eight-ten cases are filed against the practice in a population of 20 crore Muslims, I do not think it warrants a change in the triple talaq law."
The Sharia law cannot be changed, he said.
Muslim women, however, welcomed the order. Shaista Ambar, president of the All India Muslim Women's Personal Law Board (AIMWPLB), said that the judgment has reinforced the Muslim women's faith in the judiciary.
Ambar said, "Triple talaq was against the tenets of the Quran and we have faith in the Quran."
The judgment, she said, was not "unIslamic".
Criticising the AIMPLB, which had launched a signature campaign in support of the triple talaq, Ambar said that it was not sincere in protecting the rights of Muslim women. "Darul Qazas and women qazis who could have acted as conciliators and saved marriages, too, failed us," she said.
Ambar said that AIMPLB could have roped in clerics to educate men against the practice of triple talaq in their khutbas (discourse) post the Friday prayers. "The AIMPLB, the qazis and the women qazis all failed in their duty to protect the rights of Muslim women," she said and added that this judgment had given hope to thousands of women.
The AIMPLB said it will appeal against the order in the Supreme Court which is already hearing a petition filed by one Saira Bano who has challenged the laws pertaining to talaq-e-bidat, nikah halala and a man's right to keep four wives.
Talaq-e-bidat provides that a man can pronounce talaq thrice at one go to divorce his wife without waiting for her consent or giving her a chance to explain her position.
Muslim women argued that this practice, which does not exist in any other Islamic country, is an incorrect interpretation of the Quran which provides that the word talaq should be uttered thrice during the period of two menstrual cycles, or tuhar.
Nikah halala prevents the reversal of the triple talaq pronouncement, even if it is uttered in a drunken state. It enjoins that the divorced woman cannot remarry the same man even if the two are willing. This law requires that the divorced woman marry some other man. She can remarry her first husband only after obtaining a divorce from her second husband.