“Three of the five Supreme Court judges called the controversial practice ‘un-Islamic, arbitrary and unconstitutional’. One of the judges, Justice Kurien Joseph, said the practice was not an essential part of Islam and enjoyed no protection.”
Presumably if the court had determined that the practice was Islamic, it would not have outlawed it.
The Qur’an does say that a man can divorce his wife unilaterally, and that the third time is final:
“Divorce is twice. Then, either keep her in an acceptable manner or release her with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep the limits of Allah. But if you fear that they will not keep the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah – it is those who are the wrongdoers. And if he has divorced her for the third time, then she is not lawful to him afterward until she marries a husband other than him. And if the latter husband divorces her, there is no blame upon the woman and her former husband for returning to each other if they think that they can keep the limits of Allah. These are the limits of Allah, which He makes clear to a people who know.” (Qur’an 2:229-230)
But there is supposed to be a waiting period, not simply an instant divorce through the declaration that a woman is divorced repeated thrice — and that’s the basis on which the Indian court says this practice is un-Islamic:
“O Prophet, when you divorce women, divorce them for their waiting period and keep count of the waiting period, and fear Allah, your Lord. Do not turn them out of their houses, nor should they leave unless they are committing a clear immorality. And those are the limits of Allah. And whoever transgresses the limits of Allah has certainly wronged himself. You know not; perhaps Allah will bring about after that a matter. And when they have fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for Allah. That is instructed to whoever should believe in Allah and the Last day. And whoever fears Allah – He will make for him a way out.” (Qur’an 65:1-2)
“Triple talaq: India court bans Islamic instant divorce,” BBC, August 22, 2017:
India’s top court has ruled the practice of instant divorce in Islam unconstitutional, marking a major victory for women’s rights activists.
In a 3-2 majority verdict, the court called the practice “un-Islamic”.
India is one of a handful of countries where a Muslim man can divorce his wife in minutes by saying the word talaq (divorce) three times.
The landmark court decision came in response to petitions challenging the so-called “triple talaq” custom.
The cases were filed by five Muslim women who had been divorced in this way and two rights groups.
Women’s rights campaigners have hailed the court’s decision as a historic win.
What is instant divorce?
There have been cases in which Muslim men in India have divorced their wives by issuing the so-called triple talaq by letter, telephone and, increasingly, by text message, WhatsApp and Skype. A number of these cases made their way to the courts as women contested the custom.
Triple talaq divorce has no mention in Sharia Islamic law or the Koran, even though the practice has existed for decades.
Islamic scholars say the Koran clearly spells out how to issue a divorce – it has to be spread over three months, allowing a couple time for reflection and reconciliation.
Most Islamic countries, including Pakistan and Bangladesh, have banned triple talaq, but the custom has continued in India, which does not have a uniform set of laws on marriage and divorce that apply to every citizen.
What did the court say?
Three of the five Supreme Court judges called the controversial practice “un-Islamic, arbitrary and unconstitutional”. One of the judges, Justice Kurien Joseph, said the practice was not an essential part of Islam and enjoyed no protection.
The judges also said it was “manifestly arbitrary” to allow a man to “break down (a) marriage whimsically and capriciously”….