Senior lawyer Indira Jaising is not impressed with the recent judgment of the Supreme Court, which by a majority of 3:2, had struck down the practice of triple talaq as unconstitutional. Jaising said she was disappointed that the apex court did not use the case as an opportunity to emphasise the pre-eminence of constitutional law over areas that are deemed to fall under family laws.
“The triple talaq judgment is a disappointment of the highest order. It was the most important opportunity the Supreme Court was provided with for actually introducing constitutional law into family law,” Jaising said.
“We are unable to separate the secular from the theological,” said the eminent lawyer. She was participating in a discussion on the book Intimacy Undone: Marriage, Divorce and Family Law in India, written by Malavika Rajkotia, a noted lawyer specialising in family laws.
Jaising said that it has been the bane of the family court from day one that constitutional law is not fully invoked into personal law. “An effort has to be made to sanitise family law from religion. What efforts are we making in that direction?” she asked.
She noted that in the triple talaq case, Justices Rohinton Nariman and U.U. Lalit found the practice to be in violation of Article 14, or the Right to Equality. “This shows that there is no inherent contradiction between family law and Constitution,” she said.
Jaising was especially critical of Justice Kurien Joseph's judgment. “Justice Kurien Joseph did not agree with Justices Nariman and Lalit. He explicitly says he does not agree with them. He said what is theologically wrong cannot be legally accepted,” she said.
The mixing of theology and law, she said, is problematic.
