Insights into Editorial: Undoing injustice: On instant triple talaq verdict

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Insights into Editorial: Undoing injustice: On instant triple talaq verdict


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Background:

The egregious practice that many Muslim men employ to divorce their wives instantaneously and without their consent, merely by uttering the word talaq thrice, was rendered legally invalid by the Shamim Ara vs State of UP judgment of 2002 and subsequent orders from various High Courts. But this has not stopped the practice; many Muslim women are unaware of the judgments or have had to accept such pronouncements owing to pressure from conservative sections.

Many women have undergone severe trauma after being thrown out of their homes. Shayara Bano, one such victim of this arbitrary custom — not to speak of years of domestic violence — has filed public interest litigation in the Supreme Court seeking a ban on the practice. The conservative All India Muslim Personal Law Board that seeks to wield influence on questions of Muslim personal law has found it an occasion to air its regressive views on the issue.

Introduction:

By declaring the discriminatory practice of instant triple talaq as unconstitutional, the Supreme Court has sent out a clear message that personal law can no longer be privileged over fundamental rights. Three of the five judges on the Constitution Bench have not accepted the argument that instant talaq, or talaq-e-biddat, is essential to Islam and, therefore, deserves constitutional protection under Article 25.

Suo motu public interest litigation

The issue was whether talaq-e-biddat was violative of the fundamental and human rights of gender equality and dignity of Muslim women.

On October 16, 2015, the Supreme Court questioned if Muslim personal law practices of marriage and divorce reduce women to mere chattels. In a rare move, it registered a suo motu public interest litigation (PIL) petition titled ‘In Re: Muslim Women’s Quest for Equality’ to examine if arbitrary divorce, polygamy and nikah halala (where a Muslim divorcee marries a man, divorces him to get re-married to her former husband) violate women’s dignity.

The court ruled missing the opportunity to address the question of gender inequality in both the Shah Bano and Danial Latifi cases. In the Shah Bano case, the court merely goaded the government to frame a Uniform Civil Code. In the Latifi case, it upheld the right of Muslim women to maintenance till re-marriage.

For the first time, Muslim women and organisations joined forces with the court’s initiative. However the Constitution Bench decided to confine itself to examining triple talaq and not polygamy and nikah halala.  The arguments later narrowed to instant talaq or talaq-e-biddat.

Three forms of talaq

There are three forms of talaq  — Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable. Biddat — pronouncing divorces in one go by the husband — is irrevocable. Biddat is considered ‘sinful’ but permissible in Islamic law. The All India Muslim Personal Law Board (AIMPLB) holds that for the Hanafis, who make more than 90% Sunnis in India, triple talaq is a matter of faith followed for 1,400 years.

Supreme Court sets aside instant ‘talaq’

In a majority 3:2 judgment, a five-judge Bench of the Supreme Court set aside ‘talaq-e-biddat’ — instant and irrevocable ‘talaq’ — as a “manifestly arbitrary” practice

While Chief Justice J S Khehar and Justice S Abdul Nazeer were in favour of putting on hold for six months the practice of triple talaq and asking the government to come out with a law in this regard, Justices Kurian Joseph, R F Nariman and U U Lalit held it as violative of the Constitution.

Justices Kurian Joseph and Rohinton Fali Nariman gave separate judgments against the validity of instant talaq, and Justice U.U. Lalit has supported Justice Nariman’s judgment. This makes up the triumvirate of judges who ruled against instant talaq.

Chief Justice J.S. Khehar, who led the Bench, held that talaq-e-biddat is an integral part of Article 25 (freedom of religion). He said it had been followed for over 1,400 years by the Hanafis and become a part of religious practice. He held that instant talaq does not violate Articles 14, 19 and 21 of the Constitution, and passed it on to the legislature within six months to decide a law

  1. ‘Instant talaq can be done away through legislation’
  • Chief Justice Khehar observed that talaq-e-biddat was widely accepted by Sunnis. He rejected the contention that talaq-e-biddat ceases to be personal law and has attained statutory status under the Shariat Act of 1937.
  • The practice [biddat] cannot be set aside on the violation of constitutional morality through a judicial order any change in talaq-e-biddatcan be done by way of legislation.
  • The fact that international law and theocratic countries have dropped talaq-e-biddatdo not matter as biddat is a part of personal law in India and come under the protection of Article 25.

 

  1. “Manifestly arbitrary”

The main ground on which the practice has been struck down is a simple formulation: that “this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.

  • Justice Nariman said triple talaq in all its three forms — talaq-e-biddattalaq ahsanand talaq hasan — was “recognised and enforced” under Section 2 of the Shariat Act of 1937.
  • Since the Shariat Act had recognised triple talaq, it was no longer a personal law to remain free of the fetters of the fundamental rights rigour but a statutory law which comes under the ambit of Article 13(1) of the Constitution.
  • Article 13 defines ‘law’ and says that all laws, framed before or after the Constitution, shall not be violative of the fundamental rights.
  • He said talaq-e-biddat allowed a Muslim man to “whimsically and capriciously”  divorce his wife. The practice is “manifestly arbitrary” and does not enjoy the protection of Article 25.

 

  1. Against the tenets of Quran
  • In his judgment, Justice Kurian held that instant talaq was against the tenets of Quran

Justice Kurian differed with Chief Justice Khehar that just because a practice has been around for 1,400 years does not make it eligible for protection under Article 25.

  • He also differed with the Chief Justice that triple talaqas a personal law is integral to religious belief. He said the practice should not violate public health, morality and order.
  • “What is banned in Quran cannot be good in Shariat. What is banned in theology cannot be good in law,” he observed.

 

Conclusion

Supreme Court’s judgment is a victory for all who believed personal laws must also be progressive and complainant with constitutional guarantees. One cannot deprive anyone from justice for long. This is a milestone for women empowerment. The court did not even have to elaborate on how triple talaq violates gender equality. Justice Nariman says that having held the practice to be arbitrary, there is really no need to go into the element of discrimination. The court deserves commendation for undoing the gender injustice implicit in the practice so effortlessly, within constitutional parameters as well as the Islamic canon.