India is a secular country, and has been formed on the basis of unity in diversity. Thus, it is natural to expect that every religion is given equal importance and is equally protected, in its own right. This is one of the primary reasons that each religious community has a personal law. This article focuses on the Muslim Personal Law (Shariat) Application Act, 1937 which governs the Muslim community living in India. This was one of the first acts to be passed after The Government Of India Act, 1935 came into existence and became operational. The Muslim personal law is open to interpretation by the Ulama, the Muslim legal scholars. Thus, this would imply that the various sections of the Muslim community may categorise different ideas as correct or incorrect.
One of the most controversial issues related to the Muslim Personal Law is an act of instant divorce called talaq-e-biddat also known as Triple Talaq. Triple Talaq is practiced mainly by a majority of Muslims who follow the Hanafi school of thought, which is prevalent in India. This mode of divorce is not universal among Muslims across the world, as many other Islamic schools of thought prefer the process of divorce to be deferred, more often than not, to a period of three months. This burning issue of instant talaq was first brought to light by a Muslim organisation, Bharatiya Muslim Mahila Andolan (BMMA), which launched a campaign to ban Triple Talaq and “nikah halala” – a practice where if divorced women felt the want to go back to their first husbands they would have to consummate a second marriage. The first widely known case filed against this practice was seen in Shayara Bano v. Union of India. This case was ultimately heard after petitions of four other women (Ishrat Jahan, Gulshaan Parween, Aafreen Rehman and Atiya Sabri) were combined. The Bharatiya Muslim Mahila Andolan (BMMA) was the sixth petitioner in the case. The women contended that the practice of Triple Talaq is unconstitutional.
The matter was brought before The Honorable Supreme Court of India for the final judgement on 22nd August, 2017 by a constitutional bench headed by the former Chief Justice of India, Hon’ble Mr. J S Khehar (as on 28th August, 2017) along with Justice Kurian Joseph, Justice U U Lalit, Justice Rohinton Fali Nariman and Justice Abdul Nazeer. Each judge belonged to a different religious community. This inadvertently made a diverse and neutral bench. The Supreme Court insisted that the primary issue to be decided was whether the practice of Triple Talaq was fundamental to Islam and if Triple Talaq could be enforced as a fundamental right. It was also noted that Muslim men have the absolute right to Triple Talaq and women have to comply with the provision of the Dissolution of Muslim Marriages Act, 1939, which states that divorce granted by Muslim women can be contested by husbands in the Supreme Court, but women have no legal recourse against Triple Talaq as they cannot question it. Men have an untrammelled right to pronounce Triple Talaq, but women’s rights have been restricted. It was also noted that in the procedure of Triple Talaq, a period of iddat is to be followed wherein efforts towards reconciliation are made. However, if a man pronounces Triple Talaq even once and does not revoke it within the next three months, it constitutes valid irrevocable divorce. The Quranic message is very explicit about divorce as it leans towards safeguarding a marriage rather than dissolving it abruptly. It also states that Triple Talaq is not about pronouncing the word thrice but, is in fact a three step process involving arbitrators who help in rethinking, reconsidering and reconciliation, if possible. It was also realized that the practice of Triple Talaq has been banned in a plethora of Muslim majority countries.
Another viewpoint to the argument is the violation of fundamental rights enshrined in the Constitution of India, including the Right to Equality on the basis of gender and Right to Freedom of Religion. Triple Talaq violates the Right to Equality of Muslim women guaranteed under Article14 (Right to Equality) and Article 15, which prohibits discrimination on the basis of caste, sex, religion, or place of birth, of the Constitution, to the extent that a Muslim man exercises the power to declare unilateral divorce, but the woman has no control over such unilateral, arbitrary, extra-judicial divorce and her marital status. Moreover, since Article 13 asserts the supremacy of the Indian Constitution, matters of personal law should be in conformity with the Constitution. A part of the argument states that as far as Hindus are concerned, various steps have been taken to bring the personal law in conformity with the Constitution. However, insofar as Muslims are concerned, only the Acts of 1937 and 1939 have been amended, and a small change has occurred after the Shah Bano judgement. Former Attorney General, Mukul Rohatgi once stated “If the practice of instant divorce (Triple Talaq) is struck down by the court, then Centre will bring a law to regulate marriage and divorce among the Muslim community”, however, there is a flip side to every argument. In this scenario, it is given in the Quran itself, a right in form of Khula is given to a Muslim woman to separate from her husband if she feels they cannot live together thereafter. Further arguing for Jamat-ulema-i Hind, senior advocate Raju Ramachandran also stated that every citizen of India, whether male or female, has the option of being governed by the Special Marriage Act, 1954. In doing so, he argued they can opt out of personal law. When a person agrees to get married under his/her personal law, he or she is also making a conscious waiver of the right to be governed by the “secular non-religious” law or by a purely civil law. The consent of either party to a marriage is not just to marry a particular person, but to the particular law which will apply to the marriage i.e. whether it is personal law or enacted civil law. In such a situation, a person who consciously opts for the personal law cannot complain that the personal law is unfavorable or discriminatory.
A 395-page verdict by a majority of 3:2, held that instant Triple Talaq is unconstitutional, arbitrary and unreasonable. In the judgement, the Chief Justice stated “the practice of Triple Talaq has to be considered integral to the religious denomination in question; it is part of their personal law and cannot be tinkered with by the court. Any change in personal law can be done only through parliamentary legislation” as a part of the minority opinion. And that “the practice of talaq-e-biddat is a constituent of personal law and hence has a stature equal to other fundamental rights conferred in part three of the constitution”. He further went on to add that “till such time as legislation on the matter is considered, we are satisfied in the injunction of Muslim husbands, from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-e-biddat’ (three pronouncements of ‘talaq’, at one and the same time) – as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.”
The opinion of the majority differed, where Justice Nariman stated “Triple Talaq does not fall within the sanction of the Quran. Even assuming that it forms part of the Quran, Hadis or Ijmaa, it is not something that is “commanded”. While the practice is permissble in the Hanafi jurisprudence, that very jurisprudence castigates Triple Talaq as being sinful” he wrote. He further stated that “a practice that is manifestly arbitrary is obviously unreasonable and, being contrary to the rule of law, would violate Article 14 of the constitution. If an action is found to be arbitrary and unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground.” The majority opinion was that divorce breaks the marital tie, which is fundamental to family life in Islam. After the advent of Islam, divorce was permitted to a man if his wife, by her indocility or bad character, renders marital life impossible. In the absence of good reason, no man can justify a divorce, for he then draws upon himself the curse of God.
Although this ruling has answered the prayers of many and reinforced their belief in the judiciary, one would say that this is not a robust judgement. This is because of reasons related to the lack of gender equality as maintained under Article 14 of the Constitution. Since somewhat paradoxically, Muslim husbands still retain the unilateral right to get rid of their wives by pronouncing Talaq over a period of a few months. This leaves many wondering – wherein lies the much hailed victory? The verdict could be considered significant, as it is the first time that the court has held Triple Talaq as an unconstitutional and discriminatory practice in the intimate sphere. The striking down of this arbitrary practice is welcome; however, the claim by some that this decision adds to the gender justice jurisprudence of the Supreme Court is a somewhat spurious one. This is to say that even though the petitioners were women, the judgement still holds them as incapable, mute, suffering victims. The implicit approval and interpretation by the chief justice that the Quran declares “men as protectors, and casts a duty on them to maintain their women’, sends a collective shiver down any woman’s spine. This landmark verdict has its pros as well as its shortcomings. On one hand, a number of cases have been filed by various women who have been treated unfairly and now have a ray of hope and may expect justice. However, on the flip side, just a day after the verdict, a woman in Uttar Pradesh was subjected to this cruel malpractice. The woman, a resident of Mohalla Kamra Nawaban, in a complaint filed with the police alleged that her husband beat her up for dowry and drove her out of their house. The woman’s family members on Tuesday met her in-laws to discuss the matter. But her husband divorced her by pronouncing the word talaq thrice. She said that her family told her husband that the Supreme Court had struck down the practice, but he did not relent. Thus, it is of essence that a piece of legislation be framed with utmost haste to make those following this cruelty, liable.
Therefore, this judgement will mark a monumental change in the history of Indian judicial justice and constitutional supremacy. It has brought to light the plight of more than a handful of citizens and strengthened the view that justice is impartial and favours the truth. More importantly, this will now act as precedent to all those who may not have had the opportunity and who lacked the courage to fight against any form of injustice, as well as those women who were suppressed by such misogynistic rules. However, one cannot say that all is well that ends well, since many radical women and the petitioners have faced backlash from the Muslim community and their own families, who believe that customs being practiced since eons are God’s order.
This is a stepping stone that will, in the near future, lead to gender equality and women empowerment. In a sense this is the beginning of the end of a plethora of issues like domestic violence, dowry harassment, male dominance and unconstitutional practices.
As rightly said by the Allahabad High Court, “Triple Talaq is unconstitutional; it violates the rights of Muslim women. No personal law board is above the constitution.”
–Anushka Mehta, V-I