Triple Talaq: Violated women’s right to equality and was not integral to Islam. Suprime Court
NEW DELHI : The Supreme Court today banned the controversial Islamic practice that allows men to leave their wives immediately by stating “talaq” (divorce) three times, calling the practice “unconstitutional”. In a split verdict, three of the five all-male judges on the case said the practice of saying “talaq”, or divorce, three times in one go – sometimes even over email and WhatsApp – violated women’s right to equality and was not integral to Islam.The Supreme Court has for the first time reviewed whether triple talaq is fundamental to Islam and therefore legally binding.
The dissenting note came from Chief Justice of India JS Khehar and justice S Abdul Nazeer, who argued instant talaq should be suspended and the government asked to bring a law to regulate the practice within six months. The majority verdict overrides the minority view. “What is bad in theology is bad in law as well,” said justice Kurian Joseph who was part of the majority view. A change which comes from within the community would be sustainable and more welcomed, especially when the political climate of the country is charged communally.
Five judges hearing the case said it is unconstitutional; the other two wanted it banned for six months till the government introduces new legislation. The majority opinion held that triple talaq “is not integral to religious practice and violates constitutional morality”. The judges in favour of a new law wanted the government to take into account the concerns of some Muslim organisations who are critical of any attempts to meddle with religious laws, arguing it curtails their constitutional right to govern their affairs.
The verdict vindicates the stand of the government, which had said triple talaq violates fundamental rights of women. Several Muslim women who have been divorced because of it, including on Skype and on WhatsApp, had appealed to the top court to end the practice.
There are three judgments which were delivered by the Constitution bench on Tuesday. Two of the five judges held that Triple Talaq has so far been permissible as a result of Section 2 of the Shariat Act 1937, which by virtue of being codified, has been tested and found violative of Article 14, which makes it an arbitrary practice, hence unconstitutional.Another judge of the bench concluded similarly, but through a different line of reasoning. He has opined
Debate over the law had pitted an unlikely coalition of Muslim women, Prime Minister Narendra Modi and his BJP which wanted the practice quashed, against some Muslim groups which contended the state had no right to interfere in religious matters. Tuesday’s verdict comes as a shot in the arm of the BJP, which can showcase it to moderate voters as a vindication of the party’s stand on gender justice, as well as to counter accusations of Muslim groups that it was backing the issue only to malign Islam.
“This is a historic day for Muslim women. No Muslim women will have to go through the harassment that I suffered,” Shayara Bano, a 35-year-old divorced Muslim woman whose petition two years ago helped end instant talaq, told Newstrack24x7 .com .The practice of instantaneous triple talaq, finding no sanction in the Quran, is un-Islamic and therefore does not warrant protection of Article 25 (right to freedom of religion) under the Constitution. This striking down of the practice constitutes the majority opinion.
However, two other judges of the bench have found that the practice does actually form an essential part of the religion of Muslims and therefore observed that they cannot interfere in the present matter—the same being protected by Article 25. This, however, does not end here and the judgment further directs the union government to consider appropriate legislation with respect to instantaneous triple talaq. Till such time that the legislation is considered, Muslim husbands are prohibited from pronouncing instantaneous triple talaq. However, as the practice has been held impermissible by the majority opinion, this minority judgment is now inconsequential.
The verdict is being celebrated as a huge victory for Muslim women. But let us look at what message the verdict has sent out and what its consequences would be. First, the court can, at any time, cherry pick a religious practice, check if it forms an essential part of the religion, and if not, hold it impermissible. Secondly, the court can find a practice to be an integral part of a religion and still prohibit individuals from practising it while directing the government to legislate on it.
The court has once again shown an enthusiasm to introspect a Muslim practice without going into the question as to whether personal laws (which would include Hindu laws too) can be tested for violation of fundamental rights. There was no reason for the court to not do this. And by not doing so, the court has merely acted as a reformer of a religious community, rather than upholding the fundamental rights of women when found in contradiction with personal laws.
The All India Muslim Personal Law Board had filed an affidavit before the Supreme Court stating that they are, at their level, taking all steps to discourage instantaneous triple talaq. If the court was not willing to test whether all personal laws can be tested for violation of fundamental rights, the court, in my opinion, ought to have respected the AIMPLB statement, and held the matter to be outside the judicial realm.
But Prime Minister Narendra Modi’s government has backed the petitioners in this landmark case, declaring triple talaq unconstitutional, and derogatory and discriminatory for women. “Judgment of the Hon’ble SC on Triple Talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment,” PM Modi tweeted today.The BJP has long pushed for a uniform civil code to be enforced which would end the reach of different religious laws in civil issues, sanctioned originally to protect the independence of different faiths.
