In a landmark judgment, the Supreme Court on August 22 rightly annulled the 1,400 year old reprehensible practice of instant triple talaq (talaq-e-biddat) among Muslims terming it unconstitutional and sending out a strong message that religious practices which are arbitrary and discriminatory have no place in a constitutional democracy. A historic 3:2 majority judgment by a multi-faith Constitution Bench set aside instant talaq as a “manifestly arbitrary” practice not protected by Article 25 (freedom of religion) of the Constitution. The triumvirate of Justices Kurian Joseph, UU Lalit and Rohinton F Nariman overwhelmed the minority verdict pronounced by Chief Justice of India JS Khehar and endorsed by Justice S Abdul Nazeer who is the juniormost Judge on the Bench.
Be it noted, in talaq-e-biddat, divorce becomes immediately effective. Unlike the other two categories, it is irrevocable from the moment it is pronounced. In talaq-e-ahsan, the husband pronounces talaq once followed by abstinence or ‘iddat’ of 90 days or three menstrual cycles. If couple resumes intimacy in ‘iddat’ period, talaq is revoked, else it is final.
To put things in perspective, in talaq-e-hasan, husband pronounces talaq three times over three months with ‘iddat’ of one month each. If intimacy is resumed in ‘iddat’, talaq is considered revoked. If it is not, the divorce becomes binding after third talaq. The Supreme Court has declared illegal only “talaq-e-biddat” and Muslim men can still divorce their wives by “talaq-e-ahsan” and “talaq-e-hasan”.
All credit to Shayara Bano – the 35-year-old Muslim woman from a remote hamlet – Hempur Daya in Kashipur in Uttarakhand. She was arbitrarily divorced in a letter by her husband in 2015 that contained the letter “talaq” thrice” and her husband also refused to give her two kids! She strongly stood up against fundamentalists, clerics and the glare of media and reiterated her firm determination to root out this regressive malpractice by filing PIL in Supreme Court on February 23, 2016. Now she stands totally vindicated as Supreme Court rightly upheld her contention!
Along with Shayara Bano, the other key parties who were instrumental in drawing the attention of Supreme Court towards triple talaq were Ishrat Jahan, Aafreen Rehman, Atiya Sabri, Gulshan Parween and Bharatiya Muslim Mahila Andolan. Ishrat Jahan is a resident of West Bengal who was divorced by her husband Murtaza through a phone call from Dubai in April 2015. Murtaza married another woman and took away their four children with him leaving her totally helpless!
Aafreen Rehman who got married in 2014 was first harassed for dowry and even beaten regularly. Later in September 2015 they asked her to leave their house. In her parents house she received a letter via speed post announcing triple talaq in January 2016.
Gulshan Parween of Rampur in UP filed a petition in Supreme Court asking for abolishing triple talaq in 2015. She alleged her husband sent her a talaqnama on a Rs 10 stamp paper when she was at her parents house. She alleged she was subjected to domestic violence by him for 2 years for dowry!
Supreme Court made the Bharatiya Muslim Mahila Andolan (BMMA) a party in the case after taking cognizance of a survey which said 92% of Muslim women want abolition of triple talaq. Led by Zakiya Soman, the Mumbai-based autonomous body has been fighting for citizenship rights of Muslims since it was formed in January 2007. Naseem Akhtar who is BMMA’s Jaipur convener said: “It’s a balanced decision. Now we expect government to make a law against triple talaq the soonest.”
Atiya Sabri of Uttar Pradesh is the last petitioner in this case. Her husband Wajid Ali and she were married since 2012 but in November 2015 her husband sent to her brother’s office a note of triple talaq. She alleged that as she had two daughters, aged three and four, her in-laws were not happy and they had tried to poison her. She approached the Supreme Court in January 2017 challenging the divorce and said that triple talaq violates fundamental rights of women.
No doubt, this landmark judgment seeks to overturn the conventional belief that it is the community itself, not Parliament or courts, which should reform religious or personal laws. 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 dissenting note came from CJI 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 CJI JS Khehar writing for himself and Justice Nazeer said the practice was part of Muslim personal law and, therefore protected by the Constitution from judicial review. He said that triple talaq cannot be declared unconstitutional and the “gender discriminatory practice can be done away by way of legislation. CJI Khehar said: “Personal law has a constitutional protection. This protection is extended to ‘personal law’ through Article 25 of the Constitution. It needs to be kept in mind that the stature of ‘personal law’ is that of a fundamental right… ‘personal law’ of every religious denomination is protected from invasion and breach, except as provided by and under Article 25.”
Both Khehar and Nazeer concluded that The Muslim Personal Law (Shariat) Application Act, 1937 was not a law in force within the meaning of Article 13(3)(b) of the Constitution but was made to “preserve Muslim personal law – Shariat, as it existed from time immemorial.” The order sought to explain how the customary practice was “integral” to the Sunni sect, saying it had “been in vogue since the period of Caliph Umar (a senior companion of Prophet Mohanned) which is roughly more than 1400 years ago”.
Justice Kurian Joseph in his separate judgment along with the majority stated that the practice of triple talaq does not have the protection of Article 25 of the Constitution guaranteeing freedom of religion. He very rightly said “Merely because a practice has continued for long, that itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice and thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq. I expressly endorse and reiterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”
Truth be told, malpractices like Sati, human sacrifice, polygamy etc prevailed in Hinduism since many thousand of years till they were finally outlawed! Lord Krishna it is said had married 16,108 women but did that stop Jawaharlal Nehru from forbidding Hindus to marry more than once? Even the father of Lord Rama had many wives! Shivaji who is the greatest Maratha hero too had many wives and his chief queen was Sai Bai Nimbalkar!
Truly speaking, all Hindus must be grateful to Nehruji for the great courage he showed in outlawing polygamy among Hindus! He exempted Muslims because they were then still heeling from the fresh wounds of partition. But now 70 years later Muslims too must be covered and malpractices like Halala whereby if a Muslim man divorces her wife and if he wants to marry her again after realizing his mistake he cannot do so until she marries another man and then obtain divorce from him!
In other words, Nikah halala is the practice that requires divorced Muslim women to marry another men and consummate the marriage with him and then seek divorce from him in order to make her eligible to remarry her previous husband who gave her talaq! This is certainly most reprehensible! It makes a complete mockery of the dignity of Muslim women and does not affect Muslim men in any manner even though it is Muslim men who arbitrarily divorces her!
June 29, 2016: Supreme Court says ‘triple talaq’ among Muslims will be tested on “touchstone of constitutional framework”.
October 7, 2016: For the first time in India’s constitutional history, Centre opposes in Supreme Court these practices and favours a relook on grounds like gender equality and secularism.
February 14, 2017: Supreme Court allows various interlocutory pleas to be tagged along with the main matter.
February 16, 2017: Supreme Court says a five-Judge Constitution Bench set up to hear and decide the challenge to ‘triple talaq’, ‘nikah halala’ and ‘polygamy’.
March 27, 2017: AIMPLB tells Supreme Court that pleas were not maintainable as the issues fall outside the judiciary’s realm.
March 30, 2017: Supreme Court says these issues are “very important” and involve “sentiments” and says a Constitution Bench would start hearing it from May 11.
May 11, 2017: Supreme Court says it would examine whether the practice of triple talaq among Muslims is fundamental to their religion.
May 12, 2017: Supreme Court says the practice of triple talaq was the “worst” and “not desirable” form of dissolution of marriages among Muslims.
May 15, 2017: Centre tells Supreme Court that it will bring new law to regulate marriage and divorce among the Muslim community if triple talaq struck down. Supreme Court says it would examine whether triple talaq was an essential part of religion under Article 25 of Constitution.
May 16, 2017: AIMPLB tells Supreme Court that matters of faith cannot be tested on grounds of constitutional morality and also emphasized that triple talaq is a matter of faith for last 1400 years.
May 17, 2017: Supreme Court asks AIMPLB whether a woman can be given an option of saying ‘no’ to triple talaq at the time of execution of ‘nikahnama’. Centre tells Supreme Court that triple talaq is neither integral to Islam nor a “majority versus minority” issue but rather an “intra-community tussle” between Muslim men and deprived women.
May 18, 2017: Supreme Court reserves judgment on triple talaq.
May 22, 2017: AIMPLB files affidavit in Supreme Court saying it would issue an advisory to ‘Qazis’ to tell bridegrooms that they will not resort to triple talaq to annul their marriage.
August 22, 2017: Supreme Court by majority judgment of 3:2 rules that divorce through triple talaq is void, illegal and unconstitutional and against basic tenets of Quran.
By Sanjeev Sirohi
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