Context:

  • The five-judge Bench, Justices Kurian Joseph and Rohinton Fali Nariman gave separate judgments against the validity of instant talaq. Justice U.U. Lalit supported Justice Nariman’s view that instant talaq given by a Muslim man “capriciously and whimsically,” without an attempt at reconciliation, was “manifestly arbitrary and violative of Article 14 (right to equality).”

Introduction:

  • The Supreme Court Constitution Bench gave a historic 3:2 majority judgment on 22nd August 2017 and set aside instant talaq as a “manifestly arbitrary” practice not protected by Article 25 (freedom of religion) of the Constitution.
  • Chief Justice J.S. Khehar held that talaq-e-biddat , as a personal law practice, was an integral part of Article 25 (freedom of religion). Ninety per cent of Muslims in India follow the practice. It was constitutionally protected as a fundamental right.
  • The Chief Justice reasoned that talaq-e-biddat was in vogue for over 1,400 years, and this made instant talaq a “matter of religious faith,” which cannot be tested on the touchstone of Article 14.
  • However, Justice Kurian in his separate verdict Objecting to the Chief Justice’s line of reasoning and held that “merely because a practice ( talaq-e-biddat ) has continued for long (over 1,400 years), that by itself cannot make it valid.
  • The triumvirate of Justices Kurian, Nariman and Lalit overwhelmed the minority verdict pronounced by Chief Justice of India J.S. Khehar and endorsed by Justice S. Abdul Nazeer, the juniormost judge on the Bench.

Supreme court’s recent verdict:

About Triple Talaq:

  • Triple Talaq refers to a process of divorce whereby the husband utters the word “Talaq” thrice in one sitting thus getting out of the marriage contract.
  • This practice is controversial and has different interpretation among different sects of Islam.
  • At the same time, this practice has been banned by law in many countries of the world such as Pakistan, Bangladesh, Tunisi, Indonesia, Algeria, Iran, Iraq etc.
  • This practice is valid in Sunnis only, while most shia nations recognized it to be invalid.
  • However, this practice of Triple Talaq is still valid in India.
  • Attorney general, Mukul Rohatgi, who argued that the only way gender justice could be secured for Muslim women was to enact a law and bring all talaq(not just triple talaq) under judicial scrutiny.

What is the most significant thing about the SC’s verdict?

Instant triple talaq is now illegal.

  • The Supreme Court, with a majority of three judges, has held that freedom of religion under the constitution of India is absolute.
  • Justice Kurian Joseph has struck down this practice of talaq because it is not an integral part of Islam.
  • The most important outcome of the majority of view is that personal  laws, which are not statutory in nature, cannot be tested on the anvil of the right to equality under Article 14 of the Constitution.

Will all personal laws be now decided in the court?

  • Only triple talaq pronounced thrice in one sitting has been declared invalid.
  • The other two forms of talaq- talaq hasan and ahsan can continue to take place without a court decree.
  • The concept of nikah, talaq, inheritance, custody, waqf etc, remain unaffected as far as the requirement of a court decree is concerned,

Related statistics and stands taken by Government:

  • India is home to world’s third-largest Muslim population which is governed by the Sharia Law or Islamic Jurisprudence and this has been the case since British colonial rule.
  • A recent survey by the Bharatiya Muslim Mahila Andolan (BMMA) suggests that 92 per cent of Muslim women in India want the practice of triple talaq  to end.
  • It has created political controversy across the spectrum. The All India Muslim Personal Law Board (AIMPLB) has warned secular authorities against interfering with religious law. On the other hand, Prime Minister Narendra Modi has lent his support to the Muslim women fighting against the practice of triple talaq.
  • The government has raised the question whether constitutional protection given to religious practices like triple talaq should extend even to those that are not in compliance with fundamental rights.

Argument against triple talaq:

  • Religious significance of triple is not as much as has been presented by some of it’s proponents.
  • Instant divorce was propagated by Caliph Umar and is not part of the procedures of marriage and divorce laid by the Quran. It is undesirable and anti-Islamic.
  • Other then religious reasons there many other types of issues involved with the triple.
  • Economic: Most Muslim women get married at a young age and hence, are financially dependent on their husbands. An alarmingly high number of divorced Muslim women in India do not receive any financial assistance from their ex-husbands and are left by them to fend for themselves and their children.
  • Undignified: Muslim women grow up with the awareness that on any given day, her husband can due to anger or any other reason; turn her out of the marital home instantly, by repeating a simple word three times. This is a huge block to women empowerment-treating women as slaves who can be disposed- and very inhuman.
  • Unconstitutional: Triple violates women’s rights to equality and freedom. It is against the fundamental rights provided to us by our constitution.
  • Gender Inequality: This system of unilateral and instantaneous divorce perpetrates and strengthens gender inequality. It reinstates the superiority of the husband while leaving the wife vulnerable to subjugation due to fear of divorce.
  • Misused: Indian Muslim women have been given talaq over Skype, Facebook and even text messages. There is no protection against such arbitrary divorce. Triple gives unprecedented power and authority to Muslim men.
  • This practice of triple or instant divorce of marriages should not be valid in India because the practice of personal laws cannot be guarded at the expense of dignity, freedom and basic fundamental rights of women.

Arguments in support for triple:

  • Though there are major criticisms against triple talaq, still there are some reasons in its favor.
  • It violates the principal of equality and constitutional morality.
  • The court cannot interfere in religious matters as our Constitution provides us the right to practice, profess and propagate any religion as per Article 25. Freedom of religion is a fundamental right as per Article 15.
  • The main argument to support the validity of the triple is that since Muslim population in India are in minority, any change in their personal law would not only change their religious practice but would pave the way for further changes.
  • Thus, despite the fact that over 90 per cent Muslim women want to get rid of this practice, the Muslim resist this change.
  • This apprehension though can be repudiated on the fact that in Sri Lanka also, Muslim population make less than 10 per cent of population but they have enacted Marriage and Divorce (Muslim)Act, 1951, which invalid this practice of instant divorce.
  • In order to subject Triple Talaq to constitutional norms, the court must first overrule a 1951 judgment of the Bombay High Court in which it held that uncodified personal laws may not be scrutinized for fundamental rights violations.
  • The All India Muslim Personal Board (AIMPLB) has urged the SC not to meddle with its personal laws as the issues fell outside the realm of judiciary.

Judiciary pronouncements:

  • In the very famous case of Shayara Bano v. Union of India which has popularly come to be known as the “triple talaq case”, the constitutional validity of certain practices of Muslim personal law such as triple talaq, polygamy, and nikah-halala has been challenged.
  • The SC verdict in this case, on  the question of the amount of maintenance to be provided to a divorced muslim women, was overturned by parliament through enactment of the muslim women (protection of rights on divorse )Act 1986.
  • The first judicial pronouncement came in 2002 in the Shamim Ara vs State of UP case. In this case Justice RC Lahoti said that talaq must be pronounced on cogent plausible and reasonable grounds. Under this case Talaq was not held invalid. This judgment also pointed out that prior to talaq, the spouses must appoint two arbitrators, who would make all efforts for reconciliation and resolution.
  • In 2002, only the Aurangabad bench of Bombay High Court invalidated the triple talaq by quoting reference from Quran in Dagdu Pathan Vs Rahimbi case.
  • The opposition to this issue comes from All-India Muslim Personal Law Board. It has expressed its disquiet over a petition requesting the Apex Court to determine the constitutional validity of triple talaq.

Background 

  • Triple talaq or instant divorce was first promoted by Caliph Umar and is hence, considered to be a wrongful addition in religion (bidat) and not as per Quran.
  • Most Muslim women opposing ‘triple talaq’ want the Muslim bodies to adopt ‘Talaq-e-Sunnah’ (Divorce as per the Prophet’s sayings and Quranic dictation) and discard ‘Talaq-e-Biddah’ (Divorce as per a later formed mode of divorce which propagates instant divorce).
  • The Quran provides for a step-by-step and lengthy process that aims at straightening out the differences between husband and wife.
  • One of the steps provides for arbitration where a member from each of the spouse’s family tries to make amends in the strained relationship.
  • If and only if, all these steps fail, the husband is permitted to pronounce a divorce.
  • However, the Quran provides for a period of 3 months (iddat) for the spouses to live together and before the marriage can be completely annulled.

Conclusion:

  • Though there is no doubt that the practice of triple go against the rights of women but as the minorities constitutes a significant population of India, government must try to avoid the controversies that can be caused by total abolishment of triple talaq.
  • Hence government should identify the specific provisions of this practice that go against the right and dignity of women and remove them.
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