Two cheers for the Supreme Court: (The Hindu, Editorial)summary & Understanding context of SC ruling on triple talaq: Divorce rate of Muslim women is thrice that of men:
- By a majority decision, instantaneous triple talaq is now invalid, a significant victory that is the result of many decades of struggle by the Muslim women’s movement for gender justice.
- That is something that must be welcomed. However, the value of a Supreme Court judgment lies not only in what it decides, but also in the possibilities and avenues that it opens for the future, for further progressive-oriented litigation.
- In that sense, the triple talaq verdict is a disappointment, because even the majority opinions proceeded along narrow pathways, and avoided addressing some crucial constitutional questions.
The 1937 Muslim Personal Law (Shariat) Application Act
- The 1937 Muslim Personal Law (Shariat) Application Act had codified all Muslim personal law, including the practice of triple talaq.
- This brought it within the bounds of the Constitution. It is so because because talaq-e-biddat allowed unchecked power to Muslim husbands to divorce their wives, without any scope for reconciliation, it was “arbitrary”, and failed the test of Article 14 (equality before law) of the Constitution. The practice, therefore, was unconstitutional.
- Under India’s constitutional jurisprudence, personal law that has been given a statutory form, such as the Hindu Marriage Act is subject to the Constitution.
- However, uncodified personal law is exempted from constitutional scrutiny.
- The moment the state legislates on personal law practices, its actions can be tested under the Constitution, but if the state fails to act, then those very practices which, for all relevant purposes, are recognized and enforced by courts as law need not conform to the Constitution.
- This jarring position, which had first been advanced by the Bombay High Court in a 1952 decision called Narasu Appa Mali, and has never seriously been challenged after that, has the effect of creating islands of “personal law” free from constitutional norms of equality, non-discrimination, and liberty.
- In a separate opinion, this turned out to be the “swing vote.”
- It was mentioned that talaq-e-biddat found no mention in the Kuran, and was no part of Muslim personal law.
- This brings us back to the dissent. Not only did the dissenting opinion privilege community claims over individual constitutional rights, it also conflated the freedom of religion with personal law, thereby advancing a position where religion could become the arbiter of individuals’ civil status and civil rights.
Data from the Census of India, 2011
- The Data showed that while among all religious communities, the rate of divorce was significantly lower among men than among women; the disparity was particularly stark among Muslims.
- So while the “refined divorce rate”, or rate of divorce per 1,000 marriages, was 1.59 among Muslim men, among Muslim women, it was more than three and a half times higher — 5.63.
- There are no concrete data on the prevalence of this form of divorce, the impact of the judgment is, therefore, difficult to measure.
- Muslim couples can divorce in other ways too, including through the intervention of religious institutions such as the Qazi and Dar-ul-Qaza.
- Among Muslim women, the largest percentage of divorces take place in the age group 20-34 (43.9%), in which only 24% of the total Muslim female population lies.
- 9% of Muslim women divorcees are of age 19 and below, the most among all communities in this age group.
- As per Census 2011, the total number of divorcees in India was only 13.2 lakh, a severely underreported figure, according to activists.
- There were 9.09 lakh women divorcees (68% of the total divorcee population) and 4.52 lakh divorced men.