A breakthrough judgment but freedom for most Muslim women in India is a far cry. Let Parliament do its bit now
Tufail Ahmad | 23 Aug, 2017
WHEN HISTORIANS CHRONICLE the movement of Muslim women’s rights in India, August 22nd, 2017, will stand out as a milestone. On this day, the Supreme Court delivered a historic verdict against the practice of instant Triple Talaq (divorce) that not only empowers Muslim women, but also rebuffs Islamic clerics who wield extraordinary influence in the daily lives of the faith’s followers. Triple Talaq refers to the practice by which a Muslim husband says ‘talaq’ three times to his wife in the presence of two witnesses to terminate a marriage. In the instant version, the word is uttered thrice in quick succession—frequently nowadays through a letter, email, phone call, WhatsApp, SMS, Skype and the like. Called talaq-e-biddat, it is irrevocable even though it is deemed undesirable. Attracting less reproach is a process of divorce in which the husband delivers one ‘talaq’ every month over a period of three months, the first two being revocable and thus allowing room for reconciliation. This is known as talaq-e-hasan. Another form is talaq-e-ahsan, regarded as the best, under which a husband can utter one ‘talaq’ and wait for three months to elapse after which the divorce would be valid. This also grants a period of time for the couple to reconcile.
The apex court’s 395-page verdict has two parts: the Judgments and the Order. The former offer a comprehensive discussion of all issues concerning instant Triple Talaq, the Quranic position on divorce, representations made by the case’s petitioners and respondents, the abolition of offending practice in Islamic countries, observations of judges, past court rulings on various aspects of law, and so on. This part has nothing to do with legal enforcement. What is enforceable is the court’s Order, which is short. It states: ‘In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’—triple talaq—is set aside.’ This outlaws the practice with immediate effect throughout India.
The verdict followed a week-long hearing in May this year by a five-member Constitution bench of the Supreme Court, which had clubbed a bunch of petitions challenging different aspects of the Muslim Personal Law under Muslim Women’s Equality versus Jamiat Ulema-e-Hind and Others, as the case came to be known. The court had said it will deliver a verdict specifically on the issue of instant Triple Talaq, since other issues of the Personal Law like polygamy, maintenance and halala are part of other pending cases. The five judges on the bench, Chief Justice JS Khehar, Justice Kurian Joseph, Justice Rohinton F Nariman, Justice Uday U Lalit and Justice S Abdul Nazeer, are of five different faiths—Sikhism, Christianity, Zoroastrianism, Hinduism and Islam—and they differed on the issue at hand.
The verdict has three judgments: one delivered by Chief Justice Khehar and Justice Nazeer, another by Justice Kurian, and a third by Justices Nariman and Lalit. Holding a minority opinion (of academic value), Chief Justice Khehar and Justice Nazeer concluded that Triple Talaq had been practised by Muslims globally for about 1,400 years and was thus part of the Islamic faith at least since Umar ibn Khattab, the second caliph who ruled from 634 to 644 CE. In their opinion, ‘Talaq-e-biddat, does not violate the parameters expressed in Article 25’ and ‘is not contrary to public order, morality and health’, the latter being the grounds on which it could be held violative of Article 25, which guarantees the fundamental right to religion. ‘The practice also does not violate Articles 14, 15 and 21 of the Constitution,’ the two judges note, referring to the right to equality, to non-discrimination on grounds of religion, race, caste, sex or place of birth, and to life and personal liberty. The two also make key observations: while accepting Triple Talaq as valid, they order Muslim husbands not to practise it for six months and ask Parliament to legislate a ban on it within that time frame, failing which the stay against it would be lifted. This opinion is non-binding but of relevance, as we shall later see.
That public awareness of human rights has risen in India finds mention in the Court’s verdict: ‘The whole nation seems to be up in arms. There is seemingly an overwhelming majority of Muslim women, demanding that the practice of ‘talaq-e-biddat’ which is sinful in theology, be declared as impermissible in law.’ Further: ‘During the course of hearings, the issue was hotly canvassed in the media. Most of the views expressed in erudite articles on the subject hugely affirmed that the practice was demeaning. Interestingly, even during the course of hearing, learned counsels appearing for the rival parties, were in agreement, and described the practice… differently as, unpleasant, distasteful and unsavoury.’
The Court order setting aside instant Triple Talaq has come about because Justices Joseph, Nariman and Lalit disagreed with the other two. Through their own line of reasoning, the bench majority have found the practice in violation of Muslim women’s fundamental right to equality under Article 14 of the Constitution because it is an arbitrary act by a husband. The Bharatiya Muslim Mahila Andolan, which had waged a social battle against instant Triple Talaq while also asking the Judiciary for ‘minimum interference’ in Muslim Personal Law, has welcomed the verdict.
In his separate judgment, Justice Joseph cites numerous earlier rulings and injunctions against arbitrary divorce in the second, fourth and 65th chapters of the Qur’an, the last of which lays down a specific non-arbitrary process of Triple Talaq. Before the apex court, all petitioners and respondents had agreed that the instant version was considered bad, distasteful and abhorrent in Islamic law, though Islamist organisations like the Jamiat Ulema-e-Hind and All India Muslim Personal Law Board had wanted to retain the practice. Having put the issue to a theological test, Justice Joseph notes that the instant kind is not approved by the Holy Book. He observes: ‘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.’ In arriving at this, the judge also discusses how courts in India have relied on the Supreme Court’s judgment in Shamim Ara versus State of UP and Another. In this case, the court had ruled that Triple Talaq lacks legal sanctity.
Divorce under Sharia is not gender neutral. While it gives Muslim men an easy right to divorce their wives unilaterally, the women need the intervention of a court to end a marriage
One must bear in mind that the issue of Muslim marriage and divorce, among others, is under the purview of the Muslim Personal Law (Shariat) Application Act, 1937. Section 2 of the Act deals with subjects like ‘marriage, dissolution of marriage, including talaq’. Justice Joseph observes that Sharia is applicable to Muslims, but ‘while talaq is governed by [Muslim Personal law], the specific grounds and procedure for talaq have not been codified in the 1937 Act.’ He declares Section 2 unconstitutional insofar as it allows instant Triple Talaq, noting that the Act itself is ‘not a legislation regulating talaq’. His declaration of the practice in question as unconstitutional is shared by the other two judges in the third judgment.
At the centre of the debate is a point made by the All India Muslim Personal Law Board: that the 1937Act is not ‘law’ as per Article 13 of the Constitution, which stipulates that any legislation can take force only if it’s in consonance with the fundamental rights it guarantees. To have Muslim Personal laws escape this scrutiny, the Board has argued many times that Sharia is God-made and cannot be amended because Article 13 applies only to man-made laws. In their judgment, Justices Nariman and Lalit clarify that the 1937 Act is indeed a law, meaning it can be quashed if in violation of fundamental rights.
While Chief Justice Khehar wants the Government to reform the Muslim Personal Law through parliamentary legislation, Justices Nariman and Lalit observe that citizens cannot be left to wait for Parliament to outlaw instant Triple Talaq. To buttress their argument, Justices Nariman and Lalit quote a 2015 verdict of the United States Supreme Court which states: ‘The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter.’
Having established that the 1937 Act is a law that can be quashed if it fails the constitutional test of fundamental rights, and that citizens need not wait for parliamentary action, Justices Nariman and Lalit put instant Triple Talaq to test under the right to equality. They also cite numerous past judgments which had declared laws void on account of ‘arbitrariness’. They rule that the practice ‘is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India.’
In sum, the triple-judgment bans instant Triple Talaq. All cases of Muslim divorce pending in various Indian courts must go by the verdict. Possibly, it also means that all recent rulings upholding such a divorce can be challenged in higher courts, provided the limitation period for this hasn’t already lapsed.
YET, THE VERDICT doesn’t resolve the larger issues of Muslim women’s liberty and well-being in India. Divorce under Sharia is not gender neutral. While it gives Muslim men an easy right to divorce their wives unilaterally, the women need the intervention of a Sharia court to end a marriage. After the verdict of August 22nd, the basic male privilege remains in place through other forms of talaq. A Muslim husband can deliver one ‘talaq’ and wait for three months for it to take effect, or say it once each month over a period of three menstrual cycles. There is another way to nullify a Muslim marriage: a husband or wife can leave Islam and convert to another religion, thereby rendering their marriage invalid.
No meaningful change can relieve Muslim women of the imbalance until the Muslim husband is required to go through the Indian Judiciary for a divorce. Even after the verdict, there is no provision for a Muslim husband to approach the courts for a divorce. However, a Muslim wife can either go to a Sharia court or a regular one under the Dissolution of Muslim Marriages Act, 1939.
This leads to practical issues for a male divorce seeker . If a husband, choosing the best form of divorce, utters one ‘talaq’ and waits for three months, the most likely outcome will not be reconciliation but a dowry harassment case being filed by the wife. Similarly, if he chooses the option of spacing his utterances over three months, he would be vulnerable to a dowry harassment or domestic violence case being filed by the aggrieved wife. Given that the stigma of divorce is disproportionately borne by women in India, it makes sense to insist that all Muslim divorce cases go to a court of law. Even instant Triple Talaq could perhaps have been retained provided the husband files a case for divorce and is then allowed to say it upon a judge’s approval in court.
In deciding the current case, the Supreme Court limited itself to judging instant Triple Talaq, acknowledged widely as a social curse among Muslims in India. There are other problems faced by the community’s womenfolk, notably the issues of maintenance, polygamy and halala (whereby a divorced Muslim woman must marry another man and get divorced before she can re-marry the first husband who divorced her). The law prevails only when an affected party goes to court.
Another worry is that orthodox Muslims who live by Sharia codes may not approach the courts and will continue to practise whichever forms of divorce they want. In Britain, it has been seen that Muslim families go to their own Sharia courts, not to British courts. A similar pattern might prevail in India. Sharia enclaves could become a social reality in India. Many Muslim groups (such as Bohras) live under the strict orders of religious leaders in any case.
A vast number of divorced Muslim women lack the financial means to go to courts of law. Lengthy justice delivery in India is another deterrent. This leaves their rights, liberties and well-being unaddressed by the Indian Judiciary. In this void, a large number of Sharia courts run by various Islamic organisations step in. Considering that every cleric is a court unto himself, a parallel Sharia-based legal system stays in force so long as the Judiciary does not open its doors to Muslim men who want an alternative. For husbands, especially those who are liberal, approaching an Islamic cleric for a divorce could be a humiliating experience. If we reverse the argument, the Muslim husband’s right to equality and non-discrimination have been overlooked because he cannot seek a divorce through a court, while the wife can.
It is here that the minority opinion of Chief Justice Khehar and Justice Nazeer begins to look relevant. In their judgment, the two note that reforms in personal laws in India were introduced in the past through legislation, as done to eliminate sati and devadasi practices, and so this model offers scope for reforming the Muslim Personal Law by an Act of Parliament. In this context, they lay out a case for the need for a Uniform Civil Code. Article 44, though non-binding, says: ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’ The judges observe that this Article had a purpose when it was included in the Constitution. ‘The intent of the Constituent Assembly was to protect the ‘personal laws’ of different communities by elevating their stature to that of other fundamental rights, however with the rider, that the legislature was competent to amend the same.’
While the Supreme Court’s annulment of instant Triple Talaq is a definitive milestone in Muslim women’s struggle for equal rights in India, both the order of Chief Justice Khehar and Justice Nazeer directing Muslim husbands to desist from the practice and their call for the legislation within six months of a Uniform Civil Code—which is a politically divisive term—should now be drawn into the framework of a larger Universal Bill of Rights for the Indian Citizen (Ubric). This will help politicians overcome resistance to the proposal and instead foster a positive debate on human rights for all. By delivering its verdict, the Supreme Court has done its part. The need of the hour is for the Government to enact a law to protect the rights of Indian citizens.