The Supreme Court on Tuesday set aside the practice of instant triple talaq saying it was violative of Article 14 and 21 of the Indian Constitution.
However, invoking Article 142 to injunct Muslim men from divorcing through talaq-e-biddat, the Chief Justice said the fact that even the Muslim world has shed talaq-e-biddat and there is no excuse for independent India to lag behind.
The issue was whether talaq-e-biddat was violative of the fundamental and human rights of gender equality and dignity of Muslim women.
Two judges ( Justice Nariman and Justice Lalit) set it aside terming it unconstitutional, Justice Joseph set it aside on ground that it is against the teachings of Quran. CJI JS Khehar and Justice Abdul Nazeer backed triple talaq. “Triple talaq was part of Muslim personal law and hence enjoys status of fundamental rights,” said CJI Khehar. CJI wanted Parliament to bring about a law to deal with triple talaq.
The initial confusion about the verdict happened after CJI Khehar, who read his part first, said triple talaq can’t be struck down as unconstitutional and asked Parliament to make law.What the Indian Constitution says
Under the Constitution, religious freedom is subject to all other Fundamental Rights. Article 25 — which guarantees Freedom of Practice and Propagation of Religion — does not protect religious practices since they can negatively affect the welfare of citizens. Article 14, which guarantees the Right to Equality, overrides Article 25 because triple talaq denies a Muslim woman's equality before the law.
Similarly, Article 25 is subject to Article 15 (1) which says that the State "shall not discriminate against any citizen on grounds only of religion, race, caste, sex..." Since triple talaq does not work in the favour of women, it violates Article 15 (1) of the Constitution.
SC called practice 'worst' form of dissolution of marriage
On 12 May 2017, the Supreme Court said the practice of triple talaq was the "worst" and "not desirable" form of dissolution of marriages among Muslims, even though there were schools of thought which termed it as "legal".
There are "school of thoughts (which) say that triple talaq is legal, but it is the worst and not desirable form for dissolution of marriages among Muslims," a five-judge Constitution bench, headed by Chief Justice JS Khehar, said on the second day of continued hearing on the matter.
Muslim personal law governs Indian Muslims
Muslim law in India comes from the Muslim Personal Law (Shariat) Application Act, 1937 which says that in so far as matters concerning marriage, divorce, inheritance and other personal matters, the law governing Muslims in India shall be the Muslim personal law or the Shariat.
Triple talaq not followed in Pakistan
The practice has been denounced in Pakistan, which describes itself as an Islamic Republic. The former Chief Justice of Pakistan Jawwad S Khawaja had said that "triple talaq was never a part of pure Islamic history and was not considered valid as per Islamic law." He further added that, "Instant talaq or triple talaq has not been considered valid in Islam and it is not considered to be the best form of divorce under Islamic law. If you look at what jurists have opined in the 1,000-year old history that it was never acceptable and it has never been the most accepted of talaq in any era of Islamic history,”
Here are the six petitioners in the triple talaq case
According to The Indian Express, there are six petitioners in the case, including five women. They are: Shayara Bano, Ishrat Jahan, Gulshan Parween, Aafreen Rehman, and Atiya Sabri. Zakia Soman-led Bharatiya Muslim Mahila Andolan (BMMA) is the sixth petitioner.
Modi backs Muslim women in Triple Talaq issue
The Triple Talaq issue found a notable mention in the Independence Day speech. Reiterating his government's support to the movement against Triple Talaq, ,Modi added that India will also support Muslim women in their struggle.
"I believe India will fully support the women in their struggle. The women of this country created a revolution against Triple Talaq. There was an atmosphere against Triple Talaq in the country with even the media supporting the women,"he said.
Arguments before SC show Muslim minds still unwilling to think outside religion's framework
Be it triple or quadruple talaq, it must happen inside a courtroom. The issue of talaq must come within the mainstream judicial framework and cannot be left to be determined by extra-judicial courts. Otherwise, not only would the Muslim wife be left at the mercy of unilateral divorce, the husband would also be left with the humiliating experience of effecting divorce on his own or through clerics.
The fallacy in Khan's argument, therefore, is that he wants the rights of women under Quran where the practice is essentially discriminatory. So long as the law does not give equal rights to Muslim woman and the Muslim husband can pronounce his own judgement, the issue cannot be resolved. One hopes that the Supreme Court addresses this aspect of the problem.
Shayara Bano's plea is key to the verdict
The most important plea during the hearing was one filed by Shayara Bano. According to her plea in the Supreme Court, her husband divorced her through triple talaq. Bano contended that “the Muslim husband’s right to ask for divorce by uttering talaq three times in a row is completely unilateral, unguided, absolute and has no rationale. It cannot be identified with Muslim culture and is not part of Muslim law. So it is not part of religion and hence not part of the right to practise or propogate religion and deserves no protection,” The Indian Express quoted her as petition as stating.
Three forms of talaq
There are three forms of talaq (divorce) — Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable. Biddat – pronouncing divorce in one go by the husband – is irrevocable. Biddat is considered ‘sinful’ but permissible in Islamic law. The All India Muslim Personal Law Board (AIMPLB) holds that for the Hanafis, who make more than 90% Sunnis in India, triple talaq is a matter of faith followed for 1400 years.
For over 65 years, women, who comprise approximately 8% of the population under the2011 census, have remained extremely vulnerable. “Muslim women want to have a life equal to that of another woman, say a Christian or a Hindu wife," the government had argued in court.
The Centre had claimed that instant talaq was not fundamental to Islam. It promised to bring a new divorce law for Muslim men in case the court strikes down the three forms of talaq – Ahsan, Hasan and Biddat.
The government argued that Muslim marriage and divorce is codified under Section 2 of the Shariat Act of 1937 and came within the ambit of 'law' under Article 13 of the Constitution. Hence, they should abide by the principles of dignity and non-discrimination.
The AIMPLB had countered that triple talaq is a matter of faith like the Hindu belief that Ayodhya is Ram's birthplace. The courts and government should leave reform to the community.They quoted Bombay High Court's unchallenged decision in Narasu Appa Mali case that personal law should not be tinkered with.
Where will Muslim men go for divorce if you (court) strike down talaq and the Parliament refuses to pass a new law? AIMPLB asked.
Justice Kurian had ignited a spark by suggesting an alternative that a Muslim bride, at the time of the wedding, should be allowed to lay down a condition in the nikah nama that she would not be subjected to instant talaq in case the marriage hits a rough patch.
Days after the court reserved the case for judgment, the AIMPLB filed an affidavit informing that they would issue a public advisory to qazis to advise bridegrooms against instant talaq and also add a condition in the nikah nama to exclude instant talaq. The AIMPLB even threatened social boycott on Muslim men who resort to instant talaq.
No comments:
Post a Comment