In a landmark judgment that could have long-term implications, the Supreme Court has banned triple talaq, the Muslim practice of divorce by uttering the word talaq three times for divorce. The judgment vindicates the stand of several Muslim women’s organizations as well as women’s rights’ groups which have been supporting victims of this practice as well as the government which had taken a stand against this custom.
A five-member panel of judges called the practice ‘illegal, retrograde and unworthy and said that triple talaq ‘is not integral to religious practice and violates constitutional morality.’Stating that this was bad in law, the court hoped that ‘the legislature will consider and take into account Muslim Personal law while making the legislation. All parties must keep politics away from it when a decision is taken.’
It pointed out that the practice has been abolished in Islamic countries including Pakistan, and wondered why it shouldn’t be and independent India persists with this law. Triple talaq is a law of Muslims according to the Constitution but several Muslim women who have been divorced by the uttering of the word thrice orally and also by the latest devices like WhatsApp and Skype have challenged the 1,400-year-old practice.
Interestingly of the five judges who sat on the case belong to different faiths, the Chief Justice Jagadish Singh Khehar, Justice Kurien Joseph, Justice Rohinton Nariman, Justice Umesh Lalit and Justice Abdul Nazeer, and they heard the case over five days from May 12.
During the arguments the All India Muslim Personal Law Board (AIMPLB) described the practice as ‘sinful’, ‘horrendous’ and ‘undesirable’ with it having no sanction in the Koran or the Shariat. The Board, however, cautioned that ‘testing the validity of customs and practices was a slippery slope’ and this should be tread with care.
Of the judges two said that while talaq may be sinful, the court should not interfere in personal laws that are considered a fundamental right of the citizen.
While three of the judges held that triple talaq violates the tenets of the Koran, the AIMPLB, which oversees application of Muslim personal law, opposed any such ban and argued that it was a religious matter and not for the courts to decide.
Critics of this form of divorce say that it leaves the women destitute and robs them of their basic and fundamental rights. The lawyer who argued for Shayara Banu, whose husband had divorced her by writing talaq thrice on a piece of paper, said that he informed the court that the practice has no basis in law or in the Koran.
The majority verdict by Justice Kurien Joseph, Justice Rohinton Nariman and Justice UU Lalit said that ‘triple talaq may be a permissible practice but it is retrograde and unworthy. Since triple talaq is instant and irrevocable, and the marital ties get broken it is violative of Article 14, the right to equality.’
Chief Justice Khehar and Justice Abdul Nasser, however, differed and said that while triple talaq ‘may be sinful’ the court cannot interfere in personal laws which have the status of fundamental rights under the Constitution. They opined that Parliament should bring a law to end this practice.
‘It's a historic occasion for the women of the Muslim Community. I appeal to the people to not politicize this issue and accept Supreme Court's verdict on triple talaq. I have felt the pain when a family breaks. I hope no one has to undergo this situation in future", said Shayara Bano, the petitioner.
Meanwhile the All India Muslim Women Personal Law Board and the All India Shia Personal Law Board welcomed the judgment and termed it as a victory of Islam and Muslim women in the country.They said the decision has given new hope to Muslim women. The president of the board, Shaista Amber, said that ‘the decision is historic; it is the victory of women in the country. But more than that, it is the victory of Islam. We hope that triple talaq will be banned once and for all time to come.’ It causes immense hardships to Muslim women even though ‘there is no provision of triple talaq in Islam.’
The two main national parties, the BJP and the Congress, also welcomed the verdict, saying it was a step forward towards gender justice and equality. The Madhya Pradesh Chief Minister, Shivraj Singh Chouhan, asked the Central Government to enact a law on it soon, while welcoming the verdict. The Congress leader, Salman Khurshid, also welcomed the judgment, saying ‘it is a good decision’. However, he said the reasoning behind the decision was as important as the decision itself and one should see it before coming to any conclusion.
The BJP spokesperson, Aman Sinha, who is also a senior advocate, said the judgment has vindicated the stand of the Narendra Modi government that it would give Muslim women the right to lead a dignified life. ‘The Supreme Court has upheld the stand taken by the government of India that triple talaq is unconstitutional and discriminatory.’
Referring to Modi’s Independence Day speech the senior advocate said, ‘The Prime Minister had raised the issue of plight of women due to regressive practice of triple talaq and today it has been held unconstitutional. The government’s stand is vindicated.’ In different public speeches, Modi has spoken against the practice, pledging to protect the right to equality of all women.The BJP has long pushed for a uniform civil code to be enforced which would end the reach of different religious laws in civil issues sanctioned originally to protect the independence of different faiths.