Talaq from Triple Talaq
Married women can no longer have to go through humiliation of being discarded by husbands on telephone or on the road
Once you are married, there is nothing left for you, not even suicide, but to be good, this one short sentence of 17 words, an excerpt, from an essay written, 136 years ago, puts in the right perspective the gender injustice Muslim women have been enduring because of the obduracy of the self-appointed arbiters of Islamic codes and values, the All India Muslim Personal Law Board (AIMPLB).
But one tends to forget the Nehruvian interpretation of secularism and vote-bank politics which prevented the then dispensation to touch the Muslim Personal Law and at least free Muslim women from the despicable Triple Talaq, the instant divorce, that left the divorced hapless and no recourse for redemption. After all in 1956, bills outlawing the rules in Hindu United Families which were unjust to women the Hindu Marriage Act and the Hindu Succession Act apart from the Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act was adapted. They were meant largely to help women, polygamy was banned, daughters given inheritance rights, to mention a few instances.
But, nothing was done to initiate any reform in the Muslim Personal Law, not even triple talaq which apart from being an act of cruelty to women was against the Constitution which has been the basis now, 51 years later on August 22, for 3 to 2 verdict by the Supreme Court to outlaw triple talaq, the instant divorce.
The threat of the dreadful Talaq word might be uttered three times by husbands hung over every married Muslim woman until now. Caught up in the explosive mix of religion and politics, the women were left to suffer the domination of their husbands, lord and master of their lives.
Until Narendra Modi openly demanded the abolition of the practice of triple talaq, no dispensation was willing to irk AIMPLB and other clergy by taking up the cause of the Muslim women who continued to be in a form of bondage due to the instant talaq. She had to obey most humiliating of her husband’s wishes and had to keep her husband in good humour, even at the cost of physical and mental agony.
These hapless, harassed and humiliated women have at last been salvaged and liberated from being at the mercy of their husbands. In what has been described as historic, the 5-judge Bench of the Supreme Court declared divorce by triple talaq unconstitutional by a 3-2 verdict. It may take some time for the verdict to percolate to the lowest segment of the community but now Shayara Bano of Kashipur whose petition led to the unfettering of her community’s women promise to campaign and help the illiterate and poor women to be able to face any problems from their husbands. A mother of two her husband divorced her by uttering Talaq three times—talaq-e-biddat –which she challenged.
Shayara has been lucky that Narendra Modi and his government was determined that the illogical practise of triple talaq must be declared unlawful. Otherwise Shah Bano, the first Muslim woman to rebel and petition Supreme Court demanding alimony in 1980s, too had been granted her demand. But vote-bank politics prompted the then Prime Minister Rajiv Gandhi to go to the extent of amending the Constitution so that the Supreme Court verdict was negated. In disgust Arif Mohammad Khan, then a minister, resigned. That he was overjoyed is an understatement with the August 22 verdict. He has been campaigning since 1986 to loosen the hold of the clergy.
But so far the All India Muslim Personal Law Board (AIMPLB), a self-appointed private body that declared itself the authority to Islamic laws in India, opposed the petition, baring the fact that in their obduracy they did not bother that the practise of triple talaq made a mockery of the institution of marriage, the holy matrimony, sanctified the violation of the human rights of the wives and worsened gender inequality.
One husband was livid at his wife for walking on the road ahead of him. Did it strike him as an act of defiance or disobedience? He said talaq, talaq, talaq and left his wife stranded on the road, no husband, no home and no remedy. In another case, a husband called his three –month pregnant wife at home, and without any explanation uttered talaq word three times and immediately cut off. The wife could not fathom why she had been discarded and where she could seek redress. Such hapless women see the possibility of redressal now after the 3:2 verdict of the Supreme Court.
The judgement was described as “historic” by Prime Minister, Narendra Modi, who tweeted that the ruling “grants equality to Muslim women and is a powerful measure for women[‘s] empowerment”. It has certainly brought hope to hundreds of thousands’ of Muslim women abandoned by their husbands without giving them any chance to explain or attempt to calm down their irate husbands.
But this long-awaited relief, albeit scraping through the split amongst the judges has come after much twists and turns that has led to not so muted criticism of the judiciary. And has raised doubt whether it will be possible to get rid of the rule that permits a Muslim man to marry four times, that means he can have four wives at any given times. What hope can one have that a Uniform Personal Code Bill will be okayed by our Judiciary, when latently unjust Triple talaq could just scrape through. The views expressed in the minority judgements are a sort of alarm that even at the highest level the judges are reluctant to see the Personal Laws through the Constitution lens.
It’s a sad commentary on our state that when the instant divorce was abolished 56 years ago in an Pakistan, an avowed Islamic state and in Bangladesh later in India everyone seemed to be loathe to touch the Muslim Personal Law. This encouraged AIMPLB to be more rigid and vociferous against the move to declare Triple Talaq against the directives in the Constitution. But the fact that the convoluted and tortured 272-page verdict of Chief Justice Khehar pronounced that “Triple Talaq is a constitutionally valid mode of divorce being intrinsic to Islamic personal law and hence part of fundamental rights has come in for a lot of criticism.”
Madhu Kishwar who has been fighting for womens’ rights and gender equality wrote an open letter to the Prime Minister, “It’s a sad commentary on our secular democracy that a full bench of the Supreme Court, which doesn’t have to go begging for Muslim votes, couldn’t muster the courage to take a firm view against abhorrent practices that even Islamic, theocratic countries have banned.
As with much else, you have inherited this political mess from Congress government led by ultra-secular Nehru who, in the 1950s, doggedly pushed through half-baked reforms to create a Uniform Civil Code (UCC) only for Hindus. This, despite Ambedkar and several other leading lights of the Congress insisting that India needed to live up to its promise of being a secular state and hence honour the Directive Principle enshrined in Article 44 of the Indian Constitution.” In fact by resting heavily on religious texts, triple talaq verdict sets a troubling precedent.
The most strident criticism of the manner in which the issue of triple talaq was viewed has been made by an associate at Quinn Emanuel Urquhart & Sullivan LLP, London. He also holds that the opportunity to correct the wrongs was lost. “The case held significant opportunities for the Court. It was asked to decide if the practice violated the constitutional right to equality and protections against gender discrimination. Ahead of the judgment, it was widely anticipated that the Court would strike down the practice on the basis that it breached constitutional morality. It was also hoped that the Supreme Court would overturn a long-standing decision of the Bombay High Court effectively insulating personal laws from constitutional scrutiny.
“In spite of the majority of judges striking down the practice of instant triple talaq, the judgment did none of those things. To be sure, the more accurate way of characterising the judgment is that some of the judges did do some of those things. But the danger of three separate opinions amongst a panel of five judges deciding a case is that the lowest common denominator prevails.
“In this case, the lowest common denominator was that the practice of instant triple talaq was not integral to Islam, and was therefore unprotected by the constitutional right to freedom of religion. The Court decided the case on an interpretation of religious texts rather than constitutional provisions.
The most striking implication of the Court’s judgment is that it effectively signalled that triple talaq and other religious practices would be scrutinised through the lens of religion rather than the right to equality.
“The battle for equality will, as a result, continue to be waged in the language of religion rather than the language of rights. There is another particularly disquieting feature of judges adjudicating upon the significance of religious practices. The Court opens itself up to uncomfortable questions of institutional and individual competence.
He criticises in the Indian Express that the dissenting opinion alluded to this in no uncertain terms. Citing four high court cases that held that triple talaq was integral to Islam, the opinion stated that all of those cases were decided by “Sunni Muslims, belonging to the Hanafi school” which “cannot be considered an outsider’s view” of Islam. This criticism of the majority’s opinion, decided by judges of different faiths, is hardly subtle.
But transforming the language of argument from religious texts to constitutional rights would alleviate it considerably, for all judges are equally “outsiders” (or insiders) on questions of fundamental in cases involving personal law will become more significant than ever before.
Perhaps the greatest success of the majority opinions is that they avoided the situation that would have arisen had the dissenting opinion prevailed. In spite of holding the practice of triple talaq constitutionally valid, the dissenting opinion — recognising the injustices associated with the practice — was willing to decouple the constitutional right from the remedy.”
Asking Parliament to legislate and ban the practice of triple talaq was beyond the jurisdiction of any court. The Supreme Court was asked to decide the legality of the triple talaq and it was expected to decide that much. It had no business to tell Parliament what to do.
Muslims in India are governed by Muslim Personal Laws. India has a provision for personal laws for all religious communities. Personal laws cover marriage, divorce, succession, inheritance, maintenance, custody of children and adoption. Civil laws, by contrast, are applicable to all faiths. And the triple talaq is thus within the purview of Courts.
Al Jazeera asked Faizan Mustafa, the vice-chancellor of NALSAR University of Law in Hyderabad and a leading expert on constitutional law said on the two judges holding it unconstitutional [and] in violation of the right to equality [Article 14 of the constitution,, two others said that they were not going into the question of whether triple talaq is Islamic or un-Islamic since it was arbitrary and gave too much power to the husband. One said it was, part of Islam [and]thus not protected by the freedom of religion. Judge Kurian Joseph said that since triple talaq is contrary to the Quran, it won’t be allowed. While the other
two judges said it [triple talaq] has been an essential part of Islam for 1,400 years, [and is] therefore protected by the freedom of religion.
The judgement suggested the government consider appropriate legislation. This suggestion has no meaning since there is a majority judgement [with three out of the five judges ruling against the law]. The judgement says triple talaq is bad and [therefore] it goes.
The fact is Court judgments do not bring about social reforms. In this case, the leading petitioner in the current case, Shayara Bano, just told NDTV network that she is not going back to her husband because he has taken another wife even though the divorce has been held unconstitutional or invalid in law. Marriage is a relationship of love; the courts cannot force you to love each other. That’s why I say in these matters courts have a limited role.’
The consensus is reforms are needed in personal laws. Now the question is how are these reforms to be made? It cannot be done by government or Courts. It has to be done internally [within communities], only then there will be a better impact. The Muslim community should take this initiative and start reforming their laws. AMPLB won’t do it.
The Shayaras have to be the crusaders.
By Vijay Dutt