Supreme Court bells the cat
For centuries, Muslim women in our country have lived under the threat of their husbands ending their marriages irrevocably by uttering one word, talaq, three times. But now, in a landmark judgment, the Supreme Court scrapped the 1,400-year-old practice of instant triple talaq (Talaq-e-Biddat) among Muslims terming it unconstitutional and sending out a strong message that religious practices that are arbitrary and discriminatory have no place in a constitutional democracy. The decision, on a set of petitions filed by victims of triple talaq, was rendered by a majority of three Judges of a five-Judge Constitution Bench with the Chief Justice of India (CJI) JS Khehar and another Judge, Justice S Abdul Nazeer, being in minority. The majority decision was formed by Justices RF Nariman and UU Lalit (giving a common judgment) and Justice Kurian Joseph, who wrote a separate decision concurring with the other two Judges that triple talaq was arbitrary and hence deserved no constitutional protection.
In a 3-2 majority decision, the Supreme Court ruled to ban the practice, calling it “un-Islamic, arbitrary and unconstitutional.” The court suspended the practice for six months to give time for new legislation to be devised by the government. This historic decision has made null and void an 85-year-old judicial decision that had upheld the validity of the controversial practice permitting a Muslim man to give on the spot divorce to his wife.
As highlighted in a report of Times of India “in 1932, triple talaq had come up for scrutiny before the Privy Council, which was the predecessor of the Supreme Court during British rule, when a Muslim woman Anisa Khatun narrated her tragic story. She was married to Ghiyas-ud-din on August 28, 1905 and just a fortnight later, he called witnesses in Anisa’s absence and uttered triple talaq. Despite divorce, he cohabited with Anisa for 15 more years till his death and fathered five children.”
“But after his death, his relatives cited triple talaq to term Anisa’s children illegitimate. The Privy Council held triple talaq to be a legitimate method of divorce and termed the five children illegitimate. Lord Thankerton, speaking for the Privy Council, had said, “They are of the opinion that the validity and effectiveness of the divorce would not be affected by husband’s mental intention that it should not be a genuine divorce, as such a view is contrary to all authority. A talaq actually pronounced under compulsion or in jest is valid and effective.”
What Does The Quran Say?
In the modern times and specially among the Muslims of India pronouncing three talaq at time or in one sitting is very much common. Muslims believe that no divorce is effective without using the word talaq thrice. This is done out of ignorance. But the scholars or the mullahs, while writing a talaqnama (declaration of divorce) write the words of three talaq and obtain the signature of the divorcer on it. The one who divorces does not know what the correct method of divorcing is and what is wrong. Thereafter when the anger recedes and the ignorant man wants to return to his wife, the same mullahs opine that there is no way of revoke the talaq except through Halalah. Halalah is process in which the divorced woman has to remarry another man, consummate the marriage and then again get divorced and remarry her earlier husband, which resembles an institutionalised rape. According to reputed and authentic Hadith, the Talaq is one of the most disliked acts that a believer can perform. Islam tolerates Talaq by making provisions for it under highly unfavourable conditions only as a last resort.
In the words of Prophet Mohammad, “Of all the lawful things, divorce is the most hated by Allah.”
There are three kinds of Talaq that are being practiced in the Muslim society: Talaq-e-Biddat, Talaq-e-Hassan and Talaq-e-Ahsan. Only the latter two find relevance in the Quran.
Biddat means innovation in religion, and is unacceptable in Islam, a religion that has laid down guidelines for the world to follow till the very end of time. The Quran promises to be relevant without a single change in it till the end of time. Now, as the name suggests, Talaq-e-Biddat is the kind of Talaq which is not sanctioned in the Quran. It is also known as instantaneous or irrevocable Talaq.
Talaq-e-Ahsan is usually considered the best way to approach divorce, and has been derived from the Quran. It is considered most appropriate because a husband can revoke the Talaq after the first utterance, any time during the waiting period (Iddat) which is the span of three menstrual cycles of his wife (three months). Therefore, the husband has enough time to realize if he has been mistaken, and thus Talaq-e-Ahsan grants the couple a good amount of time for reconciliation.
In this form, the word, ‘Talaq’ is to be said only once (another reason for its high regard). In Talaq-e-Hassan, the word ‘talaq’ is to be uttered thrice, once after each monthly menstrual cycle of the wife. The husband is free to revoke his first two utterances, but with the third declaration, the Talaq becomes effective and the marriage is dissolved.
A Biddat Talaq becomes final as soon as the words have been uttered and the marriage becomes completely dissolved. This form of Talaq is usually followed by Sunni sect of Muslims, but is not recognized in the Shia sect. No verse in the Quran validates instantaneous triple Talaq. As one does not have the ability to decipher the verse written in Quran in Arabic, the abovementioned knowledge has been taken from feminisminindia.com.
Political Victory for BJP
Prime Minister Narendra Modi, BJP president Amit Shah and a host of other ruling party notables have been using all types of superlatives to praise the verdict. However, for the BJP, the scrapping of triple talaq is not merely a welcome move towards social justice. It also comes loaded with political dividends to be cashed in come 2019.
Indeed, any which way one may look, the triple talaq verdict represents a major thumb up for the BJP. Despite all the brouhaha about gender justice and women’s empowerment, the victory is a political one.
One can say that it was the apex court which belled the cat, the government had nothing to do with it. But it makes no difference when it comes to the politics of managing perceptions. Already, the BJP’s supporters and social media teams are out to portray the verdict as a major achievement of the government. Efforts are on to capitalise on the verdict are already underway. The Prime Minister has repeatedly said that his government is committed to upholding the rights of Muslim women. Last year, in the run-up to the Uttar Pradesh Assembly elections, Modi had said “Is it fair for a man to say talaq thrice over the phone and a Muslim woman’s life to be ruined? The government will ensure that constitutional rights of Muslim women are protected.”
With this verdict under its belt, the BJP could claim that it has done just that.
And there is no gainsaying that fact that governments past failed to do anything similar, with Rajiv Gandhi squandering a historic opportunity during the Shah Bano case in 1985 for fear of antagonising the minority community.
One Step Towards Uniform Civil Code
It is noteworthy here that the BJP has consistently highlighted the issue of triple talaq in recent times. In fact the BJP’s manifesto for the UP election had pledged a referendum on triple talaq along with the promise of constructing Ram Mandir in Ayodhya.
With the party gaining a massive majority in UP in March this year, winning 325 out of 403 seats and 32 out of 42 Muslim-dominated constituencies, it was argued that the Muslims – who account for 18 per cent of the state’s population – had voted for it in large numbers. Though it can’t be established that it happened so, the party claimed that its massive win was due to its anti triple talaq stance found resonance with the Muslim women of the state.
However, after this verdict, the BJP can and will wax eloquent about the fact that triple talaq was abolished during their reign. And that rhetoric will resonate not just with millions of Muslim women – and progressive Muslim men – but also with the majority of the nationalist forces who have long resented that the minority community enjoyed special personal laws and other privileges under the past governments.
While party leaders will no doubt take the moral high ground and tout the abolition of triple talaq as a much-needed social reform, many are seeing it as the first step towards ushering in a Uniform Civil Code — a long awaited step with regard of giving level field to all in the country and also a cherished article of faith both for the BJP and its ideological fountainhead, the RSS.
Gains Ahead of 2019 Polls
With the verdict under its belt, the BJP gains from two quarters, one from every progressive Indians of any hue and colour and second from its loyal Hindu votebank who want to scrap Muslim personal law in its entirety. Both could weigh in favour of the BJP in 2019 and pave the path towards NDA 2.0.
What’s more, the verdict could not have come at a better time for the ruling party. An electoral payback from Muslim hardliners is of course unlikely to make a significant dent in BJP’s armour at any time. But even that slim window of retaliation seems absent right now.
The states with a large proportion of Muslim population are not going to the polls any time soon. UP voted this year, West Bengal and Assam, where Muslims account for 27 per cent and 34 per cent of the population respectively, voted last year, and Jammu and Kashmir (68 per cent Muslim population) is without doubt more engulfed in insurgency than thinking about this verdict.
Unpalatable Truth for the Opposition
As heartwarming pictures of Muslim women celebrating and feeding each other jalebis went around social media after the verdict, the Opposition, including the Congress, gritted its teeth and made the right noises.
Most Opposition leaders welcomed the Supreme Court’s ruling. Even West Bengal chief minister Mamata Banerjee, who is known for her devotion to Muslims, reserved comment rather than slam the judgement.
For the Opposition, the unpalatable truth is that they have to support the ruling knowing full well that the BJP will take credit for it later.
Codifying the Law
With the court putting the ball in the Centre’s lap, it remains to be seen how the government tackles the problem of bringing in legislation around divorce within the Muslim community.
For without codifying the necessary laws on marriage and divorce, the Supreme Court judgement will have little impact on the ground. That said, the importance of the verdict cannot be overemphasised. For it nullifies a monstrous custom – one wherein a man can divorce his wife by the simple expedient of uttering “talaq” thrice, sometimes even over the phone or via email.
This is a huge win for women. Too bad for the Opposition that it might also amount to a great win for the BJP.
By Nilabh Krishna
Narendra Modi tweeted, “Judgment of the Hon’ble SC on Triple Talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment.”
Congress Vice-President Rahul Gandhi said: “Welcome the Supreme Court decision setting aside instant #TripleTalaq. I congratulate the women who fought for justice.”
BSP chief Mayawati said: “BSP welcomes the verdict. It would have been good if the Muslim Personal Law Board acted in the matter, but they didn’t.”
Asaduddin Owaisi, President of the All India Majlis-e-Ittehadul Muslimeen (AIMIM) said: “We have to respect the judgment. It is going to be a great herculean task to implement this on ground”.
Law Minister Ravi Shankar Prasad said: “There is a great sense of personal fulfillment. But we need to salute the Muslim women today who fought for it. I have to compliment their courage. This indicates the emergence of New India. This is not the matter of any religion. The point here is about the gender equality, gender justice and gender dignity. This is the victory of India’s constitutional values.”
President of All India Muslim Women Personal Law Board Shaista Amber said: “The Supreme Court decision is historic, it is the victory of women in the country. But more than that, it is the victory of Islam.The apex court’s verdict has come as a big relief for Muslim women who have been at the receiving end of this practice.”
Union Minister of State for Minority Affairs Mukhtar Abbas Naqvi said: “We should not adopt a rigid attitude, but choose a reformist approach towards social evil. The central government will talk to all the political parties on framing a law on this issue.”
BJP President Amit Shah said: “This verdict is historic, it’s not about anyone’s win or loss. I welcome this on behalf of the party.”
Ramchandra Guha said: “The Supreme Court has done absolutely the right thing by declaring triple talaq illegal and unconstitutional. It is an obnoxious practice.”
Shabana Azmi tweeted, “ I welcome the Supreme Court judgment on instant triple talaq. It’s a victory for brave Muslim women who have waged battle against it for years.”
Spokesperson of Shia Personal Law Board Maulana Yasoob Abbas said: “Shia Personal Law Board has been fighting against instant triple talaq since 2007. We welcome this verdict. It is a great step to empower women.”
Countries that have banned it
Supreme Court has declared Triple Talaq illegal recently. The court has ordered the government to make a law on it. Indian Muslim women have struggled a lot for this whereas in other Muslim-majority countries it is already banned. Let’s know about these countries:
Our neighbouring country Pakistan has already abolished this practice. In the year 1961, the Muslim Family Law Ordinance declared that a man who wants a divorce from his wife must send a legal notice to the chairman of a local council as well as send a copy of the notice to his wife.
The other country comes in the line is Algeria. In Algeria, a divorce can be granted by the court only and that too, after a reconciliation attempt. The reconciliation period is up to a period of 3 months.
In Egypt, the wave of abolishing triple talaq emerged since the 12th century. The Hanbali scholar Ibn Taimiyah (1268-1328) stated that three ‘talaqs’ given at once counted as one ‘talaq’. In the year 1929, their government agreed with him and declared that the ‘instant triple talaq’ will be counted as one and can be revocable. Exception with this law was if three talaqs were given in three successive menstrual cycles as it was initially intended.
This African Muslim country followed in Egypt’s law of divorce with some amendments. After talaq is followed by an iddat period, the court prepares the official documents and the government formally recognizes the divorce.
In the year 1956, being a Muslim majority country, this country took a bold step by announcing that the divorce could only be given in a court of law and that too, after a period of reconciliation.
As same as Tunisia here also Divorce can only be claimed before a court of law as per Indonesia’s Article 19 of Marriage Regulation.
Turkey adopted the Swiss Civil Code in 1926. This law denies the existence, evidence, or truth of any religious laws on family and personal affairs. Hence, the abolition of Triple Talaq.
Cyprus adopted the Turkish Civil Code in the 1980s. Therefore, declared Triple Talaq illegal.
After getting independent from Pakistan in 1971, Bangladesh inherited its divorce laws. Here too, instant triple talaq cannot be upheld in a court of law.