Triple talaq: Battle half won, the war remains
There can be little doubt that the apex court's judgement on triple talaq takes us a step forward in ending a demeaning practice, but it would be optimistic to see this as an advancement towards a Uniform Civil Code
There can be little doubt that the Supreme Court’s judgement in the triple talaq case takes us a step forward in ending a practice which is demeaning to women, but it would be too optimistic to see this as a major advance towards a Uniform Civil Code, as enshrined in the Directive Principles of State Policy in the Constitution of India.
We need to be circumspect because in this case, the apex court dealt with the limited issue of validity of triple talaq. The court was clear that while any
legislation was open to challenge on grounds of arbitrariness, the law that governed Muslims in matters such as marriage, divorce, inheritance, maintenance, gifts, guardianship, intestate succession etc, was the Muslim Personal Law (Shariat) Application Act 1937.
An important judgement of the Supreme Court, which is cited by the judges who heard the triple talaq case, is Shamim Ara vs State of Uttar Pradesh, which was decided in 2002. In this case, the apex court said, “...The correct law of talaq, as ordained by the Holy Quran, is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters — one of them from the wife’s family and the other from the husband’s; if the attempts fail, talaq may be effected”.
In the present case, Justices RF Nariman and UU Lalit said that given the fact that triple talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and the wife by two arbiters from
their families, which is essential to save the marital tie, cannot ever take place. They declared that triple talaq was 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. The judges held Section 2 of the 1937 Act to be void. They said that it must be struck down as being void to the extent that it recognises and enforces triple talaq.
As regards the protection given to citizens under Article 25 to freely “profess, practice and propogate religion”, the judges cited judgements of the apex court and said that “only what is an essential religious practice is protected under Article 25”. While one judgement said “a practice does not acquire the sanction of religion simply because it is permitted”, another judgement discussed what constitutes an essential part of religion.
The court had held that “essential practice means those practices that are fundamental to follow a religious belief.” “The test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice...It is such permanent essential parts which are protected by the Constitution”.
Applying this test, Justices Nariman and Lalit have concluded that triple talaq would not form part of “any essential religious practice”. Further, “it is clear that the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice”.
Justice Kurian, in a separate judgement, said the simple question that needed to be answered in this case was whether triple talaq had any legal sanctity. He said that the Supreme Court had held in the Shamim Ara vs State of Uttar Pradesh case, “though not in so many words” that triple talaq lacked legal sanctity, and as per Article 141 of the Constitution, Shamim Ara is the law that is applicable in India.
He said as per Section 2 of the Muslim Personal Law (Shariat) Application Act 1937, the law that is applicable to Muslims in regard to “marriage, dissolution of marriage, including talaq” shall be their personal law, namely the Shariat — “nothing more, nothing less”. He agreed with Justices Nariman and Lalit that a legislation can be challenged on the ground of arbitrariness. “I am also of the strong view that constitutional democracy of India cannot conceive of a legislation which is arbitrary”.
Justice Kurian said the verses of the Quran, dealing with talaq, were “clear and unambiguous”. The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation, are the Quranic essential steps before talaq attains finality.
“In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat”. He said the above view had been endorsed by various high courts, finally culminating in the Shamim Ara judgement “which has since been taken as the law banning triple talaq”.
Over the years, several judges have taken up cudgels on behalf of Muslim women. One of them was Justice Krishna Iyer. In A Yousuf Rawther vs Sowramma, which he decided as a judge of the Kerala High Court, he said that the view that a Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injuctions.
“If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of god, said the Prophet, rests on him who repudiates his wife capriciously”.
Justice Iyer said commentators on the Quran had rightly observed that the husband must satisfy the court about the reasons for divorce.
However, “Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce…..”.
Long years ago, Justice Khalid of the Kerala High Court also raised many questions in great anguish in regard to triple talaq. In Mohd Haneefa vs Pathummal Beevi, he asked: “Should Muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Can it not be amended suitably to alleviate their sufferings? My judicial conscience is disturbed at this monstrosity. The question is whether the conscience of the leaders of public opinion of the community will also be disturbed”.
Going by the majority opinion in the triple talaq case, a major step has been taken to address the concerns expressed by Justice Khalid.
(The writer is Chairman, Prasar Bharati. Views expressed here are personal)
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