May 31, 2020
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A Fine And Liberating Balance

In taking down triple talaq, the Supreme Court has set Muslim women free from a constant fear and also reinforced the constitutional force of personal law

A Fine And Liberating Balance
Muslim women in Calcutta celebrate after the verdict
Photograph by Getty Images
A Fine And Liberating Balance

Through its historic ruling delivered by a five-judge bench, the Supreme Court liberated Muslim women from the perpetual fear of arbitrary and whimsical divorce. That it is a carefully crafted and delicately balanced judgement is evident by the fact that though the issue was extremely contentious, the warring fractions situated across the divide have hailed it as a balanced judgement. It was not easy to please all parties—individual Muslim women, Muslim women’s groups, experts of Islamic law, the government, political parties of different hues and the religious clerics. It allows everyone to cherry-pick from the verdict as per their ideological moorings.

AIMPLB called triple talaq sinful, but did not ­declare it ­invalid... The courts have come to the ­aid of Muslim women.

The judgement is poised between two constitutional guarantees—women’s rights against arbitrary and instant triple talaq, on the one end, and the fundamental rights of minorities guaranteed by Articles 25 and 26 of the Constitution of India, on the other. It has steered clear of the binaries of majority versus minority, gender versus com­munity and uniform civil code versus reform from within, focusing only on the issue that was fra­med—whether instant triple talaq (talaq-e-­biddat) forms the core of Islamic religious belief and practice in India, and whether it can be struck down by our courts. The three different verdicts, with three different focal points, form a kaleidoscope of patterns that can be mixed and matched to bring out different ‘majority’ opinions.

It was obvious that arbitrary triple talaq had to go. No one was going to declare it the most desirable mode of dissolving a Muslim marriage. What was under contest was the most appropriate man­ner in which it could be done—through legislature, the courts or the religious leadership. On this critical issue, the verdict split.

Chief Justice of India Justice J.S. Khehar held that though triple talaq is undesirable, since it is an integral part of the Sunni Hanafi faith, as an unb­roken tradition that has been followed for 1,400 years, it was not possible for the courts to strike it down. But using the power bestowed upon the Supreme Court under Article 142 of the Constitution, Justice Khehar gave a six-month window to Parliament to declare the law and iss­ued an injunction restraining Muslim husbands from pronouncing triple talaq in the intervening period. A convoluted verdict, it creates more confusions than it solves. It is paradoxical to dec­lare that a religious practice is constitutionally protected and then direct the state to legislate against it. The sole Muslim judge on the bench, Justice Abdul Nazeer, concurred with this view.

This sent out a flutter among the journalists and lawyers waiting eagerly in the packed court hall. But just as a pall of gloom was beginning to des­cend, the other three judges on the bench swung into action and declared triple talaq invalid and saved the day for the campaigners. There was great jubilation and women in Muslim clusters in Mumbai’s Nagpada, Behrampada and Bhendi Bazaar, who were glued to their television sets, started distributing sweets.

But, here again, there was a difference of opinion regarding the grounds for holding instant triple talaq invalid. The judgement delivered by Justice Rohinton Nariman (for himself and Justice Uday Lalit) held that since the word ‘talaq’ is mentioned in the Sharia Application Act, 1937, it forms part of a statute and becomes “law in force”, hence there was no difficulty in declaring it unconstitutional. Professor Tahir Mahmood, an expert on Muslim law, has differed with this view (‘All’s well that ends well’, The Indian Express, August 23). The Sharia Application Act does not mention the word “triple talaq” or “talaq-e-biddat”. Further, a mere recognition of Muslim personal law by the Sharia Act does not give it a statutory status.

Justice Kurian Joseph too differed with this view and held that triple talaq could not be tested against the touchstone of fundamental rights as the court was dealing with personal laws. He preferred to stay within the realm of Islamic law and examined whether instant triple talaq forms an essential and core religious practice. Since the Supreme Court, in its earlier ruling in Shamim Ara (2002), had already held instant triple talaq invalid and laid down the procedure for pronouncing talaq, he had no hesitation in concluding that triple talaq is not an essential core of Islamic law in India.

Justice Kurian concurred with Justice Khehar, however, that the Shariat Act is not a legislation regulating triple talaq, thereby rendering it a majority view. He also endorsed the opinion of the chief justice on freedom of religion. According to Faizan Mustafa, vice-chancellor of NALSAR University of Law, Hyderabad, Justice Khehar’s detailed judgment is a major milestone in the history of freedom of religion in India (‘3 judgments, 3 takeaways’, The Indian Express, August 23). It is for the first time in Indian judicial history that personal laws have been declared an integral part of freedom of religion under Articles 25 and 26, which the courts are duty-bound to protect.

The important question on everyone’s mind is whether this judgement gives relief to the women who had challenged their arbitrary triple talaq. This was a public interest litigation for deciding legal principles and not for determining individual rights. Though they have not gained personally, they can be content that their efforts have yielded positive results that will be beneficial to all Muslim women.

Another question is what happens if a husband pronounces triple talaq now. The elaborate judgement does not shed any light on this issue. The judges have clearly stated that they are examining only instant triple talaq and not other forms of divorce. So we need to go back to the guidelines issued by the Supreme Court in Shamim Ara, to gain clarity—a point I have stressed repeatedly in all my writings on this issue.

This hallowed status awarded to Muslim per­sonal law has warmed up the hearts of the members of the All Indian Muslim Personal Law Board (AIM­PLB) . The mandate of bringing in reforms is today squarely in their court. Earlier, the board had issued an advisory that triple talaq is sinful and laid down the correct procedure for pronouncing talaq. The chief justice had also directed the office-bearers of the AIMPLB to file an affidavit that a provision will be included in the nikahnama (marriage contract) whereby the husband binds himself not to pronounce divorce through the talaq-e-biddat mode. But they were not willing to walk the last mile and declare it invalid. Now, the courts have come to the aid of Muslim women by declaring it invalid.

Unless the AIMPLB gives a clear signal that it has accepted the verdict of the Supreme Court reg­arding triple talaq, there is bound to be confusion within the community. This may provide an apt opportunity to the government for ushering in legislative reforms—a situation that the board wishes to avoid at all cost. However, in the absence of a clear stand and prompt action from the AIMPLB, if the Muslim women’s rights groups choose to step up the pressure and lobby with the government for enacting a law to bring in clarity,  the board will find its back pushed against the wall. This is a wakeup call for the AIMPLB.

(The author is a women’s rights lawyer and an authority on family laws.)

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