Historic verdict

The Supreme Court’s verdict by 3-2 majority striking down instant triple talaq is undoubtedly a huge victory towards the cause of gender justice. Now that this form of divorce given at one go by Muslim men will be considered illegal at the very outset, the onus will be on the government to have a suitable law in place to pelise it. The highest court of the land has held talaq-e-biddat to be unconstitutiol — but without a law, there can be no legal relief to thousands of silently suffering women. So the battle lines will now shift to the lawmaking part, though political parties across the spectrum have welcomed the judgment as progressive. It remains to be seen how the All India Muslim Persol Law Board (AIMPLB) and other Muslim organisations formulate their response in the coming days, with the ball now in Parliament’s court. It has to be appreciated clearly that in the three separate written judgments given by the 5-member SC constitutiol bench, the emphasis was on the arbitrariness of triple talaq, rather than its gender discrimitory ture. Writing the majority judgment, Justice Kurian Joseph — invoking the supremacy of the Holy Quran as the ‘first source’ of Islamic law — has held triple talaq to be against basic tenets of the Quran, because the practice closes the door instantly to all attempts towards reconciliation and revocation of divorce. Justice RF riman, also writing the majority verdict — has held triple talaq to be unconstitutiol — contrary to the Right to Equality guaranteed under Article 14, which includes the ‘right against arbitrariness’.   

The other aspect of the SC verdict is the majority concurrence on the freedom of religion to be an ‘absolute’ right (subject to restrictions via Articles 25 & 26) — which makes persol law a part of freedom of religion. Writing the minority judgment, Chief Justice JS Khehar has said that persol law being based on belief and not logic, is therefore beyond the scope of judicial scrutiny. Agreeing with Chief Justice JS Khehar and Justice SA zeer, Justice Joseph has observed that the Legislature, ‘while ecting laws on gender justice, must give due weightage to freedom of religion’. And it is on this point that the AIMPLB, as the top representative body of Muslims, is claiming victory. It has pointed out that the apex court “has accorded persol laws the status of a fundamental right being protected under the right to practise religion contained in Article 25” — and thereby “ensure non-interference by the courts in matters of practices emating from religious texts and belief systems of different communities”. Carefully distancing itself from the part of the SC verdict against triple talaq, the AIMPLB has pointed out that earlier during the hearings, it had submitted to the court that talaq in one sitting though having a basis in religious texts and belief — “is not the best way and is seldom resorted to”. In this context, the board in its affidavit had mentioned steps like community reform programmes, advisory issued to Qazis to give marrying parties the option to exclude triple talaq from the nikahma, and a proposed move to ‘socially boycott’ Muslims resorting to the practice.

However, in the aftermath of the verdict, Syed Ahmed Bukhari, the Shahi Imam of Delhi’s Jama Masjid, has castigated the Muslim Persol Law Board for ‘failing to address the problems of women wronged’ by the divorce practice, which goaded Muslim women petitioners to move the Supreme Court. The five petitioners were united by a common background of domestic abuse and dowry demands, with the dreaded instant triple talaq coming via speed post, phone call and stamp paper. In recent times, there have been instances galore of triple talaqs administered through e-mail, WhatsApp and other new age communication channels. In October last year, the ruling NDA at the Centre, became the first government to oppose this practice of divorce at one sitting, favouring a re-look at the issue on the grounds of gender equality and secularism. So the coming debates are likely to be centred on the religion versus constitution viewpoints. Legislating on persol laws, without corresponding introspection and change within the community concerned, is not likely to have much impact on the ground. Hindu persol law was drastically changed with regressive practices like sati and devadasis thrown out for good, but that was in the 1950s with India in the first flush of tion building having just given itself a constitution. But thanks to divisive votebank politics becoming a norm in the country in later decades, reform with any religious connotation has become an emotive issue with the bogey of uniform civil code raised frequently. A look at how neighbours like Pakistan and Bangladesh (among 22 Islamic tions) have abolished triple talaq ought to show political parties here the right way. They would also do well to remember that while among the 34 crore married women in the country, about 13 percent are Muslim, the proportion of divorced Muslim women stands at a much higher 23 percent (2,12,074 out of total 9,09,573 divorced women as per 2011 census). Introspection is clearly the need of the hour, so that women in this country as a whole get a better deal.