Current Affairs

Supreme Court Blasts Triple Talaq, India’s Step for Social Equality

Yatindra Bhatnagar

India’s Supreme Court, last week dealt a severe blow to gender discrimination among the Muslims by declaring the practice of  triple talaq (divorce) by men unconstitutional in a majority decision by its Constitution Bench. 

This is a historic decision in accordance with the Directive Principles in the Constitution of India for striving towards a Uniform Civil Code. 

The bench consisting of five judges from five major religious groups gave a 3-2 decision freeing Muslim women from the abominable practice of man just saying talaq, talaq, talaq, three times and abandoning his wife. There have been cases where a mere telephone call – even long-distance from Dubai to an Indian Muslim wife – leaving her by repeating talaq thrice. One cruel case was of a man saying the dreaded words three times to his sleeping wife who was told in the morning that she was no longer a wife, and a daughter-in-law, in her home. 

The five judges were a Hindu, a Muslim, a Christian, a Sikh and a Parsi considered all arguments and three judges – a Hindu, a Christian and a Parsi gave the majority verdict. Surprisingly – but for influencing Muslim men’s votes – the Congress stalwart Kapil Sibal representing the Muslim Personal Law Board defended triple talaq as an age-old practice and had warned the top court to “ not tread on a slippery ground.” 

What a shameful stand just for votes. 

I remember a couple decades back when I interviewed India’s then Chief Justice of the Supreme Court, Justice Ahmadi, in San Francisco when he was on a visit with his wife, and he had reiterated the need to fully implement the Directive Principle and end gender discrimination among Muslims. He said, sadly, that for obvious reasons India has not done that (hinting at hesitation in political parties to tackle the sensitive issue for fear of alienating Muslim voters.). 

The task was made easy because of five courageous Muslim women who dared the Mullahs and dominant Muslim men and waged the legal battle right up to the Supreme Court. They have won a resounding victory and now only have to fight ‘social boycott’ and smear campaign by some orthodox Muslims groups and obscurantist men who still want women to be at their mercy. 

The Muslim group had contended that it’s the religious practice and is according to Sharia law; the top court did not accept that argument. 

The Court said triple talaq violates the fundamental rights of Muslim women as it irrevocably (and instantly) ends marriage without any chance of reconciliation.

Triple talaq is a verbal divorce, but is banned by nearly two dozen Muslim countries, though practiced by some to instantly divorce their wives and deprive them of a normal, legal procedure in a court of law. In an instant, the poor woman’s life is changed without any recourse to legal remedy.

Justices Rohinton Nariman (Parsi), Uday Lalit (Hindu) and Joseph Kurien (Christian) ruled that triple talaq is unconstitutional. Justice Joseph said what cannot be true in theology cannot be protected by law. He added that triple talaq is not recognized by Quran and hence it couldn't be a practice to be protected under the right to religion.

Justice Abdul Nazeer (Muslim) and Chief Justice of India, JS Khehar (Sikh) upheld the validity of triple talaq. CJI Khehar wanted the government to formulate a law in six months to regulate marriage and divorce in the Muslim community. He opined that this kind of divorce is an integral part of the Sunni community and has been practiced for a 1000 years.

Earlier, in February, the SC said it would set up a Constitution bench to hear and decide on the issue. The bench had a six-day long hearing and reserved its verdict on May 18.

Shayara Bano, a 35-year-old woman, spearheading the struggle for Muslim women, had challenged triple Talaq last year, after her husband divorced her orally, a year earlier after their 15 year-marriage. 

Petitions of four more Muslim women - Aafreen Rehman, Gulshan Parveen, Ishrat Jahan and Atiya Sabri – divorced likewise, were joined with Shayara Bano's plea.

ANI added: The bench had asked All India Muslim Personal Law Board (AIMPLB) why a "custom which is theologically sinful" was "part of the practice of a community". The question was asked after AIMPLB took the stand that triple talaq might be sinful yet it was a religious practice dictated by Sharia.

A top Congress leader, and Muslim Board’s lawyer, Kapil Sibal had argued that "Testing the validity of customs and practices of a community is a slippery slope into which the Supreme Court must not venture."  But the top court wasn’t scared of the “slippery Slope” and banned the triple Talaq practice.

The Central government also had taken a firm stand, saying that oral, instant divorce must be declared unconstitutional and also asserted "triple talaq is not a basic and integral part of Islam". 

The top Court’s majority agreed with that view and a new era has dawned for Muslim women in India. However, their battle has not ended as they face social boycott and opposition among their community’s hard-headed people and even family-members and neighbors as reported by the leading advocate Shayara Bano. 

We hope time will teach a lesson to the orthodox and adamant people and they will come round to the correct stand. 

There were widespread comments on the verdict. One very interesting – and biting – is: Congress which is Muslim League version 2, will take away Muslim women’s right as Kapil Sibal is there in Rajya Sabha who took huge money from All India Muslim Personal Law board, will try to oppose any...(Dr. Vidyadhar.)