The Supreme Court of India on 22nd August 2017 delivered a historic decision in the constitutional bench decision on the validity of ‘Talaq-e-Biddat’ or ‘Triple Talaq’ under the Muslim personal law. The Hon’ble Court, declared by 3:2 majority the practice of Triple Talaq as unconstitutional. The decision of the Apex court will have a wide impact on the question of primacy between the fundamental right to the freedom of religion enshrined in the Constitution of India in the Article 25 and the fundamental right to equality under the Article 14, both of which the Hon’ble Supreme Court is duty bound to protect. The validity of ‘Triple Talaq’ is also significant from the point of view of gender justice as ‘Talaq-e-Biddat’ was seen to be blatantly discriminatory towards the Muslim women and the wider question of progressive reforms under the Muslim personal laws.
The verdict which is being hailed by many political leaders, journalists, and parliamentarians as securing gender justice for the women has been the result of a litigation by Shayara Bano in order to get the practices of triple talaq, polygamy and halala being declared as unconstitutional. The brave litigant valiantly bared pressures from religious leaders and society at large refusing to succumb to male chauvinism. The support for the noble cause was also rendered by numerous women organizations like Bharatiya Muslim Mahila Andolan which campaigned for gender justice and equality for women. It is welcoming to see that the verdict is unanimously accepted by the community without any malicious or nefarious criticism of the same.
Issue of ‘Talaq-e-Biddat’
The issue of the ‘Talaq-e Biddat’ under the Muslim personal law pertains to the practice by which the husband is able to divorce his wife by simply uttering the word ‘talaq’ three-time consecutively. It is seen as manifestly unjust for women who are victims of this practice as the divorce under ‘Talaq-e-Biddat’ is irrevocable in nature. The religious leaders are also divided on the question that whether the said practice has its origins in the Holy Quran itself. It is pertinent to state that under the Holy Quran marriage is a pious institution and divorce is only to be granted if it is unavoidable with the essential safeguard of the period of reconciliation for the same. The multiple and conflicting interpretations of the Holy Quran has given rise to the present controversy. The issue is also of reform in the Muslim laws with women from the community now spearheading movements for just and equal laws.
The present case has risen from an earlier decision of the Hon’ble Supreme Court in the case of Prakash and Ors. v. Phulavati and Ors., 2015. The case pertained to the denial of the inheritance rights to a Hindu woman by her brothers and the bench comprising of Justice Anil R Dave and Justice Adarsh Kumar Goel remarked that the Muslim Law to is discriminatory and a separate public interest litigation should be initiated for the same. The litigant in the present case Shayara Bano was also given divorce in the form of Triple Talaq by her husband. The contention for the declaration of the Triple Talaq being struck down by the Apex Court was based on gender justice, arbitrariness, and equality before the law. Another petitioner in the case Ishrat Jehan had to go through the trauma of divorce when she was divorced over a phone call by her husband who uttered the execrable word ‘Talaq’ thrice from Dubai where he had gone for employment. She is a mother of four children and was left defenseless due to the arbitrary provision of the law of divorce. Due to the pivotal importance of the clarity of the law as regards the provision of ‘Talaq-e-Biddat’ an issue of gender justice for crores of Muslim women, the present decision of the Apex Court is a historic step in achieving justice for the fairer gender.
One Decision – Three Judgements…
The decision of the Hon’ble Supreme Court though appears to be unanimous in its ruling the practice of Triple Talaq as unconstitutional, but the complexities of the sensitive issue were such that even the Hon’ble Judges were divided into various points of law. The seminal decision was rendered in the form of 395-page judgment with 5 Judge Bench expressing the view in the form of 3 different opinions. The Court took more than three months to prepare the judgment after it finished hearing of the matter in May 2017. We will now analyze the decision of the various Judges and the reasons put forward by them to arrive at the verdict.
Justice Nariman and Justice UU Lalit
The decision in the present case was given by the Constitutional Bench in three different opinions. The opinion endorsed by both the Justice Nariman and Justice UU Lalit was that the practice of Triple Talaq is unconstitutional because it is irrevocable in nature and dismisses any opportunity of reconciliation succeeding the divorce. They said that the ‘Talaq-e-Bidddat’ is contrary to the right to equality bestowed as a Fundamental Right under the Article 14 of the Constitution of India as it is arbitrary in practice. The Hon’ble judges recognized that the Triple Talaq was having its basis under the Shariat Application Act, 1937. The Section 2 of the said Act was struck down by them as being unconstitutional in nature. They rightly stated that the Courts cannot refuse to interfere in the matter when a litigant approaches them for the protection of the Fundamental Rights guaranteed by the Constitution of India.
Justice Khehar and Justice Abdul Nazeer
The second and the most detailed opinion on the quintessential issue was expressed by the Chief Justice Khehar and Justice Abdul Nazeer. The 272 pages opinions mooted the primacy of the right to religion as enshrined by the Constitution. The freedom of religion was declared to be ‘absolute’ subject to the restrictions under the law. It is of great importance as the Justice held that right to religion under the Article 25 of the Constitution is ‘absolute’. He said that the personal laws are part of the freedom of the religion itself. He also stated that the personal laws are beyond the judicial scrutiny. He advocated that accepting the plea of the litigant to declare Triple Talaq as unconstitutional would amount to negation of the Fundamental Rights. Disagreeing with Justice Narimand and Justice Lalit , he said that the Shariat Act, 1937 which codified the practice of divorce under the Muslim Personal Law does not have a statutory basis and is not ‘law’ as per the Constitution; and consequently, cannot be held as unconstitutional. He stated that just like the malpractices of sati and devadasi system under the Hindu Law which were removed by the legislative enactment, the Parliament must take precedence in the case of Triple Talaq as well and bring about a legislation on the same.
He used the powers under Article 142 to do complete justice and ordered that no Triple Talaq must be given for six months and the Parliament should bring a law on the topic during the interval.
It is humbly stated by the author that the opinion expressed by the Hon’ble Chief Justice is wrong to the point that the onus is being shifted on the Parliament to make a law on the topic, while the litigant has approached the Apex Court to secure justice from the Apex Court for the violation of her Fundamental rights. The ruling that the practice of ‘Talaq-e-Biddat’ under the Shariat Act, 1937 does not have a statutory basis is not correct as the said act is the binding law on the topic of divorce for the Muslim personal law. Even taking into the account the sensitivity of the issue, it was pragmatic that the verdict was rendered by the Hon’ble Supreme Court for it to be devoid of the suspicion of any partisanship.
Justice Joseph Kurian
The third opinion in the present case was given by the Justice Joseph who supported the contention of the Chief Justice on the topic of the right to religion being ‘absolute’ thereby making it a majority decision on that point of law. He agreed with the reasoning of Justice Nariman and Justice Lalit that Triple Talaq was not an essential part of the Muslim law. As it doesn’t find any mention in the Holy Quran. But he sided with Justice Khehar and said that the Shariat Act, 1937 is not a legislation and was introduced to remove the un-Islamic and regressive customs from the Muslim law. He stated that a balance must be struck between the gender justice laws and the right to religion given by the Constitution of India.
Significance of the Verdict
The said verdict of the Apex Court by 3:2 majority is unprecedented in the sense that it violates the usage of Triple Talaq which was grossly unjust for women. Most of the victims of the gruesome usage were poor and illiterate women who were living in the apparent fear of being given divorce by their husbands without any excuse. Due to their weak economic status, they were left to fend for themselves and their children after divorce and the expensive legal procedure to secure maintenance and social stigma saddled their freedom considerably. The demand for the removal of unjust laws in the Muslim community is being raised by educated and political aware women activists who are struggling to secure justice against the conservative forces of theology. Movements like Bharatiya Muslim Mahila Andolan have provided a forum to the women to protest against the unjust laws and seek legal recourse. The spread of education due to the Right to Education Act, 2009 and enactment of Protection of Women from Domestic Violence Act, 2005 have been useful in generating consciousness among the women regarding their rights. It is, however, interesting to note that the Supreme Court had struck down the Triple Talaq on the grounds of being arbitrary and Un-Islamic, not on the moot premise of it being gender derogatory.
Connection with UCC
The main aspect of the decision that must be understood is that the verdict is not connected with Uniform Civil Code (UCC) in any manner. Some of the miscreants have tried to render a communal tinge to the entire issue by projecting the invalidation of Triple Talaq to mean a step towards UCC. The avowed constitutional objective of striving to achieve the UCC must be laid down after careful mobilization of public opinion. Every segment of the population and each religious minority must be taken into confidence before the enactment of the penultimate civil code. The verdict has reassured the minorities as regards the ‘absolute’ nature of the right to religion as given by the Constitution of India and must be seen as a victory of constitutional values and secularism of the state. The Court did not delve into the constitutionality of polygamy and halala which were also requested by the petitioners. The Court considered it wise to tread in step-by-step towards the reformation of the Muslim personal laws, rather than stirring the entire hornet’s nest at once.
The verdict of the Hon’ble Supreme Court although divided in terms of points of law and reasons for the decision must be construed as a milestone for the cause of gender justice in India. It marks a watershed movement in the history of Independent India and would rank with the historic Shah Bano verdict of 1985 when the Apex Court granted the right to seek maintenance to the Muslim women. It is a victory for thousands of women activists as well as the victims of the barbaric practice of Triple Talaq who have struggled hard to see the light of the day. It would have been a more befitting verdict had the decision is based on the gender justice and right to life of the Muslim women, but it is pleasant enough that the Court found the practice to be arbitrary and Un-Islamic in nature with no sanctity in the Holy Quran. There is hope that this landmark decision will pave way for more gender partisan laws to be tested on the scales of the Fundamental Rights in the endeavor to achieve a just and fair protection of women in India by the judicial system.