At a time when the nation welcomes the Supreme Court’s judgement on Triple Talaq, sundry Islamic clerics and Islamist politicians – having their own interpretations of the Holy Quran – are lashing out at the historic verdict.
The Jamiat Ulama-i Hind said despite the Supreme Court ruling, Triple Talaq will “continue” in India and will be considered “valid” as the verdict won’t “impact” religious Muslims. The Jamiat sees the Supreme Court judgement as “contrary to Sharia” and an “interference” in the fundamental rights of practising Muslims. Jamiat Ulama-i Hind general secretary Maulana Mahmood Madani said:
“We think this is a direct assault on the fundamental right to practice religion. I want to state in unequivocal terms that talaq will continue to happen even though it is the worst sin in Islam, even instantaneous talaq will happen. If you want to punish the person, you can but the divorce will be deemed to have happened.”
Describing the Supreme Court verdict “perplexing”, Darul Uloom Deoband said no interference in Sharia will be “tolerated”. Mufti Abdul Quasim Nomani, chancellor of Darul Uloom Deoband, said:
“The Triple Talaq is purely a Sharia issue in which no amendment can be affected.”
All India Majlis-e-Ittehadul Muslimeen (AIMM) chief and Lok Sabha MP from Hyderabad Asaduddin Owaisi said Muslim Personal Law can’t be brought into the jurisdiction of the judiciary and it would be “difficult” for the Muslims to “follow” the Supreme Court verdict.
As if that was not enough, senior minister in Mamata Banerjee Cabinet Siddiqullah Chowdhury went on to call the Supreme Court verdict “unconstitutional.” Chowdhury has asked the Muslims to “reject” the judgment.
It was quite strange that such a sinister Islamic practice called Triple Talaq continued to enjoy protection under the garb of Article 25 of the Indian Constitution, which guarantees Freedom of religion. This, despite the fact that Clause-1 of Article 25 clearly states that Freedom of religion is subject to public order, morality and health. Clearly Triple Talaq is a glaring violation of public order and morality.
Finally, in a landmark verdict, the Supreme Court has struck down the reprehensible Islamic practice of Triple Talaq, which is also known as Talaq-ul-Biddat. In a 395-page-long verdict, on August 22, a five-judge Constitution Bench of the Apex Court has set aside Triple Talaq by a 3:2 majority declaring it “unlawful” and “unconstitutional”.
While Justices Kurian Joseph, UU Lalit and RF Nariman delivered the majority judgement, Justice JS Khehar, who meanwhile has retired as the Chief Justice of India, and Justice Abdul Nazeer dissented with a minority judgment.
Talaq-ul-Biddat enables a Muslim man to utter “Talaq, Talaq, Talaq” to his wife at one go and end the marriage unilaterally. This is a gross violation of Article 14 of the Indian Constitution which guarantees Right to equality. Justices Kurian Joseph, RF Nariman and UU Lalit said:
“Triple Talaq may be a permissible practice but it is retrograde and unworthy. Since Triple Talaq is instant it is irrevocable and the marital tie gets broken. It is violative of Article 14, the Right to equality.”
Justice Nariman said a practice that is manifestly “arbitrary” is obviously “unreasonable”. He said:
“…In our opinion, therefore, the 1937 Shariat Act, insofar as it seeks to recognise and enforce Triple Talaq, is within the meaning of the expression ‘laws in force’ in Article 13(1) of the Constitution and must be struck down as being void to the extent that it recognises and enforces Triple Talaq.”
Talaq-ul-Biddat has been part of the Islamic religious practice since 1400 years. Justice Kurian Joseph said:
“Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.”
It is pertinent to mention that Triple Talaq is a sin as per the Quran, the holy book of Islam. Justice Kurian further said:
“What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”
It was for the first time that Muslim women in huge numbers came out in open against the pernicious practice. Moderate and progressive elements in Muslim society joined their fight. Unlike the so called secular parties who shamelessly protected the regressive Islamic practice for decades, the Narendra Modi government at the Centre extended a resolute backing to the Muslim women in their fight against Tipple Talaq.
Interestingly, Justices JS Khehar and Abdul Nazeer – who delivered the minority judgement – by arguing that the Apex Court can’t interfere in personal law, have taken note of these facts. They said:
“The whole nation seems to be up in arms. There is seemingly an overwhelming majority of Muslim-women, demanding that the practice of ‘talaq-e-biddat’ which is sinful in theology, be declared as impermissible in law.
The Union of India, has also participated in the debate. It has adopted an aggressive posture, seeking the invalidation of the practice by canvassing, that it violates the fundamental rights enshrined in Part III of the Constitution, and by further asserting, that it even violates constitutional morality.”
While three members of the Bench outrightly dislodged the cynical Islamic practice, two dissenting members of the Bench have asked the government to enact a law on the subject within six months arguing that the constitution equips the state with powers to reform personal laws. But is a law really necessary? Because the majority Judgement has already held Tripple Talaq “unconstitutional” and “illegal”.
Ever since the judgement came, Triple Talaq is a punishable crime. Those who dare to violate the judgement must face rigorous imprisonment and heavy penalties. That can only be clearly codified if the government brings a law against Triple Talaq or amends the Muslim Personal Law altogether.
It is pertinent to mention personal laws are not fixed. The Hindu Marriage Act, 1955; Hindu Succession Act, 1956; Hindu Minority and Guardianship Act, 1956; Hindu Adoption and Maintenance Act, 1956; Indian Divorce Act, 1869 (meant for Christians) and the Parsi Marriage and Divorce Act, 1936 have all gone through amendments. But so far Muslim Personal Law managed to escape the judicial scrutiny and maintained a status quo. It is time for a course correction.
From Shah Bano to Shayara Bano, the Muslim women’s fight against Triple Talaq has come a long way. In 1985, the Supreme Court delivered a judgment which had ordered that maintenance be given to 62-year-old aggrieved divorced Muslim woman from Bhopal Shah Bano from her husband. But the then Rajiv Gandhi government, sucking up to Muslim radicalism, successfully negated the Supreme Court verdict. Shah Bano is not alive, but the struggle she had started over three decades back has now brought to fruition. Today, Shayara Bano – the 36-year-old Triple Talaq victim from Uttarakhand – and many of her fellow victims have got justice from the Supreme Court. Unlike then Prime Minister Rajiv Gandhi, Prime Minister Naredra Modi stands tall as a crusader against Triple Talaq.
The Triple Talaq judgement is certainly a milestone for Indian Muslim women’s quest for equality. It is unfortunate that the Muslim women in the “liberal democracy” of India had to wait for 70 long years to see the light of justice. Pertinent to mention that as many as 22 Islamic countries – including Pakistan, Afghanistan, Bangladesh, Iraq and Syria – have already banned the Triple Talaq long back. India has just joined that League of Nations.
Abolition of Triple Talaq is just half the battle won. There are other regressive Islamic practices like Nikah Halala and Polygamy which are very much prevalent in Indian Muslim community. Under the practice of Nikah Halala, also known as Talaq-e-bidat, a Muslim man can remarry his former wife after she goes through the process of marrying another man, consummating the marriage, getting divorce and observing Iddat (separation period). Polygamy allows a Muslim man to have multiple wives. This is not to dispute that all these sinister Islamic practices treat women as commodity.
It is high time the Muslim Personal Law needs necessary amendments to do away with these evil practices. The Modi government must take a further step to implement Uniform Civil Code (UCC), as enshrined in the Directive Principles of the Constitution.
(Author is a Delhi-based senior journalist)