Triple talaq invalidated: First step on the long road to gender justice

By Mythili Mishra

In a 3:2 majority judgment, the Supreme Court declared triple talaq to be violative of the fundamental right to equality under Article 14 of the Constitution.

Islamic law on divorce

Triple talaq is a practice in which a Muslim man can divorce his wife by uttering the word “talaq” thrice. It is a 1,400-year-old custom followed by Indian Muslims who subscribe to the Hanafi School of jurisprudence.

Islamic law is derived from the Quran. Experts have commented on how the Quran does not sanction triple talaq; instead, it recommends the appointment of an arbiter before a marriage is dissolved. The mandatory period of ‘iddat’‘, during which the couple may reconcile, supports the exercise of restraint in divorce. Accordingly, several Islamic countries which follow the Shariat, including Pakistan, have done away with the practice.

In the majority judgment, Justice Kurien Joseph said: “What is held 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”. This stance effectively declared triple talaq to be violative of the Quran as well.

Personal laws: The debate over jurisdiction

In India, Muslim personal law—matters such as marriage, divorce, inheritance, among others—is codified in the Muslim Personal Law (Shariat) Application Act, 1937. The Act lays out that the state shall not interfere in matters of ‘private dispute’.

This was the stand adopted by the All India Muslim Personal Law Board (AIMPLB). They held that personal law does not come under the SC’s jurisdiction. Though an undesirable practice, it is mentioned in the Quran and is thus, a part of the Shariat. The applicability of fundamental rights, therefore, is irrelevant.

Chief Justice J. S. Khehar and Justice Abdul Nazeer, in the dissenting judgment, wrote that while triple talaq is sinful, the State cannot interfere in the personal laws of a community. These laws are protected under Article 25 (freedom to profess, practice and propagate a religion) of the Constitution. Article 25, however, also states that the right is not absolute. Reasonable restrictions based on public order, morality, health and other fundamental rights may be applied. The State has used these exceptions since independence to affect change and reform religion, the most notable example being the abolition of untouchability and its manifestations.

For the Justices, however, the law is an integral part of Islamic faith. This overrides the individual rights guaranteed to women. Yet, the constitutional validity of the practice need not mean that it cannot be abolished and they directed the Parliament to pass appropriate legislation.

The arguments against triple talaq

Differing with AIMPLB and speaking for state intervention, the counsel for the petitioners proclaimed women’s rights to equality and non-discrimination. The Centre also affirmed its support for “gender justice, equality for women and dignity of women.”

Former Attorney General Mukul Rohatgi had also challenged the ‘personal’ nature of the laws. He claimed that it is a law falling under the jurisdiction of the courts and could be invalidated under Article 13 if found to be in conflict with the Constitution.

While Justice Joseph held that the law is in conflict with what the Quran says, Justices R. F. Nariman and U. U. Lalit invalidated it on secular grounds. They deemed it “manifestly arbitrary”. Triple talaq was thus declared unconstitutional.

Justice beyond one judgment

While the SC judgment is a step forward, several questions remain unanswered. The first is about gender justice in India. While the Court took suo moto cognisance of the issue of triple talaq, other discriminatory practices such as Nikah halala and polygamy, are still legal. Nikah halala is a practice wherein if a man dissolves the marriage for the third time, he can only remarry the woman if she first marries another man and consummates the marriage. Only if the man dies or willingly asks for a divorce, can she go back to her first husband and remarry him.

Moreover, much needs to be reformed in the personal laws of other religions. Parsi women lose property rights upon marrying a non-Parsi. Non-Parsi wives are only entitled to half of their husbands’ property. Religion is not the only barrier. Tribal women in Bihar and Maharashtra are deprived of land rights under the garb of ‘tribal custom’. Nagas are opposed to 33% reservation for women in local government under Naga customary laws protected by the Constitution.

In the battle between oppressive traditions and emancipation of women, the Supreme Court has sided with the latter this time. It has, however, interpreted the law in a traditionalist manner on several other occasions, such as in the child bride exception clause to rape. The Legislature must take a proactive stand and bring out gender-just laws with multi-partisan support.

Featured Image Source: Visual Hunt