The Supreme Court has given a historic verdict. In its landmark order, the court “set aside” the nearly 1,400-year-old practice of instant triple talaq by Muslims divorcing their wives by uttering the word ‘talaq’ thrice in one go. A five-judge Constitution bench, by a majority of 3:2 in which Chief Justice J S Khehar found himself in a minority, said in its one line order: “In view of the different opinions recorded by a majority of 3:2, the practice of ‘talaq-e-biddat’ – triple talaq is set aside.” The three separate verdicts totalling 395 pages, written for the majority by justices Kurian Joseph and R F Nariman, did not concur with the minority view of the CJI and Justice S A Nazeer that triple talaq was a part of religious practice and the government should step in and bring in a law.
The three judges, justices Joseph, Nariman and U U Lalit, expressly disagreed with the CJI and Justice Nazeer on the key issue whether triple talaq was fundamental to Islam. The triple talaq issue had come to the fore in February last year when Shayara Bano, a victim of triple talaq, petitioned the Supreme Court for a ban on instant divorce, on polygamy and nikah halala, under which a woman divorcee seeking to re-wed an ex-husband has to first consummate a marriage with another man. Subsequently, thousands of Muslim women across the country formed pressure groups and spearheaded signature campaigns demanding that triple talaq be abolished.
According to experts, Islam views marriage as a civil contract based on consent, unlike Hinduism,for instance, where it is a sacrament. At the core of the controversy was the dispute over the forms of dissolution of that contract. Under talaq-ulsunnat, there has to be a three-month period called iddat between the pronouncement of talaq by a husband and a lawful separation. Talaq-e-bidat authorises a man to do so in a single sitting. The controversy around triple talaq, was in many ways, reminiscent of the Shah Bano case of the eighties, which was a landmark step in Muslim women’s fight for social justice and equality — but with a disappointing end. In 1985, the Supreme Court had decisively ruled in favour of Shah Bano, who had sought maintenance from her husband who had divorced her. But following a backlash from orthodox Muslim groups, the then Rajiv Gandhi government diluted the order through an Act.
With triple talaq being set aside, Muslims would not be able to take recourse to this mode as it would be “void ab initio” (illegal at the outset). They are now left with two other modes of securing divorce – ‘talaq hasan’ and ‘talaq ahsan’. Two media reports highlighting plight of Muslim women led the Supreme Court to change its professed stand that the sensitive issue of “triple talaq” involved state policy and Parliament should deal with it. The apex court had refused to entertain the plea of Ahmedabad Women Action Group in 1997 on the discrimination meted out to Muslim women in the case, saying that the issue involved “State policy to be dealt with by the legislature”.
It had then referred to the observations made in two cases in which it was said that a climate was required to be built for a uniform civil code and “the court could at best advice and focus attention to the problem instead of playing an activist role”. The professed stand got changed when a bench comprising justices A R Dave and Adarsh Kumar Goel, in 2015, decided to take up the matter on its own and referred it to the then Chief Justice for necessary action.
It had taken note of two news articles, including one titled as ‘Muslim Women’s Quest for Equality’, which was published in a leading English daily. They had highlighted the plight of Muslim women who suffered polygamy and unilateral triple talaq. It was pointed out that in spite of constitutional guarantee, the Muslim women were subjected to discrimination and there was no safeguard against arbitrary divorce and second marriage by her husband during the currency of the first marriage, resulting in denial of dignity and security to her. Shayara Bano, the most prominent petitioner against the practice, said it was a momentous and historic occasion for Muslim women across the country. “I support and welcome the judgement. I feel good for women across the country, for their future and the future of their children and my children. This is a historic day,” Bano said.
The All India Muslim Women Personal Law Board and All India Shia Personal Law Board described the verdict as a victory of Islam and Muslim women in the country. “I am elated to hear about this historical judgement which is not only for the Muslim women, but is one of the best reforms in India after independence,” said Zakia Soman, the co-founder of Bharatiya Muslim Mahila Andolan, which is also one of the petitioners in the case. “The court has given a direction to the government to frame a law. We have won half the battle.
We will be victorious in the true sense only once the law is framed so as to make this practice punishable. There is no remedy for women against the practice till a law is framed,” Farah Faiz, another petitioner and the president of Rashtrawadi Muslim Mahila Sangh, said. The government has, however, virtually ruled out the need for a new law on triple talaq, indicating that existing laws, including the one dealing with domestic violence, were sufficient. “The government will consider the issue in a structured manner.
A prima facie reading of the judgement makes it clear that the majority (of the five member bench) has held it (the practice of instant triple talaq) as unconstitutional and illegal,” Law Minister Ravi Shankar Prasad said. Syed Ahmed Bukhari, the Shahi Imam of the Jama Masjid in Delhi, blamed the AIMPLB over the triple talaq issue, saying it should have acted in a way to avoid the matter reaching the Supreme Court and find a solution to the contentious issue.
The All India Muslim Personal Law Board (AIMPLB) has said it will chalk out its future course of action at its working committee meeting in Bhopal on September 10 while Maulana Mohammed Shafique Qasmi, the Imam of Nakhoda Masjid in Kolkata, said the AIMPLB and experts of Sharia law should be consulted before formulating any new law. “Muslim Law is our own personal law and it has nothing to do with any other community. It should be left to us to decide on it,” Zafaryab Jilani, a member of the working committee of the AIMPLB said. Legal luminaries hailed the verdict terming it as “historic, progressive and path-breaking”, which would restore the equality, dignity and respect of crores of women.