On 22nd August, Supreme Court of India delivered a historic verdict declaring Talaq-e-biddat or ‘instant triple talaq’ unconstitutional i.e. the act of pronouncing divorce by a Muslim man by saying (or even electronically sending on messaging platforms) the term ‘talaq’ three times in a go, will no longer be a valid form of divorce in the eyes of law.
A lot of water has flown under the bridge since then. While overwhelmingly it was received as a path breaking decision in the right direction towards achieving the constitutional goal of UCC, some people have openly declared it to be anti-Islamic and they won’t be following this. This topic has been hotly debated in newsrooms, editorials and in the court room of course.
Let’s look at a brief summary of the PIL, the arguments and the judgment.
In October 2016, Justice Anil R Dave and Justice Adarsh Kumar Goel while delivering a judgement on Prakash & Others v. Phulavati & Others, observed that Muslim women are subjected to discrimination. There is no safeguard against arbitrary divorce and second marriage by her husband during currency of the first marriage, resulting in denial of dignity and security to her.
They pointed out that the matter needs consideration by the supreme court, as the issue relates not merely to a policy matter but to fundamental rights of women under Articles 14, 15 and 21 and international conventions and covenants.
Hence they directed the court to register a suo motu PIL and put up before the appropriate Bench as per orders of Hon’ble the Chief Justice of India to look at the matter of Triple Talaq, Nikah Halala and polygamy.
Thereafter, one Mrs. Shayara Bano of Allahabad, who was divorced from her husband through triple talaq filed a writ petition under article 32. Article 32 provides remedies when your fundamental rights are violated. It gives you a right to move to SC for the enforcement of the rights conferred under part III – fundamental rights – by constitution of India. In her submission, she wrote:
“This practice of talaq-e-bidat (unilateral triple-talaq) which practically treats women like chattel is neither harmonious with the modern principles of human rights and gender equality, nor an integral part of Islamic faith, according to various noted scholars. Muslim women have been given talaq over Skype, Facebook and even text messages. There is no protection against such arbitrary divorce. Muslim women have their hands tied while the guillotine of divorce dangles, perpetually ready to drop at the whims of their husbands who enjoy undisputed power.”
She also submitted that the legislature has failed to ensure the dignity and equality of women in general and Muslim women in particular especially when it concerns matters of marriage, divorce and succession.
In a counter affidavit, Ministry of Law & Justice submitted that the said practice is indeed violative of rights conferred by article 14, 15 and 21. It also submitted that the practice can be challenged against article 13 as it is an established “law” under “Shariat bill” passed in 1937. To quote the ministry,
“Any practice by which women are left socially, financially and emotionally vulnerable or subject to whims and caprice of men is incompatible in letter and sprit with article 14 and 15. Right of a woman to human dignity, social esteem and self worth are imp facets of right to life under article 21. Gender justice is non negotiable and is a constitutional goal.”
The ministry also argued that personal laws can’t supersede fundamental rights guaranteed by the constitution.
“The underlying idea behind the preservation of personal laws was the preservation of plurality and diversity among the people of India. The question arises as to whether the preservation of such diverse identities can be the pretext for denying to women the status and gender equality they are entitled to under article 14 & 21.“
The ministry tried to establish that personal law is a “law” by within the meaning of law under article 13 and any such law which is inconsistent with fundamental right is thus void.
The Union of India, who was also a respondent in the petition, via AG Mukul Rohatgi shared same views as Ministry of Law and Justice. “Gender equality, gender equity & a life of dignity and status is an overreaching constitutional goal.” AG Rohtagi also submitted that the practices which are under challenge, namely, triple talaq, nikah halala and polygamy are practices which impact the social status and dignity of Muslim women and render them unequal and vulnerable qua men belonging to their own community; women belonging to other communities and also Muslim women outside India.
Rohatgi raised a very relevant point that article 25 of the Constitution which confer the right to practice, preach and propagate religion are “subject to the provisions of Part III”, which means that it is subject to Articles 14 and 15 which guarantee equality and non-discrimination. In other words, under our secular Constitution, the right to the freedom of religion is subject to and in that sense, subservient to other fundamental rights such as the right to equality, the right to non-discrimination and the right to a life with dignity.
The All India Muslim Personal Law Board (AIMPLB) having made itself a party to the petition, argued against it. As per AIMPLB, Muslim Personal Law is cultural issue; it is inextricably interwoven with religion of Islam. Thus, it is the issue of freedom of conscience, guaranteed under Article 25 and 26 read with Article 29.
It tried to establish that personal law is NOT a “law” as defined in article 13 of constitution and hence its validity cannot be tested on a challenge based on Part III of the Constitution.
“The Mohammedan Law is founded on the Holy Qur’an and hadith of the Prophet of Islam and thus it cannot fall within the purview of the expression “laws in force” as mentioned in Article 13 of the Constitution of India”.
The AIMPLB also argued on why it thinks UCC is not a necessity. As per its submission:
“The whole discourse on Uniform Civil Code is marked with number of illusions. The first illusion is that a common civil code will help the cause of national integration. It is believed that the Hindu Code Bill has unified the Hindu
Personal Law on all the subjects. The question is has the Hindu Code Bill succeeded integrating the Hindu society in real terms. Are they not the caste divisions which still exist and have the caste become extinct in India? Is the untouchability non-existence? Are there no grievances of Dalits of discriminatory treatment? In other words, the perception of uniformity of personal laws has failed to achieve the integration amongst the different sections of the Hindu society.”
Arguing for AIMPLB, senior advocate and former Congress union minister Salman Khurshid also submitted similar arguments. He tried to convince the court that it should just look at the issue at hand i.e. Triple Talaq and not at the broader matter of UCC as such. He started his arguments with establishing that as opposed to common belief, Islamic laws are progressive. He stated that
“Under Islamic law if the answer to any question, solution to a conflict, or resolution to an issue, is provided for in the Holy Quran – that is the final word and rule of Sharia. When there is no clear guidance in the Quran, theologians must look to the traditions of the Prophet as recorded in the Hadiths. If no guidance is found even there then we must refer to general consensus of opinion or Ijma (which the ulema would arrive at after closely studying the first two). If the resolution is found by Ijma then that too would become a rule of Islamic law. To this extent Islamic law, like any other, is a living and evolving body of law.”
He also opined that triple talaq in theory was unilateral but in practice it is not.
“When the dissolution of the marriage tie proceeds from the husband, it is called talaq. Technically, the power of the husband is unilateral and absolute; but, virtually and in practice, it is restrained within definite bounds by the numerous formulae that are attached to its exercise.”
He went on to argue that it is not for SC to examine the validity of triple talaq as it’s a religious matter.
“It is humbly submitted that it is not the role of the Courts to interpret Muslim Personal Law but rather hold which interpretation is correct.“
He further argued that rate of talaq among Muslims is not higher than Hindus.
“Furthermore, no reliable data is forthcoming to show that talaq/triple talaq amongst Muslims exceeds divorce amongst other communities.”
Also representing for AIMPLB, senior advocate and former Congress union minister Kapil Sibal argued on why personal laws can not be challenged under article 13.
“Personal law represents matters of faith continued for centuries having a direct relationship to the faith of the community representing a religious denomination. It is clear that ‘personal laws’ are not subject to challenge under Part III of the Constitution. Apropos the above, if ‘personal law’ stands excluded from the definition of ‘law in force’ in Article 13 then all matters of faith having a direct relationship to a religious denomination being matters of personal law cannot be tested on the anvil of Articles 14, 15, and 21 of the Constitution of India.”
He also argued that all faiths are patriarchal and reform must come from within.
“Societies of different faiths are essentially patriarchal. This is true of all faiths, Hindus, Christian, Islam, Parsi, Zoroaster, Buddhist etc. There are very few exceptions to this. Reform through codification of such faith binds all individuals within the community. This process is evolutionary.”
Finally, he submitted that court should not interfere in the matters of faith.
After hearing all the arguments, the court declared triple talaq to be unconstitutional by a split verdict of 3:2. CJI Justice Khehar and Justice Abdul Nazeer held this to be a matter of faith and religion guaranteed under article 25 and hence court doesn’t have jurisdiction over it.
“We have arrived at the conclusion, that ‘talaq-e-biddat’, is a matter of ‘personal law’ of Sunni Muslims, belonging to the Hanafi school. It constitutes a matter of their faith. It has been practiced by them, for at least 1400 years. We have examined whether the practice satisfies the constraints provided for under Article 25 of the Constitution, and have arrived at the conclusion, that it does not breach any of them. We have also come to the conclusion, that the practice being a component of ‘personal law’, has the protection of Article 25 of the Constitution”
However, Justice Kurian didn’t agree with CJI and didn’t think it is part of Islam religion and hence it can’t be argued under article 25. Therefore, court has the right to declare this unconstitutional.
“I find it extremely difficult to agree with the learned Chief Justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law.
Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. 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.”
Justice Nariman and Justice Uday Lalit had a different view although they agreed with Justice Kurian on the unconstitutionality of triple talaq. However, as per them, it’s not unconstitutional because it’s not part of Islam, but it’s unconstitutional because it’s violative of fundamental right under article 14,15 and 21, being part of Islam or not notwithstanding.
“This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.”
Although the the practice of instant triple talaq has been outlawed via this verdict, the practice of Nikah Halala and polygamy continues to be legal in India.