TRIPLE TALAQ : Uplifting the Women or Supressing the Minorities?
Crux of the Matter:
India is one of a handful of countries where a Muslim man can divorce his wife in a matter of minutes by just uttering the word TALAQ (divorce) three times.
The practice of “triple talaq” has faced opposition from various Muslim women. Some of them have filed PIL in Supreme Court of India against the practice terming it as “regressive”. The petitioner has asked for scrapping of section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, terming it against the Article 14 of the Constitution and is now facing a stiff challenge – the Supreme Court is considering whether to declare it unconstitutional.
Shayara Bano, a 35-year-old mother of two was visiting her parents’ home in the northern state of Uttarakhand for medical treatment when she received her talaqnama – a letter from her husband telling her that he was divorcing her.
In February, 2016, frustrated Shayara Bano filed a petition in the Supreme Court, demanding a total ban on triple talaq which, she says, allows Muslim men to treat their wives like “chattels”
On 8 December 2016, the Allahabad High court in a ruling, has observed that the practice of ‘Triple Talaq’ is unconstitutional and violates the rights of Muslim women.
In October, 2016, the BMMA wrote a letter to Prime Minister Narendra Modi demanding “reforms in Muslim divorce and polygamy laws”. They also filed a petition in the Supreme Court.
Highlights of the Matter:
The Constitution bench headed by Chief Justice J Khehar is hearing seven petitions, including five separate writ petitions filed by Muslim women challenging the practice of triple talaq prevalent in the community and terming it unconstitutional. The bench will also take up the main matter on its own as a petition titled ‘Muslim Women’s quest for equality’.
The Supreme Court, a five-judge constitution bench, headed by Chief Justice J.S. Khehar, said on the second day of continued hearing on the matter that the practice of “triple talaq” was the “worst” and “non-desirable” form of dissolution of marriages among Muslims, even though there were schools of thought that termed it as “legal”.
The bench was then informed that countries like Pakistan, Afghanistan, Morocco and Saudi Arabia do not allow triple talaq as a form to dissolve marriages.
Senior advocate Ram Jethmalani, appearing for one of the victims, assailed the practice of triple talaq in various constitutional grounds, including the Right to Equality and stated that the right of triple talaq is available only to the husband and not to the wife and it breaches the Article 14 (Right to Equality) of the Constitution, further adding, “There is no saving grace for this method of granting divorce. One-sided termination of marriage is abhorrent, and hence, avoidable.”
The All India Muslim Personal Law Board (AIMPLB) contented to the Supreme Court that the dispute was not just the issue of triple talaq but the prevalence of patriarchy among communities.
Attorney General, Mukul Rohatgi is assisting the bench which is examining to what extent the court can interfere in the Muslim personal laws if they are found to be violative of the fundamental rights of citizens enshrined in the Constitution.
Amid the hearing, the Central government told the Supreme Court that it will come out with a law to regulate marriage and divorce among Muslims if triple talaq is held invalid and unconstitutional by the court.
Attorney General Mukul Rohatgi told the court “If the practice of instant divorce (triple talaq) is struck down by the court, then Centre will bring a law to regulate marriage and divorce among the Muslim community.”
The five judges bench while responding to the AG’s argument stated that “Right to religion cannot mean that Article 25 protects only what citizens do inside a temple, mosque, gurdwara or other religious institutions but not other customs or practices they perform outside,”
The AG said when a personal law, for example triple talaq as contained in Sharialaw of 1937, violated fundamental rights guaranteed under the Constitution, then that personal law, practice or custom must go.
“Do Muslim women have equality in matter of divorce within the community? Do they enjoy equal rights compared to women of other communities within the country? Do they enjoy similar rights compared to Muslim women in other countries? If the answer to the three questions are no, then that custom, even if part of religious rights, must be struck down as unconstitutional,” he said.
Earlier, the apex court bench, said it was keeping open the issues of practice of polygamy and ‘nikah halala’ among Muslims for adjudication in future, as the Centre insisted on judicial deliberations on these aspects as well.
The central government is thinking of bringing in a legislation codifying the law relating to marriage in the community should the top court take the first step and strike down triple talaq as violative of the right to equality guaranteed to Muslim women by the Constitution. “Matters of personal law have no relation with religion. This is not an ecclesiastical court. This court is not expected to interpret the Quran, the Guru Granth Sahib or the Gita,” attorney general Mukul Rohatgi said in his submissions.