Oppression and tyranny have no place in a democracy. So when the Supreme Court declared the practice of instant triple talaq illegal in the landmark Triple Talaq Case (Shayara Bano v. Union of India), it was applauded worldwide as a victory for equality and justice. The judgement has been widely lauded by international jurists as a crown jewel of legal jurisprudence. Unfortunately, some misguided critics argue that it is an interference with religion. Is that really true?
This is the story of the Triple Talaq Case and why the Supreme Court declared the practice illegal. It discusses more than just the judgement and also mulls what the future might hold.
Many do not know that triple talaq has two forms: talaq-e-biddat and talaq-e-hasan. The former is instantaneous divorce by simultaneously uttering “talaq” thrice, while the latter involves uttering “talaq” thrice over three months, with intervening attempts at reconciliation to save the marriage.
Various noted scholars had already expressed the view that talaq-e-bidat had no foundation in the Holy Quran. Many Islamic nations, including Saudi Arabia, Iraq, and even Pakistan, had already banned or restricted the practice of instantaneous triple talaq (Pakistan introduced legal reform in 1961). But the Muslim women of India had their hands tied while the guillotine of instant-divorce dangled, perpetually ready to drop at the whims of their husbands who enjoyed undisputed power.
Much before the historic judgement, the Bharatiya Muslim Mahila Andolan and the All India Muslim Women Personal Law Board were clamouring for legal reform and declaring that triple talaq is against the light of Islam. Eventually, the Supreme Court declared the practice illegal for being arbitrary and violative of the right to equality and dignity.
It is a popular but mistaken belief that freedom of religion is absolute. The reality, however, is that the freedom of religion, as guaranteed by Article 25 of our Constitution, is subject to the other Fundamental Rights. Article 25 provides in clear terms that the freedom of religion is subject to the other Fundamental Rights guaranteed by Part III of our Constitution. The Fundamental Right to equality and dignity, as protected by Articles 14 and 21 of our Constitution, is also a cornerstone of many international treaties and covenants, including the Universal Declaration of Human Rights. While many complex legal arguments were made, this was the case before the Supreme Court in simple terms. It was argued that the practice of instant triple talaq violated the Fundamental Rights of the petitioner, while on the other hand the practice had no sanctity under the Holy Quran.
Relying on the fact that the archaic practice of instant triple talaq was long outlawed in many Islamic countries, it was also argued that there could be no protection granted to such inhuman practice that permitted men to treat women as chattel on the false pretext of religion. It was further argued that the practice under challenge clearly failed the “Essential Practice Test” that is applied to determine whether a practice is essential to professing a religion or merely incidental to it. If one were to explain the significance of the case from a social perspective, it would be worthwhile to mention that Muslim women were rampantly given instant triple talaq over Skype, Facebook and even text messages! Shayara Bano herself received a talaqnama by post. It goes without saying that such treatment of women is shocking and inhuman. There was absolutely no protection against such arbitrary divorce.
Surprisingly, no affected woman had previously challenged the practice of instant triple talaq.
In the last century, Shah Bano had fought a legal battle for the Muslim women of India and their right to proper maintenance. This century saw Shayara Bano fight a legal battle against instant triple talaq. It was no mean feat to face all social odds and embark on such a journey. It was not only her marriage that was terminated by a talaqnama delivered by post. She also suffered severe trauma from physical abuse and administration of drugs that caused her memory to fade, kept her unconscious, and eventually made her critically ill. She lost touch with her children after she was unceremoniously abandoned by her husband. But her spirit kept her alive. India will always have her to thank for her spirit and resolve to seek justice for herself and others. Her victory is a victory for equality and justice.
There is much more to instant triple talaq than the lack of dignity and the abuse of women, used for carnal pleasures in their youth only to be abandoned in their later years. Many do not know of “kidney marriages”. Rich sheikhs from the Middle East who needed replacement of kidneys and other human organs visited India for medical tourism. Since Indian law allows a relative to donate organs, these sheikhs simply married poor Indian girls who practised Islam, only to divorce them after extracting a kidney. Even after the historic judgement, the problem that persisted was its enforcement. Sure, it declared the practice of instant triple talaq illegal, but what ensured that it would be respected by adamant critics and evil men? It is rightly said that law without justice is a wound without a cure. A crime without punishment continues to flourish. The Government had to take steps to implement the judgement and it came in the form of the Triple Talaq Ordinance i.e., The Muslim Women (Protection of Rights on Marria
ge) Ordinance, 2018. One must note that the Supreme Court had itself requested Parliament to pass legislation on triple talaq, preferably within six months of the verdict. After the verdict, the Bill to criminalise the practice was introduced and it was passed by the Lok Sabha last year itself, but it was most unfortunately blocked in the Rajya Sabha. Was it politics, or was it a throwback to the days of policy paralysis? Either way, it affected the nation, its women, and its democratic fibre. The Ordinance came to be passed because the Monsoon session of Parliament concluded with the Rajya Sabha’s failure to pass the Bill as law.
Law succeeds when there is enforcement. Criminal law succeeds if the rewards of a crime do not exceed the punishment for the crime. Society succeeds if crimes can be curbed by imposing punishment. After all, the law is an instrument of social control.
Before the Ordinance, we had a situation where instant triple talaq was illegal, but there was no punishment for committing such illegal act. What then, was the real deterrence? Why would a Muslim man bored of his wife, or a wealthy sheikh in need of a kidney from a girl he conveniently calls wife, not abandon her unceremoniously after she fulfilled his needs? The answer was, of course, the imposition of punishment, which has finally been prescribed. For those who feel that it marginalises the husbands, it would be significant to appreciate that a man who has intercourse with a woman by making a false promise of future marriage is treated as a rapist by the Indian Penal Code. How then is a man, who marries a woman only to abandon her after satisfying his lust, any different? Why would the State protect women from becoming victims of false promises of marriage, but turn a blind eye to instant triple talaq which has the same effect on their life and dignity?
Critics also need to appreciate the difference between talaq-e-biddat and talaq-e-hasan, the former being instantaneous triple talaq by simultaneous utterance of “talaq” thrice (now illegal) and the latter being a more detailed and Quranic procedure, attempting reconciliation and drawn out over three months as explained in the Holy Quran and documented by Islamic countries in their legal instruments.
It must be appreciated that the Indian democracy was built on equality. Blessed by one of the finest Constitutions of the world and protected by a strong Judiciary that has been applauded worldwide for being “fiercely independent”, the India born after Independence quickly emerged as the best democracy of the world. Interestingly, under our Constitution, equality is not merely about equal rights. It is also about a sacrosanct commitment to curb tyranny in any form. The tyranny of instant triple talaq has finally come to an end.
(Balaji Srinivasan and Arunava Mukherjee were the lawyers for Ms Shayara Bano in the Triple Talaq Case, wherein the Supreme Court of India declared the practice of instant triple talaq illegal.)
Oct. 16: SC bench asks CJI to set up a bench to study if Muslim women face discrimination in divorce cases.
2016 | Feb. 5 : SC asks Attorney General Mukul Rohatgi to assist it on the pleas challenging the constitutional validity of triple talaq, nikah halala and polygamy.
March 28: SC asks Centre to file a report of a panel on ‘Women and the law: An assessment of family laws with focus on laws relating to marriage, divorce, custody, inheritance and succession’.
SC impleads organisations, including the AIMPLB, in the suo motu matter.
Oct. 7: For the first time in India’s constitutional history, Centre opposes in SC these practices and favours a relook on gender equality and secularism.
Dec. 9: The Allahabad High Court, in a verdict, stops short of calling triple talaq unconstitutional, but observes that personal laws could not override constitutionally guaranteed rights of individuals.
Feb. 16: SC says a five-judge
Constitution bench would be set up to hear and decide the challenge on triple talaq, nikah halala and polygamy.
April 16: Raising the triple talaq issue, PM Narendra Modi says justice should be done to Muslim women.
April 17: UP CM Yogi Adityanath links triple talaq to the disrobing of Draupadi in the Mahabharata.
April 18: Attorney-General Mukul Rohatgi says triple talaq should not be allowed as women have as much right as men.
April 29: Opposition charges PM Narendra Modi with politicising issue.
March 30: SC says issues “very important”; says a Constitution bench would start hearing from May 11.
May 3: SC allows Salman Khurshid as amicus curiae.
May 11: SC says it would determine if triple talaq is in line with the Constitution and fundamental to Islam.
May 15: Attorney-general Mukul Rohatgi tells SC that the Centre will bring in a new law to regulate marriage and divorce among Muslims if the practice of triple talaq is declared unconstitutional.
May 16: AIMPLB says triple talaq is a 1,400-year-old practice, and constitutional morality and equity cannot arise when a matter of faith is concerned.
May 17: SC asks AIMPLB whether a woman can be given an option of saying “no” to triple talaq at the time of the execution of the nikahnama. A five-judge Constitution bench headed by Chief Justice J.S. Khehar also said all qazis can be asked to include this condition at the time of marriage.
May 18 : SC reserves verdict on a batch of petitions challenging constitutional validity of the practice of triple talaq.