In Islam marriage is a contract not a sacrament as it is in many other religions. ‘Offer’ and ‘acceptance’ are the necessary ingredients of the contract. Among Muslims the groom proposes to bride and when she accepts the proposal then the nikah is performed by the Qazi in the presence of witnesses. However, a million dollar question remains unanswered that when the consent of both parties, here the brides and the grooms, is required for solemnizing Nikah, why then only the males should have the exclusive and unilateral right to break the marriage regardless of the pathetic condition of the wives to which they are reduced to after their desertion by the husbands? This painful question has been simmering in the Muslim society for quite long. However, with the passage of time and due to education and increased awakening among the Muslim women, this issue has now obtained the centre-stage. There have been many cases where the High Courts have dealt in their own way but there has been almost remarkable unanimity in the judicial pronouncements that triple talaq is ethically abhorring, logically untenable, religiously undesirable and socially very undesirable.
It is a welcome sign indeed that opposition to triple talaq has come from within the Muslim community. The petition was initially filed in the Supreme Court by one Muslim woman from Allahabad namely; Shaira Bano which was later converted into a Public Interest Litigation and other parties were allowed to jump in. After a six-day long hearing by the bench of five judges headed by the Chief Justice of India –Justice J.S. Khehar (Sikh), Justice Kurian Joseph (Christian), Justice R.F. Nariman (Parsi), Justice U.U. Lalit (Hindu) and Justice Abdul Nazeer (Muslim), the judgment has been reserved.
Triple talaq as it is practised in India—the husband saying “talaq” thrice to the wife in one go—must be addressed on multiple fronts. The same holds true for the associated practice of Nikah Halala—a divorced woman having to marry another man, consummate the marriage and have him divorce her before being able to remarry her first husband. The first front is that of constitutional protection—whether these practices are safeguarded under Article 25(1) of the Constitution, which guarantees the fundamental right to “profess, practice and propagate religion”. This is the approach the SC has adopted; it is examining if triple talaqforms an essential part of Islamic belief and practice. However, the general feeling in the public is that the Supreme Court must travel beyond the criterion that it has set for itself.
On the face of it, there is substantial evidence that tripletalaq is an innovation that has little to do with Quranic prescriptions. This is the argument made by the petitioners. It is buttressed by the text of the Quran as interpreted in the bulk of Islamic scholarship, as well as historical evidence and legal precedent. After all, a number of Islamic states, from Morocco and Algeria to Iran and Indonesia, have introduced modernizing legislation when it comes to divorce. And in multiple instances—A. Yousuf Rawther v. Sowramma, theKerala High Court and Shamim Ara v. State Of UP And Ors, the Supreme Court, have ruled against triple talaq as it is practiced today.
The All India Muslim Personal Law Board, on the other hand, defends triple talaq as an integral part of Islamic law and, therefore, outside the realm of the judiciary. Thus, the Supreme Court must in effect take a stand in a long-running global debate: Is Islam a “blueprint for a social order” or is there a distinction between Islamic—the religious—and Islamicate—associated cultural phenomena? The All India Muslim Personal Law Board has lately come with a proposal before the Supreme Court that a provision should be added in the nikahnama for conciliation between the enraged husband and the victim-wife before giving effect to talaq. This has been rubbished by the contending parties as ‘eyewash’, which should be rejected at the threshold. Placing Islamic or any other personal law in the context of constitutional liberalism rather than depending merely upon religious reform is important.
A number of the petitioners have argued that triple talaqviolates their fundamental right to equality before the law, to non-discrimination on grounds of sex and to life and liberty. Indeed, Article 25(1) explicitly states that freedom of religion is subject to other fundamental rights. The other argument against subjecting personal law to the constitutional validity test is that it is not a “law” as defined by Article 13 of the Constitution and this theory has a precedent in the 1951 Bombay high court judgement in State of Bombay v. Narasu Appa Mali. And that brings in the third front: the uniform civil code. Much of the opposition to the Supreme Court taking up the triple talaq issue stems from the fear that it is a back door for bringing in the Uniform Civil Code. That would be the wrong way to go about it but the goal is a worthy one. Arguments that this will stifle diversity and result in the imposition of Hindu laws are specious.
Seven decades ago, the members of the Constituent Assembly chose the politically expedient path. The Uniform Civil Code has been frozen as a directive principle of the state policy since then. If the ideal of a common law for all citizens in a secular republic—the one that adheres to constitutional principles and ensures gender equality—is to be realized, the Union Government and Parliament will have to show both courage and statesmanship.
Attorney General Mukul Rohatgi was right when he said that ‘the practice of triple talaq is a tussle between the haves and have-nots inside the community. The prism through which you see the case is not like majority versus minority; this is a case where it is an intra-community tussle between Muslim men and women. This time Muslim women have questioned the centuries-old hegemony suffered by them at the hands of their male counterparts. He argued that ‘fight is between men of the Muslim community, who are more powerful and educated, and the women, who are frequently uneducated and aren’t as powerful.’
As one legal commentator has rightly said that, ‘ultimately, the choice before the court is a stark one. Ever since the Narasu Appa Mali case, there has been a domain of law-i.e., uncodified personal law-that has simply been deemed to be beyond the realm of the Constitution, and beyond the scrutiny of constitutional norms such as equality, freedom of conscience, and the right to personal liberty. Not only has time created a paradoxical situation where as long as personal laws are uncodified, they escape constitutional scrutiny, but the moment they are legislated by the state (as large parts of Hindu laws were in the 1950s), they become subject to the Constitution. There is no doubt that triple talaq violates women’s rights to equality and freedom, including freedom within the marriage, and should be invalidated by the Supreme Court. The larger question, however, is whether the court will stick to its old, narrow, colonial-influenced jurisprudence, and strike down triple talaq while nonetheless upholding a body of law that answers not the Constitution, but to dominant and powerful voices within separate communities; or will it in 2017, change course, and hold that no body of law can claim a higher source of authority than the Constitution of India? Let us keep our fingers crossed and wait for the verdict.