The Supreme Court currently hearing since May 11, clutch of petitions challenging triple talaq, polygamy and ‘nikah halala’; clarified on May 16 that it would only examine ‘triple talaq’ was an essential part of religion under Article 25 of Constitution. A five-judge constitution bench headed by chief justice JS Khehar said: “We have to see the test of essentiality and the government has to prove that ‘triple talaq’ is not an essential part of Islam as this will amount to tinkering with religion.” The five-judge constitution bench comprises members of different religious communities including Sikh, Christian, Parsi, Hindu and Muslim.
Broadly speaking, it was in October 2015 that the apex court had asked for the registration of a Public Interest Litigation (PIL) to be put up before an appropriate Bench. Muslim individuals and groups became party in the case only after the PIL was registered and formal hearings commenced on May 11 this year, thereby, crystallising at least two years of recurrent dialogue on the controversial practice of triple talaq, or verbal divorce in certain Muslim communities in India through the utterance of the word “talaq” three times at just one go. Some observers feel that this case has thrown open a national discussion about the fractured civil laws, especially for the Muslims.
Genesis of the debate
Shayara Bano, a mother of two whose husband divorced her in 2015, is said to be the first petitioner to ask that the Islamic practices of instant divorce, polygamy and certain restrictions on remarriage, be banned in India because they violate her rights to gender equality, enshrined in the country’s constitution. She was subsequently joined by some Muslim women’s organizations like Bharatiya Muslim Mahila Andolan (BMMA), Bebak Collective and others. Under the prevalent situation, there are three major parties to this case: the Central Government, the All India Muslim Personal Law Board (AIMPLB) and ShayaraBano along with some Muslim organizations.
The Attorney General of India, representing the central government, has told the Constitution Bench of the apex court that all the three forms of divorce among the Muslim community — talaq-e-biddat, talaq hasan and talaq ahsan, were “unilateral” and “extra-judicial”. After court’s clarification that it was dealing with only triple talaq, the attorney general while restricting himself to that part only, wanted the court to “first strike down these practices which are not in conformity with the Constitution”, then added that his government could bring the law.
Asserting that even if ‘triple talaq’ is considered as an essential part of religion and falls under Article 25 of the Constitution, the attorney general further stated that it had to be related to the fundamental rights and should abide by the principles of gender equality, non-discrimination and justice. To this, the bench insisted that the government has to first prove that this practice of triple talaq was not essential to Islam and only then can it delve further into other aspects.
Kapil Sibal, representing the All India Muslim Personal Law Board (AIMPLB), told the constitution bench that there was a difference between personal law and customs and usage. “All patriarchal societies are partial. In Hinduism, a father can will away his property to anyone, but not in the Muslim community… Is it better for a woman to apply for divorce and fight for 16 years and get nothing?”
Major thrust of the arguments given by the legal representatives of Shayara Bano, BMMA and Bebak Collective has been that neighbouring Islamic countries like Pakistan and Bangladesh have banned triple talaq by terming it as un-Islamic; that triple talaq was not a part of Sharia law; that the practice of triple talaqwas the violation of fundamental rights due to the extent a Muslim man exercises power to declare a unilateral divorce and the Muslim woman has no control over such “unilateral”, “arbitrary”, “extra judicial” divorce and her marital status.
According to some media reports, a survey of 4,700 Muslim women conducted by BMMA found 92.1 per cent wanted instant divorce to be banned and 91.7 per cent were against legal polygamy. However, some experts have expressed doubted about the authenticity of this survey.
In the wake of growing anxiety among Muslim religious leaders, who fear dilution of their power by a court that could undo the promise of autonomy in personal affairs and frequent statements of leaders of the Bharatiya Janata Party (BJP) against the ‘triple talaq’, some political analysts have opined that the entire debate has been converted and made into a political debate.
Repeated statements of some BJP leaders against the triple talaq practice are viewed along the continuum of the Uniform Civil Code (UCC), which was an important plank in all of the BJP’s electoral campaigns, most recently, in the state of Uttar Pradesh, where it was politicized to the extent that it became a topic of heated debate during the elections as though it was the only problem facing Muslim women.
The All India Muslim Personal Board (AIMPB), a body that regulates and passes commentary regarding Indian Sunni Muslim personal law, has been vociferously against the ban on ‘triple talaq.’ As a rule, the AIMPB resists and rejects state interference in religious personal law and has provided bizarre defenses against some critiques. The question of how integral triple talaq is to the practice of Muslim personal law has now become inextricable from discussions on its validity. On the other hand, there is also a prominent rights narrative that attempts to take down the practice given how much it strips women of their empowerment.
Many political pundits lament at the problem getting complicated by the politicization of the discussion around triple talaq. It is perhaps not possible to entirely divorce an issue as political as a church vs. state battle from politics. As triple talaq begins to increasingly become associated with the BJP’s call for a UCC in the country, the polarities are likely to grow wider. The Muslim clerics’ fear of the loss of power further amplifies this polarity.
Attempt by Kapil Sibal, appearing for AIMPLB, before the five-judge Constitution bench to equate triple talaq with the Hindu belief that Lord Rama was born at Ayodhya and his assertion that it was a matter of faith and hence, there was no question of constitutional morality and equity, drew snub from the judges who cautioned him not to politicize the issue.
Many experts feel that challenging triple talaq is unlikely to give Muslim women relief because their husbands still retain the right to divorce them at will and without going to court; albeit through a slightly longer procedure.
In a sudden development on 22 May, the All India Muslim Personal Law Board (AIMPLB) in an affidavit on triple talaq submitted in Supreme Court, hascalled the oral instant talaq an “undesirable” practice according to the Shariat (Islamic law) and said it will advise those performing Islamic marriages to include it in the ‘nikahnama’ (marriage contract).
However, Muslim women organizations and the petitioners have sharply reacted to this by saying that the AIMPLB has no locus to issue any such advisory for the Qazis or advice for grooms. It is a registered NGO which does not govern nor employ the Qazis. It is just creating confusion among the Muslims at large. In the meanwhile, the apex court after concluding its hearings on 18 May has reserved its verdict.
However, majority of experts feels that an issue like this is best left to Parliament, which would render triple talaq irrelevant not because it conflicts with the Constitution, but because there is a law on divorce made by Parliament that overrides triple talaq. They suggest re-introducing the pending Marriage Laws (Amendment) Bill, 2013 along with suitable changes as a way forward.