Personal Law

Instant talaq illegal

Print edition : September 15, 2017

Chief Justice of India J.S. Khehar. Photo: SHIV KUMAR PUSHPAKAR

Justice Kurian Joseph. Photo: Vipin Chandran

Justice Rohinton Fali Nariman. Photo: S. Krishnamoorthy

Justice U.U. Lalit Photo: R.V. Moorthy

Justice Abdul Nazeer. Photo: H.S. MANJUNATH

An account of the legal battle in the triple talaq case, which began in the Supreme Court in 2015 on the issue of gender discrimination faced by Muslim women in divorce cases.

IN a landmark verdict on the issue of gender discrimination faced by Muslim women in divorce cases, the Supreme Court’s Constitution Bench comprising the Chief Justice J.S. Khehar, and Justices Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and S. Abdul Nazeer, on August 22, recorded different opinions and by a 3:2 majority set aside the practice of “talaq-e-bidat”, that is, instant triple talaq.

Chief Justice Khehar and Justice Nazeer dissented, saying the practice is part of Islam, and asked Parliament to bring about its reform through legislation. The bench heard the petitioners and the respondents for five days during the summer vacation and went through voluminous written submissions made by the parties on the various nuances of the case.

Justice Kurian Joseph agreed with the Chief Justice that the Muslim Personal Law (Shariat) Application Act, 1937, did not regulate triple talaq and, therefore, cannot be tested on the anvil of Article 14 guaranteeing equality. However, Justice Kurian Joseph was inclined to agree with Justice Nariman that the Act could be challenged on the grounds of arbitrariness. Justice Kurian Joseph also differed with the Chief Justice that triple talaq should be considered an integral part of Islam, and, therefore, he disagreed that it enjoyed the protection of Article 25, which guarantees freedom of religion. Justice Kurian Joseph’s swing vote in favour of Justices Nariman and Lalit, therefore, tilted the verdict against instant triple talaq.

There were five writ petitions before the Supreme Court, all filed by women victims of unilateral and instant triple talaq: Shayara Bano, Afreen Rehman, Gulshan Parveen, Ishrat Jahan and Atiya Sabri. Each of the five petitioners had suffered intense mental and physical abuse at the hands of their husbands and in-laws before they received the instant triple talaq. The lead petition, filed by Shayara Bano, a resident of Udhamsingh Nagar in Uttarakhand, sought a direction declaring the practices of talaq-e-bidat, nikah halala and polygamy under Muslim personal law illegal, unconstitutional, and as being violative of Articles 14, 15, 21 and 25 of the Constitution. Shayara Bano has two children from her marriage, and was divorced by triple talaq by her husband. She also alleged torture and harassment by her husband and in-laws.

Shayara Bano was represented by the Supreme Court advocate Balaji Srinivasan, who first understood the enormous potential of her case for reform of Islam through legal means, as she had the requisite locus standi to challenge the unfair practice, having suffered injury herself.

Ishrat Jahan’s husband took away their four kids aged 7, 9, 10 and 12 after saying talaq, talaq, talaq over phone to her. The husband, in the mean time, married another woman. In her petition, Ishrat Jahan challenged the constitutionality of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, which sought to recognise and validate talaq, nikah halala and polygamy, as void and unconstitutional, as such practices were not only repugnant to the basic dignity of a woman as an individual but also violative of the fundamental rights guaranteed under Articles 14, 15, 21 and 25 of the Constitution.

Gulshan Parveen, despite her suffering, wanted restoration of conjugal rights, to ensure that her son grew up in a family. Atiya Sabri, given triple talaq by her husband through a letter to her brother, sought justice for the violence she was subjected to by her husband. Afreen Rehman, an MBA from Jaipur, who was divorced through instant triple talaq via speed post, sought to annul the unfair means adopted by her husband.

How it all began

The challenge to instant triple talaq arose before the Supreme Court in the most unlikely circumstances in a case heard and decided by a division bench on October 16, 2015. This was the case about a Hindu woman succeeding in the Bombay High Court in her plea of retrospective application of the Hindu Succession (Amendment) Act, 2005. The Supreme Court, while disagreeing with the High Court, held that for application of the Act in a pending case both the daughter and her father should be alive on the date of the amendment.

After disposing of this case, the court felt the urge to reform Islam and purge it of discrimination against women because it took note of counsel’s observations on triple talaq being discriminatory, which were unrelated to the main issue before the bench.

After going through the existing case law on the subject, the bench directed the registration of a public interest litigation (PIL) case and putting it up before the appropriate bench as per orders of the Chief Justice of India. This came to be known as Suo Motu Civil Writ Petition 2 of 2015, and titled as In Re: Muslim Women’s Quest For Equality vs Jamia Ulma-I-Hind (respondents).

Centre’s response

Although most of the petitioners had made the Central government a respondent in the case, they must have been relieved that it supported their prayers. In its counter-affidavit, the Central government submitted that gender equality and the dignity of women were non-negotiable, overarching constitutional values and could brook no compromise. Women must be equal participants and partners in the development and advancement of the world’s largest democracy and any practice that denudes the status of a citizen of India merely by virtue of the religion she happens to profess is an impediment to that larger goal, the government told the court.

The government further submitted that these practices could not be regarded as an essential or integral part of religion and would not, therefore, automatically be entitled to protection under Article 25. Even if such practices are considered integral to or essentially part of religion, Article 25 is qualified on grounds of morality, and morality would denote contemporary constitutional morality, which endeavours to strive for gender equality, dignity of women and the abandonment of practices which may be considered patriarchal, anachronistic or retrograde, the government reasoned before the court. The majority judges agreed with this reasoning.

Besides, the government relied on the fact that a large number of Muslim countries, which have overwhelmingly large Muslim populations and where Islam is the state religion, have undertaken reforms and regulated divorce law and polygamy. These include Pakistan, Bangladesh, Afghanistan, Morocco, Tunisia, Turkey, Indonesia, Egypt, Algeria and Iran. Since theocratic states have undertaken such reforms, it cannot be held that such practices are integral to religion, the government reasoned.

Interveners & impleaders

The National Commission for Women, Zakia Soman and Dr Noorjehan Safia Niaz of the Bharatiya Muslim Mahila Andolan (BMMA) were among those who intervened to seek directions against triple talaq. Muslim Mahila Research Kendra, a non-governmental organisation (NGO) based in Hyderabad, intervened to oppose any interference with Muslim personal law.

The Forum For Awareness Of National Security (FANS), an NGO, filed an intervention application, along with three women, Lubna Asif, Naseema Bano and Shahnaz Afzal, who suffered discrimination on account of triple talaq.

Impleading petitions were also filed by the All India Muslim Personal Law Board (AIMPLB), which submitted that Muslim personal law was a cultural issue, which was inextricably interwoven with religion. The board was, however, willing to restrict the practice without judicial intervention. A similar application was preferred by Jamiat Ulama-i-Hind, which claimed to be working for the protection of Islamic culture, tradition and heritage.

The well-known scholar Flavia Agnes appeared for Majlis Manch, an NGO working for the rights of women in Mumbai. She pointed out that Muslim women preferred to approach informal, non-judicial fora rather than judicial fora to dissolve their marriage. She also disclosed that in reality a large number of women were simply abandoned without any formal declaration of divorce. Women find the procedure of formal courts expensive, long-drawn and contentious, she told the court.

Indira Jaising, appearing for the Centre for Study of Society and Secularism, told the court that the impact of unilateral triple talaq was to render the wife instantly homeless, being driven out of the matrimonial home. It also renders her vulnerable to economic destitution, driving her to lengthy litigation for a just and fair maintenance.

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