Indian Supreme Court (hereafter SC) in a historic judgment with far reaching consequences for Indian Muslim women declared Triple Talaq (TT) illegal, against Constitution of India and against the tenets of Islam. The TT is an old practice amongst a section of Muslims in the world, more prevalent in India in which a Muslim husband would give instant divorce to his wife by uttering word 'talaq' three times in quick succession. The SC Constitution Bench on TT was headed by the Chief Justice, J S Khehar (to retire on August 25) and consisted of Justices Rohinton F Nariman, Uday U Lalit, S Abdul Nazeer and Kurian Joseph. This judgment was delivered by 3-2 majority since Chief Justice J S Khehar and Justice S Abdul Nazeer jointly held that legally Muslim Personal Law which included TT enjoyed constitutional protection and was beyond the scope of judicial scrutiny. They suggested that a separate law was needed to make it redundant. In brief, all Justices were in agreement that TT needed to go. [i]
Justice Joseph in his illuminating separate judgment while holding the sanctity of Personal Laws completely disagreed with the CJ and brother Justice Nazeer that TT enjoyed constitutional protection. He differed with Justices Nariman and Lalit too, who held that Personal laws were subject to judicial scrutiny. He held that this issue was well-settled in Shamim Ara ruling by the Court in 2002 in which it was held that TT lacked legal sanctity. The most crucial sentence in his judgment read: “What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”
It may be noted that instant TT also known by the nomenclature, Talaq-e-Bid'at (bad divorce) has been banned by this judgment of the SC but Muslim husbands continue to enjoy two other kinds of right to divorce, Talaq Ahsan and Talaq Hasan. As per Talaq Ahsan, a Muslim husband can divorce his wife by pronouncing talaq once every month in three consecutive months and this would be signified by menstruation cycles. According to Talaq Hasan, husband can divorce wife by pronouncing talaq “during successive menstruation cycles with no intercourse during any of the three cycles.
This path-breaking judgment came in while adjudicating appeals by five Muslim victims of TT, namely, Shayara Bano, Afreen Rehman, Gulshan Parveen, Ishrat Jahan, Aatiya Sabri and one NGO (Muslim Women's Quest for Equality) which was representing other Muslim women victims. The SC held hearing continuously between May 11-18, 2017 and had reserved judgment for August 22, 2017.
One important aspect of hearing of this case by SC was that apart from legal counsels of the appellants and government counsels, Lawyers of Jamiat Ulama, All India Muslim Personal Law Board (MPLB) who defended TT and one RSS organization put in their points of views before the SC. The RSS organization was represented by senior lawyer, Ram Jethmalani. MPLB was represented by Kapil Sibal whereas senior politician-lawyers Arif Mohammed Khan and Salman Khursheed helped SC in understanding the issue. The latter two were vocal in opposing the TT. Renowned legal luminary and women activist, Indira Jaising appeared for the NGO and stressed the fact that TT was continuation of violation of the Human Rights of Muslim Women.
Interestingly, this SC Bench and judgments on TT represent the diversity for which India is known. It is true that SC Justices deliver judgments rising above caste-creed-regional considerations. The five member Bench consisted of Justices following five prominent Indian religions, Sikhism, Islam, Hinduism, Christian and Zoroastrianism. While Justices belonging to the last three religions upheld the fact that TT is totally unconstitutional, Justice Joseph declared TT to be in contravention of Quran and Islam. Thus he echoed the sentiments of vast majority of Muslims of India who decried this practice despite it being vociferously supported by a section of Muslim clerics. On the other hand, CJ Khehar and Justice Nazeer declared it to be part of Muslim Personal Law and inviolable.
After this judgment the issue has now been shifted to the arena of Modi government and Parliament with conflicting opinions over the issue whether a law is needed to execute SC judgment.
There is no doubt that this decision will go a long way in emboldening not only Muslim women but Indian women in general to demand legal equality and discarding laws which make gender inequality and repression continue unhindered. But, as Indira Jaising, a leading constitutional lawyer and activist who brilliantly argued before the SC for victim Muslim women warned that there should be no complacency on the part of the women fighters for equality of status. She hoped that this judgment would open the floodgates for changing anti-women personal Laws in other religions also. According to her, "Several provisions of Hindu law, Muslim law, Christian law or Parsi law are unconstitutional. There are several writ petitions pending before the Court, which states that temple entry must be permitted to women in Sabarimalai. Obviously, the same question will arise then."
Naturally, the appellant Muslim victims of dehumanized practice of TT are overjoyed with this judicial victory. Shayara Bano echoing the sentiments of all other appellants said: "I welcome this judgment and completely endorse it. It is a historic day for Muslim women. We need to understand the plight of Muslim women in Indian society. This decision must be accepted and immediately applied." The leading counsel of her defence team, Amit Singh Chaddha described this judgment as a big step forward in the fight of Indian women for gender equality.
President of the Muslim Women Personal Law Board, Shaista Amber described it as historic judgment which was not only victory of all Indian women but also of Islamic principles of equality.
A leading male voice against TT, Arif M Khan whose assistance was sought by the SC in this case while hailing this judgment said: " This judgment will change the lives of not only Muslim women who despite heavy odds have fought and won this long arduous battle but will inspire other Indian women as well who are facing discrimination at home or at places of work. Their faith in our Constitution and judicial system will be redoubled and now they will fight back any oppression with more vigour and energy."
Another senior lawyer and activist, Rebecca John was glad that SC judgment "is a good and progressive one, which was long overdue for Muslim women, who have fought long and lonely battle. If anyone has to be celebrated for this, then it has to be the petitioners and those who stood by them all this while. I welcome the fact that a regressive unjust practice has been set aside."
This judgment was celebrated by RSS/BJP leaders also. PM Modi tweeted, "Judgment of the Hon'ble SC on Triple Talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment." BJP chief Amit Shah did not lag behind and declared welcoming the verdict said that it "marks the beginning of a new era of pride and equality for Muslim women. The BJP welcomes the respects the expansion of Muslim women's rights and sees today's court order as a step towards a determined New India." UP CM Yogi Adityanath commented that this judgment "will allow Muslim women to her justice". Senior RSS leader Indresh Kumar who looks after Indian Muslims hoped that thus Muslim women would join the mainstream. The gist of these patronizing comments was that it was one step in the direction of stopping appeasement of Muslims.
This love of RSS/BJP for Muslim women has to be compared with what Hindutva criminals did to Muslim women in pre/post-Ayodhya Mosque demolition period and 2002 genocide of Muslims in Gujarat out of thousands of communal attacks on Muslims in different part of India. A leading English daily ( Hindustan Times, March 21, 2002) narrating the criminal deeds of Hindutva gang in Gujarat wrote in an editorial, "daughters were gang raped in front of their fathers and then their heads bashed in. their fathers were doused with petrol and set on fire". These leaders conveniently forgot that one appellant in the present case before SC was Ishrat Jahan whose namesake was killed in a fake encounter on June 15, 2004. Investigations continue and there is no hope of getting the killers punished. In a similar but more blood chilling case Qauser Bi wife of Sohrabuddin was alleged to have been raped, strangulated and burnt by the police on September 25, 2005 in Gujarat, exactly two days after her husband's killing by the Gujarat police. Incidentally, Modi was CM of Gujarat during all these incidents.
If any organization which has accrued maximum shame in this case is the All India Muslim Personal Law Board and its leadership. According to historian and social activist, SI Habib, ''These women first knocked on the doors of the All India Muslim Personnel Board [AIMPLB], who ignored and mocked them. This situation would not have arisen had the AIMPLB, who claim to be leaders of Indian Muslims, had acted on the issue long back. Instant triple talaq is an un-Islamic practice. And the triple talaq that Quran recommends is a complicated and complex method that all the maulvis simply ignore."
They waited for 70 years in declaring it as 'bad divorce', even then did nothing about discarding it. The height of absurdity was that they still kept on calling it Divine and continue to do it even after the present SC judgment.
This lot of Islamic clergy remained indifferent to the fact that TT played havoc with the lives of women, most of them young, who were devout Muslims. These 'learned' Islamic scholars have no heart to feel the pain and suffering of victim Muslim women. They seem to be totally oblivious of the reality that all Islamic/Muslim countries discarded this atrocious practice long ago. Even in India a tiny section of Muslims take recourse to it. They are much worried about inviolability of Quran but remain ignorant of the fact that Holy Book does not allow it. Whoever tried to practice TT during the times of Prophet and first four caliphs were duly punished.
It is sad that such Islamic scholars who believe that only they have the franchisee of Islam and Shariah have turned Islam into a draconian anti-Muslim women religion. According to them the only task assigned to Islam in India is to cage Muslim women, humiliate and denigrate them. They keep on chanting about equality, justice and well-being from house-tops and minarets as fundamental principles of Islam but these are not for Muslim women, these are reserved for Muslim males only. With them around, the Hindutva gang is bound to succeed in denigrating Islam and its followers. If Muslims have become laughing stock it is due to such 'imams' or gurus of Islam. The fact is that just ended deliberations in the SC on TT have totally unmasked the anti-Muslim agenda of these Believers.
(Published on 28th August 2017, Volume XXIX, Issue 35)
[i] According to social activist Ovais Sultan Khan, "There is a lot of noise as to who deserves credit for the decision but the credit must go to the Supreme Court bench of Justice R Dave and Justice AK Goel, which had taken suo motu cognisance and instituted a public interest litigation, ‘Muslim Women’s Quest For Equality’ in 2015, while delivering a very regressive judgment against Hindu women and girls. Because of this ‘judicial Muslim appeasement’, everyone ignored the plight of the deprived Hindu women and girls. The agenda was to rescue the Muslim women from triple talaq, and it became the foremost issue for 1.3 billion Indians."