The triple talaq judgment : some preliminary thoughts

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India Divorces Triple Talaq

One of the most inclusive benches in recent times delivered its judgment in Re: Muslim Womens Quest For Equality versus Jamiat UlmaIHind (“Triple Talaq Case”), vide which the Hon’ble Supreme Court set aside the practice of instant triple talaq followed by Muslim men for parting ways with their wives by a majority of 3:2. What appears to be divided verdict on the face of it, is actually unanimous when it comes to upholding the dignity of women and furthering the cause of gender justice in India.

Before we move to the nuances of the judgment it is important to understand certain concepts which will make the understanding of the judgment and its imports even better. Muslim marriage (Niqah) is one of the few marriage ceremonies which is shorn of any religious requirement, and is in fact Muslim marriage is contract. It would be really hard to find any other union of a man and women that does not involve or require any sacrament or religious ceremony. If one has to borrow a word from the Triple Talaq Case itself Astonishingly Modern is very apt to describe Muslim marriage.

Whereas Muslim marriage is one of the most modern union of man and women, the process of decoupling from this union is one of the most gender biased, exclusionary and regressive in nature. It is pertinent to note that there are many forms of divorces available to Muslims but the scales are heavily tilted in favor of Muslim men. The three major type divorce include Talaq (available exclusively to men), Khula (delegated to women) and Mubarat (mutual consent).

The question before the Hon’ble Supreme Court related to Talaq, more specifically TalaqeBiddat. Talaq is divided into three types and these are as follows:

  • Talaqeahasan – It is the most approved form of Talaq, it is approved by the holy Quran and Hadith. It involves single pronouncement of divorce followed by a period of abstinence (Iddat), the period usually is of 90 days (three menstrual cycles when wife is menstruating) or three lunar months when wife is not menstruating. It is most approved form of divorce because the same is revocable and leaves room for reconciliation between the couple. The divorce becomes final and irrevocable if reconciliation fails and Iddat period is over.
  • Talaqehasan­It is approved form of Talaq which involves three successive pronouncements of divorce over the period of 90 days, one each at the end of every Tuhr (Period of purity). The divorce becomes final after the third pronouncement, it is pertinent to note that this form of divorce also leaves room of reconciliation and becomes irrevocable only after the Iddat is over and no resumption of conjugal relationship has taken place.
  • TalaqeBiddat (Instant Triple Talaq) – It is the most disapproved form of divorce, and before the pronouncement of judgment in Triple Talaq Case it is was considered Bad in theology, but good in law. It is a Talaq by innovation. It entails single irrevocable pronouncement of divorce, which leaves no room for reconciliation and thus is disapproved. This type of divorce left the women completely at the mercy of the husband. This gave a unilateral power of divorce to Muslim male which could be exercised at his whims and fancies. The only recourse available to resume conjugal relationship is Halala which involves marriage of the women with another and its consummation followed by Talaq. The question as to validity of Nikah Halala was also raised before the Hon’ble Supreme Court, but it was not entertained by it.

The Hon’ble Supreme Court in Triple Talaq Case concerned itself validity of Instant Triple Talaq i.e. Talaqebiddat. The question of validity of Instant Triple Talaq is contentious not only because it involves the questions of equality as enshrined in Article 14 of the Constitution but also because of present election mode politically charged landscape of India.

The real test of the Hon’ble Supreme Court was to throw the political considerations out of the window and deal the issue as essentially a constitutional one. A divided verdict notwithstanding, the Apex Court did exactly that. The issues dealt with by the Apex Court in reaching the verdict included, whether Triple Talaq was a matter of faith and thus protected under Article 25 of the Constitution?, Does the practice of Triple Talaq forms the part of personal law? Did the Muslim Personal Law (Shariat) Application Act, 1937 (Shariat Act) confers statutory status to the subjects regulated by it? Whether Instant Triple Talaq was bad in theology and good in law?

The issues that tilted the tide in favor abolition of practice of Instant Triple Talaq are as follows:

Bad in Theology, bad in Law

The Hon’ble Supreme Court discussed at length the vexed question whether Instant Triple Talaq was Bad in Theology and good in law?  The Hon’ble Apex Court went through plethora of cases to determine the theological and legal sanctity of Instant Triple Talaq, the two judgments which put forward the contentious view point are that of The Privy Council (PC) in Rashid Ahmed v. Anisa Khatun[1] which held the practice of Instant Triple Talaq to be valid. In this case the PC held the triple talaq to be final and irrevocable even after the couple had cohabited for 15 years after pronouncement of divorce. The contrary view in relation to triple talaq’s validity comes from Jiauddin Ahmed v. Anwara Begum[2] (Jiaudin)in the said case the Hon’ble Guwahati High Court held that the observation made in earlier cases regarding Instant Triple Talaq i.e. Bad in theology, good in law were based on wrong premise the same being treating women as chattel belonging to husband.

The judgment in Jiauddin discusses various Quranic verse and commentaries of contemporary scholars on the subject. Divorce as a practice is frowned upon under Islamic tradition, Prophet Mohammad (PBUH) said the following regarding Divorce Never Did Allah allow anything more hateful to him than Divorce. Divorce if becomes inevitable must be followed by a period of reconciliation, a valid reason should be assigned for the same, it can never be in secrecy and it can never be arbitrary. Justice Kurien in the Triple Talaq case relied heavily on Shamim Ara v. State of UP (Shamim Ara) and others[3] which endorses Jiauddin[4], and stated that it would be wrong to suggest that there is no ratio decidendi in Shamim Ara[5]. In fact Shamim Ara holds fort when it comes to Instant Triple Talaq in India, it is ex facie illegal and against the tenants of Holy Quran. Thus Justice Kurien rightly held what is held 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.”

Arbitrariness is anathema to the Equality

Justice Nariman attacked the practice of Instant Triple Talaq on the grounds of Arbitrariness and held it to be violative of Article 14 of the Constitution. Justice Nariman cited plethora of judgments of the Apex Court which have held that Arbitrariness is nothing but an anathema to Equality. The practice of Instant Triple Talaq which rests solely on the whims of a Muslim man do not deserve the sanctity of law and was rightly held to be falling foul with the test of Arbitrariness as put forth in E. P. Royappa v. State of T. N[6]. In the present day and time restriction of Article 14 to mere test of classification would amount restriction of what is actually a very wide right, which allows the State to not only omit but also act. Further Article 14 forms with Article 19 and Article 21 this holy troika which gets destroyed if even any one of them is disturbed. Thus Hon’ble Supreme Courts application of Article 14 and eventual striking down of Instant Triple Talaq does a great service to the rights movement in India.

Some issues were dealt with by the Hon’ble Supreme Court, yet the same remain undecided:

Statutory color to the practices mentioned in Shariat Act

During the arguments in the present case, one line of argument that was taken by the Petitioners was that the Shariat Act, has in a sense codified Muslim law and all the provisions contained in the same, thus if any of its provision abrogates or takes away any fundamental right the same can be set aside as per Article 13 of the Constitution. The crux of the argument being, after the passing of the Shariat Act, it no longer remains part of personal law and thus opens itself to challenge for violation of the Constitution. The Apex court however was split on this issue while Justice Kurien agreed with the view of Justice Kehar that the Shariat Act is not a legislation regulating Talaq, thus the same cannot be tested at the anvil of Article 14, Justice Nariman held it otherwise. It can be safely said the Hon’ble Supreme Court missed an opportunity to decide with finality whether Personal laws can be tested on the grounds that they violate fundamental rights. The Court could have probed the complex relationship between the Constitution and Religion and come up with answers. The question as to whether personal law is law within the meaning of Article 13 could have been dealt with in greater detail. This was an opportunity for course correction as some quaint judgments held personal law (uncofidied) not to be ‘law’ within the meaning of Article 13 and therefore, exempt from constitutional scrutiny. The issues becomes highly important in the light of the fact that even if one considers Personal laws as fundamental rights as enshrined and safeguarded under Article 25[7] of the Constitution the same is subject to other provisions of part III (Fundamental Rights) of the Constitution. As things stand today Shariat Act does not regulate Talaq in India, thus Shariat Act has not codified the practices governed by it rather Shariat Act is rule of decision[8] in contentious issues in Muslim Law including matter of Talaq. It is an act passed to abolish, inhumane practices and customs against Muslim women.

Another bone to pick with the judgment would perhaps be the judgment written by Chief Justice Kehar Justice Nazeer wherein they dissented, holding that the practice of triple talaq as a part of Islam, and asked Parliament to bring about its reform through legislation. The six month injunction against exercise of this right was a little baffling and of tenuous legal standing, as it is almost tantamount to saying that ‘X’ practice is a constitutionally protected right, but its practice is being injuncted for an ‘X’ period.

Conclusion

It is a good riddance to an abhorrent practice called TalaqeBiddat. A practice which was neither consistent with words of the Prophet (PBUH) nor with the provisions of the Constitution. Equality in the matter of divorce, which was earlier denied, to Muslim women has somewhat been provided, Muslim Divorce is no longer whimsical and capricious rather it would now be govern by reason.

 

[1] AIR 1932 PC 25

[2] (1981) 1 Gau. L.R. 358

[3] (2002) 7 SCC 518

[4] Supra

[5] Supra

[6] (1974) 4 SCC 3

[7] Article 25

Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion…

[8] Section 2 the Muslim Personal Law (Shariat) Application Act, 1937

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