In striking down and barring the abhorrent practice of "triple talaq
", (instant divorce), the Supreme Court of India has, in one fell swoop, done more than any government has dared to do, since independence. The top court has not just termed triple talaq
unconstitutional , illegal and against the teachings of the Quran, but it has also affectively insulated Muslim women from being divorced in a jiffy and will henceforth have the same rights as their counterparts on other religions in matters of marriage .
The landmark judgement must come as a huge victory for not just the Haldwani-based Shayara Bano, the main petitioner in the Supreme Court, but also millions of Muslim women in the country who have had to live through the fear and humiliation of a quickie divorce. There have also been instances of men divorcing their wives by pronouncing talaq
three times, sometimes over the phone and even through text messages. It is in many ways a bittersweet moment for the likes of Shayara Bano who was divorced through a letter sent by speed post, while 29-year-old Zahida, mother of two, was divorced via an SMS by her husband in Burdwan; 40-year-old Khadija, mother of four, was divorced by her Muscat-based husband on the phone. The judgement validates their inalienable rights as woman but has come too late to change their own plight.
Till now, instant divorce or triple talaq
was considered legal in putting an end to marriages. However by a majority verdict of the five-judge bench, comprising significantly of judges from each of the major religions of the country - Hindu, Muslim, Sikh, Christian and Zoroastrian - the judgement unequivocally struck down the practice of instant divorce. In fact, the Supreme Court's judgement is in line with the position that courts have consistently taken since 1986 that Muslim women can invoke the rights guaranteed to them by the constitution.
The Supreme Court's verdict also lays down a clear benchmark on the question of personal laws versus the law of the land. The court's decision has settled the issue, once and for all, that when personal laws come into conflict with the secular law of the land, it's the latter which will prevail. So far, the law of the land applies equally to all its citizens, except in matters pertaining to marriage, succession, divorce and inheritance, where different religions are governed by their own set of personal laws. The Supreme Court has now ensured that irrespective of religion, there will be uniformity as far as issues relating to divorce are concerned.
Organisations claiming to represent the Muslim community as well as the Jamiat Ulema-e-Hind, a 10-million-strong cadre-based organisation and one of the parties to the case in the Supreme Court, had contended before the Supreme Court that the source of the Muslim personal law is the Quran, hence it is inviolate and does not fall under the expression of the law in force. The Supreme Court has rejected that argument.
The majority verdict has rejected the position taken by the organisations like the All India Muslim Personal Law Board since the very beginning on issues related to laws pertaining to marriages, inheritance and divorce amongst Muslims . In 1985, the Muslim Personal Law Board and other like-minded organisations had vehemently opposed the granting of maintenance to the Shah Bano, an Indore- based divorcee .The Rajiv Gandhi government bucked under the pressure exerted by Muslim organisations and used its brute majority in parliament to overturn the Shah Bano verdict.
Under Islamic law, triple talaq
is a process that is completed over a period of three months, and not an event that can take place in an instant. However, over the years, this provision has been abused by men. Though no definite figures are available, anecdotal evidence points to the fact that instances in which this provision is being used and abused is on the rise.
While Prime Minister Modi and the BJP have openly supported the call for a change or review of personal laws, the credit for today's verdict must go to Muslim women. A survey conducted amongst Muslim women last year showed that 90 per cent of the women polled in the survey were vehemently opposed to triple talaq
. Over the years, they have organised themselves, and organisations like the Bhartiya Muslim Mahila Andolan (BMMA) have been actively pursuing the cause of gender justice for Muslim women. 12 years ago in Lucknow, some Muslim women went to the extent of setting up an All India Muslim Women Personal Law Board; they even prepared a model nikhanamah giving equal rights in matters of marriage and divorce to both men and women.
The majority verdict has not only invalidated and banned triple talaq
but in doing, so it has deprived political parties of the opportunity to politicise and claim credit for the decision. Though the minority view of Chief Justice JS Khehar and Justice S. Abdul Nazir called for parliament to legislate within six months, the majority verdict has clearly banned the abhorrent practice. The AIMPLB says it will take a considerate view on September 10 at their executive meeting in Bhopal, but they have no choice but to fall in line, and accept the apex court's verdict.
Not a tear will be shed now that Triple Talaq
has been affectively and rightfully consigned to the dustbin of history.(The writer is a senior journalist and political analyst.)Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.
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