The Supreme Court is all set to begin hearing arguments in Shayara Bano v. Union of India, which has popularly come to be known as the “triple talaq case”. This case, in which the constitutional validity of certain practices of Muslim personal law such as triple talaq, polygamy, and nikah halala has been challenged, has created political controversy across the spectrum. The All India Muslim Personal Law Board (AIMPLB) has warned secular authorities against interfering with religious law.
What is triple talaq?
‘Triple Talaq’ is a procedure of divorce under the Sharia Law which is a body of the Islamic law. Under this, a husband can divorce his wife by pronouncing ‘Talaq’ thrice.
What’s the issue all about- A brief history:
- The case dates back to 2016 when the Supreme Court had sought assistance from the then Attorney General Mukul Rohatgi on pleas challenging the constitutional validity of “triple talaq”, “nikah halala” and “polygamy”, to assess whether Muslim women face gender discrimination in cases of divorce.
- Opposing the practice of triple talaq, the Centre told the top court that there is a need to re-look at these practices on grounds of gender equality and secularism.
- The Supreme Court later announced the setting up of a five-judge constitutional bench to hear and deliberate on the challenges against the practice of ‘triple talaq, nikah halala’ and polygamy.
- The issue gained political momentum on March 2017 when the All India Muslim Personal Law Board (AIMPLB) told the Supreme Court that the issue of triple talaq falls outside the judiciary’s realm and that these issues should not be touched by the court.
- However, on August 22, the Supreme Court set aside the decade-old practice of instant triple talaq saying it was violative of Article 14 and 21 of the Indian Constitution.
Why triple talaq should be abolished?
- In spite of protests by Muslim women and activists world-wide the procedure is still prevalent in most countries.
- There are several instances where ‘triple talaq’ has enabled husbands to divorce their wives arbitrarily, devoid of any substantiation.
- According to a study, 92% of Muslim women in India want oral triple talaq to go.
- Oral talaq or ‘triple talaq’ delivered through new media platforms like Skype, text messages, email and WhatsApp have become an increasing cause of worry for the community.
- The ‘triple talaq’ has been abolished in 21 countries including Pakistan, but is still prevalent in India.
- The Centre reasons that these practices are against constitutional principles such as gender equality, secularism, international laws etc.
- The government also argues that when these practices are banned in Islamic theocratic countries, the practices could have absolutely no base in religion and are only prevalent to permit the dominance of men over women.
A bill in this regard:
In September, the government had proposed the Muslim Women (Protection of Rights on Marriage) Bill in the Parliament and sought to make triple talaq a punishable offence under the law.
At first, the Bill was passed in the Lok Sabha but it failed to secure a majority in the Rajya Sabha. The Bill was postponed till the winter session of Parliament. Following this, an ordinance was issued by the government after the bill failed to get cleared in Rajya Sabha amid protests by the Opposition.
Key provisions of the bill:
The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.
Definition: It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce. Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
Offence and penalty: The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused person without warrant.) The offence will be cognizable only if information relating to the offence is given by: (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.
The Bill provides that the Magistrate may grant bail to the accused: The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
The offence may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared). Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute. The terms and conditions of the compounding of the offence will be determined by the Magistrate.
Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount of the allowance will be determined by the Magistrate.
Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.
Arguments favouring the bill:
- Bill is needed so that even Muslim women also get equality on par with other Muslim men.
- Triple talaq adversely impact rights of women to a life of dignity and is against constitutional principles such as gender equality, secularism, international laws etc.
- The penal measure acts as a “necessary deterrent”
- It significantly empowers Muslim women.
- The practice of triple talaq has continued despite the Supreme Court order terming it void.
- The practice is arbitrary and, therefore, unconstitutional
- The law is about justice and respect for women and is not about any religion or community
- It protects the rights of Muslim women against arbitrary divorce
- Instant triple talaq is viewed as sinful and improper by a large section of the community itself.
- The fine amount could be awarded as maintenance or subsistence.
Arguments opposing the bill:
- It is well established that criminalising something does not have any deterrent effect on its practice.
- Since marriage is a civil contract, the procedures to be followed on its breakdown should also be of civil nature only.
- Civil redress mechanisms must ensure that Muslim women are able to negotiate for their rights both within and outside of the marriage
- The harsh punishment defies the doctrine of proportionality.
- Three years in prison of the convicted husband will end up penalising the already aggrieved wife and children too.
- The punishment will aggravate the insecurity and alienation of the Indian Muslim community
- In the recent Supreme Court judgement, it never said that triple talaq is to be criminally punished.
- Invoke a secular law that already exists: Protection of Women from Domestic Violence Act (PWDVA), 2005.
- Parliament should have passed a law stating that the utterance of the words “talaq, talaq, talaq” would amount to “domestic violence” as defined in the PWDVA.
- The PWDVA was conceived as a law that ensures speedy relief — ideally within three months — to an aggrieved woman
- While PWDVA is civil in nature, it has a reasonably stringent penal provision built into it
Challenges before the court:
The court cannot decide this case without engaging in a series of complex and difficult choices. In particular, the court will have to decide first whether to adjudicate the case in a narrow manner, which stops at assessing the relationship between triple talaq and Muslim personal law, of whether to undertake a broader approach, and ask whether personal law can be subject to the Constitution at all.
What experts say?
Relying upon the Supreme Court’s own judgments, experts point out that only those features of a religion are constitutionally protected which are “integral” or “essential” parts of it. There is no evidence to show that talaq-i-bidat constitutes an integral part of the Islamic faith and, consequently, it does not deserve constitutional protection.
On this view, the Supreme Court need not go into tangled and messy questions involving personal law and the Constitution; it can decide the question on its own terms. Although this would involve secular judges laying down the law on what Islam does or does not consider an essential religious practice, the Supreme Court has been engaging in such religious inquiry at least since 1966, and it is too late in the day to now say that it cannot, or should not. In fact, the Supreme Court itself, in a number of cases, has either doubted the validity of instantaneous triple talaq, or gone so far as to say that it is not a part of Muslim personal law.
There is no doubt that triple talaq violates women’s rights to equality and freedom, including freedom within the marriage, and should be invalidated by the Supreme Court. The larger question, however, is whether the court will stick to its old, narrow, colonial-influenced jurisprudence, and strike down triple talaq while nonetheless upholding a body of law that answers not the Constitution, but to dominant and powerful voices within separate communities; or will it, in 2017, change course, and hold that no body of law (or rather, no body of prescriptions that carries all the badges and incidents of law) can claim a higher source of authority than the Constitution of India?